HEALESVILLE HOLDINGS PTY LTD v PITTWATER COUNCIL [1997] NSWCA 142

HEALESVILLE HOLDINGS PTY LTD v PITTWATER COUNCIL [1997] NSWCA 142

Clause 17(2) of the Pittwater Local Environment Plan 1993, properly construed in its statutory context, imposes cumulative requirements such that an allotment must meet one of the positive criteria in (a)-(c) and not be excluded under (d) or (e). The presence of a discretion to depart from a development standard...

Source-derived case information.

Parties
Appellant: Healesville Holdings Pty Ltd; Respondent: Pittwater Council
Jurisdiction
Australia
Judgment Date
27 November 1997
Procedural Posture
Appeal / Appeal From Land and Environment Court (class 4) to Supreme Court of New South Wales Court of Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
Construction of Local Environment Plan, Development Consent, Subdivision of Land, Interpretation of Statutory Planning Instruments
Planning and Environment Law Construction of Local Environment Plan Development Consent Subdivision of Land Interpretation of Statutory Planning Instruments

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Parties

Healesville Holdings Pty Ltd

Appellant

Pittwater Council

Respondent

Procedural Posture

Appeal / Appeal From Land and Environment Court (class 4) to Supreme Court of New South Wales Court of Appeal

Legal Issues

  1. 1 Whether cl17(2) of the Pittwater Local Environment Plan 1993 permits the erection of dwelling houses on one hectare lots without consent.
  2. 2 Whether the five paragraphs of cl17(2) are alternatives/independent or cumulative conditions.

Ratio Decidendi

Clause 17(2) of the Pittwater Local Environment Plan 1993, properly construed in its statutory context, imposes cumulative requirements such that an allotment must meet one of the positive criteria in (a)-(c) and not be excluded under (d) or (e). The presence of a discretion to depart from a development standard (via SEPP No 1) does not displace the operation of a clear prohibition in cl12 for the purpose of cl17(2)(a). Thus, the appellant was not entitled to the declaration sought and the dismissal of the class 4 proceedings was correct.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed.
  • Costs awarded to respondent.