Druitts Developments Pty Ltd v Gosford City Council [2001] NSWLEC 96

Druitts Developments Pty Ltd v Gosford City Council [2001] NSWLEC 96

The Court held that (1) land may be identified as environmentally sensitive for the purposes of exclusion under Schedule 1 to SEPP No 5 by reference to zone objectives in another planning instrument, provided relevant descriptors (like 'coastal protection' or 'natural hazard') are present; (2) the applicant's development application is to be determined under the current (amended) version of SEPP No 5, as the transitional clause does not have ambulatory effect; (3) the proposed development does not contain more than two storeys within the meaning of SEPP No 5.

Parties
Applicant: Druitts Developments Pty Ltd; Respondent: Gosford City Council
Jurisdiction
Australia
Judgment Date
16 May 2001
Procedural Posture
Class 1 Proceedings—appeal Under the Environmental Planning and Assessment Act 1979 S 97 / Determination of Preliminary Questions
Outcome
Preliminary questions answered as determined in the judgment; substantive hearing on evidence regarding environmental sensitivity to occur if required.
Legal Topics
Interpretation of Environmental Planning Instruments, Application of SEPP No 5, Transitional Provisions in Planning Instruments, Definition of 'storey' for Planning Purposes
Planning Law Environmental Law Interpretation of Environmental Planning Instruments Application of SEPP No 5 Transitional Provisions in Planning Instruments Definition of 'storey' for Planning Purposes

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Parties

Druitts Developments Pty Ltd

Applicant

Gosford City Council

Respondent

Procedural Posture

Class 1 Proceedings—appeal Under the Environmental Planning and Assessment Act 1979 S 97 / Determination of Preliminary Questions

Legal Issues

  1. 1 Whether the site is excluded from SEPP No 5 due to environmental sensitivity under Schedule 1
  2. 2 Whether the development application should be determined under the current or former version of SEPP No 5
  3. 3 Whether the proposed development exceeds two storeys in height under SEPP No 5

Ratio Decidendi

The Court held that (1) land may be identified as environmentally sensitive for the purposes of exclusion under Schedule 1 to SEPP No 5 by reference to zone objectives in another planning instrument, provided relevant descriptors (like 'coastal protection' or 'natural hazard') are present; (2) the applicant's development application is to be determined under the current (amended) version of SEPP No 5, as the transitional clause does not have ambulatory effect; (3) the proposed development does not contain more than two storeys within the meaning of SEPP No 5.

Court Disposition

Preliminary questions answered as determined in the judgment; substantive hearing on evidence regarding environmental sensitivity to occur if required.