El Cheikh v Hurstville City Council & 2 Ors [2002] NSWCA 173

El Cheikh v Hurstville City Council & 2 Ors [2002] NSWCA 173

The statutory notice for the Second Draft Plan was misleading as it failed to mention the proposed height restrictions, a material matter. Section 66 did not require explaining the plan's purpose, but when an explanation is provided, it must be accurate and complete. As the notice was misleading, it was invalid under s66, resulting in the Minister lacking power to make Amendment 23, rendering the amendment wholly invalid. Severance was not available as the amendment could not be separated into valid and invalid components.

Jurisdiction
Australia
Judgment Date
17 June 2002
Procedural Posture
Civil Appeal / Appeal From Land & Environment Court
Outcome
appeal upheld
Legal Topics
['local Environmental Plans' 'public Notice Requirements' 'statutory Interpretation' 'severance of Invalid Statutory Instruments']
['administrative Law' 'environmental Law' 'planning Law'] ['local Environmental Plans' 'public Notice Requirements' 'statutory Interpretation' 'severance of Invalid Statutory Instruments']

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Procedural Posture

Civil Appeal / Appeal From Land & Environment Court

Legal Issues

  1. 1 ['Whether the public notice of the draft local environmental plan was misleading and invalid under s66 of the Environmental Planning and Assessment Act 1979' 'Whether invalidity of the public notice rendered Hurstville Local Environmental Plan 1994 (Amendment No 23) invalid in whole or part' 'Whether the provisions relating to height restrictions could be severed from the remainder of the plan under s32 of the Interpretation Act 1987 (NSW)']

Ratio Decidendi

The statutory notice for the Second Draft Plan was misleading as it failed to mention the proposed height restrictions, a material matter. Section 66 did not require explaining the plan's purpose, but when an explanation is provided, it must be accurate and complete. As the notice was misleading, it was invalid under s66, resulting in the Minister lacking power to make Amendment 23, rendering the amendment wholly invalid. Severance was not available as the amendment could not be separated into valid and invalid components.

Court Disposition

appeal upheld

Orders

  • ['The appeal is upheld.' 'The orders of Lloyd J of 7 August 2001 are set aside.' 'It is declared that Hurstville Local Environmental Plan 1994 (Amendment No 23) is invalid and has no effect.' "The Council is to pay the appellant's costs of the appeal and of the proceedings in the Court below."]