Williams v Shellharbour City Council [2020] NSWLEC 3

Williams v Shellharbour City Council [2020] NSWLEC 3

The proposed community title subdivision was not "development for any purpose" within the chapeau to cl 5.10(10) of Shellharbour Local Environmental Plan 2013 because subdivision is not a use of land and, without a use, there was no relevant purpose for the provision. The heritage conservation incentive in cl 5.10(10) therefore did not apply. As the proposed subdivision did not satisfy cl 4.1AA and cl 4.6 could not be used to vary the relevant minimum lot size standard, the development was prohibited and the development application had to be refused.

Jurisdiction
Australia
Judgment Date
06 February 2020
Procedural Posture
Class 1 Appeal Against Refusal of Development Application / Separate Question Hearing; Principal Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['community Title Subdivision' 'minimum Subdivision Lot Size' 'development for Any Purpose' 'shellharbour Local Environmental Plan 2013 Cl 5.10(10)' 'prohibited Development']
['planning and Environment Law' 'development Consent' 'subdivision' 'heritage Conservation'] ['community Title Subdivision' 'minimum Subdivision Lot Size' 'development for Any Purpose' 'shellharbour Local Environmental Plan 2013 Cl 5.10(10)' 'prohibited Development']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application / Separate Question Hearing; Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed community title subdivision was "development for any purpose" pursuant to cl 5.10(10) of Shellharbour Local Environmental Plan 2013.' 'If not, whether the proposed community title subdivision proposing lots less than the minimum subdivision size shown on the Lot Size Map pursuant to cl 4.1AA of Shellharbour Local Environmental Plan 2013 was permissible with consent under the LEP.']

Ratio Decidendi

The proposed community title subdivision was not "development for any purpose" within the chapeau to cl 5.10(10) of Shellharbour Local Environmental Plan 2013 because subdivision is not a use of land and, without a use, there was no relevant purpose for the provision. The heritage conservation incentive in cl 5.10(10) therefore did not apply. As the proposed subdivision did not satisfy cl 4.1AA and cl 4.6 could not be used to vary the relevant minimum lot size standard, the development was prohibited and the development application had to be refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The question "is the proposed development, which is a community title subdivision, "development for any purpose" pursuant to cl 5.10(10) of Shellharbour Local Environmental Plan 2013" is answered "no".' 'The Class 1 appeal is dismissed.' 'Development Application 0308/2017 for subdivision of 167 Swamp Road, Dunmore...