Peden v Lake Macquarie City Council [2024] NSWLEC 2

Peden v Lake Macquarie City Council [2024] NSWLEC 2

The change of use from a principal dwelling with secondary dwelling to dual occupancy (detached) was development because s 1.5 of the EPAA expressly includes use of land, and the planning use of the land changed even if the physical residential activities largely remained the same. In any event, the DA also proposed physical works including a carport, fencing, a gate, stairway, planting, garden edging, raised vegetable beds and privacy screening, which constituted development. The existing lawful secondary dwelling and earlier CDC did not preclude a later consent for a different future use, and subdivision controls were not engaged because subdivision was removed from the DA. The Council...

Jurisdiction
Australia
Judgment Date
31 January 2024
Procedural Posture
Class 4 Judicial Review Proceedings / Principal Judgment Challenging the Validity of a Development Consent Granted on 24 May 2022
Outcome
The judicial review challenge failed and the amended summons was dismissed with costs.
Legal Topics
['validity of Development Consent' 'change of Use' 'meaning of Development' 'dual Occupancy' 'secondary Dwelling' 'subdivision Controls']
['planning and Environment Law' 'administrative Law' 'judicial Review'] ['validity of Development Consent' 'change of Use' 'meaning of Development' 'dual Occupancy' 'secondary Dwelling' 'subdivision Controls']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Principal Judgment Challenging the Validity of a Development Consent Granted on 24 May 2022

Legal Issues

  1. 1 ['Whether the Council had power under Pt 4 of the Environmental Planning and Assessment Act 1979 to grant development consent to change the use of the property from a principal dwelling with a secondary dwelling to a dual occupancy.' 'Whether the Council had power to grant development consent for a dual occupancy where a lawfully erected secondary dwelling already existed on the property.' 'Whether the change of use to a dual occupancy met the definition of development in s 1.5 of the Environmental Planning and Assessment Act 1979.' 'If the change of use did not constitute development, whether the Council had power to grant consent where no relevant development was proposed.']

Ratio Decidendi

The change of use from a principal dwelling with secondary dwelling to dual occupancy (detached) was development because s 1.5 of the EPAA expressly includes use of land, and the planning use of the land changed even if the physical residential activities largely remained the same. In any event, the DA also proposed physical works including a carport, fencing, a gate, stairway, planting, garden edging, raised vegetable beds and privacy screening, which constituted development. The existing lawful secondary dwelling and earlier CDC did not preclude a later consent for a different future use, and subdivision controls were not engaged because subdivision was removed from the DA. The Council...

Court Disposition

The judicial review challenge failed and the amended summons was dismissed with costs.

Orders

  • ['The amended summons is dismissed.' "The applicant is to pay the respondents' costs on an ordinary basis." 'The exhibits are to be returned.']