Kenoss Pty Ltd v Palerang Council (No 2) [2012] NSWLEC 208

Kenoss Pty Ltd v Palerang Council (No 2) [2012] NSWLEC 208

Clause 21(b) of the Yarrowlumla Local Environmental Plan 2002 provides that consent must not be granted to subdivision in Zone No 2(v) unless the consent authority is satisfied that the subdivision does not take in unsuitable areas such as floodplain land. The phrase "such as floodplain land" identifies floodplain land as an example of an unsuitable area. Accordingly, if a subdivision in the Village Zone takes in floodplain land, consent cannot be granted and there is no further inquiry into whether that floodplain land is unsuitable.

Jurisdiction
Australia
Judgment Date
07 September 2012
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application for Subdivision of Land / Preliminary and Separate Question
Outcome
Separate question answered (a) Yes, and (b) No.
Legal Topics
['subdivision Consent in Village Zone' 'floodplain Land' 'yarrowlumla Local Environmental Plan 2002 Cl 21(b)' 'condition Precedent to Grant of Consent']
['environmental Planning and Assessment' 'land and Environment' 'statutory Construction'] ['subdivision Consent in Village Zone' 'floodplain Land' 'yarrowlumla Local Environmental Plan 2002 Cl 21(b)' 'condition Precedent to Grant of Consent']

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application for Subdivision of Land / Preliminary and Separate Question

Legal Issues

  1. 1 ['On the proper construction of cl 21(b) of the Yarrowlumla Local Environmental Plan 2002, whether the only question is whether the consent authority is satisfied that the subdivision takes in floodplain land.' 'Whether cl 21(b) also requires a further question whether the consent authority is satisfied that the floodplain land is an unsuitable area.']

Ratio Decidendi

Clause 21(b) of the Yarrowlumla Local Environmental Plan 2002 provides that consent must not be granted to subdivision in Zone No 2(v) unless the consent authority is satisfied that the subdivision does not take in unsuitable areas such as floodplain land. The phrase "such as floodplain land" identifies floodplain land as an example of an unsuitable area. Accordingly, if a subdivision in the Village Zone takes in floodplain land, consent cannot be granted and there is no further inquiry into whether that floodplain land is unsuitable.

Court Disposition

Separate question answered (a) Yes, and (b) No.

Orders

  • ['The preliminary question was answered: (a) Yes; and (b) No.' 'The exhibits may be returned.' 'The matter will be listed before the Registrar on 12 September 2012.']