Leichhardt Municipal Council v Montgomery

Leichhardt Municipal Council (the Council) sought special leave to appeal from a decision of the New South Wales Court of Appeal which had allowed an appeal by Mr Montgomery against the Council's refusal to grant him development consent for a proposed development. The dispute concerned the Council's assessment of the development application, specifically its consideration of the impact of the proposed development on the amenity of neighbouring properties.

The High Court was required to determine whether the New South Wales Court of Appeal had erred in its interpretation of the relevant provisions of the *Environmental Planning and Assessment Act 1979* (NSW) and the *Local Government Act 1993* (NSW) concerning the assessment of development applications and the consideration of amenity impacts. Specifically, the Court considered the scope of the Council's discretion and the extent to which it was required to consider the subjective impact of a development on neighbouring residents.

The High Court, comprising Gleeson CJ and Callinan J, granted special leave to appeal and allowed the appeal. Their Honours held that the Court of Appeal had erred in its approach. The Council was entitled to refuse development consent on the grounds that the proposed development would have an unacceptable impact on the amenity of neighbouring properties, even if those impacts were considered by the Council to be substantial. The Court emphasised that the Council's assessment of amenity impacts involved a degree of judgment and discretion, and that the Court of Appeal had impermissibly substituted its own view for that of the Council. The Court of Appeal's decision was set aside, and the matter was remitted to the Land and Environment Court for determination according to law.