Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166

Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166

Clause 13(2) of the Affordable Housing SEPP may apply because the definition of "existing maximum floor space ratio" does not require a numerical maximum FSR to appear on the PLEP Floor Space Ratio Map, and the relevant Pt 4 PLEP controls can enable calculation of an existing maximum FSR. However, cl 6.1(3) for Buffer area 3b is not a development standard: construed in the context of the PLEP as a whole, it operates as a prohibition on development that does not meet the specified dwelling range and imposes a requirement about an attribute of the relevant sector or buffer area rather than an aspect of the carrying out of a particular development. Because cl 6.1(3) is a prohibition, the...

Jurisdiction
Australia
Judgment Date
27 October 2015
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 (nsw) Against Refusal of a Development Application / Separate Hearing of Two Questions of Law
Outcome
Separate questions determined; question one answered on a qualified basis and question two answered no.
Legal Topics
['affordable Rental Housing' 'floor Space Ratio' 'development Standards' 'statutory Construction of Local Environmental Plans' 'warriewood Valley Release Area' 'prohibition on Development']
['environmental Planning Law' 'land and Environment Court Appeals'] ['affordable Rental Housing' 'floor Space Ratio' 'development Standards' 'statutory Construction of Local Environmental Plans' 'warriewood Valley Release Area' 'prohibition on Development']

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 (nsw) Against Refusal of a Development Application / Separate Hearing of Two Questions of Law

Legal Issues

  1. 1 ['Whether cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 applies to the proposed development.' 'Whether the "Not more than 9 dwellings or less than 7 dwellings" specification for "Buffer area 3b" 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 Pittwater Local Environment Plan 2014 applies.']

Ratio Decidendi

Clause 13(2) of the Affordable Housing SEPP may apply because the definition of "existing maximum floor space ratio" does not require a numerical maximum FSR to appear on the PLEP Floor Space Ratio Map, and the relevant Pt 4 PLEP controls can enable calculation of an existing maximum FSR. However, cl 6.1(3) for Buffer area 3b is not a development standard: construed in the context of the PLEP as a whole, it operates as a prohibition on development that does not meet the specified dwelling range and imposes a requirement about an attribute of the relevant sector or buffer area rather than an aspect of the carrying out of a particular development. Because cl 6.1(3) is a prohibition, the...

Court Disposition

Separate questions determined; question one answered on a qualified basis and question two answered no.

Orders

  • ['Question 1: cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 may apply to the proposed development on the basis that the relevant controls in Pt 4 of the Pittwater Local Environment Plan 2014 apply to it, but this is qualified because if cl 6.1(3) is a prohibition the development is...