Unicomb Development Services Pty Limited v Shellharbour City Council [2003] NSWLEC 89

Unicomb Development Services Pty Limited v Shellharbour City Council [2003] NSWLEC 89

Clause 83 specifically addresses adjoining zones and is intended to provide flexibility for land straddling zone boundaries. Read in light of the LEP's aims, the headings to Part 12 and clause 83, and the restrictions specified in Column III, clause 83 operates independently and displaces inconsistent minimum lot size controls in clauses 54 and 14 for development permissible in Zone 2(e) on adjoining land within the specified boundary area. Therefore consent may be granted to the proposed subdivision notwithstanding non-compliance with clauses 54 or 14, and the development application may be considered on its merits having regard to clause 83(2), without requiring a State Environmental...

Jurisdiction
Australia
Judgment Date
23 April 2003
Procedural Posture
Development Application Appeal; Separate Determination of a Question of Law / Question of Law Referred to a Judge by a Commissioner Pursuant to S 36(5) of the Land and Environment Court Act 1979
Outcome
Question of law answered in favour of the applicant: paragraph (a) in the affirmative and paragraph (b) in the negative.
Legal Topics
['development Consent for Subdivision' 'flexible Zone Boundaries' 'minimum Lot Size Development Standards' 'shellharbour Local Environmental Plan 2000' 'state Environmental Planning Policy No. 1 Objection']
['environmental Planning and Assessment' 'land Use and Zoning' 'statutory Interpretation'] ['development Consent for Subdivision' 'flexible Zone Boundaries' 'minimum Lot Size Development Standards' 'shellharbour Local Environmental Plan 2000' 'state Environmental Planning Policy No. 1 Objection']

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Procedural Posture

Development Application Appeal; Separate Determination of a Question of Law / Question of Law Referred to a Judge by a Commissioner Pursuant to S 36(5) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether, on the true construction of clause 83 of Shellharbour Local Environmental Plan 2000 and the whole of that plan, consent may be granted to subdivision notwithstanding non-compliance with clause 54 as to minimum lot sizes.' 'Whether consent could be granted only if an objection pursuant to State Environmental Planning Policy No. 1 is upheld.' 'Whether clause 83 permits development permissible in Zone 2(e) to be carried out on adjoining land in Zones 7(d) and 1(a) without applying the minimum lot size controls in clauses 54 and 14.']

Ratio Decidendi

Clause 83 specifically addresses adjoining zones and is intended to provide flexibility for land straddling zone boundaries. Read in light of the LEP's aims, the headings to Part 12 and clause 83, and the restrictions specified in Column III, clause 83 operates independently and displaces inconsistent minimum lot size controls in clauses 54 and 14 for development permissible in Zone 2(e) on adjoining land within the specified boundary area. Therefore consent may be granted to the proposed subdivision notwithstanding non-compliance with clauses 54 or 14, and the development application may be considered on its merits having regard to clause 83(2), without requiring a State Environmental...

Court Disposition

Question of law answered in favour of the applicant: paragraph (a) in the affirmative and paragraph (b) in the negative.

Orders

  • ['Consent may be granted to the subdivision notwithstanding non-compliance with clause 54 or clause 14 of Shellharbour Local Environmental Plan 2000 as to minimum lot sizes.' 'The development application may be considered on its merits, particularly having regard to clause 83(2), without requiring an upheld State...