Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248

Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248

Leave to appeal was refused because the proposed procedural fairness ground had not been pressed before the primary judge, and no error of law was demonstrated in the Commissioner’s or primary judge’s approach to cl 4.6. The Commissioner’s conclusion that general public benefits from additional housing and employment opportunities were insufficient environmental planning grounds to justify contravening the development standard did not raise an error of law, and the third proposed ground would not affect the result because the Commissioner was not satisfied as to either matter in cl 4.6(3).

Jurisdiction
Australia
Judgment Date
20 August 2015
Procedural Posture
Application for Leave to Appeal on a Question of Law / Court of Appeal Application for Leave to Appeal From a Land and Environment Court Decision Dismissing a S 56 a Appeal
Outcome
Leave to appeal refused; notice of motion dismissed.
Legal Topics
['development Consent' 'contravention of Development Standards' 'clause 4.6 Written Request' 'procedural Fairness' 'leave to Appeal' 'questions of Law']
['planning and Environment Law' 'administrative Law' 'civil Procedure'] ['development Consent' 'contravention of Development Standards' 'clause 4.6 Written Request' 'procedural Fairness' 'leave to Appeal' 'questions of Law']

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Procedural Posture

Application for Leave to Appeal on a Question of Law / Court of Appeal Application for Leave to Appeal From a Land and Environment Court Decision Dismissing a S 56 a Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted in respect of a procedural fairness ground not pressed before the primary judge.' 'Whether the Commissioner or primary judge misconstrued cl 4.6(3)(b) of the Ashfield Local Environmental Plan 2013 (NSW) by requiring environmental planning grounds particular to the proposed development on the subject site.' 'Whether the Commissioner or primary judge misconstrued cl 4.6 by requiring unreasonableness or unnecessary compliance with a development standard to be demonstrated by reference to matters other than those in cl 4.6(4)(a)(ii).']

Ratio Decidendi

Leave to appeal was refused because the proposed procedural fairness ground had not been pressed before the primary judge, and no error of law was demonstrated in the Commissioner’s or primary judge’s approach to cl 4.6. The Commissioner’s conclusion that general public benefits from additional housing and employment opportunities were insufficient environmental planning grounds to justify contravening the development standard did not raise an error of law, and the third proposed ground would not affect the result because the Commissioner was not satisfied as to either matter in cl 4.6(3).

Court Disposition

Leave to appeal refused; notice of motion dismissed.

Orders

  • ['Leave to appeal refused.' 'Notice of Motion filed 12 August 2015 dismissed.']