Young & Anor v Hunters Hill Municipal Council [1989] NSWLEC 160

Young & Anor v Hunters Hill Municipal Council [1989] NSWLEC 160

Clause 5(1) of the Model Provisions, as adopted by the Local Environmental Plan, does not amount to an exception within the introductory words of cl.9 and does not authorise the consent authority to refuse development consent for a dwelling house in a 2(a2) zone on aesthetic grounds.

Parties
Applicant: Young & Anor; Respondent: Hunters Hill Municipal Council
Jurisdiction
Australia
Judgment Date
17 February 1989
Procedural Posture
Point of Law Referral / Determination of Preliminary Legal Question Under S.36(5) Land and Environment Court Act
Outcome
Point of law determined: It is not open to the consent authority to refuse development consent by reference to cl.5(1) where it is incorporated in the LEP.
Legal Topics
Development Consent, Local Environmental Plans, Model Provisions, Aesthetic Considerations, Statutory Interpretation
Planning and Environment Development Consent Local Environmental Plans Model Provisions Aesthetic Considerations Statutory Interpretation

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Parties

Young & Anor

Applicant

Hunters Hill Municipal Council

Respondent

Procedural Posture

Point of Law Referral / Determination of Preliminary Legal Question Under S.36(5) Land and Environment Court Act

Legal Issues

  1. 1 Whether cl.5(1) of the Model Provisions, as incorporated into the Hunters Hill Local Environmental Plan No. 1, authorizes refusal of development consent for a dwelling house in a 2(a2) zone

Ratio Decidendi

Clause 5(1) of the Model Provisions, as adopted by the Local Environmental Plan, does not amount to an exception within the introductory words of cl.9 and does not authorise the consent authority to refuse development consent for a dwelling house in a 2(a2) zone on aesthetic grounds.

Court Disposition

Point of law determined: It is not open to the consent authority to refuse development consent by reference to cl.5(1) where it is incorporated in the LEP.

Orders

  • Determination remitted to the Assessor for continuation of the application.