Young v Parramatta City Council [2006] NSWLEC 368

Young v Parramatta City Council [2006] NSWLEC 368

Clause 18 of SEPP 5, construed in the context of SEPP 5 as a whole, permits subdivision only of land on which the relevant SEPP 5 development has been carried out. The 2004 consent did not include subdivision, the Commissioner's observations about de facto subdivision did not effect a legal subdivision, and the grant of development consent alone did not amount to carrying out the development. Because no construction certificate had issued and no building or construction work had commenced, the Court had no power to consider the development application for subdivision of the SEPP 5 development granted in Young 2004.

Jurisdiction
Australia
Judgment Date
01 September 2006
Procedural Posture
Class 1 Appeal Concerning a Development Application for Subdivision of Land the Subject of a SEPP 5 Development Consent / Preliminary Question of Law
Outcome
Preliminary question answered against the Applicant; the Court held it did not have power to consider the subdivision development application before the SEPP 5 development had been carried out.
Legal Topics
['development Consent' 'subdivision' 'sepp 5 Development' 'power to Approve Subdivision Before Development Carried Out' 'deferred Commencement Consent']
['planning and Environment Law' 'statutory Interpretation'] ['development Consent' 'subdivision' 'sepp 5 Development' 'power to Approve Subdivision Before Development Carried Out' 'deferred Commencement Consent']

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Procedural Posture

Class 1 Appeal Concerning a Development Application for Subdivision of Land the Subject of a SEPP 5 Development Consent / Preliminary Question of Law

Legal Issues

  1. 1 ['Whether the Court has power to approve a development application for subdivision of land the subject of a SEPP 5 development consent before that development has been carried out.' 'Whether cl 18 of State Environmental Planning Policy No 5 permits subdivision where no construction certificate has been issued and no building or construction work has commenced.' 'Whether the 2004 development consent was a de facto approval of subdivision.' 'Whether other environmental planning instruments permitting subdivision could apply notwithstanding cl 18 of SEPP 5.']

Ratio Decidendi

Clause 18 of SEPP 5, construed in the context of SEPP 5 as a whole, permits subdivision only of land on which the relevant SEPP 5 development has been carried out. The 2004 consent did not include subdivision, the Commissioner's observations about de facto subdivision did not effect a legal subdivision, and the grant of development consent alone did not amount to carrying out the development. Because no construction certificate had issued and no building or construction work had commenced, the Court had no power to consider the development application for subdivision of the SEPP 5 development granted in Young 2004.

Court Disposition

Preliminary question answered against the Applicant; the Court held it did not have power to consider the subdivision development application before the SEPP 5 development had been carried out.

Orders

  • ['The Court does not have the power to consider this development application for subdivision of the SEPP 5 development granted in Young v Parramatta City Council [2004] NSWLEC 245.']