De Stoop v Ku-ring-gai Council [2009] NSWLEC 28

De Stoop v Ku-ring-gai Council [2009] NSWLEC 28

Clause 40(4) of the SEPP (Housing for Seniors or People with a Disability) 2004 applies to the land at 1578 Pacific Highway, as 'residential flat buildings' are not permitted in the 2(c2) zone (other than as apartment conversions, which are a separate and distinct permissible use), and consequently, a SEPP 1 objection is required for the proposal.

Jurisdiction
Australia
Judgment Date
16 March 2009
Procedural Posture
Class 1 Appeal / Preliminary Question of Law
Outcome
Preliminary question answered—clause 40(4) applies and a SEPP 1 objection is required. Matter returned to Registrar for further case management.
Legal Topics
['construction of Planning Instruments' 'permissibility of Residential Flat Buildings' 'application of SEPP (housing for Seniors or People With a Disability) 2004' 'need for SEPP 1 Objection']
['planning Law' 'administrative Law'] ['construction of Planning Instruments' 'permissibility of Residential Flat Buildings' 'application of SEPP (housing for Seniors or People With a Disability) 2004' 'need for SEPP 1 Objection']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal / Preliminary Question of Law

Legal Issues

  1. 1 ['Whether in the context of sub-clause 40(4) of SEPP (Housing for Seniors or People with a Disability) 2004, residential flat buildings are not permitted on the land zoned 2(c2) Residential at 1578 Pacific Highway, requiring a SEPP 1 objection']

Ratio Decidendi

Clause 40(4) of the SEPP (Housing for Seniors or People with a Disability) 2004 applies to the land at 1578 Pacific Highway, as 'residential flat buildings' are not permitted in the 2(c2) zone (other than as apartment conversions, which are a separate and distinct permissible use), and consequently, a SEPP 1 objection is required for the proposal.

Court Disposition

Preliminary question answered—clause 40(4) applies and a SEPP 1 objection is required. Matter returned to Registrar for further case management.

Orders

  • ['Exhibit A1 and Exhibit C1 to remain with the court file pending further disposition' 'Matter returned to Registrar for further case management and directions']