Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58

Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58

The specified provisions in the LEP, including development standards, do not derogate from the incorporated provision cl 41(1)(d) of the Environmental Planning and Assessment Regulation 2000 and therefore do have force and effect when assessing a development application for a change of an existing use to a...

Source-derived case information.

Parties
Applicant: Iris Diversified Property Pty Ltd; Respondent: Randwick City Council
Jurisdiction
Australia
Judgment Date
07 May 2010
Procedural Posture
Class 1 Proceedings (land and Environment Court of Nsw) / Determination of Preliminary Question of Law
Outcome
Preliminary question of law answered: LEP development standards do not derogate from the incorporated provision and have force and effect; a SEPP 1 objection is required for any non-compliance with those standards.
Legal Topics
Existing Use Rights, Development Standards, Legislative Amendment, Land Use, Environmental Planning and Assessment Act, Environmental Planning Instruments
Planning and Environment Law Existing Use Rights Development Standards Legislative Amendment Land Use Environmental Planning and Assessment Act Environmental Planning Instruments

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Summary, issues, holding and outcome

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Parties

Iris Diversified Property Pty Ltd

Applicant

Randwick City Council

Respondent

Procedural Posture

Class 1 Proceedings (land and Environment Court of Nsw) / Determination of Preliminary Question of Law

Legal Issues

  1. 1 Whether provisions of the Randwick Local Environmental Plan (LEP), including development standards, derogate from the incorporated provisions under s 108(3) of the Environmental Planning and Assessment Act 1979 (EP&A Act) in the context of a change from an existing use to a conforming use;
  2. 2 Whether a SEPP 1 objection is required for a development application which does not comply with LEP development standards when changing existing use to a conforming use

Ratio Decidendi

The specified provisions in the LEP, including development standards, do not derogate from the incorporated provision cl 41(1)(d) of the Environmental Planning and Assessment Regulation 2000 and therefore do have force and effect when assessing a development application for a change of an existing use to a conforming use. A SEPP 1 objection is necessary to vary a development standard where there is non-compliance.

Court Disposition

Preliminary question of law answered: LEP development standards do not derogate from the incorporated provision and have force and effect; a SEPP 1 objection is required for any non-compliance with those standards.

Orders

  • Answer to question (a): The specified provisions in the LEP do not derogate from the incorporated provision cl 41(1)(d) and do have force and effect.
  • Answer to question (b): The development application cannot be determined in the absence of an objection under SEPP 1.