Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55

Land and Environment Court New South Wales

Medium Neutral Citation: Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 Hearing dates: 26 May 2014 Date of orders: 09 April 2015 Decision date: 09 April 2015 Jurisdiction: Class 1 Before: Sheahan J Decision: (1) The Council's s 56A appeal is upheld. (2) The Class 1 appeal is remitted for further hearing before Brown C, in order for him to determine it in light of these reasons, and the parties are to approach the Registrar within 7 days for a hearing date. (3) Unless the Respondent by Notice of Motion filed within 14 days seeks a different order, the Respondent is to pay the Appellant's costs of this appeal on a party-party basis, as agreed or assessed. (4)The Appeal Book is returned to the Appellant. Catchwords: APPEAL: s 56A appeal from decision of Commissioner – whether Commissioner failed to take into account mandatory relevant consideration under s 79C (DCP) – whether unit sizes met minimums engaging 'must not refuse' clause in SEPP – interaction between SEPP and DCP – whether Commissioner misconstrued SEPP Legislation Cited: Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 (Design Quality of Residential Flat Development) The City of Botany Bay Development Control Plan 2013 Cases Cited: Agricultural Equity Investments Pty Limited v The Hon Chris Hatcher MP, Minister for Resources and Energy, Special Minister [2015] NSWLEC 23 Botany Development Pty Ltd v Council of the City of Botany Bay [2014] NSWLEC 1073 Botany Bay City Council v Marana Developments Pty Ltd [2012] NSWLEC 15 Botany Bay City Council v Minister for Planning and Infrastructure [2015] NSWLEC 12 Connecticut Fire Insurance Co v Kavanagh (1892) AC 473 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 Davis v Gosford City Council [2013] NSWLEC 49 Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123 Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2014] NSWLEC 157 Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28; 194 CLR 355 Suttor v Gundowda Proprietary Limited [1950] HCA 35; 81 CLR 418 Svedas v Council of the City of Sydney [2011] NSWLEC 215 Category: Principal judgment Parties: Botany Bay City Council (Appellant) Botany Development Pty Ltd (Respondent) Representation: Counsel: