Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250

Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250

Clause 26 of the 1998 SEPP 5 has a continuing effect so that development applications lodged prior to amendments are determined under the provisions in force at the application date. Therefore, the 1998 SEPP 5 applies, and land zoned 4(a) Industrial under the Sutherland Shire LEP 1993 is land to which SEPP 5 applies under cl 4(1)(b)(iv). Alternatively, even under the 2000 SEPP 5, the site qualifies as land to which SEPP 5 applies because development for the specified uses, including dwelling houses ancillary to permissible uses, is permitted.

Parties
Applicant: Q & R Developments Pty Ltd; Respondent: Sutherland Shire Council
Jurisdiction
Australia
Judgment Date
15 November 2001
Procedural Posture
Preliminary Question of Law / Interlocutory
Outcome
Preliminary questions of law answered in favour of the applicant; proceedings stood over for further hearing.
Legal Topics
State Environmental Planning Policy No 5, Zoning, Transitional Provisions, Interpretation of Planning Instruments
Planning Law Environmental Law State Environmental Planning Policy No 5 Zoning Transitional Provisions Interpretation of Planning Instruments

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Q & R Developments Pty Ltd

Applicant

Sutherland Shire Council

Respondent

Procedural Posture

Preliminary Question of Law / Interlocutory

Legal Issues

  1. 1 Which version of clause 4 of SEPP 5 applies to the applicant's development application?
  2. 2 Whether land zoned 4(a) Industrial under Sutherland Shire LEP 1993 is land to which SEPP 5 applies under cl 4(1)(b)(iv)?
  3. 3 Whether, if the 2000 version applies, the site still falls within the description of land under cl 4(1)(b)(iv) or (i)?

Ratio Decidendi

Clause 26 of the 1998 SEPP 5 has a continuing effect so that development applications lodged prior to amendments are determined under the provisions in force at the application date. Therefore, the 1998 SEPP 5 applies, and land zoned 4(a) Industrial under the Sutherland Shire LEP 1993 is land to which SEPP 5 applies under cl 4(1)(b)(iv). Alternatively, even under the 2000 SEPP 5, the site qualifies as land to which SEPP 5 applies because development for the specified uses, including dwelling houses ancillary to permissible uses, is permitted.

Court Disposition

Preliminary questions of law answered in favour of the applicant; proceedings stood over for further hearing.

Orders

  • Preliminary question 1 answered: Yes, the land is capable of permitting development under cl 4(1)(b)(iv) of SEPP 5 1998.
  • Preliminary question 2 does not strictly arise, but would also be answered in the applicant's favour.