Francesco Cavasinni v Holroyd Municipal Council [1989] NSWLEC 234

Francesco Cavasinni v Holroyd Municipal Council [1989] NSWLEC 234

The Assessor erred in law because, applying s.8(b) of the Interpretation Act, 1987 and the objective of cl.43C, the word 'parcel' in cl.43C(a)(ii) need not be confined to the singular. The proposed development could involve more than one separate parcel where each parcel was in existence at the commencement of Holroyd Local Environmental Plan No. 25 and each exceeded the 1,300m2 minimum, without using consolidation to defeat the clause's purpose.

Jurisdiction
Australia
Judgment Date
29 August 1989
Procedural Posture
Appeal Under S.56 a of the Land and Environment Court Act Against a Decision of an Assessor Dismissing an Appeal Under S.97 of the Environmental Planning and Assessment Act / Judgment on Appeal
Outcome
appeal upheld
Legal Topics
['development Application' 'residential Flat Building Class B' 'separate Parcel of Land' 'holroyd Local Environmental Plan No. 25' 'singular Includes Plural']
['planning and Environment Law' 'statutory Interpretation'] ['development Application' 'residential Flat Building Class B' 'separate Parcel of Land' 'holroyd Local Environmental Plan No. 25' 'singular Includes Plural']

Case Brief

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Procedural Posture

Appeal Under S.56 a of the Land and Environment Court Act Against a Decision of an Assessor Dismissing an Appeal Under S.97 of the Environmental Planning and Assessment Act / Judgment on Appeal

Legal Issues

  1. 1 ['Whether cl.43C(a)(ii) of Holroyd Local Environmental Plan No. 25 permits a development application involving more than one separate parcel of land existing at the commencement date.' 'Whether the Assessor erred in law by finding that the townhouse development was prohibited because the site comprised more than one separate parcel of land.']

Ratio Decidendi

The Assessor erred in law because, applying s.8(b) of the Interpretation Act, 1987 and the objective of cl.43C, the word 'parcel' in cl.43C(a)(ii) need not be confined to the singular. The proposed development could involve more than one separate parcel where each parcel was in existence at the commencement of Holroyd Local Environmental Plan No. 25 and each exceeded the 1,300m2 minimum, without using consolidation to defeat the clause's purpose.

Court Disposition

appeal upheld

Orders

  • ['The order of the Assessor dismissing the application is set aside.' 'The matter is remitted to the Assessor to be dealt with conformably with the decision.' "The Council is to pay the appellant's costs of the appeal." 'The Council is to have a certificate under the Suitors Fund Act, 1951.']