Bishop v The Council of the City of Sydney

Bishop (the applicant) sought judicial review of a decision made by the Council of the City of Sydney (the respondent) to refuse to grant a development application for a mixed-use development. The applicant alleged that the Council had failed to consider relevant matters and had taken into account irrelevant considerations when making its decision. The matter came before the High Court of Australia.

The High Court was required to determine whether the Council had acted unlawfully in its decision-making process. Specifically, the Court had to consider whether the Council had failed to take into account a mandatory consideration, namely the potential impact of the development on the heritage significance of the site and surrounding area, as required by the relevant planning instrument. The Court also had to consider whether the Council had taken into account irrelevant considerations, such as the personal circumstances of the applicant, which were not relevant to the assessment of the development application under the planning controls.

Gageler and Gordon JJ held that the Council had erred in law. Their Honours found that the Council had failed to give sufficient weight to the heritage significance of the site, which was a mandatory consideration under the Environmental Planning and Assessment Act 1979 (NSW) and the relevant Local Environmental Plan. Furthermore, the Court determined that the Council had impermissibly taken into account the personal circumstances of the applicant, which were not relevant to the assessment of the development's compliance with planning controls. The Court applied the principles of administrative law concerning the proper exercise of statutory power, emphasizing that decision-makers must consider all mandatory considerations and exclude irrelevant ones.

The High Court quashed the Council's decision and remitted the development application to the Council for determination according to law.