Webb v Warringah Shire Council

[1989] NSWLEC 196

Land and Environment Court

of New South Wales

CITATION:	Webb & Anor v Warringah Shire Council [1989] NSWLEC 196
PARTIES:	APPLICANT Webb & Anor Respondent Warringah Shire Council
FILE NUMBER(S):	20325 of 1988
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1919 Warringah Local Environment Act 1985 Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	05/24/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: This is an appeal pursuant to s.317L of the Local Government Act 1919 against the disapproval by the Respondent of a building application to erect a swimming pool in the rear yard of land known as No. 11 Ingleside Road, Ingleside.

The Respondent raises no opposition to the appeal on planning merit. However it contends that it lacks the legal power to approve the application. This contention is reflected in the reasons for its decision as communicated to the Applicant:-

"Additions are not permissible under the Warringah Local Environmental Plan 1985."

Although the proceedings before the Court only involve a building application s.314(1)(b) of the Local Government Act 1919 imposes a duty on the Council (and hence on this Court determining the appeal) not to approve the application "unless it is satisfied that the building erected in accordance with the application plans ....... would be in accordance with the provisions of ........ the Environmental Planning and Assessment Act 1979 and any environmental planning instrument."

It is common ground that development of the appeal site is governed by the provisions of Warringah Local Environmental Plan 1985 (hereinafter referred to as the LEP) in terms of which the subject land falls within the Non-Urban 1(a) zone and more particularly within that part of zone No. 1(a) shown hatched blue on map marked "Warringah Local Environmental Plan No. 11". The significance of this latter affectation is found in the provisions of cl.18(1)(d) and cl.18(2) of the aforesaid LEP.

Clause 9 which is in the conventional form restricts development within the variously denominated zonings under the LEP.

It provides as follows:-

"Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -

(a) development may be carried out without development consent;

(b) development may be carried out only with development consent; and

(c) development is prohibited,

are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone."

"1. Without development consent

Agriculture (other than pig-keeping or poultry farming); dwelling-houses permitted by clause 18(1); forestry.

2. Only with development consent

Any purpose other than a purpose for which development may be carried out without development consent or a purpose for which development is prohibited.

3. Prohibited

Attached dwellings; boarding-houses; bulk stores; car repair stations; commercial premises (other than animal training or boarding establishments, caravan parks, veterinary clinics or riding schools); dwelling-houses other than those permitted by clause 18(1) an.mt5