Holz and Anor v Kiama Municipal Council [2001] NSWLEC 26

Holz and Anor v Kiama Municipal Council [2001] NSWLEC 26

The definition of "recreation area" in cl 6(1) of the Kiama Local Environmental Plan 1996 applies to the term "recreation areas" in the 6(b) zoning table, and neither the context nor the zone objectives require it to be read down to exclude commercial development undertaken by an individual. The proposed commercial equestrian centre falls within the definition of "recreation area" and is therefore permissible with consent in the 6(b) Private Recreation Zone; consistency with zone objectives is addressed through cl 9(3), not by treating otherwise listed permissible development as prohibited.

Jurisdiction
Australia
Judgment Date
07 March 2001
Procedural Posture
Class 1 Appeal Against Refusal to Grant Development Consent / Determination of Preliminary Question of Law
Outcome
Preliminary question answered in favour of the applicants: the proposed commercial equestrian centre is permissible with consent; the class 1 appeal is to proceed.
Legal Topics
['construction and Interpretation of Local Environmental Plan' 'private Recreation Zone 6(b)' 'recreation Area' 'commercial Equestrian Centre' 'permissible Development With Consent']
['planning and Environment Law' 'land Use and Zoning'] ['construction and Interpretation of Local Environmental Plan' 'private Recreation Zone 6(b)' 'recreation Area' 'commercial Equestrian Centre' 'permissible Development With Consent']

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Procedural Posture

Class 1 Appeal Against Refusal to Grant Development Consent / Determination of Preliminary Question of Law

Legal Issues

  1. 1 ['Whether, on the proper construction of the nominated permissible uses in the 6(b) Private Recreation Zone under the Kiama Local Environmental Plan 1996, the proposed commercial equestrian centre is prohibited on the land.' 'Whether the definition of "recreation area" in cl 6(1) of the Kiama Local Environmental Plan 1996 applies to the term "recreation areas" in the 6(b) zoning table.' 'Whether the definition of "recreation area" should be read down to exclude a commercial undertaking operated by an individual for profit.']

Ratio Decidendi

The definition of "recreation area" in cl 6(1) of the Kiama Local Environmental Plan 1996 applies to the term "recreation areas" in the 6(b) zoning table, and neither the context nor the zone objectives require it to be read down to exclude commercial development undertaken by an individual. The proposed commercial equestrian centre falls within the definition of "recreation area" and is therefore permissible with consent in the 6(b) Private Recreation Zone; consistency with zone objectives is addressed through cl 9(3), not by treating otherwise listed permissible development as prohibited.

Court Disposition

Preliminary question answered in favour of the applicants: the proposed commercial equestrian centre is permissible with consent; the class 1 appeal is to proceed.

Orders

  • ['The proposed development for a commercial equestrian centre upon the land is permissible with consent.' 'The class 1 appeal should proceed to a hearing upon the basis of the answer provided.' 'The proceedings should be stood over to a callover before the Registrar for their further disposition.' 'The exhibits may...