Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83

Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83

The "no dwellings" specification for Buffer area 1m in cl 6.1(3) of the PLEP is not a development standard. Construed in the context of the PLEP as a whole, cl 6.1(3) operates as a prohibition or condition precedent to the permissibility of development in the Warriewood Valley Release Area, not as a flexible density control for a particular development. For Buffer area 1m, the condition that no dwellings be erected prohibits the Applicant's proposed dwelling development under any circumstances. Further, the clause operates by reference to the number of dwellings on the whole buffer area or sector, rather than by reference to an aspect of the particular proposed development, and it also...

Jurisdiction
Australia
Judgment Date
21 May 2015
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 (nsw) Against Refusal of Development Application DA N0431/14 / Separate Hearing of Question of Law
Outcome
The separate question of law was answered no.
Legal Topics
['development Standards' 'exceptions to Development Standards' 'permitted or Prohibited Development' 'pittwater Local Environmental Plan 2014 Cll 4.6 and 6.1' 'warriewood Valley Release Area Buffer Area Dwelling Controls']
['environmental Planning Law' 'land Use Planning' 'statutory Construction'] ['development Standards' 'exceptions to Development Standards' 'permitted or Prohibited Development' 'pittwater Local Environmental Plan 2014 Cll 4.6 and 6.1' 'warriewood Valley Release Area Buffer Area Dwelling Controls']

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 (nsw) Against Refusal of Development Application DA N0431/14 / Separate Hearing of Question of Law

Legal Issues

  1. 1 ['Whether the "no dwellings" specification for "Buffer area 1m" in the table to cl 6.1(3) of the Pittwater Local Environment Plan 2014 is a "development standard" to which cl 4.6 of the PLEP applies.' 'Whether cl 6.1(3), in its application to Buffer area 1m, operates as a prohibition or as a requirement or standard in relation to an aspect of permissible development.']

Ratio Decidendi

The "no dwellings" specification for Buffer area 1m in cl 6.1(3) of the PLEP is not a development standard. Construed in the context of the PLEP as a whole, cl 6.1(3) operates as a prohibition or condition precedent to the permissibility of development in the Warriewood Valley Release Area, not as a flexible density control for a particular development. For Buffer area 1m, the condition that no dwellings be erected prohibits the Applicant's proposed dwelling development under any circumstances. Further, the clause operates by reference to the number of dwellings on the whole buffer area or sector, rather than by reference to an aspect of the particular proposed development, and it also...

Court Disposition

The separate question of law was answered no.

Orders

  • ['The answer to the question whether the "no dwellings" specification for "Buffer area 1m" in the table to cl 6.1(3) of the Pittwater Local Environment Plan 2014 is a "development standard" to which cl 4.6 of the PLEP applies is no.']