Gales-Kingscliff Pty Ltd v Tweed Shire Council [2007] NSWLEC 683

Gales-Kingscliff Pty Ltd v Tweed Shire Council [2007] NSWLEC 683

The 'any use' category in Item 2 of the development control table for 5(a) zone in clause 11 of Tweed LEP does not fall within clause 13 of SEPP 71 because it does not employ the kind of fiction or assumption required; it simply requires compatibility. Thus, it is not rendered of no effect by clause 13, and livestock grazing remains permissible with consent in the zone.

Jurisdiction
Australia
Judgment Date
16 October 2007
Procedural Posture
Development Application Appeal / Interlocutory (points of Law Determination)
Outcome
Appeal upheld; development application not prohibited by legal issue; parties to prepare draft conditions for consent.
Legal Topics
['development Application' 'permissibility of Use' 'environmental Planning Instruments' 'interpretation of SEPP 71' 'local Environmental Plan Provisions']
['planning and Environment Law'] ['development Application' 'permissibility of Use' 'environmental Planning Instruments' 'interpretation of SEPP 71' 'local Environmental Plan Provisions']

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Procedural Posture

Development Application Appeal / Interlocutory (points of Law Determination)

Legal Issues

  1. 1 ['Whether clause 13 of State Environmental Planning Policy No 71 - Coastal Protection renders ineffective Item 2 of the development control table for the 5(a) – Special Uses Zone in Tweed LEP 2000' 'If so, whether the proposed development (livestock grazing) is prohibited']

Ratio Decidendi

The 'any use' category in Item 2 of the development control table for 5(a) zone in clause 11 of Tweed LEP does not fall within clause 13 of SEPP 71 because it does not employ the kind of fiction or assumption required; it simply requires compatibility. Thus, it is not rendered of no effect by clause 13, and livestock grazing remains permissible with consent in the zone.

Court Disposition

Appeal upheld; development application not prohibited by legal issue; parties to prepare draft conditions for consent.

Orders

  • ['The Council to file and serve draft conditions of consent by 19 October 2007.' 'The applicant to file and serve amended draft conditions of consent by 24 October 2007.' 'Matter relisted for further hearing on 26 October 2007.']