Terrace Tower Holdings Pty Limited v Sutherland Shire Council

(2003) 129 LGERA 195; [2003] NSWCA 289

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning Law
2. › Development consent
3. › Matters for consideration under s 79C(1)
4. › Draft environmental planning instruments
5. › Weight to be given to draft instrument
6. › Whether 'certainty and imminence' of draft instrument relevant to weight
7. › Whether gazetted instrument treated as draft under transitional provision may be given significant weight
8. › Environmental Planning and Assessment Act 1979 (NSW), s 79C(1)(a)(ii)
1. Environment and Planning Law
2. › Development consent
3. › Matters for consideration under s 79C(1)
4. › Public interest
5. › Whether draft planning instrument relevant to public interest
6. › Whether consent authority confined to environmental planning instruments in discerning public interest
7. › Environmental Planning and Assessment Act 1979 (NSW), s 79C(1)(e)
1. Environment and Planning Law
2. › Development consent
3. › Transitional provisions
4. › Effect of provision requiring new LEP to be treated as exhibited but not made
5. › Whether transitional provision prevents consent authority from giving weight to provisions of new instrument
1. Appeal
2. › Question of law
3. › Weight to be given to planning instrument
4. › Whether weight accorded to planning instrument raises question of law

Quick Take

A consent authority considering a development application under a transitional provision that treats a new LEP as exhibited but not made may give significant (but not determinative) weight to the new LEP's provisions, particularly where the new instrument has been gazetted and its provisions are 'certain and imminent'. The weight to be given to a planning instrument is not a question of law amenable to appeal, provided legally irrelevant factors are not taken into account. Transitional provisions excluding a draft SEPP from direct application to a pending development application do not prevent the consent authority from considering the draft SEPP's substantive provisions as relevant to the 'public interest' under s 79C(1)(e).