Bettar v Council of the City of Sydney

Bettar sought judicial review of a decision by the Council of the City of Sydney to refuse consent to a development application for a residential flat building. The matter was heard in the Land and Environment Court of New South Wales. The primary issue was whether the refusal of the development application was unreasonable, and if the refusal was based on incorrect or irrelevant considerations. The secondary issue was whether the refusal was disproportionate in relation to the merits of the development proposal.

The court found that the refusal was unreasonable as it was based on an incorrect interpretation of the development's height. The court held that the height of the development was not the issue, but rather the design of the building, which did not comply with the planning controls. The court also found that the refusal was disproportionate to the merits of the development proposal, as the design could be amended to comply with the planning controls. The court held that the refusal was therefore invalid. The court further found that the refusal was based on irrelevant considerations, as the council had not considered the potential benefits of the development, such as the provision of affordable housing.

The court allowed the appeal and approved the development application, subject to the conditions of consent at Annexure ‘A’. The court ordered that Bettar pay the council’s costs thrown away as a result of the amendments made to the proposal in exhibit J, as agreed or assessed, within 28 days. The court also ordered that the exhibits, other than exhibits 1, J and L, be returned.