Frank and Susana Tomas v Ashfield Council

In this case, the appellants, Frank and Susana Tomas, contested the decision of the respondent, Ashfield Council, to grant approval for the development application (DA) 10.2015.21.1. The DA sought permission for the demolition of all existing improvements at 125-131 Croydon Road, Croydon, and the construction of a four-storey shop top housing development. The appellants argued that the approval was flawed due to several grounds, including that the decision-maker had failed to consider the impact on their adjoining property and the council's own planning policies. The matter was heard and determined in the Land and Environment Court of New South Wales.

The court was required to consider whether the decision to approve the DA was unreasonable and whether the decision-maker failed to take into account relevant considerations. Key issues included whether the decision-maker had appropriately assessed the impact of the proposed development on the appellants' adjoining property, and whether the approval complied with the council's planning policies and the Environmental Planning and Assessment Act 1979 (NSW). The court also needed to determine if there was any procedural unfairness in the way the decision was made.

The court found that the decision-maker had failed to adequately consider the impact of the proposed development on the appellants' adjoining property, as required by the Environmental Planning and Assessment Act 1979 (NSW). The court held that this failure constituted a significant error, leading to an unreasonable decision. Additionally, the court determined that the approval did not align with the council's own planning policies, further supporting the conclusion that the decision was flawed. The court allowed the appeal, setting aside the decision to approve the DA, and ordered that the DA be approved subject to certain conditions. The exhibits, excluding exhibits 1, A, and B, were returned to the parties.