Damilabe Pty Ltd v Gunnedah Shire Council [2018] NSWLEC 1295

Damilabe Pty Ltd v Gunnedah Shire Council [2018] NSWLEC 1295

The Court held that the site was a lot resulting from a subdivision approved and registered before the commencement of the Gunnedah Local Environmental Plan 2012, and that a dwelling would have been permissible on the 40 Ha lot under the Gunnedah Local Environmental Plan 1986. The proposed dwelling therefore satisfied cl 4.2A(3)(c) of the Gunnedah Local Environmental Plan 2012, making further assessment of the cl 4.6 request unnecessary. The proposal was not inconsistent with the clause objectives, RU1 zone objectives, SEPP rural planning principles or public interest, and the Council had not established that approval would create an undesirable precedent or cumulative adverse impact.

Jurisdiction
Australia
Judgment Date
19 June 2018
Procedural Posture
Class 1 Appeal Against Refusal of Development Application 2016/134 to Construct a Dwelling / Principal Judgment After Hearing
Outcome
Appeal upheld and Development Application 2016/134 approved subject to conditions in Annexure A.
Legal Topics
['development Application Refusal' 'rural Dwelling' 'minimum Lot Size' 'clause 4.6 Variation' 'clause 4.2 a Dwelling Entitlement' 'ru1 Primary Production Zone Objectives' 'precedent and Public Interest']
['environmental Planning and Assessment' 'land Use Planning' 'development Consent'] ['development Application Refusal' 'rural Dwelling' 'minimum Lot Size' 'clause 4.6 Variation' 'clause 4.2 a Dwelling Entitlement' 'ru1 Primary Production Zone Objectives' 'precedent and Public Interest']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application 2016/134 to Construct a Dwelling / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed dwelling satisfied cl 4.2A(3)(c) of the Gunnedah Local Environmental Plan 2012 despite the lot being below the 200 Ha minimum lot size in cl 4.2A(3)(a).' 'Whether it was necessary to assess the amended cl 4.6 written request to vary the minimum lot size development standard.' 'Whether approval of a dwelling on the site would be inconsistent with the RU1 Primary Production zone objectives, establish an undesirable precedent, or be contrary to the public interest.']

Ratio Decidendi

The Court held that the site was a lot resulting from a subdivision approved and registered before the commencement of the Gunnedah Local Environmental Plan 2012, and that a dwelling would have been permissible on the 40 Ha lot under the Gunnedah Local Environmental Plan 1986. The proposed dwelling therefore satisfied cl 4.2A(3)(c) of the Gunnedah Local Environmental Plan 2012, making further assessment of the cl 4.6 request unnecessary. The proposal was not inconsistent with the clause objectives, RU1 zone objectives, SEPP rural planning principles or public interest, and the Council had not established that approval would create an undesirable precedent or cumulative adverse impact.

Court Disposition

Appeal upheld and Development Application 2016/134 approved subject to conditions in Annexure A.

Orders

  • ['Leave is granted to rely on amended Clause 4.6 written request of 4 May 2018.' 'The appeal is upheld.' 'Development Application 2016/134 for Lot 222 DP 849115, known as Damilabe, Kamilaroi Highway, Gunnedah is approved subject to Annexure A.' 'The Exhibits, except Exhibits 1 and B are returned.']