Optima Developments Pty Limited v Wyong Shire Council [2005] NSWLEC 649

Optima Developments Pty Limited v Wyong Shire Council [2005] NSWLEC 649

SEPP 36 does not prohibit approval of the proposed manufactured home estate development where such use is permissible with consent under Wyong LEP, notwithstanding the operation of cl 6 and Schedule 2. The two instruments are not inconsistent insofar as the LEP allows the development on its own terms. Clause 8 of SEPP 36 authorises subdivision with consent where the underlying MHE is permissible, even if the LEP would otherwise impose a minimum allotment size. The proposed development is not prohibited by operation of SEPP 36.

Jurisdiction
Australia
Judgment Date
23 November 2005
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Interlocutory Stage – Determination of Preliminary Legal Questions Only
Outcome
Application not dismissed; development not prohibited; matter to be listed for further hearing
Legal Topics
['inconsistency Between Environmental Planning Instruments' 'permissibility of Development' 'subdivision of Manufactured Home Estates' 'interpretation of SEPP 36 and Wyong Lep']
['planning Law' 'environmental Law'] ['inconsistency Between Environmental Planning Instruments' 'permissibility of Development' 'subdivision of Manufactured Home Estates' 'interpretation of SEPP 36 and Wyong Lep']

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Interlocutory Stage – Determination of Preliminary Legal Questions Only

Legal Issues

  1. 1 ['Whether development for a manufactured home estate is prohibited by SEPP 36 due to inconsistency with Wyong LEP' 'Whether SEPP 36 or Wyong LEP determines lawfulness of development in scenic protection zones' 'Whether subdivision is permissible under planning instruments despite minimum allotment size restrictions']

Ratio Decidendi

SEPP 36 does not prohibit approval of the proposed manufactured home estate development where such use is permissible with consent under Wyong LEP, notwithstanding the operation of cl 6 and Schedule 2. The two instruments are not inconsistent insofar as the LEP allows the development on its own terms. Clause 8 of SEPP 36 authorises subdivision with consent where the underlying MHE is permissible, even if the LEP would otherwise impose a minimum allotment size. The proposed development is not prohibited by operation of SEPP 36.

Court Disposition

Application not dismissed; development not prohibited; matter to be listed for further hearing

Orders

  • ['The matter is listed for further hearing before Commissioner Watts on 14, 15 and 16 December 2005']