Napper v Shoalhaven City Council [1988] NSWLEC 109

Napper v Shoalhaven City Council [1988] NSWLEC 109

Clause 15(2) operates as a prohibition on the erection of a dwelling-house in Zone No. 1(g) unless it is essential for the proper and efficient management of the agricultural use of the land. It concerns the permissibility of the use, not a requirement or standard relating to any aspect of the carrying out of development. It is therefore not a development standard, State Environmental Planning Policy No. 1 cannot apply, and because the land is incapable of agricultural use the dwelling-house use is impermissible in the zone.

Jurisdiction
Australia
Judgment Date
26 February 1988
Procedural Posture
Class 4 Application / Amended Class 4 Application Seeking a Declaration That Clause 15(2) of the City of Shoalhaven Local Environmental Plan 1985 Is a Development Standard in Respect of Which the Applicant May Object to Compliance Pursuant to State Environmental Planning Policy No. 1
Outcome
Application dismissed with costs; declaration refused.
Legal Topics
['development Standards' 'state Environmental Planning Policy No. 1 Objections' 'permissibility of Dwelling House Development in Rural "g" Zone' 'flood Liable Land']
['environmental and Planning Law' 'land Use and Zoning'] ['development Standards' 'state Environmental Planning Policy No. 1 Objections' 'permissibility of Dwelling House Development in Rural "g" Zone' 'flood Liable Land']

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Procedural Posture

Class 4 Application / Amended Class 4 Application Seeking a Declaration That Clause 15(2) of the City of Shoalhaven Local Environmental Plan 1985 Is a Development Standard in Respect of Which the Applicant May Object to Compliance Pursuant to State Environmental Planning Policy No. 1

Legal Issues

  1. 1 ['Whether Clause 15(2) of the City of Shoalhaven Local Environmental Plan 1985 is a development standard as defined in section 4(1) of the Environmental Planning and Assessment Act.' 'Whether the applicant may make an objection under State Environmental Planning Policy No. 1 to compliance with Clause 15(2) in an application for development consent for a dwelling-house.']

Ratio Decidendi

Clause 15(2) operates as a prohibition on the erection of a dwelling-house in Zone No. 1(g) unless it is essential for the proper and efficient management of the agricultural use of the land. It concerns the permissibility of the use, not a requirement or standard relating to any aspect of the carrying out of development. It is therefore not a development standard, State Environmental Planning Policy No. 1 cannot apply, and because the land is incapable of agricultural use the dwelling-house use is impermissible in the zone.

Court Disposition

Application dismissed with costs; declaration refused.

Orders

  • ['The declaration is refused.' 'The application is dismissed with costs.']