Canterbury Bankstown Council v Dib [2022] NSWLEC 79

Canterbury Bankstown Council v Dib [2022] NSWLEC 79

Clause 30AA of State Environmental Planning Policy (Affordable Rental Housing) 2009 was a development standard because it did not define the permissible development of a boarding house but specified a requirement or fixed a standard about the number of boarding rooms, an aspect of the development affecting size or density. The clause had the single function of fixing a standard expressed in subjective terms; the jurisdictional fact and the development standard were coterminous. Clause 4.6(2) of Bankstown Local Environmental Plan 2015 therefore empowered the grant of development consent notwithstanding contravention of cl 30AA, and the Commissioner made no error of law.

Jurisdiction
Australia
Judgment Date
29 June 2022
Procedural Posture
Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 Against a Commissioner's Decision Granting Development Consent / Appeal on Questions of Law
Outcome
Appeal dismissed with costs.
Legal Topics
['development Standards' 'boarding Houses in Zone R2 Low Density Residential' 'clause 4.6 Variation' 'jurisdictional Precondition' 'development Consent']
['environmental Planning and Development' 'land Use Planning' 'administrative Law'] ['development Standards' 'boarding Houses in Zone R2 Low Density Residential' 'clause 4.6 Variation' 'jurisdictional Precondition' 'development Consent']

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Procedural Posture

Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 Against a Commissioner's Decision Granting Development Consent / Appeal on Questions of Law

Legal Issues

  1. 1 ['Whether cl 30AA of State Environmental Planning Policy (Affordable Rental Housing) 2009 was a development standard within the meaning of s 1.4(1) of the Environmental Planning and Assessment Act 1979.' 'Whether the Commissioner erred in granting development consent without forming the opinion of satisfaction specified in cl 30AA that the boarding house had no more than 12 boarding rooms.']

Ratio Decidendi

Clause 30AA of State Environmental Planning Policy (Affordable Rental Housing) 2009 was a development standard because it did not define the permissible development of a boarding house but specified a requirement or fixed a standard about the number of boarding rooms, an aspect of the development affecting size or density. The clause had the single function of fixing a standard expressed in subjective terms; the jurisdictional fact and the development standard were coterminous. Clause 4.6(2) of Bankstown Local Environmental Plan 2015 therefore empowered the grant of development consent notwithstanding contravention of cl 30AA, and the Commissioner made no error of law.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal."]