Porfiri v Ku-ring-gai Council [2003] NSWLEC 34

Porfiri v Ku-ring-gai Council [2003] NSWLEC 34

Clause 17 of SEPP 53 as amended asks only whether the land is within a zone which, under another environmental planning instrument, permits the erection of dwelling houses. Clause 43(2) of the KPSO is a development standard concerning minimum allotment area and does not alter the land's residential zoning under Zone No. 2(b). To the extent clause 43(2) is inconsistent with Part 3 of SEPP 53, SEPP 53 prevails. The proposed Stage 3 allotments are therefore within a zone under the KPSO which permits the erection of dwelling houses.

Jurisdiction
Australia
Judgment Date
28 February 2003
Procedural Posture
Development Application Question of Law Under State Environmental Planning Policy No. 53 Concerning Dual Occupancy Development / Judgment Answering Question of Law After Amendment of Clause 17 of SEPP 53
Outcome
Question of law answered in the affirmative; costs reserved.
Legal Topics
['development Application' 'dual Occupancy Development' 'zoning' 'environmental Planning Instruments' 'inconsistency Between State Environmental Planning Policy and Local Environmental Plan' 'statutory Interpretation']
['planning and Environment Law'] ['development Application' 'dual Occupancy Development' 'zoning' 'environmental Planning Instruments' 'inconsistency Between State Environmental Planning Policy and Local Environmental Plan' 'statutory Interpretation']

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Procedural Posture

Development Application Question of Law Under State Environmental Planning Policy No. 53 Concerning Dual Occupancy Development / Judgment Answering Question of Law After Amendment of Clause 17 of SEPP 53

Legal Issues

  1. 1 ['Whether, in terms of clause 17 of SEPP 53 as amended by Amendment No. 8, the proposed allotments referred to in Stage 3 are within a zone under the Ku-ring-gai Planning Scheme Ordinance which permits the erection of dwelling houses.' 'Whether clause 43(2) of the Ku-ring-gai Planning Scheme Ordinance affects the zoning of land for the purpose of clause 17 of SEPP 53.' 'Whether SEPP 53 prevails over inconsistent provisions of the Ku-ring-gai Planning Scheme Ordinance.']

Ratio Decidendi

Clause 17 of SEPP 53 as amended asks only whether the land is within a zone which, under another environmental planning instrument, permits the erection of dwelling houses. Clause 43(2) of the KPSO is a development standard concerning minimum allotment area and does not alter the land's residential zoning under Zone No. 2(b). To the extent clause 43(2) is inconsistent with Part 3 of SEPP 53, SEPP 53 prevails. The proposed Stage 3 allotments are therefore within a zone under the KPSO which permits the erection of dwelling houses.

Court Disposition

Question of law answered in the affirmative; costs reserved.

Orders

  • ['The exhibits be returned.' "The matter be remitted to the Registrar's callover list for mention on 5 March 2003."]