Can I appeal a Council’s decision to grant development consent impacting my home?

In short, there is no right to review a Council’s decision to grant development consent without grounds such as an error of law.

Case Study: Wallin v Lake Macquarie City Council (1999)

This case involved an appeal to the NSW Court of Appeal from a decision made by the Land and Environment Court. The Council had approved a development to build a large house, replacing a much smaller one, on land next to the plot and cottage owned by Mr and Mrs Wallin where they lived. It was argued that the Council had not sufficiently considered the impact the development would have on their privacy and how it would overshadow their property.

The Land and Environment Court dismissed proceedings challenging the validity of the Council’s consent. The Court of Appeal upheld this decision. It held that the appeal, in effect, constituted an application for judicial review, which is not an appeal process. In finding that a public body has exceeded its lawful authority, the Court will not enquire into the correctness of the decision, but only the process by which the decision was reached. Unlike in an appeal, the Court will not substitute its own assessment of the merits. In this case, the granting of the approval was not invalidated by an error of law made by the Council.

Contact our Land and Environment Court Lawyers based in Sydney, NSW

Szabo & Associates Solicitors act on behalf of Councils as well as private clients requiring advice or representation in the Land and Environment Court and beyond. Please contact us on 02 9281 5088 or complete the online contact form.