Notaras v Waverley Council & Anor

(2007) 161 LGERA 230; [2007] NSWCA 333

NSW Court of Appeal

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Interrogate

Catchwords

1. Building Control and Town Planning
2. › Development consent
3. › Judicial review of council decision
4. › Wednesbury unreasonableness
5. › Whether decision to approve development exceeding DCP controls was so unreasonable that no reasonable council could have made it
6. › Environmental Planning and Assessment Act 1979 (NSW), ss 79C, 80, 82A
1. Building Control and Town Planning
2. › Environmental planning instruments
3. › Development control plans
4. › Whether DCP controls are mandatory
5. › Whether council bound by variation formula in DCP before departing from controls
6. › Whether failure to comply with DCP variation provision renders consent invalid
1. Administrative Law
2. › Judicial review
3. › Relevant considerations
4. › Obligation to take matters into consideration under s 79C(1)
5. › Whether council failed to consider DCP provisions
6. › Distinction between failure to consider and inadequate weight
7. › Whether 'proper genuine and realistic consideration' standard impermissibly extends merits review
1. Administrative Law
2. › Judicial review
3. › Wednesbury unreasonableness
4. › Standard of review
5. › Distinction between merits review and judicial review
6. › Whether exceedance of planning controls necessarily renders decision unreasonable

Quick Take

A council may depart from numerical controls in a development control plan without requiring the applicant to formally demonstrate that the control is unreasonable or unnecessary, provided the council takes the control into consideration. The onus lies on the challenger to prove the council did not consider relevant DCP provisions, and material in the council's possession is treated as being in the councillors' possession. The 'proper genuine and realistic consideration' formulation should not be used to expand judicial review into merits review; challenges based on inadequate weight must satisfy the Wednesbury unreasonableness threshold.