Grant William Clarke v Shoalhaven City Council (No 2) [2021] NSWLEC 8

Grant William Clarke v Shoalhaven City Council (No 2) [2021] NSWLEC 8

A development application for subdivision of prime crop and pasture land in Zone RU1 must comply with both the restrictive requirements of cl 4.2B (each lot to contain at least 10ha of such land) and the permissive requirements of cl 4.2E (relating to exceptions to minimum lot sizes), as the two operate independently and concurrently. The SLEP contains both restrictive and permissive provisions, and, in the absence of any clause overriding cl 4.2B, its requirements must be met in addition to those of any applicable permissive provision. If cl 4.2B is not met, consent cannot be granted despite satisfaction of cl 4.2E.

Parties
Appellant: Grant William Clarke; Respondent: Shoalhaven City Council
Jurisdiction
Australia
Judgment Date
12 February 2021
Procedural Posture
Appeal / Judgment After Hearing of S 56 a Appeal
Outcome
appeal dismissed
Legal Topics
Development Application, Statutory Construction, Subdivision Controls, Local Environmental Planning, Extension of Time for Appeal
Environment and Planning Development Application Statutory Construction Subdivision Controls Local Environmental Planning Extension of Time for Appeal

Case Brief

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Parties

Grant William Clarke

Appellant

Shoalhaven City Council

Respondent

Procedural Posture

Appeal / Judgment After Hearing of S 56 a Appeal

Legal Issues

  1. 1 Whether, under the Shoalhaven Local Environmental Plan 2014, a development application for subdivision of prime crop and pasture land in RU1 zone must comply with both cl 4.2B and cl 4.2E
  2. 2 Whether the Commissioner erred in construing the SLEP as requiring satisfaction of cl 4.2B in addition to cl 4.2E
  3. 3 Whether failure to comply with cl 4.2B is fatal to the application notwithstanding potential compliance with cl 4.2E

Ratio Decidendi

A development application for subdivision of prime crop and pasture land in Zone RU1 must comply with both the restrictive requirements of cl 4.2B (each lot to contain at least 10ha of such land) and the permissive requirements of cl 4.2E (relating to exceptions to minimum lot sizes), as the two operate independently and concurrently. The SLEP contains both restrictive and permissive provisions, and, in the absence of any clause overriding cl 4.2B, its requirements must be met in addition to those of any applicable permissive provision. If cl 4.2B is not met, consent cannot be granted despite satisfaction of cl 4.2E.

Court Disposition

appeal dismissed

Orders

  • The time for filing the Summons commencing the appeal under UCPR r 50.3(1)(a) is extended under UCPR r 50.3(1)(c) to 6 August 2020
  • The appeal is dismissed