Reported Decision: 72 NSWLR 647
New South Wales
Court of Appeal
CITATION: GPT RE LIMITED v BELMORGAN PROPERTY DEVELOPMENT PTY LIMITED [2008] NSWCA 256 HEARING DATE(S): 10 September 2008
JUDGMENT DATE:
15 October 2008JUDGMENT OF: Basten JA at 1; Bell JA at 110; Young CJ in Eq at 111 DECISION: (1) Appeal allowed and orders made in the Land and Environment Court on 29 January 2008 in matter No. 41049 of 2006 set aside.
(2) Remit the matter to the Land and Environment Court for determination by that Court in accordance with law.
(3) Order the respondent to pay the appellant’s costs of the appeal.
CATCHWORDS: ADMINISTRATIVE LAW – draft local environmental plan – draft control plan – development application – mandatory considerations – whether Council considered development application with reference to draft local environmental plan – presumption of regularity – prohibition on retail premises exceeding 400m2 – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - APPEAL – whether orders available in trial context available on appeal – jurisdiction and powers of Land and Environment Court – powers of Court of Appeal in appeal from class 4 proceedings – exercise of power under Division 3 of Part 3 of the Land and Environment Court Act 1979 (NSW) – Environmental Planning and Assessment Act 1979 (NSW) s 124 – Land and Environment Court Act 1979 (NSW) ss 25A, 25B, 25E, 58 – Supreme Court Act 1970 (NSW) s 75A - ENVIRONMENT AND PLANNING – consent – conditions of consent – conferral of function on Director-General of Department of Planning where not consent authority for purposes of development application – Director-General not subject of statutory constraint - ENVIRONMENT AND PLANNING – development application – deferred commencement consent – conditions of consent – whether consent accords with development application made – whether consent definitive – whether conditions of consent involve substantial changes to proposed development – whether conditions of consent assessable according to clear criteria – reconfiguration of levels in development and car parking space required – Environmental Planning and Assessment Act 1979 (NSW) ss 78A, 80, 80A - EVIDENCE – presumption of regularity – whether presumption operates where evidence exists from which an inference could be drawn – party with burden of persuasion – whether basis for finding invalidity of exercise of statutory authority – whether failure to comply with necessary precondition to exercise of power – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - WORDS & PHRASES – “clear criteria” – “consent” – “details” – “presumption of regularity” – “project” LEGISLATION CITED: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16
Administrative Decisions Tribunal Act 1997 (NSW), s 119
Environmental Planning and Assessment Act 1979 (NSW), ss 34, 54, 55, 64, 65, 66, 70, 75A, 75B, 75D, 75E, 75ZA, 76, 76A, 76B, 78A, 79C, 80, 80A, 83B, 103, 122, 123, 124; Parts 3A; 4, Div 2A; 5
Interpretation Act 1987 (NSW), s 45
Land and Environment Court Act 1979 (NSW), ss 20, 22, 23, 25A, 25B,…
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Details
- Case
- [2008] NSWCA 256
- Decision Date
CaseChat Overview and Summary
The appeal concerned a development application made by Belmorgan Property Development Pty Ltd (the respondent) to GPT RE Ltd (the appellant). The dispute arose from the appellant's decision to refuse the development application, which the respondent subsequently challenged in the Land and Environment Court. The Court of Appeal of New South Wales was required to determine the appeal from the Land and Environment Court's decision.
The primary legal issues before the Court of Appeal were whether the Land and Environment Court had erred in its findings regarding the appellant's consideration of the development application, particularly in relation to a draft local environmental plan. This involved determining whether the appellant had properly considered the development application with reference to the draft plan, and whether the presumption of regularity applied to the appellant's decision-making process. Further issues concerned the nature and effect of a deferred commencement consent, and whether conditions imposed on such a consent involved substantial changes to the proposed development, thereby rendering the consent not accordant with the application made. The Court also considered the jurisdiction and powers of the Land and Environment Court and the Court of Appeal in such proceedings.
The Court of Appeal found that the Land and Environment Court had erred in its assessment of the evidence and the application of legal principles. Specifically, the Court of Appeal determined that the presumption of regularity, while generally applicable, could be displaced by evidence suggesting a failure to consider relevant matters. The Court also held that the conditions imposed on the deferred commencement consent were not sufficiently definitive and potentially involved substantial changes to the proposed development, raising questions about whether the consent accorded with the development application. The Court of Appeal allowed the appeal, setting aside the orders made by the Land and Environment Court and remitting the matter back to that Court for redetermination.
The primary legal issues before the Court of Appeal were whether the Land and Environment Court had erred in its findings regarding the appellant's consideration of the development application, particularly in relation to a draft local environmental plan. This involved determining whether the appellant had properly considered the development application with reference to the draft plan, and whether the presumption of regularity applied to the appellant's decision-making process. Further issues concerned the nature and effect of a deferred commencement consent, and whether conditions imposed on such a consent involved substantial changes to the proposed development, thereby rendering the consent not accordant with the application made. The Court also considered the jurisdiction and powers of the Land and Environment Court and the Court of Appeal in such proceedings.
The Court of Appeal found that the Land and Environment Court had erred in its assessment of the evidence and the application of legal principles. Specifically, the Court of Appeal determined that the presumption of regularity, while generally applicable, could be displaced by evidence suggesting a failure to consider relevant matters. The Court also held that the conditions imposed on the deferred commencement consent were not sufficiently definitive and potentially involved substantial changes to the proposed development, raising questions about whether the consent accorded with the development application. The Court of Appeal allowed the appeal, setting aside the orders made by the Land and Environment Court and remitting the matter back to that Court for redetermination.
Orders
Orders of the court
(1) Appeal allowed and orders made in the Land and Environment Court on 29 January 2008 in matter No. 41049 of 2006 set aside. (2) Remit the matter to the Land and Environment Court for determination by that Court in accordance with law.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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