ISSA v BURWOOD COUNCIL [2005] NSWCA 38

ISSA v BURWOOD COUNCIL [2005] NSWCA 38

The proposed subdivision was prohibited by cl 78Q because "allotment" in cl 4 and cl 78Q of the Burwood Planning Scheme Ordinance means a distinct or identifiable area of land rather than a technical lot. The whole site, although comprising lots 1 and 13, was a single identifiable allotment because the dual occupancy dwelling straddled both lots and was erected without regard to the internal boundary. The proposed subdivision would create separate allotments for each dwelling resulting from that dual occupancy development.

Jurisdiction
Australia
Judgment Date
21 March 2005
Procedural Posture
Appeal From Land and Environment Court Class 1 Proceedings Concerning a Development Application for Subdivision / Appeal to the New South Wales Court of Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['development Application for Subdivision' 'permissible or Prohibited Development' 'construction of Planning Scheme Ordinance' 'meaning of Allotment' 'dual Occupancy Development']
['building Control and Town Planning' 'planning and Environment Law'] ['development Application for Subdivision' 'permissible or Prohibited Development' 'construction of Planning Scheme Ordinance' 'meaning of Allotment' 'dual Occupancy Development']

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Procedural Posture

Appeal From Land and Environment Court Class 1 Proceedings Concerning a Development Application for Subdivision / Appeal to the New South Wales Court of Appeal

Legal Issues

  1. 1 ['Whether the proposed subdivision was prohibited by cl 78Q of the Burwood Planning Scheme Ordinance.' 'Whether the word "allotment" in the definition of "dual occupancy development" in cl 4 and in cl 78Q bore a technical conveyancing meaning equivalent to "lot" or its ordinary meaning.' 'Whether the appeal raised a question of law for the purposes of s 57(1) of the Land and Environment Court Act 1979.']

Ratio Decidendi

The proposed subdivision was prohibited by cl 78Q because "allotment" in cl 4 and cl 78Q of the Burwood Planning Scheme Ordinance means a distinct or identifiable area of land rather than a technical lot. The whole site, although comprising lots 1 and 13, was a single identifiable allotment because the dual occupancy dwelling straddled both lots and was erected without regard to the internal boundary. The proposed subdivision would create separate allotments for each dwelling resulting from that dual occupancy development.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Dismiss the appeal with costs.']