F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537

F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537

The development consent granted by council was invalid because a fair-minded, properly informed observer might reasonably apprehend that the council had not brought an impartial mind to the determination of the development application, due to its prior contractual commitment (special condition 17) to grant such consent, and a continuum of conduct consistent with honouring that commitment. The presence of a properly considered heritage impact statement met statutory requirements, but the apprehended bias meant the decision was vitiated.

Jurisdiction
Australia
Judgment Date
31 August 2007
Procedural Posture
Judicial Review / Final Judgment at Trial
Outcome
Application allowed: 2007 Demolition Consent declared invalid and set aside; declaration as to unauthorised demolition works made.
Legal Topics
['apprehended Bias' 'judicial Review of Council Planning Decisions' 'heritage Impact Statements' 'mandatory Considerations in Planning Law']
['administrative Law' 'planning Law' 'local Government Law'] ['apprehended Bias' 'judicial Review of Council Planning Decisions' 'heritage Impact Statements' 'mandatory Considerations in Planning Law']

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Procedural Posture

Judicial Review / Final Judgment at Trial

Legal Issues

  1. 1 ["Whether council's development consent for demolition of heritage listed houses is invalid due to apprehended bias" 'Whether council failed to take into account mandatory considerations required under the Environmental Planning and Assessment Act 1979' 'Whether council was obliged or failed to consider a heritage impact statement and other relevant policy documents']

Ratio Decidendi

The development consent granted by council was invalid because a fair-minded, properly informed observer might reasonably apprehend that the council had not brought an impartial mind to the determination of the development application, due to its prior contractual commitment (special condition 17) to grant such consent, and a continuum of conduct consistent with honouring that commitment. The presence of a properly considered heritage impact statement met statutory requirements, but the apprehended bias meant the decision was vitiated.

Court Disposition

Application allowed: 2007 Demolition Consent declared invalid and set aside; declaration as to unauthorised demolition works made.

Orders

  • ['Declaration that development consent for DA 649/2006 (2, 4, 6, 8, 10, 11, 12, 13, 15, 21 Chapman Street, Strathfield) granted on 20 February 2007 is invalid and of no force or effect.' 'Order that said development consent is set aside.' 'Declaration that demolition works to 4, 6, 8 and 12 Chapman Street,...