Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

Reported Decision: 172 LGERA 338

New South Wales Court of Appeal

CITATION: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

HEARING DATE(S): 30 June 2009

JUDGMENT DATE: 3 August 2009

JUDGMENT OF: Ipp JA at 1; Macfarlan JA at 2; Hoeben J at 39

(1) Leave to appeal granted. (2) Appeal allowed. (3) Set aside the orders dated 25 September 2008 made by Biscoe J of the Land and Environment Court. DECISION: (4) Set aside the decision dated 23 May 2008 of Commissioner Bly of the Land and Environment Court. (5) Order that the appeal of Botany Bay City Council to the Land and Environment Court pursuant to s 56A of the Land and Environment Court Act be remitted to a Commissioner of that Court for determination in accordance with the decision of this Court. (6) Order the respondent to pay the applicant's costs of the proceedings in this Court and in the Land and Environment Court. (7) The respondent is to have a certificate under the Suitors' Fund Act 1951, if qualified.

CATCHWORDS: LAND AND ENVIRONMENT - development application - Environmental Planning and Assessment Act 1979, s 79C - requirement to take development control plan into consideration - whether decision maker entitled to reject general policy embodied in portion of plan - ADMINISTRATIVE LAW - statutory requirement to take development control plan into consideration in determining development application - whether decision maker entitled to reject general policy embodied in portion of plan

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Suitors' Fund Act 1951