The decision of Walsh C in Billyard Avenue Developments Pty Limited ATF Billyard Avenue Development Trust v The Council of the City of Sydney [2024] NSWLEC 1825 caused ripples amongst planning lawyers and prospective litigants when it was handed down in December 2024, including in our article which discussed the case as a reminder that the Court is not obliged to give effect to consent orders.
That principle remains intact following the decision of Preston CJ of LEC in Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22, an appeal against the Commissioner’s decision pursuant to section 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act).
However, the Commissioner’s decision to refuse consent to the subject development application has been set aside, with the Chief Judge instead ordering that the development application be remitted to a different Commissioner for re-determination.
Whilst a substantive part of His Honour’s judgment deals with the decision of the Commissioner’s evaluation of the development application, His Honour also addressed the Parties’ decision to pursue consent orders. His Honour described that decision with the word ‘regrettably’ (at [5] – [6]), because an agreement under section 34 of the LEC Act would have required the Commissioner to dispose of the proceedings in accordance with that agreement, and would have avoided the evaluative task required of the Commissioner in determining the appeal in accordance with the consent orders.
The Chief Judge has provided consent authorities with useful guidance in Class 1 proceedings by outlining the courses of action which a consent authority can take where the substantive merits contentions are resolved prior to hearing, being:
- if the appeal is against a ‘deemed refusal’, the consent authority may exercise its power to grant development consent; or
- otherwise, the consent authority can seek to enter into an agreement with the applicant pursuant to section 34 of the LEC Act.
His Honour noted at [104] – [107] that, if the Council in that case did not elect to determine the application or enter into an agreement under section 34 of the LEC Act on remitter, and instead elected to approach the remitted hearing on the basis of consent orders with no remaining contested issues in the proceedings, then ‘the Council’s conduct can be taken into account in deciding whether it is fair and reasonable to make a costs order against the Council…’. Such a costs order may be made under rule 3.7(2) of the Land and Environment Court Rules 2007 (NSW).