Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council [2008] NSWLEC 106

Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council [2008] NSWLEC 106

The proposed development infringed cl 35(2)(b) because components of the development had access to a road connecting an arterial road within 90 metres of the arterial road, including pedestrian access. Clause 35(2) was a prohibition controlling whether development may be carried out at all, not a development standard. The adjoining 6(b) Open Space Private land was not zoned primarily for urban purposes because its objectives met recreational needs of both urban and non-urban communities, and the Policy therefore did not apply to the subject land.

Jurisdiction
Australia
Judgment Date
16 April 2008
Procedural Posture
Appeal Against Council Refusal of a Development Application / Separate Determination of Preliminary Questions of Law Under R 28.2 of the Uniform Civil Procedure Rules 2005
Outcome
Preliminary questions of law answered against the applicants on the applicability of cl 35(2)(b), development standard status, and the application of State Environmental Planning Policy (Seniors Living) 2004.
Legal Topics
['permissibility of Development' 'traffic Generating Development on Arterial Roads' 'development Standards' 'state Environmental Planning Policy (seniors Living) 2004' 'land Zoned Primarily for Urban Purposes']
['environmental Planning Law' 'development Consent' 'land and Environment Law'] ['permissibility of Development' 'traffic Generating Development on Arterial Roads' 'development Standards' 'state Environmental Planning Policy (seniors Living) 2004' 'land Zoned Primarily for Urban Purposes']

Case Brief

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Procedural Posture

Appeal Against Council Refusal of a Development Application / Separate Determination of Preliminary Questions of Law Under R 28.2 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ['Whether, for the purposes of cl 35(2) of Greater Taree Local Environmental Plan 1995, the development has direct access to an arterial road or to a road connecting an arterial road within 90 metres of the arterial road.' 'Whether cl 35(2)(a) or cl 35(2)(b) of Greater Taree Local Environmental Plan 1995 is a development standard as defined by s 4(1) of the Environmental Planning and Assessment Act 1979.' 'Whether zone 6(b) Open Space Private is land zoned primarily for urban purposes within the meaning of cl 4(1)(a) of State Environmental Planning Policy (Seniors Living) 2004.']

Ratio Decidendi

The proposed development infringed cl 35(2)(b) because components of the development had access to a road connecting an arterial road within 90 metres of the arterial road, including pedestrian access. Clause 35(2) was a prohibition controlling whether development may be carried out at all, not a development standard. The adjoining 6(b) Open Space Private land was not zoned primarily for urban purposes because its objectives met recreational needs of both urban and non-urban communities, and the Policy therefore did not apply to the subject land.

Court Disposition

Preliminary questions of law answered against the applicants on the applicability of cl 35(2)(b), development standard status, and the application of State Environmental Planning Policy (Seniors Living) 2004.

Orders

  • ['Question 1: "No" to whether the development has direct access to an arterial road under cl 35(2)(a); "Yes" to whether it has direct access to a road connecting an arterial road within 90 metres of the arterial road under cl 35(2)(b).' 'Question 2: "No"; cl 35(2)(a) or cl 35(2)(b), whichever is applicable, is not a...