Bryan v Lane Cove Council and Anor [2007] NSWLEC 586

Bryan v Lane Cove Council and Anor [2007] NSWLEC 586

Amendment No 62 as made was not the product of an alteration within s 68(3) of the Environmental Planning and Assessment Act 1979. The exhibited draft applied to the whole Lane Cove Municipality and contemplated Council determining that covenants restricting development or use of land subject to consent would not apply, whereas the amendment as made applied only to Lots 1 and 2, DP 1063151, known as 83 and 85 Kenneth Street, and suspended covenants restricting erection or use of buildings on that land. The difference was significant in character, substance and legal effect, so the amendment as made was not an outcome of the Div 4 Pt 3 process and had never been exhibited as required by s...

Jurisdiction
Australia
Judgment Date
17 September 2007
Procedural Posture
Class 4 Judicial Review Proceedings / Application for a Declaration That Amendment No 62 to Lane Cove Local Environmental Plan 1987 Is Invalid
Outcome
Application allowed; declaration made that Amendment No 62 to Lane Cove Local Environmental Plan 1987 is invalid.
Legal Topics
['validity of Local Environmental Plan Amendment' 'public Exhibition Requirements' 'power to Alter Draft Local Environmental Plan' 'privative Provision Under S 35 of the Environmental Planning and Assessment Act 1979' 'restrictive Covenants']
['environmental Planning and Assessment' 'administrative Law' 'judicial Review'] ['validity of Local Environmental Plan Amendment' 'public Exhibition Requirements' 'power to Alter Draft Local Environmental Plan' 'privative Provision Under S 35 of the Environmental Planning and Assessment Act 1979' 'restrictive Covenants']

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Procedural Posture

Class 4 Judicial Review Proceedings / Application for a Declaration That Amendment No 62 to Lane Cove Local Environmental Plan 1987 Is Invalid

Legal Issues

  1. 1 ['Whether Amendment No 62 as made was publicly exhibited as required by Div 4 of Pt 3 of the Environmental Planning and Assessment Act 1979.' "Whether the changes between draft Amendment No 62 as publicly exhibited and Amendment No 62 as made were within the Council's power of alteration under s 68(3) of the Environmental Planning and Assessment Act 1979." 'Whether s 35 of the Environmental Planning and Assessment Act 1979 prevented the applicant from challenging the validity of Amendment No 62 after the three month period.' 'Whether any power under s 68(5) of the Environmental Planning and Assessment Act 1979 supported the changes to the draft plan.']

Ratio Decidendi

Amendment No 62 as made was not the product of an alteration within s 68(3) of the Environmental Planning and Assessment Act 1979. The exhibited draft applied to the whole Lane Cove Municipality and contemplated Council determining that covenants restricting development or use of land subject to consent would not apply, whereas the amendment as made applied only to Lots 1 and 2, DP 1063151, known as 83 and 85 Kenneth Street, and suspended covenants restricting erection or use of buildings on that land. The difference was significant in character, substance and legal effect, so the amendment as made was not an outcome of the Div 4 Pt 3 process and had never been exhibited as required by s...

Court Disposition

Application allowed; declaration made that Amendment No 62 to Lane Cove Local Environmental Plan 1987 is invalid.

Orders

  • ['Amendment No 62 to Lane Cove Local Environmental Plan 1987 is declared invalid.' 'The exhibits are returned.' 'Costs may be argued.']