Smith v Wyong Shire Council [2003] NSWCA 322

Smith v Wyong Shire Council [2003] NSWCA 322

Wyong Local Environmental Plan 1991 (Amendment No. 118) was invalid to the extent it purported to rezone land at The Entrance and Long Jetty from 2(d) (High Density Residential Zone) to 2(c) (Medium Density Residential Zone), as Council failed to comply with Direction G9 under s117 and public exhibition requirements under s66(1)(b) of the Act. Severance is appropriate so invalidity is limited to the affected areas.

Jurisdiction
Australia
Judgment Date
22 December 2003
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal allowed; partial invalidity declared; costs ordered against first respondent.
Legal Topics
['validity of Local Environmental Plan' 'compliance With Ministerial Directions' 'public Exhibition Requirements' 'severability' 'council Powers Under Epaa']
['environmental Planning and Development' 'statutory Interpretation'] ['validity of Local Environmental Plan' 'compliance With Ministerial Directions' 'public Exhibition Requirements' 'severability' 'council Powers Under Epaa']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether Wyong Local Environmental Plan 1991 (Amendment No. 118) breached s117 Direction and s66(1)(b) requirements of Environmental Planning and Assessment Act 1979' 'Whether breach led to invalidity of the plan' 'Whether Council had power to prepare a plan inconsistent with Ministerial Direction' 'Whether provision of plan is severable']

Ratio Decidendi

Wyong Local Environmental Plan 1991 (Amendment No. 118) was invalid to the extent it purported to rezone land at The Entrance and Long Jetty from 2(d) (High Density Residential Zone) to 2(c) (Medium Density Residential Zone), as Council failed to comply with Direction G9 under s117 and public exhibition requirements under s66(1)(b) of the Act. Severance is appropriate so invalidity is limited to the affected areas.

Court Disposition

Appeal allowed; partial invalidity declared; costs ordered against first respondent.

Orders

  • ['Appeal allowed.' 'Orders made by Bignold J on 25 October 2002 set aside.' 'Wyong Local Environmental Plan 1991 (Amendment No. 118) declared invalid to the extent it purports to rezone as 2(c) land at The Entrance and Long Jetty that was 2(d) zone under the Plan.' "First respondent to pay appellant's costs of...