DEM (Aust) Pty Limited v Pittwater Council [2004] NSWLEC 70

DEM (Aust) Pty Limited v Pittwater Council [2004] NSWLEC 70

The subject land did not satisfy cl 4(1)(b) of SEPP No. 5 because under the Pittwater Local Environmental Plan 1993 dwelling-houses were permissible only if used in conjunction with commercial premises or industry and situated on the land on which those premises or industry were conducted, and the proposed development included no such commercial premises or industry. The question of what constitutes the site of the proposed development for cl 12 is a question of fact in each case and is not necessarily each residential building nor necessarily the boundaries of the whole allotment.

Jurisdiction
Australia
Judgment Date
04 February 2004
Procedural Posture
Appeal Against Deemed Refusal of a Development Application Under State Environmental Planning Policy No. 5 Housing for Older People or People With a Disability / Determination of Preliminary Questions Before the Hearing of the Appeal
Outcome
Preliminary questions answered; first question answered No, second question held to be a question of fact, and third question not answered because the parties did not require an answer.
Legal Topics
['development Application' 'state Environmental Planning Policy No. 5 Housing for Older People or People With a Disability' 'dwelling Houses' 'access to Transport Services' 'preliminary Questions']
['planning and Environment Law' 'statutory Interpretation'] ['development Application' 'state Environmental Planning Policy No. 5 Housing for Older People or People With a Disability' 'dwelling Houses' 'access to Transport Services' 'preliminary Questions']

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Procedural Posture

Appeal Against Deemed Refusal of a Development Application Under State Environmental Planning Policy No. 5 Housing for Older People or People With a Disability / Determination of Preliminary Questions Before the Hearing of the Appeal

Legal Issues

  1. 1 ['Whether on a proper construction of cl 4(1)(b) of SEPP No. 5 the land is land upon which development for the purpose of dwelling-houses is permitted.' 'Whether on a proper construction of cll 12(1) and 12(2) of SEPP No. 5 the 400 metre measurement is required to be undertaken in relation to each residential building in the proposed development.' 'Whether the requirement for access in cl 12(1) of SEPP No. 5 is a development standard capable of variation by means of an objection under State Environmental Planning Policy No. 1 - Development Standards.']

Ratio Decidendi

The subject land did not satisfy cl 4(1)(b) of SEPP No. 5 because under the Pittwater Local Environmental Plan 1993 dwelling-houses were permissible only if used in conjunction with commercial premises or industry and situated on the land on which those premises or industry were conducted, and the proposed development included no such commercial premises or industry. The question of what constitutes the site of the proposed development for cl 12 is a question of fact in each case and is not necessarily each residential building nor necessarily the boundaries of the whole allotment.

Court Disposition

Preliminary questions answered; first question answered No, second question held to be a question of fact, and third question not answered because the parties did not require an answer.

Orders

  • ['Question 1: Whether on a proper construction of cl 4(1)(b) of State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability the land is land upon which development for the purpose of dwelling-houses is permitted? Answer: No.' 'Question 2: Whether on a proper construction of cll...