Henroth Investments Pty Ltd v Sydney North Planning Panel

Henroth Investments Pty Ltd (the appellant) sought judicial review of a decision by the Sydney North Planning Panel (the first respondent) not to recommend a proposed rezoning of land. The second respondent was the Secretary of the Department of Planning and Environment. The dispute concerned the Panel's power to consider the proposal and whether it was obliged to have regard to a local strategy endorsed by the Department and the requirements of the Secretary.

The primary legal issues before the Court of Appeal were whether the Panel was obliged to consider the endorsed local strategy and the Secretary's requirements when deciding whether to make a recommendation on the planning proposal, and whether judicial review was available for the Panel's decision not to make a recommendation at this preliminary stage. The Court also considered the availability of judicial review where a failure to take a particular matter into account might have affected legal interests, and the appropriate orders for costs in proceedings involving multiple parties with similar interests and a decision-maker taking an active role.

The Court of Appeal held that the Panel's power to consider the proposal did not oblige it to make a recommendation, nor was it obliged to have regard to the local strategy or the Secretary's requirements at that preliminary stage. The Court found that the Panel's decision not to make a recommendation was not a reviewable administrative decision for the purposes of judicial review, as it did not finally determine the appellant's rights or interests. The Court further determined that the Panel had not failed to take into account any matter that it was legally required to consider, and therefore, no error of law had occurred.

The appeal was dismissed, with the appellant ordered to pay the costs of both the first and second respondents, subject to specific exclusions for the second respondent's costs relating to the preparation for and appearance at the hearing on 4 April 2019.