JUDICIAL REVIEW — review of Council’s decision to grant development consent for food and drink premises comprising a pub, restaurant and ancillary brewery — whether Council failed to consider proposed instrument pursuant to s 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 — whether Council was required to consider proposed development as integrated development pursuant to Div 4.8 of the EPA Act — whether a development being integrated development within the meaning of s 4.46 of the EPA Act is a jurisdictional fact — whether provisions of Div 4.8 are optional — whether Council purported to grant consent for consent that was prohibited — whether brewery component was an ancillary or independent and prohibited use — whether Council misdirected itself in its application of Pt 3.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 — whether the land was core koala habitat — whether Council failed to consider public submissions — whether Council’s decision was legally unreasonable — proceedings dismissed
Quick Take
1Whether a proposed development is 'integrated development' within the meaning of s 4.46 of the Environmental Planning and Assessment Act 1979 (NSW) is a jurisdictional fact, to be determined objectively by the court on all available evidence and not confined to material before the consent authority; the integrated development provisions in Div 4.8 are mandatory and do not depend on an applicant's election or the consent authority's opinion.
2Where a savings provision in a local environmental plan requires a development application to be determined as if an amending instrument had not commenced, the amending instrument reverts to its status as a 'proposed instrument' that must be taken into consideration under s 4.15(1)(a)(ii), but the weight to be given to it remains a matter for the decision-maker and not the reviewing court.
3A micro-brewery producing beer in small quantities on premises primarily used as a restaurant may, as a matter of fact and degree, be properly characterised as an ancillary use rather than an independent prohibited use, even where the consent conditions preclude the hotel licence originally contemplated in the development application.
