Marscon Pty Limited v Holroyd City Council [2003] NSWLEC 22

Marscon Pty Limited v Holroyd City Council [2003] NSWLEC 22

Because the proposed development was common ground not to fall within any nominated prohibited purpose in Zone No 3(a), and because the expression "any purpose" in cl 9(2)(b) bears its ordinary and natural meaning rather than being limited to purposes defined or recognised by the LEP, the proposed mixed residential and commercial development was development for a purpose permissible with development consent and was not prohibited development.

Jurisdiction
Australia
Judgment Date
10 February 2003
Procedural Posture
Class 1 Proceedings: Appeal Pursuant to Environmental Planning and Assessment Act 1979, S 97 From Deemed Refusal of a Development Application / Preliminary Question of Law Before Merits Hearing
Outcome
Council's preliminary question of law determined against the Council; proposed development held not to be prohibited development.
Legal Topics
['prohibited Development' 'interpretation of Local Environmental Plan' 'innominate Purposes of Development' 'mixed Residential and Commercial Development']
['environmental Planning and Assessment' 'land Use and Zoning'] ['prohibited Development' 'interpretation of Local Environmental Plan' 'innominate Purposes of Development' 'mixed Residential and Commercial Development']

Case Brief

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Procedural Posture

Class 1 Proceedings: Appeal Pursuant to Environmental Planning and Assessment Act 1979, S 97 From Deemed Refusal of a Development Application / Preliminary Question of Law Before Merits Hearing

Legal Issues

  1. 1 ['Whether the proposed development was prohibited development by reason of the Holroyd Local Environmental Plan 1991.' 'Whether the expression "any purpose" in cl 9(2)(b) of the Holroyd Local Environmental Plan 1991 was confined to planning purposes of development identified in, or recognised by, the LEP.']

Ratio Decidendi

Because the proposed development was common ground not to fall within any nominated prohibited purpose in Zone No 3(a), and because the expression "any purpose" in cl 9(2)(b) bears its ordinary and natural meaning rather than being limited to purposes defined or recognised by the LEP, the proposed mixed residential and commercial development was development for a purpose permissible with development consent and was not prohibited development.

Court Disposition

Council's preliminary question of law determined against the Council; proposed development held not to be prohibited development.

Orders

  • ['The proposed development is not prohibited development in terms of the Holroyd Local Environmental Plan 1991 or the Environmental Planning and Assessment Act 1979.']