Seraglio v Shoalhaven City Council [2017] NSWLEC 45

Seraglio v Shoalhaven City Council [2017] NSWLEC 45

The Court found that there were two separate and longstanding uses of distinct parts of the land (the sites at 22 Bowen Street and 34 Currambene Street) for the purpose of dwelling houses, each with its own curtilage and physical separation. These uses commenced lawfully and continued as existing uses within the meaning of the Act, despite subsequent planning instruments rendering dwelling houses a prohibited purpose on the land. The coming into force of SLEP 2014, and its introduction of dual occupancies as a permissible use, did not recharacterise the actual and physical use of each site as being for the purpose of dual occupancy. The proposed subdivision aligned with these two existing...

Jurisdiction
Australia
Judgment Date
26 April 2017
Procedural Posture
Appeal (class 1) / Final Orders After Hearing
Outcome
Appeal upheld; development consent granted; costs reserved.
Legal Topics
['development Consent' 'existing Use Rights' 'subdivision of Land' 'prohibited Uses' 'environmental Planning Instruments']
['planning Law' 'environmental Law' 'administrative Law'] ['development Consent' 'existing Use Rights' 'subdivision of Land' 'prohibited Uses' 'environmental Planning Instruments']

Case Brief

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Procedural Posture

Appeal (class 1) / Final Orders After Hearing

Legal Issues

  1. 1 ['Whether the proposed subdivision is prohibited under the Shoalhaven Local Environmental Plan 2014 (SLEP 2014) and the Environmental Planning and Assessment Act 1979 (NSW)' 'Whether the use of the land constitutes existing use rights for dwelling houses' 'Whether the current use of the land is properly characterised as dual occupancies or dwelling houses' 'Whether the proposed subdivision contravenes any statutory instrument or the Act']

Ratio Decidendi

The Court found that there were two separate and longstanding uses of distinct parts of the land (the sites at 22 Bowen Street and 34 Currambene Street) for the purpose of dwelling houses, each with its own curtilage and physical separation. These uses commenced lawfully and continued as existing uses within the meaning of the Act, despite subsequent planning instruments rendering dwelling houses a prohibited purpose on the land. The coming into force of SLEP 2014, and its introduction of dual occupancies as a permissible use, did not recharacterise the actual and physical use of each site as being for the purpose of dual occupancy. The proposed subdivision aligned with these two existing...

Court Disposition

Appeal upheld; development consent granted; costs reserved.

Orders

  • ['Leave is granted to amend the plan of subdivision in the form of Allen Price & Scarratts, drawing no 26513-01 Revision 4 dated 30 September 2015.' 'The appeal is upheld.' 'Development consent is granted to development application No SF10511 for a two lot Torrens title subdivision and demolition of existing deck at...