Bertino Pty Ltd v Concord Council [1999] NSWLEC 242

Bertino Pty Ltd v Concord Council [1999] NSWLEC 242

The Concord Planning Scheme Ordinance envisaged, on a single block of land, only a single dwelling-house or a single building containing no more than two flats. It would be irrational to construe the instrument as allowing, by an innominate use, the construction on the same block of 15 separate self-contained dwelling houses when more extensive residential flat development was prohibited. The proposed development was therefore prohibited.

Jurisdiction
Australia
Judgment Date
22 October 1999
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application 181/99 / Preliminary Question of Law
Outcome
The preliminary question whether the proposed development was prohibited under the Concord Planning Scheme Ordinance was answered yes.
Legal Topics
['characterisation of Proposed Development' 'residential 2(a) Zoning' 'residential Flat Buildings' 'dwelling Houses and Flats' 'prohibited Development']
['planning and Environment Law' 'land Use Zoning' 'statutory Interpretation'] ['characterisation of Proposed Development' 'residential 2(a) Zoning' 'residential Flat Buildings' 'dwelling Houses and Flats' 'prohibited Development']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application 181/99 / Preliminary Question of Law

Legal Issues

  1. 1 ['Whether the proposed development was prohibited under the Concord Planning Scheme Ordinance.' 'Whether the proposed development was properly characterised as dwelling-houses, flats, group dwellings, or a residential flat building not Class A.' 'Whether the issue involved a question of law concerning the meaning in the Concord Planning Scheme Ordinance of the words defining "residential flat building".']

Ratio Decidendi

The Concord Planning Scheme Ordinance envisaged, on a single block of land, only a single dwelling-house or a single building containing no more than two flats. It would be irrational to construe the instrument as allowing, by an innominate use, the construction on the same block of 15 separate self-contained dwelling houses when more extensive residential flat development was prohibited. The proposed development was therefore prohibited.

Court Disposition

The preliminary question whether the proposed development was prohibited under the Concord Planning Scheme Ordinance was answered yes.

Orders

  • ['The question of law posed in paragraph 4 was answered yes.' 'It was not necessary to answer the question posed in paragraph 5.' 'The matter was directed to be listed before the Registrar for callover on Friday 5 November 1999.' 'Exhibit C1 may be returned.']