Zhiva Living Dural Pty Limited v Hornsby Shire Council

Zhiva Living Dural Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court. The dispute concerned the refusal of a remitter to a commissioner after an appeal under section 56A of the *Environmental Planning and Assessment Act 1979* (NSW) had been upheld.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court judge had denied procedural fairness by failing to provide the parties with an opportunity to be heard on matters not initially raised in the section 56A appeal, and whether the matter should be remitted to the judge or the commissioner for further determination. The Court also considered an application for an extension of time to file the appeal and for leave to appeal.

The Court of Appeal found that procedural fairness had been denied. It reasoned that the judge had introduced new issues not canvassed in the section 56A appeal without affording the parties a chance to address them. Consequently, the appeal was allowed, and the previous orders were set aside. The matter was remitted to the commissioner for determination in accordance with the Court's decision and a prior decision of Moore J. The respondent was ordered to pay 25% of the appellant's costs in the Court of Appeal.