Sydney City Council v Ipoh Pty Ltd

Sydney City Council (the Council) appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning a development application. The dispute arose because the Council, as the owner of the subject land which it held as an investment asset, was also the consent authority for the development application. The central question was whether this land, despite being owned by the Council for investment purposes and not being a public road, retained the character of "public land" for the purposes of the relevant planning legislation.

The primary legal issue before the Court of Appeal was the construction of the term "public land" within the context of the *Environmental Planning and Assessment Act 1979* (NSW) and the *Land and Environment Court Act 1979* (NSW). Specifically, the Court had to determine whether land owned by a local council purely as an investment asset, and not used for public purposes or as a public road, constituted "public land" such that it would preclude the Council from being the consent authority for a development application on that land. A further issue concerned the extent of the Land and Environment Court's powers under s 39(2) of the *Land and Environment Court Act 1979* in relation to such a determination.

The Court of Appeal, in allowing the appeal in part, reasoned that land owned by a council as an investment asset, and not dedicated to or used for public purposes, did not fall within the definition of "public land" for the purposes of the *Environmental Planning and Assessment Act 1979*. The Court distinguished between land held for public use and land held as a commercial investment. Consequently, the Council was not precluded from acting as the consent authority in this instance. The Court set aside the affirmative answer given by the primary judge to a specific question concerning the status of the land but otherwise dismissed the appeal. The Council was ordered to pay the opponent's costs of the summons for leave to appeal and of the appeal.