Byron Shire Council v Greenfields Mountain [1999] NSWCA 461

Byron Shire Council v Greenfields Mountain [1999] NSWCA 461

The respondent's written notice under clause 43 of the Byron Local Environmental Plan 1988, served before the Plan was amended, had already obliged the Council to apply for and use its best endeavours to obtain approval for acquisition of the land. Even on the Council's hypothesis that the Governor had a discretion, that entitlement was a substantive accrued right, and the Council's corresponding obligation was an accrued obligation, preserved by s 34(4) of the Environmental Planning and Assessment Act 1979. The amendment of the Plan therefore did not defeat the respondent's entitlement, and the appeal failed.

Jurisdiction
Australia
Judgment Date
13 December 1999
Procedural Posture
Appeal / Court of Appeal Appeal From the Land and Environment Court of New South Wales
Outcome
Appeal dismissed with costs.
Legal Topics
['interpretation of Local Environmental Plan' 'compulsory Acquisition of Land' 'accrued Rights After Amendment of Environmental Planning Instrument' 'council Obligation to Use Best Endeavours to Acquire Land']
['local Government' 'environmental Planning' 'land Acquisition'] ['interpretation of Local Environmental Plan' 'compulsory Acquisition of Land' 'accrued Rights After Amendment of Environmental Planning Instrument' 'council Obligation to Use Best Endeavours to Acquire Land']

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Procedural Posture

Appeal / Court of Appeal Appeal From the Land and Environment Court of New South Wales

Legal Issues

  1. 1 ["Whether Byron Shire Council remained obliged to use its best endeavours to acquire the respondent's land after amendment of the Byron Local Environmental Plan 1988." "Whether the respondent's entitlement arising from its notice under clause 43 of the Byron Local Environmental Plan 1988 was a right acquired or accrued within s 34(4) of the Environmental Planning and Assessment Act 1979." "Whether an entitlement to have the Council apply for and use its best endeavours to obtain the Governor's approval was merely an entitlement to set in train a discretionary process or a substantive right."]

Ratio Decidendi

The respondent's written notice under clause 43 of the Byron Local Environmental Plan 1988, served before the Plan was amended, had already obliged the Council to apply for and use its best endeavours to obtain approval for acquisition of the land. Even on the Council's hypothesis that the Governor had a discretion, that entitlement was a substantive accrued right, and the Council's corresponding obligation was an accrued obligation, preserved by s 34(4) of the Environmental Planning and Assessment Act 1979. The amendment of the Plan therefore did not defeat the respondent's entitlement, and the appeal failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']