Recent decisions handed down by the Land and Environment Court demonstrate that where a development standard is set by an environmental planning instrument, the question of whether the development complies with the standard is a matter for the decision maker on the available evidence. Compliance with an environmental planning instrument is not, of itself, a jurisdictional prerequisite to the power to grant consent.
Where the property is subject to an interim heritage order (‘IHO’), the relevant Minister has the power to make an IHO in certain circumstances in accordance with Part 3 of the Heritage Act 1977. That power is delegated to Local Councils on bases set out in a Ministerial Order.
Recent challenges to court approved development applications
El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 (‘El Khouri’)
This case confirms that compliance with a development standard set by an environmental planning instrument is not, of itself, a jurisdictional fact. If a consent authority determines that a development complies with a development standard, that decision is not reviewable by a court for that reason. This remains the case even if the decision is later found to be based on incorrect evidence.
Background
Georges River Council and Gemaveld reached a conciliated agreement for a development consent for a new dwelling house. The Commissioner was provided with a signed conciliation agreement and informed by both parties that the development complied with a 9-metre height control contained in cl 4.3 of the Kogarah Local Environmental Plan 2012 (‘Kogarah LEP’). Development consent was consistent with the agreement reached between the parties.
Neighbouring owners brought judicial review proceedings challenging the consent in the Supreme Court. The neighbours argued the grant of consent was not a decision the Commissioner could have made in the proper exercise of the Court’s functions, within the meaning of s 34(3) of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’). This was because the development exceeded the height control and no request to vary the height standard had been made under cl 4.6 of the Kogarah LEP. At first instance, White J found the development did exceed the height control (See El Khouri v Gemaveld Pty Ltd [2023] NSWSC 25).
