Port Stephens Council v Chan Industrial Pty Limited

The Court of Appeal of New South Wales considered an appeal by Port Stephens Council against a declaration made by Cowdroy J in the Land and Environment Court. The dispute concerned the lawfulness of a development consent granted by the Council, specifically whether a building erected under that consent exceeded the height limit stipulated in the Council's Local Environmental Plan (LEP). The core of the disagreement lay in the proper construction of the definition of "height" within the LEP and its application to the building in question.

The primary legal issue before the Court of Appeal was the correct interpretation of the definition of "height" as contained in the LEP. This involved determining how to measure the height of the building in light of the LEP's provisions and considering the proper approach to construing delegated legislation, particularly in relation to the object or purpose of the height control. The Court had to decide whether the building, as constructed, complied with the mandated height limit.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in his construction of the LEP's height definition. The Court reasoned that the definition required a particular method of measurement that had not been correctly applied. Consequently, the declaration and orders made by Cowdroy J were set aside. The proceedings were remitted to the Land and Environment Court for further consideration and determination in accordance with the Court of Appeal's decision. Port Stephens Council was awarded its costs in the Court below and on appeal, with a certificate under the Suitors' Fund Act 1951 granted to the first respondent in respect of the appeal costs.