Abret Pty Limited v Wingecarribee Shire Council [2011] NSWCA 107

Abret Pty Limited v Wingecarribee Shire Council [2011] NSWCA 107

Even if the development is intended for seniors housing, the proposed use comprises both dwelling houses and residential flat buildings, the latter being prohibited under the LEP; where a development has overlapping purposes and uses, if any one use is prohibited, development consent cannot be granted. The appeal fails as part of the proposed development is a prohibited use.

Parties
Appellant: Abret Pty Limited; Respondent: Wingecarribee Shire Council
Jurisdiction
Australia
Judgment Date
05 May 2011
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Development Consent, Prohibited Development, Seniors Housing, Zoning, Statutory Interpretation
Planning and Environment Law Local Government Law Development Consent Prohibited Development Seniors Housing Zoning Statutory Interpretation

Case Brief

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Parties

Abret Pty Limited

Appellant

Wingecarribee Shire Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the proposed seniors housing development is a prohibited development under the Wingecarribee Local Environmental Plan 1989 or permissible with consent
  2. 2 Whether the trial judge failed to determine the issue raised in the proceedings
  3. 3 Whether clause 9(3) LEP zone objectives are relevant to determining permitted/prohibited uses

Ratio Decidendi

Even if the development is intended for seniors housing, the proposed use comprises both dwelling houses and residential flat buildings, the latter being prohibited under the LEP; where a development has overlapping purposes and uses, if any one use is prohibited, development consent cannot be granted. The appeal fails as part of the proposed development is a prohibited use.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal is dismissed with costs.