Anthony Harvey -V- Richmond River Shire Council [1999] NSWLEC 91

Anthony Harvey -V- Richmond River Shire Council [1999] NSWLEC 91

Clause 13 was genuinely capable of different interpretations, and s25(3) of the Environmental Planning and Assessment Act 1979 required the construction that best met the LEP objectives to be preferred. The Council's construction would likely frustrate the object of permitting rural-residential subdivisions in rural zones. The Applicant's construction was preferred because it allowed such subdivision while avoiding fragmentation of prime crop or pasture land or flood prone land. Consent may therefore be granted where the affected part is included in the remainder of the parcel in accordance with cl13(5A).

Jurisdiction
Australia
Judgment Date
13 April 1999
Procedural Posture
Application for Declaration Concerning the True Meaning of a Provision in Richmond River Shire Local Environmental Plan 1992 / Judgment After Written Submissions by Consent
Outcome
Declaration made; question of costs reserved.
Legal Topics
['proper Construction of Local Environmental Plan' 'rural Residential Subdivision' 'prime Crop or Pasture Land' 'flood Prone Land' 'subdivision Consent']
['environmental Planning and Assessment' 'land Use Planning' 'statutory Interpretation'] ['proper Construction of Local Environmental Plan' 'rural Residential Subdivision' 'prime Crop or Pasture Land' 'flood Prone Land' 'subdivision Consent']

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Procedural Posture

Application for Declaration Concerning the True Meaning of a Provision in Richmond River Shire Local Environmental Plan 1992 / Judgment After Written Submissions by Consent

Legal Issues

  1. 1 ['Whether cl13 of the Richmond River Shire Local Environmental Plan 1992 authorises rural-residential subdivision where only part of the land proposed to be subdivided is prime crop or pasture land or flood prone land.' 'Whether the exception in cl13(1) applies to the whole parcel if any part is affected, or only to the affected part of the land.']

Ratio Decidendi

Clause 13 was genuinely capable of different interpretations, and s25(3) of the Environmental Planning and Assessment Act 1979 required the construction that best met the LEP objectives to be preferred. The Council's construction would likely frustrate the object of permitting rural-residential subdivisions in rural zones. The Applicant's construction was preferred because it allowed such subdivision while avoiding fragmentation of prime crop or pasture land or flood prone land. Consent may therefore be granted where the affected part is included in the remainder of the parcel in accordance with cl13(5A).

Court Disposition

Declaration made; question of costs reserved.

Orders

  • ['Declare that consent to a rural-residential subdivision of land may be granted conformably to cl13 of the Richmond River Shire Local Environmental Plan 1992, where part of that land is prime crop or pasture land or flood prone land provided that the affected part is included in the remainder of the parcel in...