Zhiva Living Dural Pty Limited v Hornsby Shire Council

[2020] NSWCA 180

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Procedural fairness
3. › Duty to give parties opportunity to be heard
4. › Court determining matter on basis not raised by parties
5. › Whether denial of procedural fairness
6. › Land and Environment Court Act 1979 (NSW), s 56A
1. Practice and Procedure
2. › Appeals
3. › Appeal from commissioner to judge on question of law
4. › Scope of s 56A appeal
5. › Whether judge's jurisdiction limited to grounds of appeal raised
6. › Whether judge can determine issues not raised
7. › Land and Environment Court Act 1979 (NSW), ss 56A, 57
1. Environmental Planning and Assessment
2. › Development consent
3. › Seniors housing development
4. › Site compatibility certificate
5. › Whether lapsing of certificate renders development application invalid
6. › State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 24, 25, 55
1. Practice and Procedure
2. › Remitter
3. › Whether matter should be remitted to judge or commissioner
4. › Utility of remitter
5. › Land and Environment Court Act 1979 (NSW), ss 56A(2), 57(2)

Quick Take

Practitioners in the Land and Environment Court should note that a judge hearing a s 56A appeal has no jurisdiction to determine issues not raised in the grounds of appeal, and must afford procedural fairness before deciding any matter on a basis not raised by the parties. A development application does not become invalid merely because a site compatibility certificate lapses.