WEM Property Ventures Pty Ltd v Warringah Shire Council [2011] NSWLEC 1092

WEM Property Ventures Pty Ltd v Warringah Shire Council [2011] NSWLEC 1092

The proposed subdivision, in its current arrangement, did not achieve consistency with the desired future character described in the B7 Locality Statement and did not comply with cl 12(3)(b) of Warringah Local Environmental Plan 2000 because the size and configuration of the lots and the site's constraints limited appropriate future dwelling locations, setbacks, landscaping and amenity, and because the number of allotments and likely future dwellings would cause tree removal and impacts inconsistent with enhancing indigenous tree canopy and preserving remnant bushland. The amendments to the plans were minor, so a costs order under s 97B was not justified.

Jurisdiction
Australia
Judgment Date
28 April 2011
Procedural Posture
Appeal Against Refusal of a Development Application for Community Title Subdivision / Principal Judgment
Outcome
Appeal dismissed; development application refused; no order as to costs under s 97B of the Environmental Planning and Assessment Act 1979.
Legal Topics
['development Application' 'community Title Subdivision' 'desired Future Character' 'subdivision Controls' 'tree Canopy and Remnant Bushland' 'costs Under S 97 B of the Environmental Planning and Assessment Act 1979']
['planning and Environment Law'] ['development Application' 'community Title Subdivision' 'desired Future Character' 'subdivision Controls' 'tree Canopy and Remnant Bushland' 'costs Under S 97 B of the Environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Appeal Against Refusal of a Development Application for Community Title Subdivision / Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed Community Title subdivision into 10 allotments was consistent with the desired future character described in the B7 Narrabeen Lakes Suburbs Locality Statement under Warringah Local Environmental Plan 2000.' 'Whether future dwellings on the proposed lots could be developed in accordance with Warringah Local Environmental Plan 2000 and relevant development standards.' 'Whether the pattern, size and configuration of the proposed allotments were consistent with the predominant pattern, size and configuration of existing allotments in the locality.' 'Whether the proposal would enhance indigenous tree canopy and preserve remnant bushland as required by the Desired Future Character statement.' 'Whether an order for costs should be made under s 97B of the Environmental Planning and Assessment Act 1979 in relation to amended plans.']

Ratio Decidendi

The proposed subdivision, in its current arrangement, did not achieve consistency with the desired future character described in the B7 Locality Statement and did not comply with cl 12(3)(b) of Warringah Local Environmental Plan 2000 because the size and configuration of the lots and the site's constraints limited appropriate future dwelling locations, setbacks, landscaping and amenity, and because the number of allotments and likely future dwellings would cause tree removal and impacts inconsistent with enhancing indigenous tree canopy and preserving remnant bushland. The amendments to the plans were minor, so a costs order under s 97B was not justified.

Court Disposition

Appeal dismissed; development application refused; no order as to costs under s 97B of the Environmental Planning and Assessment Act 1979.

Orders

  • ['The appeal is dismissed.' 'The development application (2010/1182) for Community Title subdivision into 10 allotments of 132 Rose Avenue, Wheeler Heights is dismissed.' 'The exhibits, except Exhibit 1, may be returned.' 'No order as to costs under s 97B of the Environmental Planning and Assessment Act 1979']