CHRISTOPHER PETER WALKER v. WARRINGAH COUNCIL [1998] NSWLEC 276 (5 November 1998) [1998] NSWLEC 47

CHRISTOPHER PETER WALKER v. WARRINGAH COUNCIL [1998] NSWLEC 276 (5 November 1998) [1998] NSWLEC 47

On the assumed facts, the proposed helipad was not an independent use but was wholly ancillary to the use of the land as a dwelling house. The proposed use was therefore permissible without development consent under the zoning table to clause 53AC, but clause 10 required development consent for that use. Accordingly, the proposed development was permissible with consent in the 1(e) Non-Urban E - Rural Residential zone.

Jurisdiction
Australia
Judgment Date
05 November 1998
Procedural Posture
Appeal Under the Environmental Planning and Assessment Act 1979, S 97 Against Refusal of Development Consent for a Helicopter Landing Site or Helipad. / Separate Determination of a Preliminary Question of Law Pursuant to Supreme Court Rules Pt 31 R 2.
Outcome
Preliminary question answered in the affirmative.
Legal Topics
['warringah Local Environmental Plan 1985' 'permissibility of Helipad in 1(e) Non Urban E Rural Residential Zone' 'ancillary Use Versus Independent Use' 'development Consent']
['planning and Environment Law' 'land Use and Development Consent'] ['warringah Local Environmental Plan 1985' 'permissibility of Helipad in 1(e) Non Urban E Rural Residential Zone' 'ancillary Use Versus Independent Use' 'development Consent']

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Procedural Posture

Appeal Under the Environmental Planning and Assessment Act 1979, S 97 Against Refusal of Development Consent for a Helicopter Landing Site or Helipad. / Separate Determination of a Preliminary Question of Law Pursuant to Supreme Court Rules Pt 31 R 2.

Legal Issues

  1. 1 ['Whether the proposed development for a helipad is permissible with development consent in the 1(e) Non-Urban E - Rural Residential zone or is prohibited.' 'Whether the proposed helipad is ancillary to the use of the land as a dwelling house or is an independent use.']

Ratio Decidendi

On the assumed facts, the proposed helipad was not an independent use but was wholly ancillary to the use of the land as a dwelling house. The proposed use was therefore permissible without development consent under the zoning table to clause 53AC, but clause 10 required development consent for that use. Accordingly, the proposed development was permissible with consent in the 1(e) Non-Urban E - Rural Residential zone.

Court Disposition

Preliminary question answered in the affirmative.

Orders

  • ['The preliminary question, namely whether the proposed development is permissible with consent in the 1(e) Non-Urban E - Rural Residential zone, is answered in the affirmative.']