Warringah Shire Council v Punnett & Associates Pty Ltd

Warringah Shire Council appealed to the Court of Appeal against a decision of the Land and Environment Court, which had granted leave to appeal against the Council's refusal to grant development consent for housing for aged people. The core of the dispute concerned whether the proposed development was permitted under either the relevant Local Environmental Plan (LEP) or State Environmental Planning Policy (SEPP) 5.

The Court of Appeal was required to determine whether the subject land was identified by the description "open space" within the meaning of SEPP 5. Specifically, the Court had to consider whether the zoning map incorporated in the LEP, and an index to that map, were sufficient to engage the provisions of SEPP 5, and whether a heading within that index possessed any operative legal force.

The Court reasoned that the identification of land by description in an index to a zoning map was not sufficient to engage Schedule 1 of SEPP 5. It held that the heading in the index did not have operative force and that the LEP's zoning map, which identified the land as "open space," was the operative instrument. The Court concluded that the subject land was not identified by the description "open space" in a manner that would permit the development under SEPP 5.

The appeal was allowed, and the order granting leave to appeal was set aside.