Tobin v Shoalhaven City Council [2001] NSWLEC 72

Tobin v Shoalhaven City Council [2001] NSWLEC 72

Clause 12(3)(c) of Shoalhaven Local Environmental Plan 1985 makes a specific exception for prime crop and pasture land in Zone 1(c) and is prohibitive rather than prescriptive: such land must not be subdivided so as to create lots of less than 10 hectares of prime crop and pasture land. Because the subject land was only approximately 2.663 hectares, the required lot size could not be met, subdivision was prohibited, and State Environmental Planning Policy No.1 could not be used to modify the provision.

Jurisdiction
Australia
Judgment Date
19 April 2001
Procedural Posture
Class 1 Appeal Against Refusal of Development Consent for Subdivision / Preliminary Question of Law
Outcome
Clause 12(3)(c) was found to be a prohibition not amenable to State Environmental Planning Policy No.1.
Legal Topics
['development Standards' 'prohibitions on Development' 'state Environmental Planning Policy No.1' 'local Environmental Plan Construction' 'prime Crop and Pasture Land']
['environmental Planning' 'land Use and Subdivision'] ['development Standards' 'prohibitions on Development' 'state Environmental Planning Policy No.1' 'local Environmental Plan Construction' 'prime Crop and Pasture Land']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Consent for Subdivision / Preliminary Question of Law

Legal Issues

  1. 1 ['Whether clause 12(3) of Shoalhaven Local Environmental Plan 1985 is in the nature of a development standard or a prohibition.' 'Whether clause 12(3)(c) of Shoalhaven Local Environmental Plan 1985 is amenable to modification pursuant to State Environmental Planning Policy No.1.']

Ratio Decidendi

Clause 12(3)(c) of Shoalhaven Local Environmental Plan 1985 makes a specific exception for prime crop and pasture land in Zone 1(c) and is prohibitive rather than prescriptive: such land must not be subdivided so as to create lots of less than 10 hectares of prime crop and pasture land. Because the subject land was only approximately 2.663 hectares, the required lot size could not be met, subdivision was prohibited, and State Environmental Planning Policy No.1 could not be used to modify the provision.

Court Disposition

Clause 12(3)(c) was found to be a prohibition not amenable to State Environmental Planning Policy No.1.

Orders

  • ["The matter will be included in the Registrar's callover list on Friday 27 April 2001." 'The exhibit may be returned.']