Upton -V- Yarrowlumla Shire Council [1999] NSWLEC 43

Upton -V- Yarrowlumla Shire Council [1999] NSWLEC 43

The proposed telemarketing and mail order fireworks business was an occupation carried on in the dwelling-house or its curtilage by a permanent resident and did not involve any disqualifying condition in the LEP definition of "home office". The proposed display fireworks business was an industry carried on in...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 March 1999
Procedural Posture
Two Appeals Pursuant to S.97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Applications / Judgment After Hearing
Outcome
Appeals allowed; development consent granted in respect of each appeal subject to amended conditions; no order as to costs.
Legal Topics
['construction of Local Environmental Plan Definitions' 'home Office' 'home Industry' 'permissible and Prohibited Development' 'development Consent Conditions']
['environmental Planning and Assessment' 'land Use and Zoning'] ['construction of Local Environmental Plan Definitions' 'home Office' 'home Industry' 'permissible and Prohibited Development' 'development Consent Conditions']

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Procedural Posture

Two Appeals Pursuant to S.97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Applications / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed telemarketing and mail order sale and distribution of packaged fireworks was development for the permissible purpose of "home office" under Yarrowlumla Local Environmental Plan 1993.' 'Whether the proposed fabrication or re-formulation of display fireworks was development for the permissible purpose of "home industry" under Yarrowlumla Local Environmental Plan 1993.' 'Whether the two proposals should be characterised as separate developments or as a single prohibited business enterprise of commercial premises or industry.' 'Whether storage and administrative activities prevented the proposals from satisfying the spatial or locational conditions in the LEP definitions.' 'What conditions should be imposed on the development consents.']

Ratio Decidendi

The proposed telemarketing and mail order fireworks business was an occupation carried on in the dwelling-house or its curtilage by a permanent resident and did not involve any disqualifying condition in the LEP definition of "home office". The proposed display fireworks business was an industry carried on in Building 2, a building not exceeding 50 square metres within the curtilage of the dwelling-house and occupied by the Applicant. The bulk storage and administrative activities were ancillary or subservient and did not defeat those characterisations. The two proposals were properly characterised as separate businesses rather than a single prohibited commercial premises or industry....

Court Disposition

Appeals allowed; development consent granted in respect of each appeal subject to amended conditions; no order as to costs.

Orders

  • ['Appeals allowed.' 'Development consent granted in respect of each appeal subject to the conditions specified in Exhibit 9 as amended by the judgment.' 'Exhibits other than Exhibit 9 be returned.' 'No order as to costs.' 'Parties to file within 7 days Short Minutes of Order to give effect to the orders.']