Segal & Anor v Waverley Council [2005] NSWCA 310

Reported Decision : 64 NSWLR 177

New South Wales Court of Appeal

Segal & Anor v Waverley Council [2005] NSWCA 310 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 June 2005

JUDGMENT DATE: 15 September 2005

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Basten JA at 102

DECISION: (1) Appeal allowed; (2) Set aside the orders made by Lloyd J on 20 July 2004; (3) The appeal by the respondent pursuant to s 56A of the Land and Environment Court Act 1979 against the decision and orders of Commissioner Watts of 27 February 2004 be dismissed; (4) The respondent pay the appellants' costs of the appeal before Lloyd J and before this Court but to have with respect to the latter a certificate under the Suitors' Fund Act, 1951 if otherwise entitled thereto.

CATCHWORDS: ENVIRONMENT AND PLANNING - Decision of Commissioner of Land and Environment Court granting development consent - Earlier decision by different Commissioner refusing similar application in relation to neighbouring property - No reference to earlier decision - Whether Commissioner bound to follow earlier decision - APPEALS - Error of law - Duty to make findings - Judicial comity - Relevance of practice of judge at first instance following earlier decision of judge of co-ordinate jurisdiction - Duty to give reasons - Principal contested issues - Whether Commissioner's failure to refer to earlier decision constituted an error of law - ADMINISTRATIVE LAW - Relevance of principle of consistency in administrative decision-making

Administrative Appeals Tribunal Act 1975 (Cth) Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Migration Act 1958 (Cth) Waverly Local Environment Plan 1996