Gilderthorpe Investment v Sutherland Shire Council [2000] NSWLEC 153

Gilderthorpe Investment v Sutherland Shire Council [2000] NSWLEC 153

The proposed development satisfied the LEP requirement that each dwelling have an individual entrance because, applying the ordinary meaning of that expression and distinguishing access from entrance, the common pathway and common landing functioned as access while the physical arrangements, including the open aired common space or landing and immediate approaches to the front doors or isolated stairways, were capable of contributing to individual entrances to each dwelling. The development was therefore properly categorised as permissible "townhouses or villa houses" under the LEP and as permissible "townhouses" under the draft LEP, rather than prohibited "residential flat" development.

Jurisdiction
Australia
Judgment Date
18 July 2000
Procedural Posture
Class 1 Proceedings; Appeal Pursuant to Environmental Planning and Assessment Act 1979, S 97 Against Deemed Refusal of a Development Application / Preliminary Determination of Question of Law
Outcome
Preliminary questions answered in favour of the applicant; the proposed development was held to be permissible development under the LEP and the draft LEP.
Legal Topics
['characterisation of Development' 'permissible and Prohibited Development' 'townhouse or Villa House Definition' 'residential Flat Definition' 'individual Entrance Requirement']
['planning and Environment Law' 'local Environmental Planning'] ['characterisation of Development' 'permissible and Prohibited Development' 'townhouse or Villa House Definition' 'residential Flat Definition' 'individual Entrance Requirement']

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Procedural Posture

Class 1 Proceedings; Appeal Pursuant to Environmental Planning and Assessment Act 1979, S 97 Against Deemed Refusal of a Development Application / Preliminary Determination of Question of Law

Legal Issues

  1. 1 ['Whether each of the seven dwellings in the proposed development was properly characterised as development for the permissible purpose of a "townhouse or villa house" or for the prohibited purpose of "residential flat" under the Sutherland Shire Local Environmental Plan 1993.' 'Whether the proposed development was permissible under the draft Sutherland Local Environmental Plan 1999 as "townhouses" or "villa houses".' 'Whether the requirement that each dwelling have an individual entrance was satisfied despite common pedestrian accessways and a common open air area or landing.']

Ratio Decidendi

The proposed development satisfied the LEP requirement that each dwelling have an individual entrance because, applying the ordinary meaning of that expression and distinguishing access from entrance, the common pathway and common landing functioned as access while the physical arrangements, including the open aired common space or landing and immediate approaches to the front doors or isolated stairways, were capable of contributing to individual entrances to each dwelling. The development was therefore properly categorised as permissible "townhouses or villa houses" under the LEP and as permissible "townhouses" under the draft LEP, rather than prohibited "residential flat" development.

Court Disposition

Preliminary questions answered in favour of the applicant; the proposed development was held to be permissible development under the LEP and the draft LEP.

Orders

  • ['The proposed development as depicted in the plans (Exhibit 1) is permissible development in terms of the LEP, being properly categorised as "townhouses or villa houses".' 'The proposed development as depicted in the plans (Exhibit 1) is permissible development in terms of the draft LEP, being properly categorised...