Hones v Ku-ring-gai Council [2004] NSWLEC 168

Procedural Posture

Class 1 Proceedings, Being an Appeal Pursuant to the Environmental Planning and Assessment Act 1979, S 97 Against the Deemed Refusal of a Development Application for Attached Dual Occupancy Development / Preliminary Questions of Law Determined Before Any Hearing on the Planning Merits

Legal Issues

1. 1 ['Whether Amendment No 10 to State Environmental Planning Policy No 53 applies to the whole of a lot where part of the lot is identified on a bush fire prone land map certified under s 146 of the Environmental Planning and Assessment Act 1979 as Bush fire prone land - vegetation category 1 and part is identified as Bush fire prone - vegetation buffer.' 'Whether Amendment No 10 to State Environmental Planning Policy No 53 does not apply to land identified as Bush fire prone - vegetation buffer.']

Ratio Decidendi

Amendment No 10 to SEPP 53 excludes from Part 3 only the part of the subject property identified on the certified bush fire prone land map as Bush fire prone land - vegetation category 1. It does not extend the exclusion to the whole lot merely because part of the lot has that identification, and it does not apply to the part identified as Bush fire prone - vegetation buffer.

Court Disposition

Question 2 answered No; Question 3 answered Yes.

Orders

• ['Question 2: Amendment 10 to SEPP 53 does not apply to the whole of a lot which contains land identified on a bush fire prone land map certified under s.146 of the Act as both Bush fire prone land - vegetation category 1 and Bush fire prone - vegetation buffer.' 'Question 3: Amendment 10 to SEPP 53 does not apply...