BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998) [1998] NSWLEC 36

BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998) [1998] NSWLEC 36

Clause 14(3)(b) was construed as dealing solely with land within zone 7(c), because clause 14(3)(a) specifically addressed land partly within one zone and partly within another. If clause 14(3)(b) applied, clause 14(7) required counting all allotments created from the original portion of land. Clause 14(7) operated as a development standard because it presupposed permissible subdivision and fixed the extent to which development could occur. Clause 14(2) did not apply to subdivision of land within more than one zone, and clause 14(3)(a) was not a development standard because it set preconditions for when subdivision was permissible rather than requirements for how subdivision was to be...

Jurisdiction
Australia
Judgment Date
23 April 1998
Procedural Posture
Class 1 Proceedings by Way of Appeal Against Refusal of a Development Application to Subdivide Rural Land / Questions of Law
Outcome
Questions of law answered: Question 1 yes; Question 2 yes; Question 3 yes; Question 4 no; Question 5 no. No order as to costs.
Legal Topics
['subdivision of Rural Land' 'zoning' 'development Standards' 'wyong Local Environmental Plan 1991 Clause 14' 'environmental Planning Instruments']
['planning and Environment Law'] ['subdivision of Rural Land' 'zoning' 'development Standards' 'wyong Local Environmental Plan 1991 Clause 14' 'environmental Planning Instruments']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Proceedings by Way of Appeal Against Refusal of a Development Application to Subdivide Rural Land / Questions of Law

Legal Issues

  1. 1 ['Whether subclause 14(3)(b) of the Wyong LEP only allows for subdivision of land exclusively within zone 7(c).' 'Whether subclause 14(7) of the Wyong LEP requires the relevant authority to take into account all allotments that have ever been created by subdivision from the original portion of land of which the land to be subdivided used to form part, regardless of when such subdivisions took place and whether such allotments still form part of the land to be subdivided.' 'Whether subclause 14(7) of the Wyong LEP operates as a development standard within the meaning of section 4 of the Environmental Planning and Assessment Act 1979.' 'Whether clause 14(2) of the Wyong Local Environmental Plan 1991 applies to the subdivision of land which is within more than one zone.' 'Whether paragraphs (i) to (iv), both inclusive, of clause 14(3)(a) of the Wyong LEP operate as development standards within the meaning of section 4 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Clause 14(3)(b) was construed as dealing solely with land within zone 7(c), because clause 14(3)(a) specifically addressed land partly within one zone and partly within another. If clause 14(3)(b) applied, clause 14(7) required counting all allotments created from the original portion of land. Clause 14(7) operated as a development standard because it presupposed permissible subdivision and fixed the extent to which development could occur. Clause 14(2) did not apply to subdivision of land within more than one zone, and clause 14(3)(a) was not a development standard because it set preconditions for when subdivision was permissible rather than requirements for how subdivision was to be...

Court Disposition

Questions of law answered: Question 1 yes; Question 2 yes; Question 3 yes; Question 4 no; Question 5 no. No order as to costs.

Orders

  • ['Question 1 answered yes.' 'Question 2 answered yes.' 'Question 3 answered yes.' 'Question 4 answered no.' 'Question 5 answered no.' 'No order as to costs.' 'Exhibits C1 and C2 may be returned.']