Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135

Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135

Upon its proper construction, cl 5.10(2)(a)(iii) of the Gloucester Local Environmental Plan 2010 does not require separate proof in court that a heritage conservation area is of heritage significance; it is sufficient if the area is so described and mapped in Schedule 5 of the GLEP. Schedule 5, Part 2, by naming and mapping the Gloucester Main Street Precinct, adequately describes both its location and nature as required by the GLEP definition of heritage conservation area.

Jurisdiction
Australia
Judgment Date
16 June 2017
Procedural Posture
Case Stated Appeal (criminal/environmental) / Court of Criminal Appeal Determination of Questions of Law
Outcome
Appeal (case stated) dismissed
Legal Topics
['statutory Interpretation' 'environmental Planning' 'heritage Conservation' 'delegated Legislation' 'development Consent' 'appeals on Questions of Law']
['land and Environment' 'administrative Law' 'criminal Law'] ['statutory Interpretation' 'environmental Planning' 'heritage Conservation' 'delegated Legislation' 'development Consent' 'appeals on Questions of Law']

Case Brief

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Procedural Posture

Case Stated Appeal (criminal/environmental) / Court of Criminal Appeal Determination of Questions of Law

Legal Issues

  1. 1 ['Whether cl 5.10(2)(a)(iii) of the Gloucester Local Environmental Plan 2010 requires independent proof of heritage significance for a heritage conservation area or if being described as such in Schedule 5 is sufficient' 'Whether the location and nature of a heritage conservation area is sufficiently described in Schedule 5 of the GLEP as required by the definition']

Ratio Decidendi

Upon its proper construction, cl 5.10(2)(a)(iii) of the Gloucester Local Environmental Plan 2010 does not require separate proof in court that a heritage conservation area is of heritage significance; it is sufficient if the area is so described and mapped in Schedule 5 of the GLEP. Schedule 5, Part 2, by naming and mapping the Gloucester Main Street Precinct, adequately describes both its location and nature as required by the GLEP definition of heritage conservation area.

Court Disposition

Appeal (case stated) dismissed

Orders

  • ['Questions of law answered as set out in the judgment' 'Application for case stated dismissed' "Applicant to pay respondent's costs of and incidental to the proceedings"]