Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096

Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096

Development on the cross-hatched bushland area was inconsistent with the desired future character statement under the 2000 LEP because "undeveloped" meant without development. The proposed Lot 1, which included more than 6,500 sq m within the hatched area, was inappropriate because it would create an expectation of future development or asset protection use in that area. The draft 2009 LEP did not outweigh that conclusion because the E2 zone objectives sought to protect ecological and aesthetic values and prevent development adversely affecting them. However, the evidence supported a modified subdivision with the southern boundary of proposed Lot 1 following the 95 m contour, allowing an...

Jurisdiction
Australia
Judgment Date
07 March 2011
Procedural Posture
Development Application Appeal Concerning Subdivision / Principal Judgment After Hearing
Outcome
Appeal upheld; development consent granted for Development Application 2010/0478 to subdivide Lot 8 DP 1035344 into two allotments, subject to conditions.
Legal Topics
['subdivision' 'desired Future Character Under Warringah Local Environmental Plan 2000' 'draft Warringah Local Environmental Plan 2009' 'e2 Environmental Conservation Zoning' 'bush Fire Asset Protection Zones' 'newbury Tests for Conditions of Consent' 'amber Light Approach to Development Appeals']
['environmental and Planning Law' 'land Use and Subdivision' 'local Government'] ['subdivision' 'desired Future Character Under Warringah Local Environmental Plan 2000' 'draft Warringah Local Environmental Plan 2009' 'e2 Environmental Conservation Zoning' 'bush Fire Asset Protection Zones' 'newbury Tests for Conditions of Consent' 'amber Light Approach to Development Appeals']

Case Brief

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Procedural Posture

Development Application Appeal Concerning Subdivision / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed subdivision of Lot 8 DP 1035344 was consistent with the desired future character statement for the Brookvale Valley Locality in the Warringah Local Environmental Plan 2000.' 'Whether the imminent and certain draft Warringah Local Environmental Plan 2009, including proposed E2 zoning and its objectives, should outweigh conclusions reached under the Warringah Local Environmental Plan 2000.' 'Whether the proposal was capable of approval in a modified form by placing the southern boundary of proposed Lot 1 along the 95 m contour.' 'What conditions of consent were appropriate for a subdivision application, including whether bushland rehabilitation requirements satisfied the Newbury tests.']

Ratio Decidendi

Development on the cross-hatched bushland area was inconsistent with the desired future character statement under the 2000 LEP because "undeveloped" meant without development. The proposed Lot 1, which included more than 6,500 sq m within the hatched area, was inappropriate because it would create an expectation of future development or asset protection use in that area. The draft 2009 LEP did not outweigh that conclusion because the E2 zone objectives sought to protect ecological and aesthetic values and prevent development adversely affecting them. However, the evidence supported a modified subdivision with the southern boundary of proposed Lot 1 following the 95 m contour, allowing an...

Court Disposition

Appeal upheld; development consent granted for Development Application 2010/0478 to subdivide Lot 8 DP 1035344 into two allotments, subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application 2010/0478 to subdivide Lot 8 DP 1035344 into two allotments is determined by the granting of development consent subject to the conditions in Annexure A.' 'The exhibits, other than Exhibits A, C and 4, are returned.']