Al Maha Pty Ltd v Huajun Investments Pty Ltd

Al Maha Pty Ltd sought judicial review of a decision by a Land and Environment Court Commissioner that granted development consent to Huajun Investments Pty Ltd for a residential flat building. The development application had contravened a height development standard and was partly situated on neighbouring land. The Commissioner's decision was made in accordance with an agreement reached between the parties at a conciliation conference. Al Maha contended that the Commissioner lacked jurisdiction, that the neighbouring owner's consent was required, that the Commissioner failed to form the necessary opinions to justify the contravention of the height standard, and that the decision was legally unreasonable. Al Maha also challenged the validity of amendments made to the consent under the "slip rule" (Uniform Civil Procedure Rules 2005, r 36.17).

The primary legal issues before the Court of Appeal were whether the Land and Environment Court Commissioner had the jurisdiction to grant development consent that contravened a development standard, particularly when the consent was based on an agreement reached at a conciliation conference. The Court also had to determine whether the Commissioner had properly formed the requisite opinions to justify the contravention of the height standard, whether the development required the consent of the neighbouring landowner, and whether the amendments made to the development consent under the slip rule were valid. The overarching question was whether the Commissioner's decision to grant development consent was legally unreasonable.

The Court of Appeal found that the Commissioner had erred in law by granting development consent that contravened a development standard without forming the necessary opinions required by section 4.15(1)(h) of the Environmental Planning and Assessment Act 1979 (NSW). The Court held that a conciliation conference under the Act was not a mechanism for parties to agree to contravene development standards; rather, it was a process to facilitate agreement on matters that could be lawfully approved. The Court further determined that the Commissioner's amendments to the development consent under the slip rule were invalid because they went beyond correcting a clerical mistake or an error arising from an accidental slip or omission.

Consequently, the Court of Appeal quashed the development consent granted by the Land and Environment Court and declared it invalid. The Court ordered Huajun Investments Pty Ltd to pay the costs of Al Maha Pty Ltd.