Baker v Gosford City Council [2004] NSWLEC 167

Baker v Gosford City Council [2004] NSWLEC 167

There is no relevant inconsistency between Gosford Local Environmental Plan No. 443 and State Environmental Planning Policy No. 5. Both instruments provide complementary considerations: SEPP No 5 governs design standards and requirements for housing, while the LEP imposes obligations focused on the social and economic wellbeing of residents affected by redevelopment. Since SEPP No 5 does not constitute an exclusive code, the LEP can lawfully operate alongside SEPP No 5. Accordingly, the LEP is applicable to the determination of the development application. Section 34(4) of the EP&A Act does not permit the pending appeal to be determined as if the LEP had not been made.

Jurisdiction
Australia
Judgment Date
16 April 2004
Procedural Posture
Notice of Motion (questions of Law in Development Appeal) / Interlocutory – Determination of Preliminary Questions of Law During an Unconcluded Development Appeal
Outcome
Questions of law determined: Question 1 answered 'No', Question 2 does not arise, Question 3 answered 'Yes'. Determinations remitted to the Commissioner. Costs reserved.
Legal Topics
['inconsistency Between Environmental Planning Instruments' 'interpretation and Application of Local Environmental Plan (lep) and State Environmental Planning Policy (sepp)' 'application of Environmental Planning and Assessment Act Provisions to Pending Development Applications' 'development Consent for Housing for Older People or People With a Disability']
['planning and Environment Law'] ['inconsistency Between Environmental Planning Instruments' 'interpretation and Application of Local Environmental Plan (lep) and State Environmental Planning Policy (sepp)' 'application of Environmental Planning and Assessment Act Provisions to Pending Development Applications' 'development Consent for Housing for Older People or People With a Disability']

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Procedural Posture

Notice of Motion (questions of Law in Development Appeal) / Interlocutory – Determination of Preliminary Questions of Law During an Unconcluded Development Appeal

Legal Issues

  1. 1 ['Is Gosford Local Environmental Plan No. 443 inconsistent with State Environmental Planning Policy No. 5?' 'Does clause 5 of SEPP 5 render the LEP inapplicable to the subject development application?' 'Are the provisions of the LEP to be applied when determining the subject development application, having regard to section 34(4) of the Environmental Planning and Assessment Act 1979?']

Ratio Decidendi

There is no relevant inconsistency between Gosford Local Environmental Plan No. 443 and State Environmental Planning Policy No. 5. Both instruments provide complementary considerations: SEPP No 5 governs design standards and requirements for housing, while the LEP imposes obligations focused on the social and economic wellbeing of residents affected by redevelopment. Since SEPP No 5 does not constitute an exclusive code, the LEP can lawfully operate alongside SEPP No 5. Accordingly, the LEP is applicable to the determination of the development application. Section 34(4) of the EP&A Act does not permit the pending appeal to be determined as if the LEP had not been made.

Court Disposition

Questions of law determined: Question 1 answered 'No', Question 2 does not arise, Question 3 answered 'Yes'. Determinations remitted to the Commissioner. Costs reserved.

Orders

  • ['The three questions of law raised by the Applicant are determined as follows: Question 1: No; Question 2: Does not arise; Question 3: Yes.' 'Determination of the questions of law remitted to the Commissioner pursuant to the Land and Environment Court Act 1979, s 36(6)(b).' 'Costs reserved.']