McKay v North Sydney Council - [2000] NSWLEC 62

Land and Environment Court

of New South Wales

CITATION: McKay v North Sydney Council [2000] NSWLEC 62

PARTIES: APPLICANT:
Douglas McKay
RESPONDENT:
North Sydney Council

FILE NUMBER(S): 10342 of 1999

CORAM: Sheahan J

KEY ISSUES: Question of Law :- whether prohibition or development standard - construction and interpretation

LEGISLATION CITED: Environmental Planning & Assessment Act 1979
State Environmental Planning Policy No.1
North Sydney Local Environmental Plan 1989

CASES CITED: Bell & Anor v Shellharbour Municipal Council (1993) 78 LGERA 429;
Dixson v Wingecarribee Shire Council (Lloyd J, [1999] NSWLEC 245;
Farrell v Orange City Council (1991) 71 LGRA 370;
North Sydney Municipal Council v Mayoh Pty Ltd (1990) 71 LGRA 222;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (Talbot J, [1999] NSWLEC 245);
Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA;
Woollahra Municipal Council v Carr (1985) 62 LGRA 263

DATES OF HEARING: 10/02/2000; written submissions 25/02/2000

DATE OF JUDGMENT:
03/31/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr D Wilson (Barrister)
RESPONDENT:
Ms S Duggan, Barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No.10342 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 31 March 2000

DOUGLAS McKAY

Applicant

NORTH SYDNEY COUNCIL

Respondent

JUDGMENT

Introduction

1. This is an appeal against the refusal by North Sydney Council of a development application made by Douglas McKay for the proposed erection of an in-ground swimming pool, cantilevered terrace, boatstore, seawall and steps at 18 Cowdroy Avenue, Cammeray.

2. Prior to the hearing of the appeal, the Council raised a question of law , and the parties agreed that it would be necessary to determine that issue, only if and when the Commissioner hearing the matter made certain findings of fact.

3. Commissioner Brown then made such a relevant finding of fact, namely that the cantilevered terrace is not “ associated decking ” pursuant to cl 29(3)(b) of the LEP.

4. Accordingly, this judgment deals with the question of law, namely:

Whether the Court may approve the development having regard to cl 29 (Foreshore Building Line) of North Sydney Local Environmental Plan 1989 and, in particular, having regard to the location of the proposed terraced areas of the dwelling house forward of the foreshore building line and particularly whether cl 29(3) of North Sydney Local Environmental Plan 1989 is a prohibition and is not amenable to an objection under State Environmental Planning Policy No.1.

5. The applicant has made an objection under State Environmental Planning Policy No. 1 (“SEPP 1”) on the basis that the provision affecting the encroachment of the cantilevered terrace beyond the foreshore building line was a “ development standard ” rather than a prohibition.

The Planning Instrument

6. The relevant planning instrument for this development application is North Sydney Local Environmental Plan 1989 as amended (“the LEP ”).

7. Clause 29 of the LEP is headed “ Foreshore Building Line ” and its relevant provisions are as follows:

(1) The objectives of this clause are to allow for development…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 62
Decision Date: 03/31/2000

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal by Douglas McKay against the North Sydney Council's refusal to approve a development application for an in-ground swimming pool, cantilevered terrace, boatstore, seawall, and steps at 18 Cowdroy Avenue, Cammeray. The central legal issue was whether clause 29(3) of the North Sydney Local Environmental Plan 1989, which prohibits certain development forward of the foreshore building line, was a prohibition or a development standard. The applicant argued it was a development standard and therefore subject to the State Environmental Planning Policy No. 1. The court examined various cases and statutory provisions to determine the nature of the clause.

The court found that the clause's wording, context, and purpose indicated that it was intended to prohibit certain developments outright rather than merely setting standards for them. The court noted that distinguishing between absolute prohibitions and regulatory clauses was a matter of interpreting the specific clause within the context of the entire planning instrument. The applicant's reliance on cases where clauses were interpreted as setting standards did not apply here, as each clause must be interpreted in its specific context. The court concluded that clause 29(3) was indeed a prohibition and not a development standard, thus not subject to the provisions of the State Environmental Planning Policy No. 1. Consequently, the cantilevered terrace, which encroached on the foreshore building line, could not be approved.

The court answered the question of law in the negative, finding that clause 29(3) was a prohibition and not a development standard. The appeal was remitted to Commissioner Brown for final determination in accordance with this judgment.

Orders