Ku-ring-gai Council v Bunnings Properties Pty Ltd

Ku-ring-gai Council appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of Sheahan J of the Land and Environment Court. The dispute concerned the Land and Environment Court Commissioner's handling of a development application that had been refused by the consent authority, Ku-ring-gai Council. The Commissioner had made interim findings, permitted an amendment to the development application, and subsequently granted consent to the amended application.

The primary legal issues before the Court of Appeal were whether the Commissioner had acted outside of their power in the manner in which the appeal was conducted, and whether the Commissioner had failed to exercise their jurisdiction by not finally disposing of the appeal in their initial judgment. Relatedly, the Court considered whether the Commissioner's approach, described as an 'amber light approach', was within the scope of the Court's merits review jurisdiction and whether the exercise of power was administrative or judicial.

The Court of Appeal reasoned that the Commissioner's actions were within the broad merits review jurisdiction of the Land and Environment Court. The Court held that the Commissioner was entitled to allow amendments to the development application and to grant consent to the amended application, even if this meant not finally determining the original appeal in the first instance. The 'amber light approach' was considered a legitimate procedural tool within the Commissioner's discretion to facilitate a just and efficient resolution of the development appeal.

Consequently, the Court of Appeal granted leave to appeal but dismissed the appeal brought by Ku-ring-gai Council, and also dismissed a cross-appeal by Bunnings Properties Pty Ltd. The Court ordered Ku-ring-gai Council to pay Bunnings Properties Pty Ltd’s costs of the proceedings in the Court of Appeal.