McClenahan & Anor v North Sydney Council [2003] NSWLEC 187

McClenahan & Anor v North Sydney Council [2003] NSWLEC 187

On the proper construction of the North Sydney Local Environmental Plan 2001, an "apartment building adaptation" requires creation of an apartment building substantially, but not wholly, contained within a building other than an apartment building that lawfully existed on the appointed day. Reading the definition with cl 26 showed that "within a building" did not mean "wholly within". However, the proposed apartments extended outside the fabric of the existing building so extensively that the proposed apartment building was not substantially within the existing building. The proposed development was therefore prohibited, leaving no power to grant consent.

Jurisdiction
Australia
Judgment Date
27 August 2003
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Separate Determination of an Issue as to Whether the Proposed Development Was for the Purpose of Apartment Building Adaptation Under the North Sydney Local Environmental Plan 2001
Outcome
Appeal dismissed; development application refused as prohibited development.
Legal Topics
['development Application Refusal' 'prohibited Development' 'apartment Building Adaptation' 'construction of the Word Within' 'local Environmental Plan Controls']
['environmental Planning and Assessment' 'land and Environment' 'statutory Interpretation'] ['development Application Refusal' 'prohibited Development' 'apartment Building Adaptation' 'construction of the Word Within' 'local Environmental Plan Controls']

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 Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Separate Determination of an Issue as to Whether the Proposed Development Was for the Purpose of Apartment Building Adaptation Under the North Sydney Local Environmental Plan 2001

Legal Issues

  1. 1 ['Whether the proposed development was for the purpose of "apartment building adaptation" within the meaning of the North Sydney Local Environmental Plan 2001.' 'Whether "apartment building adaptation" required the proposed apartment building to be wholly within the existing building or only substantially within it.' 'Whether the development application was for prohibited development and therefore incapable of consent.']

Ratio Decidendi

On the proper construction of the North Sydney Local Environmental Plan 2001, an "apartment building adaptation" requires creation of an apartment building substantially, but not wholly, contained within a building other than an apartment building that lawfully existed on the appointed day. Reading the definition with cl 26 showed that "within a building" did not mean "wholly within". However, the proposed apartments extended outside the fabric of the existing building so extensively that the proposed apartment building was not substantially within the existing building. The proposed development was therefore prohibited, leaving no power to grant consent.

Court Disposition

Appeal dismissed; development application refused as prohibited development.

Orders

  • ['The appeal is dismissed.' 'Development application No. 85/03 for alterations and additions to the existing house at No. 57 Cremorne Road, Cremorne to accommodate four luxury residential apartments is determined by refusal of consent.' 'The exhibits may be returned.']