McKay v North Sydney Council [2000] NSWLEC 62

McKay v North Sydney Council [2000] NSWLEC 62

Clause 29(3) of North Sydney Local Environmental Plan 1989 is clear on its face and, read in the context of the LEP as a whole including cl 9 and the plan and residential zone objectives, prohibits development on land between the foreshore building line and the adjacent shore except for the listed purposes. The cantilevered terrace was not within those exceptions and cl 29(3) was not a development standard within s 4 of the Environmental Planning and Assessment Act 1979, so it was not amenable to State Environmental Planning Policy No. 1 and could not be approved.

Jurisdiction
Australia
Judgment Date
31 March 2000
Procedural Posture
Appeal Against Refusal of a Development Application / Question of Law Determined Before Final Determination of Appeal
Outcome
Question of law answered No; appeal remitted to Commissioner Brown for final determination in accordance with the judgment.
Legal Topics
['development Application Refusal' 'foreshore Building Line' 'prohibited Development' 'development Standard' 'state Environmental Planning Policy No. 1 Objection' 'construction of Local Environmental Plan']
['environmental Planning Law' 'land and Environment Law'] ['development Application Refusal' 'foreshore Building Line' 'prohibited Development' 'development Standard' 'state Environmental Planning Policy No. 1 Objection' 'construction of Local Environmental Plan']

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Procedural Posture

Appeal Against Refusal of a Development Application / Question of Law Determined Before Final Determination of Appeal

Legal Issues

  1. 1 ['Whether the Court may approve the development having regard to cl 29 (Foreshore Building Line) of North Sydney Local Environmental Plan 1989.' 'Whether cl 29(3) of North Sydney Local Environmental Plan 1989 is a prohibition and is not amenable to an objection under State Environmental Planning Policy No.1.' 'Whether the proposed cantilevered terrace forward of the foreshore building line can be approved.']

Ratio Decidendi

Clause 29(3) of North Sydney Local Environmental Plan 1989 is clear on its face and, read in the context of the LEP as a whole including cl 9 and the plan and residential zone objectives, prohibits development on land between the foreshore building line and the adjacent shore except for the listed purposes. The cantilevered terrace was not within those exceptions and cl 29(3) was not a development standard within s 4 of the Environmental Planning and Assessment Act 1979, so it was not amenable to State Environmental Planning Policy No. 1 and could not be approved.

Court Disposition

Question of law answered No; appeal remitted to Commissioner Brown for final determination in accordance with the judgment.

Orders

  • ['That part of the development which encroaches on the foreshore building line and is prohibited under cl 29, namely the cantilevered terrace, cannot be approved.' 'The question of law is answered No.' 'The appeal is remitted to Commissioner Brown for final determination in accordance with this judgment.' 'The...