Tim Shellshear & Associates v Warringah Council & AMP Capital Investors Limited [2012] NSWLEC 1097

Tim Shellshear & Associates v Warringah Council & AMP Capital Investors Limited [2012] NSWLEC 1097

Although Warringah Local Environmental Plan 2011 had commenced and significant weight was given to the fact that a medical centre would now be prohibited in the IN1 General Industrial zone, clause 1.8A preserved determination under the former plan. The proposed development was not antipathetic to the aims and objectives of LEP2011, was consistent with the desired future character of the G10 Brookvale Industrial West locality under LEP2000, satisfied the required Category 3 assessment process, was suitable for the site, and was in the public interest. Consent should therefore be granted.

Jurisdiction
Australia
Judgment Date
18 April 2012
Procedural Posture
Class 1 Development Appeal / Appeal Against Refusal of DA No. Da2011/0892 by the Sydney East Region Joint Regional Planning Panel
Outcome
Appeal upheld
Legal Topics
['development Application' 'desired Future Character' 'weight to Commenced Planning Instrument' 'savings Provision' 'prohibited Development' 'site Suitability' 'public Interest']
['planning and Environment Law' 'development Consent'] ['development Application' 'desired Future Character' 'weight to Commenced Planning Instrument' 'savings Provision' 'prohibited Development' 'site Suitability' 'public Interest']

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Procedural Posture

Class 1 Development Appeal / Appeal Against Refusal of DA No. Da2011/0892 by the Sydney East Region Joint Regional Planning Panel

Legal Issues

  1. 1 ['Whether the proposed development was prohibited development pursuant to Warringah Local Environmental Plan 2011 despite the savings provision.' 'Whether the proposed development was inconsistent with the objectives of the IN1 General Industrial zone pursuant to Warringah Local Environmental Plan 2011.' 'Whether the proposed development complied with the desired future character of the locality pursuant to Warringah Local Environmental Plan 2000.' 'Whether the site was suitable for the proposed development pursuant to s 79C(1)(c) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed development served the public interest.']

Ratio Decidendi

Although Warringah Local Environmental Plan 2011 had commenced and significant weight was given to the fact that a medical centre would now be prohibited in the IN1 General Industrial zone, clause 1.8A preserved determination under the former plan. The proposed development was not antipathetic to the aims and objectives of LEP2011, was consistent with the desired future character of the G10 Brookvale Industrial West locality under LEP2000, satisfied the required Category 3 assessment process, was suitable for the site, and was in the public interest. Consent should therefore be granted.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' "Development Application DA2011/0892 for demolition works and construction of a Medical Centre and Day Surgery Building with associated landscaping works at 10-12 Dale Street, Brookvale is approved subject to the conditions included in Annexure 'A'." 'The exhibits, other than exhibits A, B,...