McCLENAHAN & ANOR v NORTH SYDNEY COUNCIL [2004] NSWCA 208

McCLENAHAN & ANOR v NORTH SYDNEY COUNCIL [2004] NSWCA 208

On the true construction of the North Sydney Local Environmental Plan 2001, an "apartment building adaptation" requires the creation of an apartment building to be substantially but not wholly contained within a building, other than an apartment building, that lawfully existed on the appointed day. Clause 26 shows that some development may occur outside the existing fabric, but the controls require it to be substantially within the existing building. The trial judge was not entitled to decide that the proposed development was prohibited because the consent order was confined to preliminary questions of law and the appellants had not been afforded an opportunity to address that factual...

Jurisdiction
Australia
Judgment Date
24 June 2004
Procedural Posture
Appeal Concerning Refusal of Consent to a Development Application and Construction of a Local Environmental Plan / Appeal From the Land and Environment Court to the New South Wales Court of Appeal
Outcome
Appeal allowed; orders made by Lloyd J set aside; preliminary questions answered 1(a) No, 1(b) Yes, 1(c) No; proceedings remitted to the Land and Environment Court; respondent ordered to pay the appellants' costs of the appeal with a Suitors' Fund Act certificate if entitled.
Legal Topics
['development Application' 'north Sydney Local Environmental Plan 2001' 'apartment Building Adaptation' 'statutory Construction' 'procedural Fairness']
['planning and Environment Law' 'administrative Law'] ['development Application' 'north Sydney Local Environmental Plan 2001' 'apartment Building Adaptation' 'statutory Construction' 'procedural Fairness']

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Procedural Posture

Appeal Concerning Refusal of Consent to a Development Application and Construction of a Local Environmental Plan / Appeal From the Land and Environment Court to the New South Wales Court of Appeal

Legal Issues

  1. 1 ['Whether, on the true construction of the North Sydney Local Environmental Plan 2001, an "apartment building adaptation" requires the creation of an apartment building wholly within a pre-existing non-apartment building.' 'Whether, on the true construction of the North Sydney Local Environmental Plan 2001, an "apartment building adaptation" requires the creation of an apartment building substantially but not wholly within a pre-existing non-apartment building.' 'Whether it is sufficient for any part of the proposed building to be created within a pre-existing non-apartment building for the development to constitute an "apartment building adaptation".' 'Whether the trial judge denied procedural fairness by determining that the proposed development was prohibited when the consent order was limited to preliminary questions of law.']

Ratio Decidendi

On the true construction of the North Sydney Local Environmental Plan 2001, an "apartment building adaptation" requires the creation of an apartment building to be substantially but not wholly contained within a building, other than an apartment building, that lawfully existed on the appointed day. Clause 26 shows that some development may occur outside the existing fabric, but the controls require it to be substantially within the existing building. The trial judge was not entitled to decide that the proposed development was prohibited because the consent order was confined to preliminary questions of law and the appellants had not been afforded an opportunity to address that factual...

Court Disposition

Appeal allowed; orders made by Lloyd J set aside; preliminary questions answered 1(a) No, 1(b) Yes, 1(c) No; proceedings remitted to the Land and Environment Court; respondent ordered to pay the appellants' costs of the appeal with a Suitors' Fund Act certificate if entitled.

Orders

  • ['Appeal allowed.' 'Set aside the orders made by Lloyd J and in lieu thereof answer the question in the consent order: 1(a) No; 1(b) Yes; 1(c) No.' 'Remit the proceedings to the Land and Environment Court to determine.' "The respondent to pay the appellants' costs of the appeal but to have a certificate under the...