Burwood Council v PD Mayoh Pty Ltd

The New South Wales Court of Appeal considered a dispute between Burwood Council and PD Mayoh Pty Ltd concerning the validity of a development consent granted by the Council. The core of the disagreement revolved around whether the Council had properly exercised its discretion under the relevant planning legislation when granting the consent.

The Court was required to determine whether the Council had taken into account all relevant considerations and disregarded irrelevant ones when assessing the development application. Specifically, the Court had to consider whether the Council’s decision was affected by an error of law, such as an improper exercise of its statutory power, and whether the consent was therefore invalid.

In its reasoning, the Court of Appeal affirmed that a local council, when exercising its development control powers, must act in good faith and upon real, not ostensible, grounds. It must consider all matters which are required by the statute to be considered, and must not take into account any matters which are irrelevant. The Court found that the Council had failed to properly consider the submissions made by the applicant and had, in effect, predetermined the outcome of the application. This failure to properly consider relevant material and to afford procedural fairness meant the Council had not exercised its discretion lawfully.

Consequently, the Court of Appeal allowed the appeal, declared the development consent invalid, and remitted the matter to the Council for reconsideration according to law.