The Planning Approval and the Jurisdictional Error
A local council approved a 10-storey development in a residential zone in 2024. The applicant, a residents' association, argues the council misconstrued a planning instrument that limits buildings to six storeys unless the site is within 400 metres of a transport hub. The site is 420 metres from the hub. The council's assessment report states the site is 'in close proximity to public transport' without measuring the distance. The residents' association seeks judicial review in the Land and Environment Court. The council argues the decision is a merits decision and not reviewable. The association did not participate in the original consultation but says it represents affected residents.
1. Advise on the grounds of judicial review and the likely outcome.
Read the worked answer
The residents' association may seek judicial review under s 69 of the Land and Environment Court Act 1979 (NSW) and the Supreme Court's supervisory jurisdiction. The principal ground is jurisdictional error: the council misconstrued the planning instrument by failing to apply the 400-metre limit. If the instrument imposes a mandatory requirement, the council's failure to measure the distance and its reliance on 'close proximity' may amount to a constructive failure to exercise jurisdiction or an error of law on the face of the record. The council's argument that the decision is a merits decision is misconceived: judicial review is concerned with legality, not the merits, but misconstruction of a statutory instrument is a question of law. The association must establish standing; it represents affected residents and has a sufficient special interest in the subject matter. Its failure to participate in the consultation does not preclude judicial review, though it may affect the court's discretion to grant relief. The likely outcome is that the decision is quashed and remitted to the council for reconsideration, unless the error is immaterial to the outcome.
2. What remedies are available and what factors would the court consider in exercising its discretion?
Read the worked answer
The court may grant certiorari to quash the decision, mandamus to compel the council to determine the application according to law, and a declaration that the council misconstrued the instrument. The court has a discretion to refuse relief where the error is immaterial, where the applicant has delayed, or where the applicant has not exhausted alternative remedies. The association's failure to participate in the consultation may be relevant to discretion but is not a bar. The court will consider whether the error affected the outcome: if the council would have refused the application had it applied the 400-metre limit, the error is material. The court will also consider the interests of the developer, who may have incurred costs in reliance on the approval, and the public interest in lawful planning decisions. The court may decline to grant relief if the error is technical and the outcome would be the same, but misconstruction of a mandatory planning instrument is generally treated as material.