Walker v Warringah Council - [1998] NSWLEC 276

Land and Environment Court

of New South Wales

CITATION: CHRISTOPHER PETER WALKER v. WARRINGAH COUNCIL [1998] NSWLEC 276 (5 November 1998) [1998] NSWLEC 47

PARTIES: CHRISTOPHER PETER WALKER v. WARRINGAH COUNCIL [1998] NSWLEC 276 (5 November 1998)

FILE NUMBER(S): 10555 of 1998

CORAM: Lloyd J

KEY ISSUES: :-

LEGISLATION CITED: Warringah Local Environmental Plan 1985
Supreme Court Rules Pt 31 r 2
Land and Environment Court Rules 1996 Pt 6 r 1
Environmental Planning and Assessment Act 1979

CASES CITED: Baulkham Hills Shire Council v ODonnell (1990) 69 LGRA 404;
Warringah Shire Council v Raffles (1978) 38 LGRA 306;
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161;
Baulkham Hills Shire Council v ODonnell;
Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206

DATES OF HEARING: 30 October 1998

DATE OF JUDGMENT:
11/05/1998

LEGAL REPRESENTATIVES:
P W Larkin
J A Ayling

JUDGMENT:

1. This is the separate determination of a preliminary question of law pursuant to the Supreme Court Rules Pt 31 r 2 (which applies to proceedings in this court by dint of the Land and Environment Court Rules 1996 Pt 6 r 1). The proceeding is an appeal under the Environmental Planning and Assessment Act 1979, s 97 against the determination of the respondent to refuse consent to a development application for a helicopter landing site or helipad. The question is whether the proposed development is permissible with development consent in the relevant zone or is prohibited.

2. The subject land is subject to the Warringah Local Environmental Plan 1985 and is within the 1(e) Non-Urban E - Rural Residential zone thereunder. Development for the purpose of dwelling houses permitted by clause 53AE is expressly permissible without development consent in such zones (clause 53AC and the table to that clause). The respondent has granted building approval for the erection of a dwelling house on the land. I assume that in granting the building approval the respondent was satisfied that it was permitted by clause 53AE.

3. Clause 10 of the Warringah Local Environment Plan relevantly provides:

10. A person shall not, without the consent of the Council, carry out any of the following development:

(d) development for the purpose of an aircraft landing field, helipad, heliport or any other facility for the landing or taking off of aircraft or helicopters.

4. Clause 5 of the Warringah Local Environmental Plan defines helipad as follows:

helipad means an area or place not open to public use which is authorised by the Department of Transport and which is set apart for the taking off and landing of helicopters;

This definition is to be contrasted with the definition of heliport, which is as follows:

Heliport means an area or place open to public use which is licensed by the Department of Transport for use by helicopters and includes terminal buildings and facilities for the parking, servicing and repair of helicopters.

5.` The applicant and his wife are the registered proprietors of and reside at the subject…

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.

Keep reading for free

Create a free CaseChat account to read Walker v Warringah Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1998] NSWLEC 276
Decision Date: 11/05/1998

CaseChat Overview and Summary

In Walker v Warringah Council, the applicant sought to establish a helicopter landing site or helipad on his property for private use, as a means of transportation between his residence and various business locations. The Warringah Council refused consent for the development, leading the applicant to appeal to the Land and Environment Court of New South Wales. The primary legal issue was whether the proposed helipad was permissible with development consent in the relevant zone or was prohibited. The court had to determine if the proposed use of the land for a helipad was ancillary to the residential use of the land or if it constituted an independent use.

The court considered the definitions of 'helipad' and 'heliport' in the Warringah Local Environmental Plan and concluded that the intended use of the helipad by the applicant was for private transportation, making it akin to a helipad rather than a heliport. The court examined the arguments presented by both parties, with the applicant's counsel contending that the proposed helipad was ancillary to the residential use of the land and thus permissible without development consent. In contrast, the council's counsel argued that the helipad was an independent use, requiring development consent. The court found that the proposed use of the helipad was not an independent use but rather ancillary to the use of the land for a dwelling house. The court relied on the judgment of Waddell J in Warringah Shire Council v Raffles, which held that the use of a helicopter for private transport was a use of the land for the purpose of a dwelling house. Consequently, the court determined that the proposed development was permissible with consent in the 1(e) Non-Urban E - Rural Residential zone.

The court's decision was based on the distinction between ancillary and independent uses, as explained by Glass JA in Foodbarn Pty Ltd v Solicitor-General. The court found that the proposed helipad was not an independent use but was wholly ancillary to the use of the land for the purpose of a dwelling house. The court adopted the passage from Waddell J's judgment in Raffles, which stated that the use of a helicopter for private transport was a use of the land for the purpose of the dwelling house on the land. Therefore, the preliminary question of whether the proposed development was permissible with consent in the relevant zone was answered in the affirmative.

Orders