Court of Appeal – Application for leave
– whether error in finding conflict with the Planning
Scheme – whether error in construing and applying policy
– adequacy of reasons – whether remitted matter
to be heard by same Judge
Facts: This was an Application for leave to
appeal against a decision of the Planning and Environment Court
which allowed a submitter appeal. That appeal concerned
Council's approval of an application for a material change of
use to facilitate development of a Neighbourhood Centre.
In allowing the appeal, the primary judge had concluded that the
proposal conflicted with the provisions of the Planning Scheme in
that it sought to use land identified for use as a Convenience
Centre for a higher order use; it used residential land for
commercial purposes; it sought to increase the area restriction for
commercial activity permitted by the Planning Scheme; could not be
described as being of a "domestic scale"; and
did not meet only the needs of the immediate residential
population. The Primary Judge then considered whether the proposal
should be approved, notwithstanding its conflict with the Scheme.
He concluded that need had not been established. The merits of the
proposal were otherwise dealt with in three brief paragraphs.
Sunland contended that the primary judge erred:
in finding that the proposal conflicted with the Planning
in construing and applying the Council's Urban Growth
Policy ("UG Policy"); and
by failing to give adequate reasons.
Decision: The Court held that:
A conflict with a Planning Scheme was not to be found only
where the approval of an application would have a consequence which
the Scheme expressly identified as a conflict. Whether or not a
conflict existed was to be determined by a consideration of the
relevant provisions of the Planning Scheme in light of all the
It had not been shown that the primary judge erred in finding a
conflict with the Scheme resulting from the proposed use of the
land as a Neighbourhood Centre. Such a use would prevent the use of
its land for its designated use as a Convenience Centre.
Although it appeared that there was conflict with the Scheme,
it was preferable, having regard to the necessarily limited
ventilation of factual questions before this Court, to express no
concluded view on the point.
No error or law in the primary judge's treatment of the UG
Policy was identified.
The existence of a conflict or conflicts was by no means
obvious. In order to decide the question it was necessary to
identify and construe the relevant provisions of the Scheme and, in
some instances, to consider the application to the facts of the
provisions so construed.
It was thus incumbent on the primary judge to provide adequate
reasons for his conclusions as to the existence and extent of
conflict. Failure to give such reasons would be an error of
The primary judge's reasons as to the existence of conflict
essentially consisted of assertions. There was no discussion or
even identification of the critical provisions of the Scheme. The
process of reasoning in which the critical conclusions were reached
was not identified even in a rudimentary way. Consequently, Sunland
had succeeded in identifying an error of law.
The reasons did not explain, adequately, the findings of the
primary judge in relation to the expert evidence, the reasons for
such findings or why the arguments advanced by the Council and
Sunland as to why the proposal should be approved, notwithstanding
inconsistency, were rejected. The inadequacy of the reasons in that
regard also constituted an error of law.
The matter should be remitted to the Planning and Environment
Whilst not doubting the primary judge's ability and
capacity to determine the matter according to law, consistently
with these reasons, any re-hearing should be before a different
judge in order to avoid a real risk of allegations of apprehended
bias with the attendant possibility of a further appeal and
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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