Poynting v Strathfield Municipal Council [2000] NSWLEC 147

Poynting v Strathfield Municipal Council [2000] NSWLEC 147

Clause 41(2) of the Strathfield Planning Scheme Ordinance is a 'development standard' rather than an absolute prohibition. Therefore, SEPP No 1 is applicable, and the subdivision and use of the resulting lots are not absolutely prohibited if consent is granted through the applicable mechanisms.

Parties
Applicant: Poynting; Respondent: Strathfield Municipal Council
Jurisdiction
Australia
Judgment Date
12 July 2000
Procedural Posture
Appeal Against Council's Deemed Refusal of Development Application / Determination of Preliminary Questions of Law in Class One Proceedings
Outcome
Preliminary questions of law answered in the negative; cl 41(2) is a development standard, use is not absolutely prohibited, subdivision and development not absolutely prohibited.
Legal Topics
Development Standards, Land Subdivision, Interpretation of LEP Provisions, SEPP No 1 Provisions
Planning and Environment Development Standards Land Subdivision Interpretation of LEP Provisions SEPP No 1 Provisions

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Parties

Poynting

Applicant

Strathfield Municipal Council

Respondent

Procedural Posture

Appeal Against Council's Deemed Refusal of Development Application / Determination of Preliminary Questions of Law in Class One Proceedings

Legal Issues

  1. 1 Whether the provisions of LEP specifying minimum size of an allotment upon which a dwelling-house may be erected is a development standard
  2. 2 Whether cl 41(2) of the Strathfield Planning Scheme Ordinance is an absolute prohibition or a development standard
  3. 3 Implication of cl 24(b) and cl 41(2) on the use and development of subdivided lots

Ratio Decidendi

Clause 41(2) of the Strathfield Planning Scheme Ordinance is a 'development standard' rather than an absolute prohibition. Therefore, SEPP No 1 is applicable, and the subdivision and use of the resulting lots are not absolutely prohibited if consent is granted through the applicable mechanisms.

Court Disposition

Preliminary questions of law answered in the negative; cl 41(2) is a development standard, use is not absolutely prohibited, subdivision and development not absolutely prohibited.

Orders

  • Questions 1, 2 and 3 answered: No absolute prohibition—cl 41(2) is a development standard; the use and future development of the land is not absolutely prohibited.
  • Questions 4 and 5 do not require to be answered.