NSI Group Ltd v Parramatta City Council [2002] NSWLEC 76

NSI Group Ltd v Parramatta City Council [2002] NSWLEC 76

Clause 40(1) of Parramatta Local Environmental Plan 2001 did not apply to the proposed development because the subject land was a deferred area within clause 5(2), and applying the 2001 LEP floor space ratio controls would affect the application of the 1990 LEP, including the development control plan and residential flat building code made to give effect to the 1990 LEP. Consequently, the respondent's issues based on clause 40, the SEPP1 objection and DCP 2001 were to be struck out, and there were no exceptional circumstances warranting a costs order.

Jurisdiction
Australia
Judgment Date
17 May 2002
Procedural Posture
Planning Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application for a Residential Flat Building / Separate Determination of Preliminary Questions of Law Prior to Hearing on the Merits
Outcome
Declaration made; respondent's issues 3, 4 and 5 struck out; no order as to costs.
Legal Topics
['local Environmental Plan Deferred Area' 'floor Space Ratio Controls' 'development Control Plan Controls' 'underground Parking' 'state Environmental Planning Policy No. 1 Objection' 'separate Determination of Preliminary Questions of Law' 'costs in Planning Appeals']
['planning and Environment Law' 'statutory Interpretation' 'costs'] ['local Environmental Plan Deferred Area' 'floor Space Ratio Controls' 'development Control Plan Controls' 'underground Parking' 'state Environmental Planning Policy No. 1 Objection' 'separate Determination of Preliminary Questions of Law' 'costs in Planning Appeals']

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

Planning Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application for a Residential Flat Building / Separate Determination of Preliminary Questions of Law Prior to Hearing on the Merits

Legal Issues

  1. 1 ['Whether clause 40(1) of Parramatta Local Environmental Plan 2001 applied to the development application for land marked as a deferred area.' 'Whether the proposed development fell within the definition of high density housing in Parramatta Local Environmental Plan 2001.' 'Whether the maximum floor space ratio prescribed by clause 40(1) of Parramatta Local Environmental Plan 2001 for the proposed development was 1.5:1.' 'Whether underground parking for the purposes of the definition of floor space area of a building meant parking that is substantially but not necessarily completely underground.' "Whether issues 3, 4 and 5 of the respondent council's Statement of Issues should be struck out." 'Whether costs should be ordered for the separate determination of preliminary questions of law in a planning appeal.']

Ratio Decidendi

Clause 40(1) of Parramatta Local Environmental Plan 2001 did not apply to the proposed development because the subject land was a deferred area within clause 5(2), and applying the 2001 LEP floor space ratio controls would affect the application of the 1990 LEP, including the development control plan and residential flat building code made to give effect to the 1990 LEP. Consequently, the respondent's issues based on clause 40, the SEPP1 objection and DCP 2001 were to be struck out, and there were no exceptional circumstances warranting a costs order.

Court Disposition

Declaration made; respondent's issues 3, 4 and 5 struck out; no order as to costs.

Orders

  • ['A declaration that clause 40(1) of Parramatta Local Environmental Plan 2001 has no application to the proposed development that is the subject of these proceedings.' 'An order that pars [3], [4] and [5] of the Statement of Issues filed on 25 February 2002 by the respondent council be struck out.' 'No order as to...