This is a decision of the New South Wales Court of Appeal, commonly used in intermediate appellate courts across Australia and in particular in the Land and Environment Court and in relation to the role of Development Control Plans (“DCP”)  in development applications.

Background

Ms Zhang operated a brothel in Campsie. She made a development application to continue this use to Canterbury City Council which was refused based on DCP 23 which prohibited brothels within 200 metres of ‘any place of worship’. This brothel was situated directly across a church.

Ms Zhang successfully appealed the decision of Council to a commissioner of Land and Environment Court. Subsequently Council was successful in appealing to a judge of Land and Environment Court. Ms Zhang appealed to the Court of Appeal.

For our present purposes, the Court of Appeal dismissed the appeal stating, ‘the test was whether the Commissioner had given proper, genuine and realistic consideration to the provisions of the DCP.’’ The consent authority has a wide ranging discretion, but this discretion is not at large or unfettered.

Reference: Reynolds and Goddard, Leading Cases in Australian Law, the Federation Press 2016, page 313

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