Rogan v Pittwater Council [2000] NSWLEC 178

Rogan v Pittwater Council [2000] NSWLEC 178

Clause 13 of the Pittwater Local Environmental Plan 1993 did not apply to the appeal site because Lot Y, D.P. 103881 had ceased to exist as an allotment before the LEP commenced, and the clause referred to specified allotments rather than land generally. The proposed development was therefore not prohibited by clause 13. Clause 12 applied to the appeal site as land within the Non-Urban 1(a) Zone and, on its proper construction, clause 12(2) was a development standard within the meaning of the EP&A Act and SEPP No 1.

Jurisdiction
Australia
Judgment Date
14 August 2000
Procedural Posture
Appeal Pursuant to Environmental Planning and Assessment Act 1979, S 97 Against Refusal of Development Consent for Subdivision / Preliminary Determination of Questions of Law
Outcome
Council's question of law answered in the negative; Applicant's question of law answered in the affirmative.
Legal Topics
['development Consent' 'subdivision of Land' 'local Environmental Plan Interpretation' 'development Standards' 'sepp No 1 Objection' 'prohibited Development']
['planning and Environmental Law' 'local Government Law'] ['development Consent' 'subdivision of Land' 'local Environmental Plan Interpretation' 'development Standards' 'sepp No 1 Objection' 'prohibited Development']

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Procedural Posture

Appeal Pursuant to Environmental Planning and Assessment Act 1979, S 97 Against Refusal of Development Consent for Subdivision / Preliminary Determination of Questions of Law

Legal Issues

  1. 1 ['Whether the proposed subdivision was prohibited by operation of clause 13(1) and (2) of the Pittwater Local Environmental Plan 1993.' 'Whether clause 13 of the Pittwater Local Environmental Plan 1993 applied to the appeal site.' 'Whether clause 12(2) of the Pittwater Local Environmental Plan 1993 was a development standard within the meaning of the Environmental Planning and Assessment Act 1979 and State Environmental Planning Policy No 1 - Development Standards.']

Ratio Decidendi

Clause 13 of the Pittwater Local Environmental Plan 1993 did not apply to the appeal site because Lot Y, D.P. 103881 had ceased to exist as an allotment before the LEP commenced, and the clause referred to specified allotments rather than land generally. The proposed development was therefore not prohibited by clause 13. Clause 12 applied to the appeal site as land within the Non-Urban 1(a) Zone and, on its proper construction, clause 12(2) was a development standard within the meaning of the EP&A Act and SEPP No 1.

Court Disposition

Council's question of law answered in the negative; Applicant's question of law answered in the affirmative.

Orders

  • ['Question 1: Is the proposed development prohibited by cl 13 of the LEP? Answer No.' 'Question 2: Is cl 12(2) of the LEP a development standard? Answer Yes.']