Gilbank v Bloore (No 2) [2012] NSWLEC 273

Gilbank v Bloore (No 2) [2012] NSWLEC 273

The Council did not fail to consider any mandatory relevant consideration because it was only obliged to assess the proposal before it, not hypothetical alternatives. Material concerning the eastern side passage, rear yard, and impacts on heritage significance and views was before the Council and can be inferred as considered. No legal error is established regarding failure to give the Development Control Plan fundamental weight. The decision was not unreasonable, illogical, or irrational as it met statutory discretion and planning assessment obligations. The grounds advanced largely amount to merits review rather than judicial review within the applicable legal framework.

Parties
First Applicant: Scott Peter Gilbank; Second Applicant: Margaret Audley; First Respondent: Robert Graham Bloore; Second Respondent: Pamela Joyce Bloore; Third Respondent: Orange City Council
Jurisdiction
Australia
Judgment Date
20 December 2012
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Application dismissed
Legal Topics
Judicial Review of Administrative Action, Failure to Consider Mandatory Relevant Considerations, Unreasonableness of Decision (wednesbury), Development Applications, Heritage Conservation, Development Control Plans
Administrative Law Planning and Environment Law Judicial Review of Administrative Action Failure to Consider Mandatory Relevant Considerations Unreasonableness of Decision (wednesbury) Development Applications Heritage Conservation Development Control Plans

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Parties

Scott Peter Gilbank

First Applicant

Margaret Audley

Second Applicant

Robert Graham Bloore

First Respondent

Pamela Joyce Bloore

Second Respondent

Orange City Council

Third Respondent

Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 Whether the Council failed to consider mandatory relevant considerations under Environmental Planning and Assessment Act 1979 s 79C(1)(c) when granting development consent
  2. 2 Whether the Council's determination was unreasonable, illogical or irrational (Wednesbury unreasonableness)
  3. 3 Whether the Council failed to accord appropriate weight to the Development Control Plan in assessing the development application

Ratio Decidendi

The Council did not fail to consider any mandatory relevant consideration because it was only obliged to assess the proposal before it, not hypothetical alternatives. Material concerning the eastern side passage, rear yard, and impacts on heritage significance and views was before the Council and can be inferred as considered. No legal error is established regarding failure to give the Development Control Plan fundamental weight. The decision was not unreasonable, illogical, or irrational as it met statutory discretion and planning assessment obligations. The grounds advanced largely amount to merits review rather than judicial review within the applicable legal framework.

Court Disposition

Application dismissed

Orders

  • The amended summons filed on 10 August 2012 is dismissed.
  • Costs are reserved.