Case note - Conway v Leeroy Property Investments Pty Ltd

Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123

Under s 3.42 of the Environmental Planning and Assessment Act 1979 (EPA Act), the principal purpose of a development control plan (DCP) is to provide guidance on certain matters: giving effect to the aims of environmental planning instruments, facilitating development, and achieving the objectives of land zones. A DCP may also provide for certain other discrete matters, such as notification requirements, and specific controls relating to vegetation permits.

In determining a development application, the DCP is a mandatory consideration for a consent authority under s 4.15(1)(a)(iii) of the EPA Act, subject to the qualifications at s 4.15(3A) of the EPA Act, and with regard to principles established in Zhang v Canterbury City Council [2001] NSWCA 167 (considered recently in Fabcot Pty Ltd v Newcastle City Council [2025] NSWLEC 35). Failure to consider a provision of a DCP may amount to jurisdictional error and cause the development consent to be invalid: for example, Ross v Randwick City Council [2025] NSWLEC 89.

Such issues came before the Court in these judicial review (and property) proceedings in the NSW Court of Appeal. Judgment was handed down by Kirk JA, McHugh JA and Free JA agreeing.

Background

In 2022, Tweed Shire Council approved Development Application DA 20/2021 (the Consent), which authorised the demolition of existing structures, and the construction of a new 2-storey dwelling with attached garage, in-ground swimming pool and front fence on two lots in Casuarina, NSW. The neighbour, Ms Conway, commenced proceedings in the Land and Environment Court, before being transferred to the Supreme Court, against the development on 3 grounds, each relating to the solar impacts:

• judicial review of Council’s decision to approve the development application.
• an order that there was an implied easement over the Site, benefitting her land, for the provision of solar access, and
• if there was no implied easement, an order under s 88K of the Conveyancing Act creating the easement.

All three grounds were rejected by the primary judge. Ms Conway appealed on grounds 1 and 3 only.

Ground 1: Judicial review of Council’s decision

Ground of judicial review

Ms Conway argued that Council’s decision to approve the development application was invalid, due to its failure to consider solar access provisions of the Tweed Shire DCP. Control C4 in part 4.3 of part A1 of the DCP provides:

… i. Sunlight to at least 50% of the principal area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm on June 21, …

There was a courtyard area on Ms Conway’s land, which would experience some loss of solar access resulting from the development permitted under the Consent. The courtyard was partially covered by a roof, with the remainder of the space being uncovered (that uncovered portion being referred to as the Unroofed Space). The total area of the courtyard was referred to as the Entire Space.

The central issue was whether the 'principal area of private open space' (PAPOS) within the meaning of Control C4 of the DCP, constituted the Unroofed Space or the Entire Space. Ms Conway argued that the Council erred by focussing on the Unroofed Space rather than the Entire Space. Council’s internal planner provided a DA Report, which tended to suggest that he continued to apply the control with reference to the Unroofed Space. However, the decision-maker was another Council officer with delegated authority.

Held

Kirk JA noted that it may have been open to the Council in its discretion, to determine that either the Unroofed Space or the Entire Space was the relevant area pursuant to Control C4 of the DCP, however this was not contended by the Respondent in these proceedings (at [44]).

Kirk JA found that the Council, on the balance of probabilities, did in fact apply the ’correct’ measurement, by considering the Entire Space, and so the purported error was not established on the facts (at [61]). His Honour distinguished between the DA Report prepared by the Council’s planner, and the final decision, which was prepared by the Council officer with delegated authority. His Honour also noted that for other reasons, the approach of Council’s planner was also not in error.

Ultimately however, his Honour found that the words of the control did not require the Council to undertake a comparative analysis at all (i.e., a 'before and after' analysis of solar access). His Honour also considered that in context, including s 4.15(3A) of the EPA Act, the control should be applied flexibly, rather than in the ’monofocal manner’ adopted by Ms Conway (at [69]).

His Honour upheld the primary judge’s decision.

Ground 2: Easement sought under s 88K of the Conveyancing Act

Ms Conway sought an easement favouring her land, which would restrict neighbouring development and create various restrictions to the building envelope of the neighbouring development.

Kirk JA upheld the primary judge’s finding that the proposed easement was not ’reasonably necessary’ for the effective use or development of Ms Conway’s land, including because the partial loss of solar access did not prevent her land from being capable of being used for residential purposes. Kirk JA agreed with the primary judge that solar access was something ’nice to have’ but was not ’reasonably necessary’ for the use of the land (at [97]).

Key takeaways

As these were judicial review proceedings, the Court did not consider merits of the development (or the merits of Council’s decision). The decision confirmed that the provisions of a DCP are a mandatory consideration for a consent authority, however, a Council has a broad discretion in applying those provisions, and in considering the merits of a development application.

However, the decision left open another question: in the event that Council does incorrectly apply or construe a provision of the DCP, whether this alone could amount to a jurisdictional error. Presumably, in that case, the misconstruction of the DCP control would have to be sufficiently serious or material such that a different decision would have been made had there been no error, or if the misconstruction amounted to a total failure to consider the provision.

The decision also highlights the difference between a referral document prepared by a Council officer, and the ultimate reasons for the decision by the Council officer with delegated authority. Those documents are of a different nature and for a different purpose.

Applying for the creation of a new easement under s 88K of the Conveyancing Act was, in this case, not a viable avenue for protecting solar access to a residential dwelling.