Vigor Master Pty Limited v Warringah Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096

Hearing dates:

3 and 4 March 2011

Decision date:

07 March 2011

Before:

Moore SC

Decision:

1.The appeal is upheld

2.Development Application2010/0478 to subdivide Lot 8 DP 1035344 into two allotments is determined by the granting of development consent subject to the conditions in Annexure A; and

3.The exhibits, other than Exhibits A, C and 4, are returned.

Catchwords:

Subdivision; consistency with Locality statement in Warringah Local Environmental Plan 2000; role of draft Warringah Local Environmental Plan 2009; amber light approach to consideration of development appeals; modified subdivision.

Legislation Cited:

Warringah Local Environmental Plan 2000 Draft Warringah Local Environmental Plan 2009

Cases Cited:

Dem Gillespies v Warringah Council [2002] NSWLEC 224; (2002) 124 LGERA 147
Newbury District Council and Secretary of State for the Environment [1981] AC 578

Category:

Principal judgment

Parties:

Vigor Master Pty Limited (Applicant)
Warringah Council (Respondent)

Representation:

Mr J Johnson (Applicant)
Mr A Hudson (Respondent) Wilshire Webb Staunton Beattie

File Number(s):

10524 of 2010

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. The upper end of the Brookvale Valley is bounded by Warringah Road. Below Warringah Road, running down into the valley, is Greendale Creek. Although a portion of its catchment is to the north of (and some of it under) Warringah Road, below Warringah Road the creek passes through a substantial undisturbed and undeveloped bushland area.

1. This area comprises, for the most part, one very large allotment of land having an area of approximately 98,000 square metres. On the map that attaches to the Warringah Local Environmental Plan 2000 (the 2000 LEP), this land is identified as being in the Brookvale Valley Locality, known as Locality F4 in the 2000 LEP and is marked, for the most part, with hatching to identify an area that is not, prima facie, intended for development. An extract from the zoning map appears below:

1. The 2000 LEP is an unusual Local Environmental Plan in that, contrary to conventional zoning regimes, it includes a series of Localities with desired future character statements. It has long been held that, for the purposes of assessing development in proceedings in this Court, the desired future character statement, in the broad, is akin to a statement of objectives for a particular zone and, again in the broad, the permitted uses within a particular locality are to be regarded akin to the land use table in a conventional local environmental plan (see Dem Gillespies v Warringah Council [2002] NSWLEC 224; (2002) 124 LGERA 147).

1. As part of the adoption by all local government areas in the New South Wales of templates based on the Standard Instrument, the council has prepared the Warringah Local Environmental Plan 2009 (the 2009 LEP) that will zone the particular parcel as Zone E2. It is agreed between the parties that the 2009 LEP is imminent and certain.