El Khouri v Gemaveld Pty Ltd

El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78
Court of Appeal of New South Wales
Gleeson, Leeming, & Adamson JJA
Planning law – the respondent applied for development approval including the construction of a four-story house – the Kogarah Local Environment Plan 2012 imposed a height restriction of 9m – Council refused development consent – the respondent appealed to the Land and Environment Court – Council and the respondent held a conciliation conference under s34 of the Land and Environment Court Act 1979 (NSW), and reached agreement under which Council would grant consent to amended plans – a Commissioner of the Land and Environment Court was satisfied that the agreed decision was one that the Court could have made in the proper exercise of its functions and granted approval to that decision under s34(3) – the respondent’s neighbours sought judicial review of the Commissioner’s decision on the ground the Court would not have had power to grant consent because of breach of the height restriction – held: the critical statutory words were “being a decision that the Court could have made in the proper exercise of its functions” – whether this required compliance with the height restriction, or whether it merely required the Commissioner be satisfied of compliance with the height restriction, was a question of statutory construction – the only issue for the Commissioner was whether the agreed decision was one which could have been made by the Land and Environment Court in the proper exercise of its functions – this involved the same considerations and powers as if that Court were deciding an appeal from Council’s refusal – that in turn involved the same considerations and powers that Council possessed as consent authority, as the Court in such an appeal may exercise all the functions and discretions of Council – a planning instrument does not apply of its own force, directly creating rights and obligations – it operates in conjunction with primary and delegated legislation and it is the legislation that creates rights and obligations – for the purpose of jurisdiction, there is no difference between a development consent granted on the merits by Council (or by the Land and Environment Court on appeal from Council’s refusal) and a development consent granted under s34(3) following a successful conciliation – in both cases, planning instruments must be considered, but in neither case is compliance with planning instruments a jurisdictional fact that is a prerequisite to the lawful exercise of power – it was plain the Commissioner had had regard to the height restriction – the only conclusion that had been open to him on the evidence was that there had been compliance with the height restriction – it was irrelevant whether there had actually been compliance with the height restriction – application dismissed.
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