A recent Land and Environment Court decision of Goyer v Pengilly [2015] NSWLEC 54 challenged the validity of a development consent granted despite a neighbour losing all views of the ocean. The neighbour’s argument is that the council had fallen into legal error by failing to consider s79C of the Environmental Planning and Assessment Act 1979 which provides that ‘development shall provide for reasonable sharing of views’.
The court found that Council did not fall into legal error when granting development consent because:
- it took the relevant development control into consideration;
- in taking the this control into consideration as well as the surrounding matters relevant to the assessment of the DA, the Council concluded, as it was entitled to do, that in this circumstance it was reasonable that there be no sharing of views; and
- the development control plan did not expressly prohibit consent being granted if the Council was not satisfied that the development did not provide for reasonable sharing of views. It remains a decision based on the merits.
The case highlights the discretionary nature of development applications. While all relevant controls in development control plans must be taken into consideration, the control does not need to be strictly applied.
MatthewsFolbigg Lawyers, Parramatta, are specialist environmental lawyers who are able to advise in relation to all matters relating to governance, planning and environmental law. Call an expert environmental lawyer today on 1800 300 308.
