McGinn v Ashfield Council [2012] NSWCA 238

McGinn v Ashfield Council [2012] NSWCA 238

The appeal was dismissed because the Council took the Ashfield Development Control Plan 2007 into consideration as required by s 79C of the Environmental Planning and Assessment Act 1979, the DCP was not determinative, and it was open to the Council to conclude that the proposal achieved the DCP objectives notwithstanding non-compliance with particular DCP controls. The Council was not shown to have based its decision on incorrect information: the material before it disclosed that the proposed dwelling abutted and had access to the lane, and any inaccuracies about postal address or references to street frontage were not fundamental or manifestly unreasonable bases for invalidating the...

Jurisdiction
Australia
Judgment Date
06 August 2012
Procedural Posture
Appeal From Dismissal of Application for Declaration That Development Consent Was Invalid and of No Effect / Court of Appeal Appeal by Way of Rehearing Under Supreme Court Act 1970, S 75 A(5)
Outcome
Appeal dismissed with costs.
Legal Topics
['development Consent' 'development Control Plan' 'dual Occupancy' 'building Control' 'judicial Review' 'street Frontage']
['environment and Planning' 'administrative Law' 'local Government'] ['development Consent' 'development Control Plan' 'dual Occupancy' 'building Control' 'judicial Review' 'street Frontage']

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

Appeal From Dismissal of Application for Declaration That Development Consent Was Invalid and of No Effect / Court of Appeal Appeal by Way of Rehearing Under Supreme Court Act 1970, S 75 A(5)

Legal Issues

  1. 1 ["Whether the primary judge erred in concluding that Ashfield Council's development consent was not invalid." 'Whether the Council erred in forming a positive opinion that the proposed detached dual occupancy was consistent with the objectives of the Ashfield Development Control Plan 2007.' "Whether the Council's opinion was based on incorrect information about the proposed dwelling having a street frontage or front address to a lane." 'Whether the Council was required to refuse consent because the proposal did not comply with provisions of the development control plan preferring attached dual occupancies.']

Ratio Decidendi

The appeal was dismissed because the Council took the Ashfield Development Control Plan 2007 into consideration as required by s 79C of the Environmental Planning and Assessment Act 1979, the DCP was not determinative, and it was open to the Council to conclude that the proposal achieved the DCP objectives notwithstanding non-compliance with particular DCP controls. The Council was not shown to have based its decision on incorrect information: the material before it disclosed that the proposed dwelling abutted and had access to the lane, and any inaccuracies about postal address or references to street frontage were not fundamental or manifestly unreasonable bases for invalidating the...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']