Markev Pty Limited v Sutherland Shire Council [2003] NSWLEC 138

Markev Pty Limited v Sutherland Shire Council [2003] NSWLEC 138

The hotel carparking accommodation proposed within the building was properly characterised as ancillary development used in conjunction with the primary legal hotel use of the development site, and ancillary development was itself a permitted purpose in Zone 3(a). The words "subject to another permitted use" required only that the building containing residential flats also be the subject of an additional real and substantive permitted use, not that the other use dominate or control the building. Accordingly, the proposed development was permissible as "residential flats, only in buildings subject to another permitted use" under the LEP.

Jurisdiction
Australia
Judgment Date
12 June 2003
Procedural Posture
Class 1 Proceedings Involving an Appeal Pursuant to the Environmental Planning and Assessment Act 1979, S 97 Against a Deemed Refusal of a Development Application / Preliminary Determination of a Question of Law
Outcome
The question of law was determined by holding that the proposed development is for a permissible purpose of development within General Business Zone No 3(a) under the LEP.
Legal Topics
['permissibility of Development Under Local Environmental Plan' 'residential Flats in General Business Zone No 3(a)' 'ancillary Development' 'construction of the Expression "residential Flats, Only in Buildings Subject to Another Permitted Use"']
['planning and Environmental Law' 'land Use and Zoning'] ['permissibility of Development Under Local Environmental Plan' 'residential Flats in General Business Zone No 3(a)' 'ancillary Development' 'construction of the Expression "residential Flats, Only in Buildings Subject to Another Permitted Use"']

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Procedural Posture

Class 1 Proceedings Involving an Appeal Pursuant to the Environmental Planning and Assessment Act 1979, S 97 Against a Deemed Refusal of a Development Application / Preliminary Determination of a Question of Law

Legal Issues

  1. 1 ['Whether the proposed development was permissible in General Business Zone No 3(a) under the Sutherland Shire Local Environmental Plan 2000.' 'Whether hotel carparking accommodation in the proposed building constituted "another permitted use" for the purpose of the permissible development category "residential flats, only in buildings subject to another permitted use".' 'Whether the words "subject to another permitted use" required the other permitted use to dominate, control or influence the building or residential flats use.']

Ratio Decidendi

The hotel carparking accommodation proposed within the building was properly characterised as ancillary development used in conjunction with the primary legal hotel use of the development site, and ancillary development was itself a permitted purpose in Zone 3(a). The words "subject to another permitted use" required only that the building containing residential flats also be the subject of an additional real and substantive permitted use, not that the other use dominate or control the building. Accordingly, the proposed development was permissible as "residential flats, only in buildings subject to another permitted use" under the LEP.

Court Disposition

The question of law was determined by holding that the proposed development is for a permissible purpose of development within General Business Zone No 3(a) under the LEP.

Orders

  • ['The question of law be determined as follows: The proposed development is for a permissible purpose of development within the General Business Zone No 3(a) under the LEP namely "residential flats only in buildings subject to another permitted use".' 'Exhibits be returned.']