BIG COUNTRY DEVELOPMENTS PTY LIMITED v PENRITH CITY COUNCIL - [1998] NSWLEC 69 - NSWLEC 1998 case summary — Zoe

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BIG COUNTRY DEVELOPMENTS PTY LIMITED v PENRITH CITY COUNCIL

[1998] NSWLEC 69

Land and Environment Court (NSW)|1998-04-28|Before: Lloyd J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1998-04-28

Before

Lloyd J

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

The Applicant=s Contentions 8. I have assumed that it is the most recent draft development control plan which the applicant challenges in these proceedings. The applicant contends that the draft development control plan is invalid on three grounds: (1) It is being made for an improper purpose, namely to achieve that which the Chief Judge held had not been achieved by cl 6 of the existing development control plan and thereby to frustrate the pending Class 1 proceedings. There are other more suitable ways of achieving Council=s purpose without frustrating those proceedings. (2) Where a development control plan is sought to be made after the commencement of the Act, it must conform with the requirements of s 72, and with which the draft development control plan in this instance does not conform. (3) The draft development control plan is entirely disproportionate to the power to control development since, if made, it would preclude any form of appellate review based on the merits of the particular development.

[2]

The Council=s Contentions 9. (1) A development control plan may contain prohibitions as well as development standards (as explained in North Sydney Council v Ligon 302 Pty Limited (1995) 93 LGERA 23). (2) A development control plan as contemplated by cl 13(1) of the interim development order, the latter having been made under s 342U of the Local Government Act 1919, is not one which is governed by s 72 of the Act. (3) Alternatively, if s 72 of the Act applies, the proposed development control plan does in fact provide more detailed provisions than are contained in the deemed environmental planning instrument. (4) The principle of proportionality does not apply in the present circumstances. If, however, the principle of proportionality applies, there is in this case no lack of proportionality, since the purpose of the draft development control plan is to provide for the regulation of traffic on the subject land, that being a town planning purpose.

[3]

An Improper Purpose? 10. A development control plan made under s 72 of the Act may contain provisions which regulate a use which is permissible with consent and which have the character either of a prohibition or of a development standard. This was clearly stated by Cole JA (with whom Meagher JA and Abadee AJA agreed) in North Sydney Council v Ligon 302 Pty Limited (at 30): AThe content of development control plans is addressed by s 72. It is to contain >the more detailed provisions= than are contained in the North Sydney Local Environmental Plan , which council regards as necessary or desirable (s 72(1)). Generally the development control plan must conform to the North Sydney Local Environmental Plan (s 72(3)). However, that does not mean that where a use is permissible with consent under a North Sydney Local Environmental Plan , >more detailed provisions= regarded as desirable or necessary and specified in a development control plan may not regulate the circumstances in which a use is permissible with consent. There is no reason in principle why those >provisions= would not have the character either of a >prohibition= unless certain criteria are satisfied, or of a >development standard=, which permits a development only on satisfaction of certain criteria. The manner in which the requirement regarded as necessary or desirable by the council is expressed in a Development Control Plan does not determine the validity or invalidity as being within or without power. Content, not form, is to be looked at. To say that a particular use, here residential flat development in a special uses zone, is permissible only if it meets a certain developmental standard, or is prohibited if it does not is, in substance, the same. A particular provision, such as cl 14A North Sydney Local Environmental Plan, may not be a development standard within the meaning of that expression in the State Environmental Planning Policy No 1 , as Mayoh held, but it does not follow that such a height restriction may not be a >detailed provision= within the meaning of that expression in s 72 of the Environmental Planning and Assessment Act and thus may be contained in a development control plan.@

[12]

Does the principle of proportionality apply? 18. The next question is whether the draft development control plan is disproportionate to the power to control development. This raises the preliminary question of whether the principle of proportionality applies at all. Under the present state of the law, the principle of proportionality does not apply in Australia, except, perhaps, in certain areas of federal constitutional law. Examples of the latter in which proportionality has arguably been applied, include the external affairs power ( The Commonwealth v Tasmania (the Tasmanian Dam Case ) (1983) 158 CLR 1, at 172, 232-233, 259-261; Richardson v Forestry Commission (1988) 164 CLR 261 at 295-296, 303, 311-312, 326, 331); constitutional restraints under s 92 of the Constitution ( Castlemain Tooheys Limited v South Australia (1990) 169 CLR 436, at 473-474); the trademarks and corporations powers ( Davis v The Commonwealth (1988) 166 CLR 79, at 99-100); the conciliation and arbitration power ( Nationwide News Pty Limited v Wills (1992) 177 CLR 1, at 28-31); and the naturalisation and aliens power ( Cunliffe v The Commonwealth (1994) 182 CLR 272 at 293, 313, 333-335, 350, 373, 387). Even in the context of Federal constitutional law, the concept of proportionality is strictly confined to determining whether the validity of a law is supported by a purposive power ( Leask v The Commonwealth (1996) 70 ALJR 995). Moreover, in Leask , Dawson J (with whom Brennan CJ, McHugh and Gummow JJ concurred) held that the concept of reasonable proportionality is generally inappropriate to the Australian legal system (at 1004). I set aside, for the purpose of this discussion, those cases which refer to the need for a sufficient or real connection between delegated legislation and the power to regulate, such as South Australia v Tanner (1989) 166 CLR 161. In some of the constitutional cases referred to above, Cunliffe v The Commonwealth , for example, this seems to be the real basis for the decision.

Parties

Applicant/Plaintiff:

BIG COUNTRY DEVELOPMENTS PTY LIMITED

Respondent/Defendant:

PENRITH CITY COUNCIL

Cases Cited (13)

CITATION : BIG COUNTRY DEVELOPMENTS PTY LIMITED v PENRITH CITY COUNCIL [1998] NSWLEC 69 (28 April 1998) [1998] NSWLEC 31 PARTIES : BIG COUNTRY DEVELOPMENTS PTY LIMITED v PENRITH CITY COUNCIL [1998] NSWLEC 69 (28 April 1998) FILE NUMBER(S) : 40011 of 1998 CORAM: Lloyd J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 72 Interim Development Order No 28 - City of Penrith, cl 13 North Sydney Council v Ligon 302 Pty Limited (1995) 93 LGERA 23); Cleary v Maitland City Council (1983) 51 LGRA 85; The Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1, at 172, 232-233, 259-261; Richardson v Forestry Commission (1988) 164 CLR 261 at 295-296, 303, 311-312, 326, 331; Castlemain Tooheys Limited v South Australia (1990) 169 CLR 436, at 473-474; powers (Davis v The Commonwealth (1988) 166 CLR 79, at 99-100; Nationwide News Pty Limited v Wills (1992) 177 CLR 1, at 28-31; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 293, 313, 333-335, 350, 373, 387; CASES CITED: power (Leask v The Commonwealth (1996) 70 ALJR 995; South Australia v Tanner (1989) 166 CLR 161; Cunliffe v The Commonwealth; in Minister of State for Resources & Anor v Dover Fisheries Pty Ltd (1993) FCR 565; Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited (1996) 91 LGERA 31; New South Wales v Macquarie Bank Limited (1992) 30 NSWLR 307; South Australia v Tanner (1989) 166 CLR 161 (at 178); Commonwealth v Tasmania (the Tasmanian Dam Case; Cleary v Maitland City Council & Anor (1983) 51 LGRA 85 at 88 DATES OF HEARING: 30 March 1998 DATE OF JUDGMENT: 04/28/1998

(1995) 93 LGERA 23

(1983) 158 CLR 1

(1988) 164 CLR 261

(1990) 169 CLR 436

(1988) 166 CLR 79

(1992) 177 CLR 1

(1994) 182 CLR 272

(1996) 70 ALJR 995

(1989) 166 CLR 161

(1996) 91 LGERA 31

(1992) 30 NSWLR 307

[1998] NSWLEC 31