Stivens v Cabonne Shire Council [2012] NSWLEC 1166

Stivens v Cabonne Shire Council [2012] NSWLEC 1166

The dwelling is not ancillary to the tourist facility as it is not an accessory or subsidiary to the cabins and both can operate independently. Additionally, the land could reasonably be used for the primary purpose of a tourist facility without the erection of the dwelling. Therefore, the requirements of Clause 18(2)(a) and (b)(i) of CLEP are not satisfied and consent cannot be granted.

Parties
Applicant: Michelle Stivens; Respondent: Cabonne Shire Council
Jurisdiction
Australia
Judgment Date
19 June 2012
Procedural Posture
Appeal / Final Decision
Outcome
appeal dismissed
Legal Topics
Development Application, Tourist Facility, Ancillary Dwelling, Zoning, Land Use
Planning Law Environmental Law Development Application Tourist Facility Ancillary Dwelling Zoning Land Use

Case Brief

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Parties

Michelle Stivens

Applicant

Cabonne Shire Council

Respondent

Procedural Posture

Appeal / Final Decision

Legal Issues

  1. 1 Whether the proposed dwelling is ancillary to the tourist facility within the meaning of Clause 18(2) of Cabonne Local Environmental Plan 1991
  2. 2 Whether the land cannot reasonably be used for a tourist facility without the erection of a dwelling as required by Clause 18(2)(b)(i) of CLEP

Ratio Decidendi

The dwelling is not ancillary to the tourist facility as it is not an accessory or subsidiary to the cabins and both can operate independently. Additionally, the land could reasonably be used for the primary purpose of a tourist facility without the erection of the dwelling. Therefore, the requirements of Clause 18(2)(a) and (b)(i) of CLEP are not satisfied and consent cannot be granted.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The development application for a tourist facility and ancillary dwelling at Lot 100 DP 1031436, 1034 The Escort Way, Borenore, is refused.