Zhang v Canterbury City Council

The Court of Appeal of New South Wales heard an appeal concerning a development application lodged by the applicant, Zhang, with the respondent, Canterbury City Council. The dispute arose from the Council's refusal of the development application, which was subsequently appealed to the Land and Environment Court. The Commissioner of the Land and Environment Court upheld the Council's decision, leading to the present appeal to the Court of Appeal.

The central legal issue before the Court of Appeal was whether the Commissioner had erred in law by failing to properly "take into consideration" the relevant Development Control Plan (DCP) when determining the appeal against the Council's refusal of the development application, as required by section 79C(1) of the *Environmental Planning and Assessment Act 1979*. The appeal also involved a question of law pursuant to section 56A of the *Land and Environment Court Act 1979*.

The Court of Appeal found that the Commissioner had indeed failed to properly consider the DCP. The reasoning was that the Commissioner's judgment indicated a misunderstanding of the nature of the obligation imposed by section 79C(1). The Court clarified that "taking into consideration" does not merely mean acknowledging the existence of the DCP, but requires a genuine and substantive consideration of its provisions and their application to the specific development proposal. The Court held that the Commissioner's approach amounted to an error of law, as it did not involve a proper assessment of how the proposed development conformed with or deviated from the objectives and requirements of the DCP.

Consequently, the Court of Appeal allowed the appeal in part, setting aside the Commissioner's decision. The proceedings were remitted to the Commissioner to be determined afresh in accordance with the judgment of the Court of Appeal. Each party was ordered to bear its own costs of the appeal.