39Powers of Court on appeals

#### 39 Powers of Court on appeals 39 Powers of Court on appeals > > (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. > > > (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. > > > (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. > > > (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. > > > (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. > > > (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the [Local Government Act 1993](/view/html/inforce/current/act-1993-030) or a consent authority within the meaning of the [Environmental Planning and Assessment Act 1979](/view/html/inforce/current/act-1979-203) and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body— > > > > > (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and > > > > > (b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. > > > (6A) (Repealed) > > > (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. > > > (8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the [Access to Neighbouring Land Act 2000](/view/html/inforce/current/act-2000-002). > > **s 39:** Am 1994 No 44, Sch 19; 1997 No 156, Sch 4.10 \[6\]; 2000 No 2, Sch 1 \[4\]; 2017 No 60, Sch 11.5 \[1\].