HOBBS v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review)

The applicants, Hobbs, sought judicial review of a decision by the respondent, the ACT Planning and Land Authority, to approve a development application by the second respondent. The development application was for a new dwelling on a block of land that adjoined the applicants' property. Hobbs claimed that the approval was unlawful due to a range of reasons including that the approved development would not comply with the boundary setbacks as required by the relevant planning scheme. The court was required to determine whether the respondent's decision to approve the development was lawful and, if not, what remedy was appropriate.

The court considered that the boundary setbacks were a material consideration in the approval process. The court found that the development did not comply with the boundary setbacks as required by the planning scheme, and that this non-compliance was relevant to the criteria for assessing the application. The court also found that the failure to comply with the setbacks meant that the buildings did not achieve consistency with the desired character as set out in the zone objectives and did not provide reasonable amenity for residents. Furthermore, the court found that the setback requirements were necessary to meet the zone objectives for low density and respect for valued features of the neighbourhood and landscape character. The court also found that the respondent's failure to consider the setback requirements in the approval process was a material error that rendered the decision unlawful.

Accordingly, the court set aside the respondent's decision to approve the development and substituted a decision to refuse the application. The court also ordered that the respondent expedite any further development application by the second respondent to the extent possible. The court found that the remedy of setting aside the decision and substituting a refusal was appropriate given the material error in the approval process and the significant impact that the approved development would have on the applicants' property and enjoyment of their land.