Maxwell and anor v Warringah Council (No 1) [2004] NSWLEC 74

Maxwell and anor v Warringah Council (No 1) [2004] NSWLEC 74

The proposed seven lot subdivision was not consistent with the desired future character of the Boorallie Road locality because the concentration of housing along Bibbenluke Avenue and Joalah Road, the restricted developable curtilages, and the effective exclusion of ancillary semi-rural development would produce houses appearing in an urban setting rather than distinctly non-urban settings. The defects arose from the numerical yield sought, particularly the creation of lots 3, 4 and 5 as narrow artificial slivers to maximise lot yield.

Jurisdiction
Australia
Judgment Date
02 April 2004
Procedural Posture
Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal and Subsequent Actual Refusal of a Development Application to Subdivide Land / Reserved Decision on the Separate Issue of Consistency With the Desired Future Character of the Boorallie Road Locality; Proceedings Adjourned for Mention
Outcome
The present subdivision proposal warranted refusal on the desired future character issue, but the appeal was not dismissed at this stage; proceedings were adjourned to allow the applicants to consider whether to seek dismissal or lodge a further revised plan of subdivision.
Legal Topics
['desired Future Character' 'warringah Local Environmental Plan 2000' 'non Urban Settings' 'residential Subdivision' 'bushfire Asset Protection Zones' 'biodiversity Constraints']
['planning and Environment Law' 'development Consent' 'land Subdivision'] ['desired Future Character' 'warringah Local Environmental Plan 2000' 'non Urban Settings' 'residential Subdivision' 'bushfire Asset Protection Zones' 'biodiversity Constraints']

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Procedural Posture

Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal and Subsequent Actual Refusal of a Development Application to Subdivide Land / Reserved Decision on the Separate Issue of Consistency With the Desired Future Character of the Boorallie Road Locality; Proceedings Adjourned for Mention

Legal Issues

  1. 1 ['Whether the proposed seven lot subdivision was consistent with the desired future character described in the Boorallie Road locality statement under the Warringah Local Environmental Plan 2000.' 'Whether the resulting development would consist of houses in distinctly non-urban settings.' 'Whether alleged non-compliance with the second and third paragraphs of the desired future character statement provided a basis for refusal or modification.']

Ratio Decidendi

The proposed seven lot subdivision was not consistent with the desired future character of the Boorallie Road locality because the concentration of housing along Bibbenluke Avenue and Joalah Road, the restricted developable curtilages, and the effective exclusion of ancillary semi-rural development would produce houses appearing in an urban setting rather than distinctly non-urban settings. The defects arose from the numerical yield sought, particularly the creation of lots 3, 4 and 5 as narrow artificial slivers to maximise lot yield.

Court Disposition

The present subdivision proposal warranted refusal on the desired future character issue, but the appeal was not dismissed at this stage; proceedings were adjourned to allow the applicants to consider whether to seek dismissal or lodge a further revised plan of subdivision.

Orders

  • ['Proceedings adjourned for mention before Moore C at 9:15 AM on 7 April.' 'At the mention, the applicants were expected to indicate whether they wished the appeal to be dismissed or whether they sought a further adjournment to lodge a revised plan of subdivision.']