Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164

Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164

Clause 30 of North Sydney Local Environmental Plan 2001 is, in substance, inconsistent with clause 28D in respect of development within the North Sydney Centre, with the consequence that, as mandated by cl 28A, cl 28D prevails and cl 30 has no application to such determinations. Furthermore, where the Senior Commissioner previously expressed strong adverse views regarding the applicant's development, there is a reasonable apprehension of pre-judgment bias such that the matter on remittal should be heard by a Commissioner other than the Senior Commissioner.

Parties
Appellant: Castle Constructions Pty Ltd; Respondent: North Sydney Council
Jurisdiction
Australia
Judgment Date
27 July 2007
Procedural Posture
Civil Appeal / Appeal From Land and Environment Court to NSW Court of Appeal
Outcome
Appeal allowed
Legal Topics
Local Environment Plans—interpretation, Building Height Provisions—inconsistency, Remittal of Proceedings—apprehended Bias, Environmental Planning and Assessment Act—application, Land and Environment Court—remittal Procedure
Administrative Law Planning Law Bias and Procedural Fairness Local Environment Plans—interpretation Building Height Provisions—inconsistency Remittal of Proceedings—apprehended Bias Environmental Planning and Assessment Act—application Land and Environment Court—remittal Procedure

Case Brief

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Parties

Castle Constructions Pty Ltd

Appellant

North Sydney Council

Respondent

Procedural Posture

Civil Appeal / Appeal From Land and Environment Court to NSW Court of Appeal

Legal Issues

  1. 1 Whether clause 30 of North Sydney Local Environmental Plan 2001 is inconsistent with clause 28D so that, by virtue of clause 28A, clause 28D must prevail over clause 30.
  2. 2 Whether, on remittal, the matter should be sent to a Commissioner other than the Senior Commissioner due to apprehended bias.

Ratio Decidendi

Clause 30 of North Sydney Local Environmental Plan 2001 is, in substance, inconsistent with clause 28D in respect of development within the North Sydney Centre, with the consequence that, as mandated by cl 28A, cl 28D prevails and cl 30 has no application to such determinations. Furthermore, where the Senior Commissioner previously expressed strong adverse views regarding the applicant's development, there is a reasonable apprehension of pre-judgment bias such that the matter on remittal should be heard by a Commissioner other than the Senior Commissioner.

Court Disposition

Appeal allowed

Orders

  • Set aside Order 2 made by Talbot J on 3 August 2006 and substitute an order remitting the proceedings to a Commissioner other than the Senior Commissioner for determination in accordance with the reasons of Talbot J as varied by the Court of Appeal, to the effect that clause 30 has no application.
  • Such order to take effect as of 3 August 2006.