Development Consent Appeals

11 Oct Development Consent Appeals

Can anyone  appeal from the decision of a council to grant development consent?

There is a common misapprehension that a person affected by the decision of a council to grant development consent has the right to appeal against that decision.  No such right of appeal exists.

Under section 123 of the EP&A Act a person may bring proceedings in the court for an order to remedy or restrain a breach of the Act whether or not any right of that person has been or may be infringed as a consequence of that breach.  It is often wrongly perceived that this section of the Act gives rise to the right to bring a merits review of a council’s decision to grant development consent.

The Court of Appeal in Wallin v Lake Macquarie City Council [1999] NSWCA 318 set out the relevant principles.

Mr and Mrs Wallin lived in a cottage on the shores of Lake Macquarie.  The cottage was constructed very close to the boundary with the adjoining property.  There was a stand of bamboo on or adjacent to the boundary which provided Mr and Mrs Wallin with privacy screening.  A small dwelling house was erected on the adjoining property.  Lake Macquarie City Council granted approval for the construction of a new dwelling on the adjoining property.  The new house was much larger than the existing dwelling and it overlooked and overshadowed Mr and Mrs Wallin’s home.  This situation was exacerbated by the removal of the bamboo.  Mr and Mrs Wallin commenced proceedings in the Land and Environment Court seeking to overturn the validity of the approval granted by Council for the erection of the dwelling.  Mr and Mrs Wallin were unrepresented.  The Land and Environment Court dismissed their application.

The Court of Appeal unanimously dismissed Mr and Mrs Wallin’s appeal from the decision of the Land and Environment Court.  The Court of Appeal held that as the appeal constituted an application for judicial review and was not an appeal on the merits which the legislation did not permit, “the court can have no opinion on the merits or otherwise of the development”.  The Court of Appeal held that it was not the role of the Land and Environment Court to substitute its view on the merits of the relevant application.  “The task of the court was to ascertain whether, in accordance with the well known administrative law principles of judicial review, the granting of the approval was vitiated by an error of law by the council.”

Mr and Mrs Wallin contended that the Council had failed to consider or inadequately considered the impact of the proposed building on their residential amenity, caused by its height and the shadows it would cast on their property, along with privacy concerns.  The Court of Appeal held that Lloyd J had correctly determined that there was no evidence whatsoever to support the assertion that Council had failed to take into consideration the likely effect of the building on other land or failed to take into consideration the effect of overshadowing and privacy on the adjoining land and that as a consequence, no error of law had been demonstrated.

The ability of an objector to have the Land and Environment Court consider whether a Council in granting development consent failed to carry out its obligations under the EP&A Act is currently the subject of litigation in which Harris & Company is acting for the developer.  A report on the outcome of those proceedings shall be provided in a subsequent newsletter.

For further information, please contact Ian Smith.