Goyer v Pengilly [2015] NSWLEC 54

Goyer v Pengilly [2015] NSWLEC 54

The summons failed because the council did consider cl D7 of the DCP, including the requirement for reasonable sharing of views; its use of Tenacity was permissible guidance expressly contemplated by the DCP and did not substitute a different legal test or fetter its discretion; cl D7 did not operate as a mandatory precondition requiring refusal where views would be entirely lost; and, after considering and weighing the matters under s 79C, the decision to grant development consent was not manifestly unreasonable.

Jurisdiction
Australia
Judgment Date
08 April 2015
Procedural Posture
Class 4 Judicial Review Proceedings Challenging a Development Consent / Principal Judgment on Summons Seeking to Set Aside Development Consent
Outcome
Summons dismissed with costs.
Legal Topics
['development Consent' 'mandatory Relevant Considerations' 'development Control Plan' 'view Sharing' 'planning Principles' 'wednesbury Unreasonableness']
['environmental Law' 'planning Law' 'administrative Law' 'judicial Review'] ['development Consent' 'mandatory Relevant Considerations' 'development Control Plan' 'view Sharing' 'planning Principles' 'wednesbury Unreasonableness']

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

Class 4 Judicial Review Proceedings Challenging a Development Consent / Principal Judgment on Summons Seeking to Set Aside Development Consent

Legal Issues

  1. 1 ['Whether the council failed to take into consideration a mandatory relevant consideration under s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979, namely cl D7 - Views in the Warringah Development Control Plan 2011.' "Whether a strict application of the planning principles in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 impermissibly affected the council's consideration of cl D7 of the DCP and the exercise of its discretion in determining the development application." "Whether it was manifestly unreasonable to grant development consent where the approval would cause Mrs Goyer's views to be lost in their entirety."]

Ratio Decidendi

The summons failed because the council did consider cl D7 of the DCP, including the requirement for reasonable sharing of views; its use of Tenacity was permissible guidance expressly contemplated by the DCP and did not substitute a different legal test or fetter its discretion; cl D7 did not operate as a mandatory precondition requiring refusal where views would be entirely lost; and, after considering and weighing the matters under s 79C, the decision to grant development consent was not manifestly unreasonable.

Court Disposition

Summons dismissed with costs.

Orders

  • ['The summons is dismissed.' "The applicant is to pay the respondents' costs." 'The exhibits are to be returned.']