Allison and Anor v Gosford City Council [2001] NSWLEC 4

Allison and Anor v Gosford City Council [2001] NSWLEC 4

The proposed development was cluster development because the Gosford Planning Scheme Ordinance definition was the primary definition and the plans showed three dwellings in the form of town houses; clause 27A did not expand the definition but prescribed conditions for otherwise permissible cluster development. Clause 27A(3), including the minimum site area requirement, operated as a development standard rather than a prohibition because it imposed requirements to be observed in carrying out development made permissible with consent in the 2(a) zone, and was therefore amenable to variation under SEPP 1.

Jurisdiction
Australia
Judgment Date
28 February 2001
Procedural Posture
Class 1 Proceedings; Appeal Against Refusal of Development Consent / Determination of Preliminary Questions of Law
Outcome
Preliminary questions answered; proceedings stood over for callover before the Registrar for directions; no order as to costs.
Legal Topics
['cluster Development' 'residential Flat Building' 'development Standard' 'prohibition' 'jurisdictional Fact' 'state Environmental Planning Policy No 1 Variation']
['planning and Environment Law' 'development Consent'] ['cluster Development' 'residential Flat Building' 'development Standard' 'prohibition' 'jurisdictional Fact' 'state Environmental Planning Policy No 1 Variation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Proceedings; Appeal Against Refusal of Development Consent / Determination of Preliminary Questions of Law

Legal Issues

  1. 1 ['Whether the proposed development is a "cluster development" within the meaning of the Gosford Planning Scheme Ordinance.' 'If the proposed development is cluster development, whether clause 27A(3) of the Gosford Planning Scheme Ordinance constitutes a prohibition or a development standard.' 'If the proposed development is not cluster development and clause 49BA applies, whether it is subject to the development standards prescribed in clause 28.']

Ratio Decidendi

The proposed development was cluster development because the Gosford Planning Scheme Ordinance definition was the primary definition and the plans showed three dwellings in the form of town houses; clause 27A did not expand the definition but prescribed conditions for otherwise permissible cluster development. Clause 27A(3), including the minimum site area requirement, operated as a development standard rather than a prohibition because it imposed requirements to be observed in carrying out development made permissible with consent in the 2(a) zone, and was therefore amenable to variation under SEPP 1.

Court Disposition

Preliminary questions answered; proceedings stood over for callover before the Registrar for directions; no order as to costs.

Orders

  • ['Question 1 answered: Yes, the proposed development is a "cluster development" within the meaning of the Gosford Planning Scheme Ordinance.' 'Question 2 answered: Clause 27A(3) constitutes a development standard.' 'The third preliminary question of law does not arise.' 'The proceedings should proceed to hearing...