Barcoo Designs Pty Ltd v Sutherland Shire Council [1989] NSWLEC 41

Barcoo Designs Pty Ltd v Sutherland Shire Council [1989] NSWLEC 41

The appeal failed because the Assessor made no error of law. It was open on the evidence, including the survey and planning evidence, to find that the boundary between the Waterways (7a) and Residential 2(e1) zones was the mean high water mark as fixed in D.P.243686 when the Sutherland Planning Scheme Ordinance was...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 February 1989
Procedural Posture
Appeal Under S.56 a of the Land and Environment Court Act / Judgment on Appeal From an Assessor's Dismissal of an Appeal Against Refusal of a Building Application
Outcome
appeal dismissed with costs
Legal Topics
['zoning Boundaries' 'building Application Refusal' 'waterways (7a) Zoning' 'residential 2(e1) Zoning' 'mean High Water Mark' 'error of Law Appeal' 'interpretation of Planning Scheme Maps']
['planning and Environment Law' 'local Government Law'] ['zoning Boundaries' 'building Application Refusal' 'waterways (7a) Zoning' 'residential 2(e1) Zoning' 'mean High Water Mark' 'error of Law Appeal' 'interpretation of Planning Scheme Maps']

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Procedural Posture

Appeal Under S.56 a of the Land and Environment Court Act / Judgment on Appeal From an Assessor's Dismissal of an Appeal Against Refusal of a Building Application

Legal Issues

  1. 1 ['Whether the Assessor erred in law in finding that the proposed swimming pool was within the Waterways (7a) zone and therefore prohibited.' 'Whether the redefinition of the mean high water mark by Deposited Plan 735551 meant that the proposed swimming pool site was within the Residential 2(e1) zone.' 'Whether s.34 of the Interpretation Act assisted the appellant in construing the Sutherland Planning Scheme Ordinance and scheme map.' 'Whether Cleaver v. Byron Shire Council assisted in determining the zoning boundary.']

Ratio Decidendi

The appeal failed because the Assessor made no error of law. It was open on the evidence, including the survey and planning evidence, to find that the boundary between the Waterways (7a) and Residential 2(e1) zones was the mean high water mark as fixed in D.P.243686 when the Sutherland Planning Scheme Ordinance was gazetted, and that the proposed pool site was within the Waterways zone. The later redefinition of the mean high water mark did not establish legal error or alter the zoning boundary, and s.34 of the Interpretation Act and Cleaver v. Byron Shire Council did not assist the appellant.

Court Disposition

appeal dismissed with costs

Orders

  • ['The appeal is dismissed with costs.' 'The order of the Assessor dismissing the application is confirmed.' 'The exhibits may be returned.']