Oldershaw v Albury-Wodonga (NSW) Development Corporation [1988] NSWLEC 36

Oldershaw v Albury-Wodonga (NSW) Development Corporation [1988] NSWLEC 36

The appeal failed because the Assessor's judgment, read fairly as a whole, did not disclose an error of law. The Assessor correctly treated cl. 10 as prohibiting subdivision of existing holdings under 80 hectares unless SEPP 1 discretion was favourably exercised, identified and exercised the SEPP 1 discretion, and was entitled as a matter of fact to reject the applicant's evidence and objection on the basis that approval would effectively set aside the zoning controls and create an adverse planning precedent. The other grounds were not pressed and raised no question of law.

Jurisdiction
Australia
Judgment Date
23 December 1988
Procedural Posture
Appeal Under S.56 a of the Land and Environment Court Act 1979 Against an Assessor's Decision Dismissing an Appeal Under S.97 of the Environmental Planning and Assessment Act 1979 Concerning a Development Application for Subdivision / Final Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['development Application for Subdivision' 'state Environmental Planning Policy No. 1 Development Standards' 'development Standards' 'error of Law on the Face of the Record' 'statutory Discretion' 'planning Precedent']
['planning and Environment Law' 'administrative Law'] ['development Application for Subdivision' 'state Environmental Planning Policy No. 1 Development Standards' 'development Standards' 'error of Law on the Face of the Record' 'statutory Discretion' 'planning Precedent']

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Procedural Posture

Appeal Under S.56 a of the Land and Environment Court Act 1979 Against an Assessor's Decision Dismissing an Appeal Under S.97 of the Environmental Planning and Assessment Act 1979 Concerning a Development Application for Subdivision / Final Judgment on Appeal

Legal Issues

  1. 1 ['Whether the Assessor erred in law in interpreting cl. 10 of the relevant planning instrument as absolutely prohibiting subdivision of the relevant land where existing holdings were less than 80 hectares.' 'Whether the Assessor misconceived or failed to exercise the statutory discretion under State Environmental Planning Policy No. 1 - Development Standards.' "Whether the Assessor was entitled to reject the applicant's SEPP 1 objection on the basis that approval would create an adverse planning precedent." 'Whether the remaining grounds of appeal raised any question of law.']

Ratio Decidendi

The appeal failed because the Assessor's judgment, read fairly as a whole, did not disclose an error of law. The Assessor correctly treated cl. 10 as prohibiting subdivision of existing holdings under 80 hectares unless SEPP 1 discretion was favourably exercised, identified and exercised the SEPP 1 discretion, and was entitled as a matter of fact to reject the applicant's evidence and objection on the basis that approval would effectively set aside the zoning controls and create an adverse planning precedent. The other grounds were not pressed and raised no question of law.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.' 'Exhibits to be returned.']