What has happened?
In Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22, Chief Judge Preston set aside a Commissioner's refusal of two new residential flat buildings in Elizabeth Bay. The Commissioner had misconstrued a zone objective found in every local environmental plan in NSW. The decision also gives important guidance on settling Class 1 appeals.
Context
The proposal replaced two existing buildings (28 apartments, 48 bedrooms) with two new buildings (20 apartments, 58 bedrooms). Fewer, larger apartments would house more people overall. The Council stopped pressing its contentions, and the parties asked the Court to grant consent by consent orders. The Commissioner nevertheless refused consent. Influenced by objectors' evidence about the loss of smaller, more affordable apartments, he found the development inconsistent with the R1 zone objective "to provide for the housing needs of the community".
The decision
The Chief Judge upheld the appeal on two grounds.
Misconstruing the zone objective.
The Commissioner derived "interpretations" of the objective from expert and lay evidence. Statutory interpretation is a question of law, not evidence.
"The housing needs of the community" refers to the community as a whole, not a subset such as people in housing need.
The objective is a standard objective that describes the purpose of a residential zone. It is not aimed at remedying a particular "mischief".
Procedural fairness. Where the parties agree, there are no contested issues. If the Court is minded to refuse consent on an issue the parties have not raised, it must give them notice and an opportunity to be heard. The Commissioner did not.
The Chief Judge also observed that, had the parties recorded their agreement as a s 34(3) conciliation agreement rather than as consent orders, the Commissioner would have been obliged to give effect to it. The matter was sent back to a different Commissioner.
How will this affect you?
When a Class 1 appeal settles, the way the agreement is recorded matters. A s 34(3) agreement binds the Court, provided the decision is one it could make, whereas consent orders at a hearing do not.
Objections based on a reduction in the number of dwellings must be assessed against the correct reading of the objective, which is concerned with the housing needs of the community as a whole.
Parties are entitled to be heard on any issue that could lead to refusal, even in an uncontested hearing.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.