Mete v Warringah Council - [2004] NSWLEC 273

Land and Environment Court

of New South Wales

CITATION: Mete v Warringah Council [2004] NSWLEC 273

PARTIES:
APPLICANT
Anthony Mete
RESPONDENT
Warringah Council

FILE NUMBER(S): 11629 of 2003

CORAM: Talbot J

KEY ISSUES: Planning Instruments :- whether provisions of later instrument prevail and if so to what extent - whether planning instruments can have concurrent effect - whether SEPP(SL) applies to Warringah LGA
Construction and Interpretation :- meaning of "zoned"

LEGISLATION CITED: Environmental Planning & Assessment Act 1979 s 79C(1)(a)
State Environmental Planning Policy No 1
State Environmental Planning Policy No 5 cl 2(1)
State Environmental Planning Policy (Seniors Living) 2004 cl 2, cl 4, cl 4(1), cl 5(3), cl 12(1)(b), cl 17, cl 25, cl 28, cl 30, cl 38, cl 38(1), cl 51, cl 78, cl 81
Warringah Local Environmental Plan 2000 cl 5(1), cl 29, cl 40,

CASES CITED: Gillespies v Warringah Council (2002) 124 LGERA 147;
Sofi v Wollondilly Shire Council (1975) 31 LGRA 416

DATES OF HEARING: 14/05/2004

DATE OF JUDGMENT: 05/31/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J A Ayling SC
SOLICITORS
Hones Lawyers
RESPONDENT
Mr D P Wilson (Barrister)
SOLICITORS
Wilshire Webb Solicitors

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11629 of 2003

Talbot J

31 May 2004

Anthony Mete

Applicant

Warringah Council

Respondent

Judgment

Introduction

1 On 11 November 2003 the applicant lodged a development application with Warringah Council (“the council”) seeking consent for the erection of four two-bedroom dwellings for Housing for Older People or People with Disabilities and subsequent strata subdivision on land known as No. 3 Tristram Road, Beacon Hill (“the subject land”). The development application was lodged pursuant to Warringah Local Environmental Plan 2000 (“WLEP”) made on 5 December 2000.

2 On 24 December 2003 the applicant commenced these class 1 proceedings by way of an appeal against the deemed refusal of the development application by the council. A Statement of Issues was filed and served on 17 February 2004.

Warringah Local Environmental Plan 2000

3 The structure of WLEP encapsulates the description of desired characters of the localities that make up Warringah and relates the controls on development to the achievement of the desired character of those places. The plan applies to the local government area of Warringah, except any land while it is shown on the map as “Deferred Matter”.

4 Locality Statements are appended to the WLEP. The relevant Locality Statement classifies land within a locality as being within Category One, Category Two or Category Three.

5 Clause 5(1) of WLEP provides that State Environmental Planning Policy No. 1 (“SEPP 1”) and State Environmental Planning Policy No. 5 (“SEPP 5”), inter alia, do not apply to land to which WLEP applies. Development standards for development are set out in the respective Locality Statements. Before granting consent for development classified as Category One the consent authority must consider the desired future character described in the relevant Locality Statement. Before granting consent for development classified Category Two or Three the consent authority must…

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: [2004] NSWLEC 273
Decision Date: 05/31/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Anthony Mete, the applicant, sought consent for the erection of four two-bedroom dwellings for Housing for Older People or People with Disabilities and subsequent strata subdivision on land known as No. 3 Tristram Road, Beacon Hill. The applicant lodged a development application with Warringah Council, which was deemed refused. Mete commenced class 1 proceedings by way of an appeal against the deemed refusal. The primary issues were whether the provisions of later planning instruments prevail, whether planning instruments can have a concurrent effect, whether State Environmental Planning Policy (Seniors Living) applied to Warringah, and the meaning of "zoned." The court found that the State Environmental Planning Policy (Seniors Living) applied to Warringah local government area, but it did not repeal the Warringah Local Environmental Plan 2000. The two environmental planning instruments operated concurrently, and the applicant's development application was determined pursuant to the Warringah Local Environmental Plan 2000, subject to taking into account the provisions of the State Environmental Planning Policy (Seniors Living) to the extent of any inconsistency. The court also found that the term "zoned" in the context of planning instruments referred to the process of placing land in a particular category through a locality statement, which could be considered a form of zoning.

The final orders were that the appeal be dismissed with costs.

Orders