GPT RE LIMITED v BELMORGAN PROPERTY DEVELOPMENT PTY LIMITED [2008] NSWCA 256

Reported Decision: 72 NSWLR 647

New South Wales Court of Appeal

CITATION: GPT RE LIMITED v BELMORGAN PROPERTY DEVELOPMENT PTY LIMITED [2008] NSWCA 256

HEARING DATE(S): 10 September 2008

JUDGMENT DATE: 15 October 2008

JUDGMENT OF: Basten JA at 1; Bell JA at 110; Young CJ in Eq at 111

(1) Appeal allowed and orders made in the Land and Environment Court on 29 January 2008 in matter No. 41049 of 2006 set aside.

DECISION: (2) Remit the matter to the Land and Environment Court for determination by that Court in accordance with law.

(3) Order the respondent to pay the appellant's costs of the appeal.

CATCHWORDS: ADMINISTRATIVE LAW – draft local environmental plan – draft control plan – development application – mandatory considerations – whether Council considered development application with reference to draft local environmental plan – presumption of regularity – prohibition on retail premises exceeding 400m2 – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - APPEAL – whether orders available in trial context available on appeal – jurisdiction and powers of Land and Environment Court – powers of Court of Appeal in appeal from class 4 proceedings – exercise of power under Division 3 of Part 3 of the Land and Environment Court Act 1979 (NSW) – Environmental Planning and Assessment Act 1979 (NSW) s 124 – Land and Environment Court Act 1979 (NSW) ss 25A, 25B, 25E, 58 – Supreme Court Act 1970 (NSW) s 75A - ENVIRONMENT AND PLANNING – consent – conditions of consent – conferral of function on Director-General of Department of Planning where not consent authority for purposes of development application – Director-General not subject of statutory constraint - ENVIRONMENT AND PLANNING – development application – deferred commencement consent – conditions of consent – whether consent accords with development application made – whether consent definitive – whether conditions of consent involve substantial changes to proposed development – whether conditions of consent assessable according to clear criteria – reconfiguration of levels in development and car parking space required – Environmental Planning and Assessment Act 1979 (NSW) ss 78A, 80, 80A - EVIDENCE – presumption of regularity – whether presumption operates where evidence exists from which an inference could be drawn – party with burden of persuasion – whether basis for finding invalidity of exercise of statutory authority – whether failure to comply with necessary precondition to exercise of power – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - WORDS & PHRASES – "clear criteria" – "consent" – "details" – "presumption of regularity" – "project"