Demigo Pty Ltd v Ku-Ring-Gai Municipal Council [1988] NSWLEC 2

Demigo Pty Ltd v Ku-Ring-Gai Municipal Council [1988] NSWLEC 2

Under cl.23 of the Ku-ring-gai Planning Scheme Ordinance, buildings or works for the purposes of dwelling-houses in Residential 2(c) could be erected or carried out without consent. The evidence, including the site's physical qualities, residential zoning, capacity as a dwelling-house site, and the pending building...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 May 1988
Procedural Posture
Class 2 Proceedings: Appeal Against the Respondent's Disapproval of a Building Application for Construction of a Tennis Court / Questions of Law Referred by the Presiding Assessor Under S.36(5) of the Land and Environment Court Act 1979; Duty Judge Gave Determinations and Reasons
Outcome
Question 1 was answered No; Questions 2 and 3 did not arise. The determinations were remitted to the Assessor and the hearing resumed.
Legal Topics
['development Consent' 'building Application' 'residential Zoning' 'dwelling House Purpose' 'land and Environment Court Jurisdiction']
['environmental and Planning Law' 'local Government Law'] ['development Consent' 'building Application' 'residential Zoning' 'dwelling House Purpose' 'land and Environment Court Jurisdiction']

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Summary, issues, holding and outcome

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Procedural Posture

Class 2 Proceedings: Appeal Against the Respondent's Disapproval of a Building Application for Construction of a Tennis Court / Questions of Law Referred by the Presiding Assessor Under S.36(5) of the Land and Environment Court Act 1979; Duty Judge Gave Determinations and Reasons

Legal Issues

  1. 1 ['Whether development consent was required for the proposed tennis court' 'If development consent was required, whether the Court had jurisdiction to grant development consent in the proceedings as constituted' 'If the Court lacked jurisdiction, whether the Court had power to amend the proceedings so as to attract jurisdiction to grant development consent']

Ratio Decidendi

Under cl.23 of the Ku-ring-gai Planning Scheme Ordinance, buildings or works for the purposes of dwelling-houses in Residential 2(c) could be erected or carried out without consent. The evidence, including the site's physical qualities, residential zoning, capacity as a dwelling-house site, and the pending building application for a dwelling-house, justified the inference that the proposed tennis court was for the purpose of a dwelling-house to be erected on the appeal site. Development consent was therefore not required.

Court Disposition

Question 1 was answered No; Questions 2 and 3 did not arise. The determinations were remitted to the Assessor and the hearing resumed.

Orders

  • ['The proposed tennis court did not require development consent.' 'Questions 2 and 3 did not arise in view of the determination of Question 1.' 'The determinations were remitted to the Assessor.']