Marcolongo & Anor -V- Pittwater Council [1999] NSWLEC 85

Marcolongo & Anor -V- Pittwater Council [1999] NSWLEC 85

Clause 10 of the Pittwater Local Environmental Plan 1993 applies to all land to which the plan applies, including unzoned land within Pittwater, and requires Council consent for subdivision. The unzoned status of part of the land does not prohibit all development; rather, use or development is permissible and lawful subject to the clause 10 requirement for subdivision consent. Because subdivision is an act, matter or thing for which development consent is required under Part 4, it is not an activity to which Part 5 applies.

Jurisdiction
Australia
Judgment Date
15 April 1999
Procedural Posture
Appeal Under S 97 of the Environmental Planning & Assessment Act 1979 Against Deemed Refusal of a Development Application / Separate Determination of Preliminary Questions of Law
Outcome
Preliminary questions answered in favour of the proposition that subdivision was not prohibited by the unzoned status of the land and that Part 5 assessment was not required.
Legal Topics
['unzoned Land' 'subdivision Consent' 'development Consent Under Part 4' 'part 5 Environmental Assessment' 'local Environmental Plans']
['planning and Environment Law' 'land Use and Development Control'] ['unzoned Land' 'subdivision Consent' 'development Consent Under Part 4' 'part 5 Environmental Assessment' 'local Environmental Plans']

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Procedural Posture

Appeal Under S 97 of the Environmental Planning & Assessment Act 1979 Against Deemed Refusal of a Development Application / Separate Determination of Preliminary Questions of Law

Legal Issues

  1. 1 ['Whether the effect of part of the land being unzoned, having regard to the Pittwater Local Environmental Plan 1993 and section 76B(b) of the Environmental Planning & Assessment Act 1979, is that development of the land for all purposes, including subdivision, is prohibited.' 'Whether the application may be approved without an assessment of likely environmental effects under Divisions 2 and 3 of Part 5 of the Environmental Planning & Assessment Regulation 1994.']

Ratio Decidendi

Clause 10 of the Pittwater Local Environmental Plan 1993 applies to all land to which the plan applies, including unzoned land within Pittwater, and requires Council consent for subdivision. The unzoned status of part of the land does not prohibit all development; rather, use or development is permissible and lawful subject to the clause 10 requirement for subdivision consent. Because subdivision is an act, matter or thing for which development consent is required under Part 4, it is not an activity to which Part 5 applies.

Court Disposition

Preliminary questions answered in favour of the proposition that subdivision was not prohibited by the unzoned status of the land and that Part 5 assessment was not required.

Orders

  • ['Question (1) answered: No.' 'Question (2) answered: Yes.']