Terrace Tower Holdings Pty Ltd v Sutherland Shire Council

Terrace Tower Holdings Pty Ltd (the applicant) sought development consent for a bulky goods retail centre. The Sutherland Shire Council (the respondent) refused the application. The applicant appealed this refusal to the Land and Environment Court, which dismissed the appeal. The applicant then appealed to the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was the proper interpretation and application of section 79C(1) of the *Environmental Planning and Assessment Act 1979* (NSW). Specifically, the court had to determine what "proper regard" meant in relation to a draft planning instrument that was in force at the time of the proceedings, and whether the weight to be accorded to such a draft instrument was a question of law or fact. The court also considered the purpose of the draft instrument and its relevance to the public interest.

The Court of Appeal held that the question of whether proper regard had been had to a draft planning instrument was a question of law. It clarified that a draft instrument, if in force, must be given proper regard, and that the weight to be accorded to it depended on its proximity to finalisation and its certainty and imminence. The court found that the Land and Environment Court had correctly applied these principles in its assessment of the development application, considering the purpose of the draft instrument and its potential impact.

The appeal was dismissed, and Terrace Tower Holdings Pty Ltd was ordered to pay the costs of Sutherland Shire Council.