Country
Australia
Sources
InforMEA
Tagging
Land Use, Wetlands, Permits, Audits, Standing, Administrative
Abstract
The applicant had challenged the validity of a local environmental plan which rezoned land owned by the Council in part "Industrial" and in part "Environmental Protection (Wetlands)". The purposes of the amendments were described in the plan as being "to enable the land to be used for industrial purposes and for environmental protection”. The applicant argued that the public exhibition of the draft LEP was invalid on the basis that the description of the purposes in the draft plan as being to rezone the land for "industrial purposes", was misleading because it made no reference to the fact that part of the purpose was to permit the land to be used for retailing bulky goods. The Land and Environment Court dismissed the application and the appellant appealed. The issue for determination on appeal was whether a reasonable reader would have been misled into thinking that the amendments permitting rezoning for "industrial purposes" did not include the possibility of "bulky goods retailing". The Court of Appeal dismissed the appeal. The Court explained that a local environmental plan is required to be placed on public exhibition pursuant to the EP&A Act, s 66. The process of public exhibition, and hence the plan, may be invalid if the material presented would be misleading to the reasonable reader. The test of what is misleading depends upon the understanding which would be obtained by the reasonable reader. That person is assumed to be able to understand the inter-relationship of various documents placed on public exhibition and, where the local environmental plan being amended is one of those documents, will be expected to have looked at the parts of that document relevant to his or her concerns. The Court held that the public exhibition of a draft local environmental plan cannot be invalid because the document itself is misleading, unless it could be said that it required accompanying explanatory material which was not exhibited and that a decision of the council not to exhibit such material was manifestly unreasonable.