Gray v Sutherland Shire Council [2016] NSWLEC 64

Land and Environment Court New South Wales

Medium Neutral Citation: Gray v Sutherland Shire Council [2016] NSWLEC 64 Hearing dates: 8 October 2015 Date of orders: 01 June 2016 Decision date: 01 June 2016 Jurisdiction: Class 1 Before: Craig J Decision: (1) Appeal upheld. (2) The decision and orders of the Commissioner made on 21 April 2015 are set aside. (3) The proceedings are remitted to be determined by the Commissioner in accordance with the decision of this Court. (4) The respondent must pay the appellant's costs of the appeal unless within 14 days from the date of this judgment it files a notice of motion seeking a different order. Catchwords: APPEAL – appeal against Commissioner's decision on questions of law – refusal of development consent for boarding house – determination by Commissioner that necessary development consent condition could not lawfully be imposed – whether Commissioner's finding that condition could not lawfully be imposed an error of law – whether Commissioner's finding that condition not for proper planning purpose an error of law – whether Commissioner's finding that condition manifestly unreasonable an error of law Legislation Cited: Anti-Discrimination Act 1977 (NSW) Boarding Houses Act 2012 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) State Environmental Planning Policy (Affordable Rental Housing) 2009 Sutherland Shire Local Environmental Plan 2006 Cases Cited: Andrews v Botany Bay City Council [2008] NSWLEC 96; 158 LGERA 451 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; 82 NSWLR 171 Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184; 211 LGERA 412 Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; 158 LGERA 429 Gray v Sutherland Shire Council [2015] NSWLEC 1102 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; 174 LGERA 67 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30 Category: Principal judgment Parties: Robert Gray (Appellant) Sutherland Shire Council (Respondent) Representation: Counsel: C R Ireland (Appellant) J Walker (Respondent)