North Sydney Council v Ligon 302 Pty Ltd

North Sydney Council (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales, which had upheld a challenge by Ligon 302 Pty Ltd (the respondent) to the validity of a development consent granted by the Council. The dispute concerned the Council's power to grant development consent for a mixed-use development, including residential apartments and commercial premises, on land zoned for commercial purposes.

The High Court was required to determine whether the Council had acted *ultra vires* in granting the development consent. Specifically, the Court had to consider whether the proposed residential use was permissible under the relevant planning controls, and if not, whether the Council had the power to grant consent for a use that was not expressly permitted but was arguably ancillary or incidental to the permitted commercial use. The central question was the scope of the Council's discretion in approving developments that included elements not strictly in accordance with the zoning provisions.

The Court reasoned that the *Environmental Planning and Assessment Act 1979* (NSW) conferred broad powers on consent authorities, including the power to grant consent for development that was not strictly in accordance with the objectives and provisions of a local environmental plan, provided that the development was not prohibited. However, the Court found that the proposed residential component was not ancillary or incidental to the primary commercial purpose of the development and was, in fact, a substantial and distinct use. The Court held that the Council had exceeded its powers by granting consent for a use that was not permitted by the zoning provisions and was not ancillary to a permitted use.

Consequently, the High Court allowed the appeal, setting aside the development consent and the orders of the Supreme Court.