Penny & Anor v Cooma-Monaro Shire Council [2003] NSWLEC 51

Penny & Anor v Cooma-Monaro Shire Council [2003] NSWLEC 51

In the context of cl 15(1)(a) and the definition of "1997 holding" in the LEP, "direct vehicular access" means immediate access with no intervening land or roads between the Council-controlled road and the land. Portion 119 did not have that direct access and was not a "1997 holding". The definition of "1997 holding" was not a development standard because it was a definition of a land holding and did not fix a standard or specify a requirement in respect of an aspect of development. Clause 15(1)(a), read with that definition, operated as a prohibition on dwelling house development unless the land had the required characteristic, and did not constitute a development standard. The proposed...

Jurisdiction
Australia
Judgment Date
04 April 2003
Procedural Posture
Class 1 Proceedings Concerning Refusal of a Development Application for a Dwelling House / Preliminary Point of Law
Outcome
Preliminary questions answered against the Applicants: the land was not a "1997 holding", the proposed development was prohibited, and the relevant LEP provisions were not development standards.
Legal Topics
['meaning of "direct Vehicular Access"' 'definition of "1997 Holding" Under Cooma Monaro Local Environmental Plan 1999 (rural)' 'whether a Planning Provision Is a Development Standard' 'state Environmental Planning Policy No 1 Objection' 'prohibited Development in Zone 1(a) Rural Zone']
['environmental Planning and Assessment' 'land Use Planning' 'statutory Interpretation'] ['meaning of "direct Vehicular Access"' 'definition of "1997 Holding" Under Cooma Monaro Local Environmental Plan 1999 (rural)' 'whether a Planning Provision Is a Development Standard' 'state Environmental Planning Policy No 1 Objection' 'prohibited Development in Zone 1(a) Rural Zone']

Case Brief

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Procedural Posture

Class 1 Proceedings Concerning Refusal of a Development Application for a Dwelling House / Preliminary Point of Law

Legal Issues

  1. 1 ['Whether Portion 119 DP750551, No 1730 Carlaminda Road, Carlaminda NSW is a "1997 holding" as defined pursuant to the Cooma-Monaro Local Environmental Plan 1999 - (Rural).' 'If the land is not a "1997 holding", whether the proposed dwelling house development is prohibited.' 'Whether cl 15(1)(a) of the Cooma-Monaro Local Environmental Plan 1999 - (Rural), read with the definition of "1997 holding", or the definition of "1997 holding" alone, constitutes a development standard as defined pursuant to the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

In the context of cl 15(1)(a) and the definition of "1997 holding" in the LEP, "direct vehicular access" means immediate access with no intervening land or roads between the Council-controlled road and the land. Portion 119 did not have that direct access and was not a "1997 holding". The definition of "1997 holding" was not a development standard because it was a definition of a land holding and did not fix a standard or specify a requirement in respect of an aspect of development. Clause 15(1)(a), read with that definition, operated as a prohibition on dwelling house development unless the land had the required characteristic, and did not constitute a development standard. The proposed...

Court Disposition

Preliminary questions answered against the Applicants: the land was not a "1997 holding", the proposed development was prohibited, and the relevant LEP provisions were not development standards.

Orders

  • ['Question 1: Portion 119 DP750551, No 1730 Carlaminda Road, Carlaminda NSW is not a "1997 holding" as defined pursuant to the LEP.' 'Question 2: The development proposed is prohibited.' 'Question 3(a): Not answered.' 'Question 3(b): Clause 15(1)(a) of the LEP when read with the definition of "1997 holding" in the...