Marchese & Partners Architects Pty Ltd v Warringah Council; Eugene Marchese v Warringah Council [2002] NSWLEC 41

Marchese & Partners Architects Pty Ltd v Warringah Council; Eugene Marchese v Warringah Council [2002] NSWLEC 41

Clause 5(1) of the Warringah Local Environmental Plan 2000 amends State Environmental Planning Policy No. 1 by expressly excluding its application to land within Warringah. Accordingly, SEPP 1 does not apply to that land while the WLEP has effect, and the dispensing power in respect of development standards resides solely in the WLEP. The development standards identified in the Locality Statements are 'development standards' under s 4(1) of the EP&A Act, but clause 12(2)(b) itself is not a development standard as it does not fix standards. The consent authority cannot determine an objection under SEPP 1 for land controlled by the WLEP.

Jurisdiction
Australia
Judgment Date
22 March 2002
Procedural Posture
Judicial Determination of Stated Questions of Law / Judgment
Outcome
Questions of law answered. SEPP 1 has no application to land governed by WLEP while WLEP is in force.
Legal Topics
['environmental Planning Instruments' 'interpretation of Planning Legislation' 'legislative Inconsistency' 'statutory Construction']
['planning Law' 'administrative Law'] ['environmental Planning Instruments' 'interpretation of Planning Legislation' 'legislative Inconsistency' 'statutory Construction']

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Procedural Posture

Judicial Determination of Stated Questions of Law / Judgment

Legal Issues

  1. 1 ['Whether State Environmental Planning Policy No. 1 (SEPP 1) applies to development within Warringah under the Warringah Local Environmental Plan 2000 (WLEP)' "Whether development standards in clause 12(2)(b) of the WLEP and its Locality Statements are 'development standards' under section 4(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act)" "Whether clause 12(2)(b) of the WLEP is itself a 'development standard'" 'Whether it is open to lodge an objection pursuant to SEPP 1 where the WLEP applies']

Ratio Decidendi

Clause 5(1) of the Warringah Local Environmental Plan 2000 amends State Environmental Planning Policy No. 1 by expressly excluding its application to land within Warringah. Accordingly, SEPP 1 does not apply to that land while the WLEP has effect, and the dispensing power in respect of development standards resides solely in the WLEP. The development standards identified in the Locality Statements are 'development standards' under s 4(1) of the EP&A Act, but clause 12(2)(b) itself is not a development standard as it does not fix standards. The consent authority cannot determine an objection under SEPP 1 for land controlled by the WLEP.

Court Disposition

Questions of law answered. SEPP 1 has no application to land governed by WLEP while WLEP is in force.

Orders

  • ["Answer to Question 1: Yes, the development standards in clause 12(2)(b) (Locality Statements) are 'development standards' under s 4(1) of the EP&A Act." 'Answer to Question 2: Clause 12(2)(b) is not, of itself, a development standard.' 'Answer to Question 3: It is not open to lodge nor for the consent authority to...