34 He determined that the case before him was one where the conditions themselves were incapable of separation from the issue as to whether at all it was open to the respondent to ever approve the matter, let alone impose conditions. At [30] the President referred to the respondent's error as "plainly an error of law" and at [31] he referred to "patent shortcomings".
35 He determined at [34] that the matter sought to be raised in that case went "to the jurisdictional basis for a decision" and that in those circumstances the Tribunal could properly consider that question even though an appellant had formally appealed only against a condition or conditions of approval.
36 At [39] of his reasons, the President pointed out that the conclusion to which he had arrived did not involve, "a consideration of the merits of the matter," but rather a consideration of whether, in the circumstances, the respondent had jurisdiction to have granted the approval at all.
37 I do not accept that the question sought to be raised is relevantly a jurisdictional one. All residential development is required to conform to the Codes. However, there is necessarily a discretionary judgment to be formed by the Council as to whether the performance criteria in question are met, and indeed as to what are the appropriate elements to even be considered, in the context of cl 3.7.1 of the Residential Design Codes.
38 This is not a case, such as Rebel Sport (supra), where it could even be alleged that "The way the matter was apparently approved by the respondent is plainly an error of law" (at [30]) or that there is a "patent shortcoming".
39 It was, in particular, within the discretion of the respondent to determine that (with the disputed condition) the development in question is "consistent with the desired height of buildings in the locality" and that it recognised "the need to protect the amenities of adjoining properties".