DEM (Australia) Pty Limited v Pittwater Council [2004] NSWCA 434

DEM (Australia) Pty Limited v Pittwater Council [2004] NSWCA 434

The subject land satisfied cl 4(1)(b)(i) of SEPP No. 5 because the Pittwater LEP permitted development for the purpose of dwelling-houses on the land, even though that permission was qualified by requirements that the dwelling-houses be used in conjunction with commercial premises or industry and situated on the same land. Treating those qualifications as excluding SEPP No. 5 would frustrate the policy's beneficial purpose and give primacy to the local environmental plan over the State policy.

Jurisdiction
Australia
Judgment Date
26 November 2004
Procedural Posture
Environmental Planning Appeal Concerning Preliminary Question of Law / Application for Leave to Appeal and Appeal From the Land and Environment Court
Outcome
Leave to appeal granted and appeal allowed.
Legal Topics
['application of State Environmental Planning Policy No. 5' 'permissibility of Dwelling House Development Under Local Environmental Planning Instrument' 'interaction Between State Environmental Planning Policy and Local Environmental Plan' 'preliminary Questions of Law']
['environmental Planning' 'statutory Interpretation'] ['application of State Environmental Planning Policy No. 5' 'permissibility of Dwelling House Development Under Local Environmental Planning Instrument' 'interaction Between State Environmental Planning Policy and Local Environmental Plan' 'preliminary Questions of Law']

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Procedural Posture

Environmental Planning Appeal Concerning Preliminary Question of Law / Application for Leave to Appeal and Appeal From the Land and Environment Court

Legal Issues

  1. 1 ['Whether land zoned Zone No 3(e) (Office Business "E") under the Pittwater Local Environment Plan was land on which development for the purpose of dwelling-houses is permitted within cl 4(1)(b)(i) of State Environmental Planning Policy No. 5.' 'Whether qualifying words in the Pittwater Local Environment Plan requiring dwelling-houses to be used in conjunction with commercial premises or industry and situated on the same land prevented SEPP No. 5 from applying.']

Ratio Decidendi

The subject land satisfied cl 4(1)(b)(i) of SEPP No. 5 because the Pittwater LEP permitted development for the purpose of dwelling-houses on the land, even though that permission was qualified by requirements that the dwelling-houses be used in conjunction with commercial premises or industry and situated on the same land. Treating those qualifications as excluding SEPP No. 5 would frustrate the policy's beneficial purpose and give primacy to the local environmental plan over the State policy.

Court Disposition

Leave to appeal granted and appeal allowed.

Orders

  • ['Grant leave to appeal.' 'Subject to the filing of the Notice of Appeal in the form of the draft provided in the papers, within 14 days of the date of this judgment, appeal allowed.' 'Set aside Order 1 made by Lloyd J on 4 February 2004 and in lieu thereof answer Question 1 of the Preliminary Questions of Law dated...