Druitts Developments Pty Ltd v Gosford City Council (No 2) [2001] NSWLEC 98

Druitts Developments Pty Ltd v Gosford City Council (No 2) [2001] NSWLEC 98

The official documents adopted by the Council identified the development site with sufficient certainty as subject to hazard from coastal storms. Mr Tooker's evidence did not displace that identification, and whether the hazard was described as low or high did not matter because the identified hazard was real and serious. The site was therefore environmentally sensitive land within Schedule 1 to SEPP No 5, so SEPP No 5 did not apply and the proposed development was prohibited under the LEP, requiring dismissal of the appeal and refusal of consent.

Jurisdiction
Australia
Judgment Date
17 May 2001
Procedural Posture
Appeal Pursuant to Environmental Planning and Assessment Act 1979, S 97 Against Deemed Refusal of a Development Application / Determination of Outstanding Preliminary Question; Appeal Dismissed
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['development Application' 'state Environmental Planning Policy No 5' 'environmentally Sensitive Land' 'coastal Storm Hazard' 'prohibited Development']
['environmental Planning and Assessment' 'land and Environment'] ['development Application' 'state Environmental Planning Policy No 5' 'environmentally Sensitive Land' 'coastal Storm Hazard' 'prohibited Development']

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Procedural Posture

Appeal Pursuant to Environmental Planning and Assessment Act 1979, S 97 Against Deemed Refusal of a Development Application / Determination of Outstanding Preliminary Question; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the development site was land included in Schedule 1 to State Environmental Planning Policy No 5.' 'Whether the development site had been identified by another document or extrinsic evidence as being subject to hazard from coastal erosion or storms (or both).' 'Whether SEPP No 5 applied so as to make the proposed development permissible.']

Ratio Decidendi

The official documents adopted by the Council identified the development site with sufficient certainty as subject to hazard from coastal storms. Mr Tooker's evidence did not displace that identification, and whether the hazard was described as low or high did not matter because the identified hazard was real and serious. The site was therefore environmentally sensitive land within Schedule 1 to SEPP No 5, so SEPP No 5 did not apply and the proposed development was prohibited under the LEP, requiring dismissal of the appeal and refusal of consent.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['Appeal dismissed.' 'Development consent refused.' 'Exhibits be returned.' 'No order as to costs.']