41 The appellant's house is situated above and directly behind the second respondents' house. The second storey, the subject of the development consent, would significantly interfere with the views from the appellant's house. As explained by Stein JA, the appellant's house has heritage value and the addition of the second storey would detract from that.
42 The appellant objected to the development proposal on grounds that included the impairment of his views and the heritage value of the house. It is plain that the objections so raised were reasonable and neither the first respondent nor the second respondent contended to the contrary with any enthusiasm. I agree, for the reasons expressed by Stein JA, that the objections were well founded and constituted reasonable grounds for refusal.
43 Of course, by saying that the objections were reasonable, I do not intend to express any opinion that they were bound to succeed. The objections were, however, of a kind that fell squarely within the exclusionary provisions of the delegation.
44 In the circumstances, in determining the development application, Mr Lupeveski acted outside his powers.
45 The respondents relied on a passage from the judgment of Lloyd J in Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206 where his Honour (at 211) accepted a submission "that an internal error within the administration of the respondent, unless of a fundamentally grave nature, cannot vitiate its consent to the application". His Honour regarded Brickworks Limited v Warringah Shire Council, Ex Parte Forssberg; Re Warringah Shire Council (1927) 8 LGR (NSW) 74 and Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369 as authority for this proposition.
46 On the strength of Pearson v Leichhardt Municipal Council the respondents submitted that, if Mr Lupevski acted outside his powers in granting the development consent, that act was an internal error within the administration of the first respondent that did not vitiate the consent to the second respondent's development application.
47 In my opinion, however, the authorities referred to do not support the submission accepted by Lloyd J in the passage quoted. I agree with Stein JA that the submission is questionable.
48 In any event, the conduct of Mr Lupevski in determining the development application - in circumstances in which his power to do so was excluded by the delegation - cannot be categorised as an "internal error". He acted outside the powers conferred upon him. The consent he purported to grant was a nullity.
49 For the above reasons I joined in the decision of the Court on 6 November 2001 and the making of the orders on that date referred to in the reasons of Stein JA.
50 ROLFE AJA: The reasons of Stein JA and Ipp AJA, which I have had the advantage of reading in draft, fully support, in my opinion, the orders made on 6 November 2001 and, subject to one qualification, I agree with them.
51 I consider that the decision in Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206 is not merely questionable, but wrong. Delegated authority can only be exercised if the conditions for its exercise are satisfied. In neither this case nor in Pearson were they and, accordingly, I consider the officer in each case acted without power.