Ousley Pty Limited v. Warringah Shire Council [1998] NSWLEC 139

Ousley Pty Limited v. Warringah Shire Council [1998] NSWLEC 139

Clause 55 is concerned with the means of vehicular and pedestrian access to the site and, properly construed, refers to an aspect of the proposed development rather than a characteristic of the land. It fixes a standard requiring access not to be between the site and a main road or between the site and a public road within 90 metres of its intersection with a main road. It does not prohibit the carrying out of the proposed refreshment rooms and service station, and is a development standard amenable to variation under State Environmental Planning Policy No 1.

Jurisdiction
Australia
Judgment Date
04 December 1998
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Consent / Determination of Preliminary Question of Law
Outcome
The preliminary question of law was answered No; cl 55 did not prohibit the proposed development. No order as to costs was made.
Legal Topics
['development Consent' 'development Standards' 'prohibited Development' 'access to Main Roads' 'state Environmental Planning Policy No 1 Variation' 'warringah Local Environmental Plan 1985 Cl 55']
['planning and Environment Law' 'land Use and Development Control'] ['development Consent' 'development Standards' 'prohibited Development' 'access to Main Roads' 'state Environmental Planning Policy No 1 Variation' 'warringah Local Environmental Plan 1985 Cl 55']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Consent / Determination of Preliminary Question of Law

Legal Issues

  1. 1 ['Whether the proposed development is prohibited having regard to the provisions of Clause 55 of Warringah Local Environmental Plan 1985.' 'Whether Clause 55 is a development standard amenable to variation under State Environmental Planning Policy No 1 or operates as a prohibition on the proposed development.']

Ratio Decidendi

Clause 55 is concerned with the means of vehicular and pedestrian access to the site and, properly construed, refers to an aspect of the proposed development rather than a characteristic of the land. It fixes a standard requiring access not to be between the site and a main road or between the site and a public road within 90 metres of its intersection with a main road. It does not prohibit the carrying out of the proposed refreshment rooms and service station, and is a development standard amenable to variation under State Environmental Planning Policy No 1.

Court Disposition

The preliminary question of law was answered No; cl 55 did not prohibit the proposed development. No order as to costs was made.

Orders

  • ['The question whether the proposed development is prohibited having regard to the provisions of Clause 55 of Warringah Local Environmental Plan 1985 was answered: No.' 'No order as to costs.']