Initial Action Pty Ltd v Woollahra Municipal Council

(2018) 236 LGERA 256; [2018] NSWLEC 118

NSW Land and Environment Court

Built by Barristers,
For Australian Law.

1. Planning and Environment Law
2. › Development consent
3. › Development standards
4. › Variation of development standards
5. › Clause 4.6 written request
6. › Whether compliance with development standard unreasonable or unnecessary
7. › Whether sufficient environmental planning grounds to justify contravention
8. › Whether proposed development in public interest because consistent with objectives of standard and zone
9. › Woollahra Local Environmental Plan 2014, cl 4.6
1. Planning and Environment Law
2. › Development consent
3. › Development standards
4. › Variation of development standards
5. › Clause 4.6 written request
6. › Correct approach to forming opinions of satisfaction under cl 4.6(4)(a)
7. › Whether consent authority must be directly or indirectly satisfied
8. › Standard Instrument (Local Environmental Plans) Order 2006, cl 4.6
1. Administrative Law
2. › Procedural fairness
3. › Adversarial proceedings
4. › Determination based on issues not pleaded or presented by parties
5. › Whether Commissioner required to give notice before deciding on matters beyond principal contested issues
1. Appeal
2. › Appeal on questions of law
3. › Commissioner's decision in Land and Environment Court
4. › Form of remitter order
5. › Whether exclusionary remitter order appropriate
6. › Reasonable apprehension of bias from prejudgment of factual issues
7. › Land and Environment Court Act 1979 (NSW), s 56A

Under cl 4.6(4)(a)(i), the consent authority must be indirectly satisfied that the applicant's written request has adequately addressed the matters in cl 4.6(3), not directly satisfied of those matters itself; requiring that non-compliant development achieve a neutral or beneficial effect relative to compliant development, or a 'better environmental planning outcome', is the wrong test.
Where a Commissioner determines proceedings by reference to issues beyond those joined between the parties (here, view loss from properties not raised in the council's contentions), procedural fairness requires notice to the parties and an opportunity to be heard; failure to do so is an error of law on a s 56A appeal.
An exclusionary remitter order (to a different Commissioner) is appropriate where the Commissioner has prejudged issues of fact that must be determined afresh on rehearing, giving rise to a reasonable apprehension of bias.