Alvanos and Ors v Shoalhaven Shire Council [2002] NSWLEC 42

Alvanos and Ors v Shoalhaven Shire Council [2002] NSWLEC 42

The power conferred on the council by cl 8A of the Shoalhaven LEP to adjust zone boundaries cannot be exercised by the Land and Environment Court on appeal under s 39(2) of the Land and Environment Court Act 1979, as it is not a function or discretion 'in respect of the matter the subject of the appeal,' but instead relates to the antecedent and administrative process of zone boundary determination, which remains with council. Therefore, the Court has no jurisdiction to make such a determination in these proceedings.

Jurisdiction
Australia
Judgment Date
20 February 2002
Procedural Posture
Class 1 Appeal / Preliminary Determination; Judgment on Questions of Law
Outcome
Court cannot exercise the council’s cl 8A power under s 39(2); question answered in the negative; application relating to this preliminary question refused.
Legal Topics
['power to Adjust Zone Boundary in Local Environmental Plan' 'jurisdiction of the Land and Environment Court' 'local Environmental Plan Interpretation']
['planning and Environment Law'] ['power to Adjust Zone Boundary in Local Environmental Plan' 'jurisdiction of the Land and Environment Court' 'local Environmental Plan Interpretation']

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Procedural Posture

Class 1 Appeal / Preliminary Determination; Judgment on Questions of Law

Legal Issues

  1. 1 ['Whether the Land and Environment Court may exercise the council’s power under cl 8A of the Shoalhaven Local Environmental Plan 1985 under s 39(2) of the Land and Environment Court Act 1979' 'If so, whether the circumstances justify exercise of that power to adjust the zone boundary']

Ratio Decidendi

The power conferred on the council by cl 8A of the Shoalhaven LEP to adjust zone boundaries cannot be exercised by the Land and Environment Court on appeal under s 39(2) of the Land and Environment Court Act 1979, as it is not a function or discretion 'in respect of the matter the subject of the appeal,' but instead relates to the antecedent and administrative process of zone boundary determination, which remains with council. Therefore, the Court has no jurisdiction to make such a determination in these proceedings.

Court Disposition

Court cannot exercise the council’s cl 8A power under s 39(2); question answered in the negative; application relating to this preliminary question refused.

Orders

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