Castle Constructions Pty Limited v North Sydney Council

Castle Constructions Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court. The dispute concerned the Land and Environment Court's refusal to grant leave to appeal against a decision made by a Commissioner under section 56A of the *Land and Environment Court Act 1979* (NSW). This section allows for appeals from a Commissioner's decision to a judge of the Land and Environment Court.

The Court of Appeal was required to determine whether to grant leave to appeal from the judge's decision refusing leave to appeal the Commissioner's decision. Key issues included the factors to be considered when deciding whether to grant leave under section 57(4) of the Act, specifically whether the subsequent success of a development application could be a ground for refusing leave, the weight to be given to a draft Local Environmental Plan not properly exhibited, and the significance of the procedural history involving multiple rejections of the development application on its merits. The court also considered whether the appeal had sufficient prospects of success.

Campbell JA, with whom Macfarlan JA agreed, reasoned that the appeal had no real prospect of success. His Honour noted that the Commissioner's decision had been reviewed by a judge of the Land and Environment Court, and that the appeal to the Court of Appeal was from that judge's refusal of leave. The court considered the multiple rejections of the development application on the merits and the fact that the draft Local Environmental Plan had not been properly exhibited, concluding that these factors did not create a sufficient basis for granting leave to appeal. The proper approach to reviewing a Commissioner's findings was to consider them as a whole and in their context.

The application for leave to appeal was dismissed, and Castle Constructions Pty Limited was ordered to pay the costs of the application.