Design Power Associates Pty Limited v Willoughby City Council

(2005) 148 LGERA 233; [2005] NSWLEC 470

NSW Land and Environment Court

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Error of law
4. › Failure to consider mandatory relevant considerations
5. › Whether failure to consider environmental planning instruments not raised in Statement of Issues constitutes error of law
6. › Environmental Planning and Assessment Act 1979 (NSW), s 79C
1. Practice and Procedure
2. › Land and Environment Court
3. › On-site hearings
4. › Statement of Issues
5. › Whether issues not raised in Statement of Issues may be agitated on appeal
6. › Land and Environment Court Act 1979 (NSW), ss 34B, 56A
7. › Land and Environment Court Rules 1996, Pt 13 r 14
1. Practice and Procedure
2. › Abuse of process
3. › Anshun estoppel
4. › Raising new issues on appeal
5. › Whether party precluded from raising on appeal issues deliberately omitted from Statement of Issues at first instance
1. Planning and Environment Law
2. › Development consent
3. › Duty of consent authority
4. › Consideration of environmental planning instruments and development control plans
5. › Whether commissioner gave proper genuine and realistic consideration to DCP and LEP provisions
6. › Environmental Planning and Assessment Act 1979 (NSW), s 79C(1)(a)

Quick Take

A party to Land and Environment Court proceedings that deliberately omits issues from its Statement of Issues is precluded by Anshun estoppel from raising those issues on a s 56A appeal. The obligation under s 79C(1) of the EP&A Act to consider environmental planning instruments does not require a commissioner to consider instruments not raised as issues by the parties in adversarial proceedings. A decision-maker is not required to use the same language as a development control plan provided the substance of the control is considered.