Hurstville City Council v Goreski

Hurstville City Council sought to overturn a decision of the Commissioner of the NSW Land and Environment Court, who had dismissed the Council's application for review of a decision by a Local Planning Panel to grant a development application. The Planning Panel had granted the application for a change of use of land from a retail car wash to a drive-through restaurant. The Council contended that the Panel had erred in concluding that the proposed development was in accordance with the relevant Local Environment Plan, and that the Panel had failed to properly apply the objective of the relevant clause. The respondents argued that the Panel's decision was correct and that the Council had failed to demonstrate that the Panel had erred in law.

The court was required to determine whether the Panel had erred in finding that the proposed development was in accordance with the relevant LEP. Specifically, the court needed to consider whether the Panel had applied the objective of cl 11A(1)(d)(iii) of the LEP correctly, which relates to the compatibility of the proposed use with the character of the area. The court also needed to consider whether the Panel had failed to properly consider the Council's submissions on the character of the area.

The court found that the Panel had erred in its application of cl 11A(1)(d)(iii) of the LEP. The court held that the Panel had failed to properly consider the character of the area and had not adequately assessed the compatibility of the proposed development with that character. The court found that the Panel had not given sufficient weight to the Council's submissions on the character of the area, and that the Panel's decision was therefore flawed. The court allowed the appeal in part and set aside the decision of the Commissioner so far as it displayed an error of law in relation to the objective in cl 11A(1)(d)(iii) of the LEP. The appeal was otherwise dismissed, and the matter was remitted to the Commissioner for further consideration in light of the court's reasons. The court also ordered the respondents to pay the appellant's costs of the appeal up to a certain date, and the appellant to pay 50% of the respondents' costs of the appeal subsequent to that date.