Wyong Shire Council v MCC Energy Pty Limited & Ors [2005] NSWCA 86

Reported Decision : 139 LGERA 296

New South Wales Court of Appeal

CITATION: Wyong Shire Council v MCC Energy Pty Limited & Ors [2005] NSWCA 86

HEARING DATE(S): 11 February 2005

JUDGMENT DATE: 29 March 2005

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 2; Tobias JA at 3

DECISION: (1) Appeal allowed in part; (2) Order 2 of the Orders made by the Land and Environment Court on 18 February 2004 is stayed until further order of that Court to enable the determination of development application DA 1370/02 either by the Appellant having regard to the judgment of this Court or by the Land and Environment Court on appeal to it pursuant to s 97 of the Environmental Planning & Assessment Act 1979 in respect of that development application; (3) Reserve liberty to apply to the Land and Environment Court on seven days notice by any of the parties in respect of Order 2; (4) That each party pay its own costs of the appeal

CATCHWORDS: LOCAL GOVERNMENT AND ENVIRONMENT - Development consent - Consent granted pursuant to delegation - Whether delegation was current - Whether conditions of exercise of delegation satisfied, namely, that development application "largely complied" with Council's codes and policies, and that development application not subject to "significant public objection" - ADMINISTRATIVE LAW - Failure to take into consideration relevant factor - Whether proposed development's impact on views taken into consideration by Council - ADMINISTRATIVE LAW - Whether opinion properly formed - Whether erroneous conclusion that proposed building was two storeys vitiated delegate's opinion that proposed development was compatible with zone objective that height of buildings "generally" not exceed two storeys - ADMINISTRATIVE LAW - Wednesbury unreasonableness - Initial development application rejected by Council - Altered development application approved - Whether decision to approve altered application manifestly unreasonable