Save Our Street Incorporated v Settree [2006] NSWLEC 570

Save Our Street Incorporated v Settree [2006] NSWLEC 570

The development consent was not void. On the proper construction of cl 28(2) of the Gosford Planning Scheme Ordinance, "floor area of each dwelling" did not mean the defined term "floor space" and excluded the garage, void above the stair, store, garbage store and wall thicknesses; the agreed measurements therefore showed each dwelling was less than 110 square metres and the minimum site area requirement was satisfied. The applicant also failed to prove that the council did not consider the required planning matters or that the decision was Wednesbury unreasonable; the evidence showed the council considered character, solar access, ecologically sustainable development, traffic, privacy...

Jurisdiction
Australia
Judgment Date
12 September 2006
Procedural Posture
Class 4 Judicial Review Proceedings Seeking a Declaration That Development Consent No 25510/2004 Is Void / Judgment After Hearing
Outcome
Proceedings dismissed; costs reserved.
Legal Topics
['validity of Development Consent' 'consideration of Environmental Planning Instruments Under S 79 C(1)(a)(i) of the Environmental Planning and Assessment Act 1979' 'construction of Gosford Planning Scheme Ordinance Cl 28(2)' 'wednesbury Unreasonableness' 'residential Flat Building Development']
['environmental Planning and Assessment' 'administrative Law' 'judicial Review'] ['validity of Development Consent' 'consideration of Environmental Planning Instruments Under S 79 C(1)(a)(i) of the Environmental Planning and Assessment Act 1979' 'construction of Gosford Planning Scheme Ordinance Cl 28(2)' 'wednesbury Unreasonableness' 'residential Flat Building Development']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Judicial Review Proceedings Seeking a Declaration That Development Consent No 25510/2004 Is Void / Judgment After Hearing

Legal Issues

  1. 1 ['Whether development consent No 25510/2004 was void because the council breached s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 by failing to apply the minimum site area requirements in cl 28(2) of the Gosford Planning Scheme Ordinance.' 'Whether the phrase "floor area of each dwelling" in cl 28(2) of the Gosford Planning Scheme Ordinance included garages, voids, storage areas, garbage stores and wall thicknesses.' 'Whether the council failed to take into consideration cl 10(4) of the Gosford Planning Scheme Ordinance and Gosford Medium Density Residential Development Control Plan No 100 in relation to the character of the development site and surrounding area.' 'Whether the grant of development consent was unreasonable in the Wednesbury sense.']

Ratio Decidendi

The development consent was not void. On the proper construction of cl 28(2) of the Gosford Planning Scheme Ordinance, "floor area of each dwelling" did not mean the defined term "floor space" and excluded the garage, void above the stair, store, garbage store and wall thicknesses; the agreed measurements therefore showed each dwelling was less than 110 square metres and the minimum site area requirement was satisfied. The applicant also failed to prove that the council did not consider the required planning matters or that the decision was Wednesbury unreasonable; the evidence showed the council considered character, solar access, ecologically sustainable development, traffic, privacy...

Court Disposition

Proceedings dismissed; costs reserved.

Orders

  • ['The proceedings are dismissed.' 'Costs are reserved. Any application for costs is to be made returnable before Biscoe J within two weeks.' 'The exhibits may be returned.']