Chapman v Lake Macquarie City Council [2005] NSWLEC 768

Chapman v Lake Macquarie City Council [2005] NSWLEC 768

The relevant provisions of the 2004 LEP applying to the site, including the Investigation Zone boundaries, the prohibition of subdivision in Sch 2, and the zone objectives, had not changed after public exhibition and were imminent and certain when the development application was lodged. Although the 2004 LEP was not treated as imposing a mandatory prohibition, the Investigation Zone objectives were precautionary and required appropriate council assessment before subdivision could be permitted. The Johnson Property Group submission was not an appropriate substitute for that assessment. It was therefore premature to approve the subdivision, the appeal was dismissed, and it was unnecessary...

Jurisdiction
Australia
Judgment Date
20 December 2005
Procedural Posture
Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application / Ex Tempore Judgment After Hearing
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['subdivision' 'development Application Refusal' 'state Environmental Planning Policy 1 Objection' 'imminence and Certainty of New Local Environmental Plan' 'investigation Zone Prohibition']
['environmental Planning and Assessment' 'land and Environment' 'development Consent'] ['subdivision' 'development Application Refusal' 'state Environmental Planning Policy 1 Objection' 'imminence and Certainty of New Local Environmental Plan' 'investigation Zone Prohibition']

Case Brief

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Procedural Posture

Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the appeal against refusal of development consent for subdivision should be upheld.' 'What weight should be given to the Lake Macquarie Local Environmental Plan 2004, given cl 11 required it to be treated as if exhibited but not made.' 'Whether the 2004 LEP provisions prohibiting subdivision in the Investigation Zone were imminent and certain at the time the development application was lodged.' 'Whether it was premature to permit subdivision before assessments contemplated by the Investigation Zone objectives had been carried out.' 'Whether it was necessary to determine the SEPP 1 objection under the Lake Macquarie Local Environmental Plan 1984.']

Ratio Decidendi

The relevant provisions of the 2004 LEP applying to the site, including the Investigation Zone boundaries, the prohibition of subdivision in Sch 2, and the zone objectives, had not changed after public exhibition and were imminent and certain when the development application was lodged. Although the 2004 LEP was not treated as imposing a mandatory prohibition, the Investigation Zone objectives were precautionary and required appropriate council assessment before subdivision could be permitted. The Johnson Property Group submission was not an appropriate substitute for that assessment. It was therefore premature to approve the subdivision, the appeal was dismissed, and it was unnecessary...

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 2371/2004 for subdivision of Lot 3, Deposited Plan 1078144 at 665A Freemans Drive, Cooranbong, is determined by the refusal of development consent.' 'The exhibits are returned.']