Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

The Commissioner erred in law because, in relation to the eastern side setback adjoining a residential use, he put aside the standard set by the Development Control Plan and applied his own view of what was reasonable general policy. Although he could depart from the DCP in the particular circumstances of the site, he was not entitled to reject the policy embodied in it. Accordingly, he failed to take the DCP into consideration in the manner required by s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, and Biscoe J’s orders upholding that decision had to be set aside.

Jurisdiction
Australia
Judgment Date
03 August 2009
Procedural Posture
Application for Leave to Appeal and Appeal on Questions of Law Concerning a Development Application / New South Wales Court of Appeal From a Decision of Biscoe J of the Land and Environment Court Dismissing an Appeal Against a Commissioner’s Decision
Outcome
Leave to appeal granted; appeal allowed.
Legal Topics
['development Application' 'development Control Plan' 'environmental Planning and Assessment Act 1979 S 79 C' 'requirement to Take Relevant Matters Into Consideration' 'setbacks' 'error of Law']
['land and Environment' 'administrative Law' 'planning Law'] ['development Application' 'development Control Plan' 'environmental Planning and Assessment Act 1979 S 79 C' 'requirement to Take Relevant Matters Into Consideration' 'setbacks' 'error of Law']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal and Appeal on Questions of Law Concerning a Development Application / New South Wales Court of Appeal From a Decision of Biscoe J of the Land and Environment Court Dismissing an Appeal Against a Commissioner’s Decision

Legal Issues

  1. 1 ['Whether Commissioner Bly took into consideration the side setback requirements in the applicable Development Control Plan as required by s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979.' 'Whether the Commissioner impermissibly rejected the general policy embodied in the Development Control Plan and substituted his own approach.' 'Whether Biscoe J erred in dismissing the Council’s appeal on a question of law.']

Ratio Decidendi

The Commissioner erred in law because, in relation to the eastern side setback adjoining a residential use, he put aside the standard set by the Development Control Plan and applied his own view of what was reasonable general policy. Although he could depart from the DCP in the particular circumstances of the site, he was not entitled to reject the policy embodied in it. Accordingly, he failed to take the DCP into consideration in the manner required by s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, and Biscoe J’s orders upholding that decision had to be set aside.

Court Disposition

Leave to appeal granted; appeal allowed.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Set aside the orders dated 25 September 2008 made by Biscoe J of the Land and Environment Court.' 'Set aside the decision dated 23 May 2008 of Commissioner Bly of the Land and Environment Court.' 'Order that the appeal of Botany Bay City Council to the Land and...