City of Burnside & Ors v City Apartments Pty Ltd

In City of Burnside & Ors v City Apartments Pty Ltd, the appellants, City of Burnside and another, appealed against a decision of the Environment, Resources and Development Court ("ERD Court") which granted City Apartments Pty Ltd provisional development planning consent for the construction of a dwelling. The applicants sought consent to construct a three-storey dwelling on a site, which was subject to a development plan that aimed to preserve the natural character of the area, ensure bushfire safety, and minimise excavation and filling. The Council initially refused the application, but the ERD Court subsequently granted consent subject to certain conditions.

The primary legal issues for the court to decide were whether the ERD Court failed to properly consider provisions of the development plan relating to the preservation of natural character, bushfire safety, and minimisation of excavation and filling. Additionally, the court had to determine whether the ERD Court failed to consider whether placing the development at a different site on the subject land would better satisfy the provisions of the development plan. Furthermore, the court examined whether the ERD Court erred in granting provisional development planning consent on the basis of an amended landscaping plan.

The court found that the ERD Court did not fail to properly consider the provisions of the development plan. It held that the court considered the issue of alternative locations on the land, but rightly decided that it was no more than a possibility that such a location could be found. The court also held that the reduction of bushfire risk, obtrusiveness, and excavation was speculative and could not be quantified. The court concluded that it was open to the ERD Court to reach the conclusion that it did. The court further held that the ERD Court did not err in granting provisional development planning consent on the basis of an amended landscaping plan.

The appeal was dismissed, and the decision of the ERD Court was upheld. The court held that the ERD Court's approach to the issues was correct, and it was not open to this Court to substitute its conclusion for that of the ERD Court. The Chief Justice and another judge agreed that the appeal should be dismissed for the reasons expressed.