Botany Bay City Council v Premier Customs Services Pty Ltd

The Court of Appeal of New South Wales considered an appeal by Botany Bay City Council against a decision of the Land and Environment Court concerning a development application. The dispute centred on the weight to be given to a Development Control Plan (DCP) when determining such applications under section 79C of the *Environmental Planning and Assessment Act 1979* (NSW).

The primary legal issue before the Court of Appeal was whether a consent authority, when determining a development application, is entitled to reject a general policy embodied within a portion of a DCP, or if it must give such a policy significant weight. This involved an examination of the statutory obligation to "take into consideration" the provisions of a DCP.

The Court of Appeal, comprising Ipp JA, Macfarlan JA, and Hoeben J, reasoned that while a consent authority is required to consider a DCP, it is not bound by its provisions in the same way as a statutory instrument. The Court clarified that a DCP represents a policy statement, and a decision-maker is entitled to depart from a general policy within a DCP if there are sufficient reasons to do so, provided the departure is justified and properly considered. The Court found that the Commissioner in the Land and Environment Court had erred in treating the DCP policy as having an overriding effect.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the previous orders of the Land and Environment Court. The matter was remitted to a Commissioner of the Land and Environment Court for determination in accordance with the Court of Appeal's decision. The respondent was ordered to pay the applicant's costs.