Guideline Drafting & Design v Marrickville Municipal Council [1988] NSWLEC 163

Guideline Drafting & Design v Marrickville Municipal Council [1988] NSWLEC 163

Clause 6.1 of Marrickville Development Control Plan No. 3 was ultra vires s.72 because it did not generally conform to the Marrickville Planning Scheme Ordinance, which permitted refreshment rooms with consent in the relevant zone without spatial or locational restriction. The Assessor therefore erred in treating cl.6.1 as relevant as Council policy or as a development standard. The Assessor did not commit legal error by considering prior misuse of the premises as a relevant circumstance on the special facts, although it was wrong to regard that misuse as particularly relevant merely because the refreshment room use lacked development consent. The Assessor also erred in finding the...

Jurisdiction
Australia
Judgment Date
17 March 1988
Procedural Posture
Appeal Pursuant to S.56 a of the Land and Environment Court Act 1979 Limited to Questions of Law / Judgment on Appeal From an Assessor's Decision Dismissing an Appeal Under S.97 of the Environmental Planning and Assessment Act 1979
Outcome
Appeal upheld; Assessor's decision set aside; matter remitted; Respondent ordered to pay costs.
Legal Topics
['development Consent' 'development Control Plans' 'relevant and Irrelevant Considerations' 'questions of Law on Appeal' 'sham Development Application' 'refreshment Room Use']
['environmental and Planning Law' 'administrative Law'] ['development Consent' 'development Control Plans' 'relevant and Irrelevant Considerations' 'questions of Law on Appeal' 'sham Development Application' 'refreshment Room Use']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Pursuant to S.56 a of the Land and Environment Court Act 1979 Limited to Questions of Law / Judgment on Appeal From an Assessor's Decision Dismissing an Appeal Under S.97 of the Environmental Planning and Assessment Act 1979

Legal Issues

  1. 1 ['Whether cl.6.1 of Marrickville Development Control Plan No. 3 was valid and relevant to the determination of the development application as a development standard or statement of Council policy.' 'Whether the past history and misuse of the subject premises, including unlawful activity, was a relevant circumstance in determining the development application.' 'Whether the Assessor erred in holding that the development application was partly a sham and that the proposed use was not a refreshment room.' "Whether any errors of law materially affected the Assessor's ultimate decision."]

Ratio Decidendi

Clause 6.1 of Marrickville Development Control Plan No. 3 was ultra vires s.72 because it did not generally conform to the Marrickville Planning Scheme Ordinance, which permitted refreshment rooms with consent in the relevant zone without spatial or locational restriction. The Assessor therefore erred in treating cl.6.1 as relevant as Council policy or as a development standard. The Assessor did not commit legal error by considering prior misuse of the premises as a relevant circumstance on the special facts, although it was wrong to regard that misuse as particularly relevant merely because the refreshment room use lacked development consent. The Assessor also erred in finding the...

Court Disposition

Appeal upheld; Assessor's decision set aside; matter remitted; Respondent ordered to pay costs.

Orders

  • ['Appeal upheld.' 'Decision of the Assessor to dismiss the appeal set aside.' 'Matter to be remitted to the Assessor for further decision in accordance with my determinations of the questions of law.' "Respondent to pay the Appellant's costs of the appeal."]