Baker Kavanagh Architects Pty Limited v Waverley Council [2004] NSWLEC 662

Baker Kavanagh Architects Pty Limited v Waverley Council [2004] NSWLEC 662

Because cl 50(2) of the Waverley Local Environmental Plan 1996 specifically contemplates erection of a building on land containing a heritage item or within a heritage conservation area, and because a narrow construction of "use" in cl 50(1) would give cl 50(2) negligible scope, "use" in cl 50(1) should be construed liberally to include development. On that construction, cl 50(1) contains the power to permit the proposed development notwithstanding that it would otherwise be prohibited under the Zone No 5(a) Special Uses zoning.

Jurisdiction
Australia
Judgment Date
10 November 2004
Procedural Posture
Appeal Building Application Question of Law / Judgment Answering a Question of Law on the Construction of the Waverley Local Environmental Plan 1996
Outcome
The question of law was answered in favour of permissibility of the development.
Legal Topics
['permissibility of Development Application' 'special Uses Zoning' 'conservation Incentives' 'construction of Local Environmental Plan' 'adaptive Reuse of Heritage Item']
['environmental Planning Law' 'land and Environment' 'heritage Conservation'] ['permissibility of Development Application' 'special Uses Zoning' 'conservation Incentives' 'construction of Local Environmental Plan' 'adaptive Reuse of Heritage Item']

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Procedural Posture

Appeal Building Application Question of Law / Judgment Answering a Question of Law on the Construction of the Waverley Local Environmental Plan 1996

Legal Issues

  1. 1 ['Whether on the true construction of the Waverley Local Environmental Plan 1996 the development the subject of Development Application DA 050/04 is permissible or prohibited.' 'Whether the word "use" in cl 50(1) of the Waverley Local Environmental Plan 1996 is confined to use of land or extends to development including the erection of buildings.' 'Whether cl 50(2) of the Waverley Local Environmental Plan 1996 is limited to development otherwise permissible under Zone No 5(a) Special Uses.' 'Whether cl 45(1)(e) of the Waverley Local Environmental Plan 1996 provided a pathway for consent to erect a building on land containing a heritage item.']

Ratio Decidendi

Because cl 50(2) of the Waverley Local Environmental Plan 1996 specifically contemplates erection of a building on land containing a heritage item or within a heritage conservation area, and because a narrow construction of "use" in cl 50(1) would give cl 50(2) negligible scope, "use" in cl 50(1) should be construed liberally to include development. On that construction, cl 50(1) contains the power to permit the proposed development notwithstanding that it would otherwise be prohibited under the Zone No 5(a) Special Uses zoning.

Court Disposition

The question of law was answered in favour of permissibility of the development.

Orders

  • ['On the true construction of the Waverley Local Environmental Plan 1996 the development the subject of Development Application DA 050/04 is permissible.']