Yi v the Service Arena Pty Ltd - [2001] NSWCA 400

NEW SOUTH WALES COURT OF APPEAL

CITATION: WARRINGAH SHIRE COUNCIL v PUNNETT & ASSOCIATES PTY LTD [2001] NSWCA 480

FILE NUMBER(S):
40604/01

HEARING DATE(S): 12 December 2001

JUDGMENT DATE: 19/12/2001

PARTIES:
WARRINGAH SHIRE COUNCIL v T C PUNNETT & ASSOCIATES PTY LTD

JUDGMENT OF: Mason P Beazley JA Ipp AJA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 11117/00

LOWER COURT JUDICIAL OFFICER: McEwen AJ

COUNSEL:
Appellant: G Downes QC/A Galasso
Respondent: MG Craig QC/ S Duggan

SOLICITORS:
Appellant: Wilshire Webb
Respondent: Tzovaras Yandell

CATCHWORDS:
Land & Environment Court - Class 1 proceedings - Application for leave to appeal -- refusal to grant development consent for housing for aged people - whether development permitted pursuant to Local Environmental Plan or State Environmental Planning Policy - SEPP 5 - whether subject land identified by description "open space" - zoning map incorporated in LEP - whether identification of land by description in Index to map sufficient to engage Schedule of SEPP - whether heading in Index has any operative force.

LEGISLATION CITED:

DECISION:
See par 38

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40604/01
MASON P
BEAZLEY JA
IPP AJA
Wednesday 19 December 2001

WARRINGAH SHIRE COUNCIL v T C PUNNETT & ASSOCIATES PTY LTD

JUDGMENT

MASON P: This is an expedited application for leave to appeal in which the Court heard full argument.
The proceedings in this Court arise out of Class 1 proceedings in the Land and Environment Court. They contest the refusal of the claimant (hereafter “the Council”) to grant to the opponent (hereafter “the developer”) development consent for the construction of housing for aged people at 26 Campbell Avenue Dee Why. The developer sought consent to erect 26 x 2 bedroom units and 24 x 3 bedroom units and ancillary community facilities.
Certain questions of law were decided as a preliminary issue. The Council contends that the development is not permitted either pursuant to its Local Environmental Plan (LEP) or State Environmental Planning Policy No 5 (SEPP 5). The grounds for the Council’s assertion as ventilated in the court below were (to abbreviate the Questions of Law):
• whether the development was permitted because dwelling houses were permitted in the relevant zone (cl 4(1)(b) of SEPP 5) [Question 2]; and
• whether the development was permitted because the subject land was not located within a zone identified as open space (cl 4(2)(a) and Schedule 1 of SEPP 5) [Question 3].
Both questions were determined in the affirmative by McEwen AJ (see T C Punnett & Associates Pty Ltd v Warringah Council [2001] NSWLEC 152).
In this Court the Council presses its challenge with respect to Question 3.
The Development Application was lodged on 28 August 2000 and refused by the Council on 14 November 2000. On 5 December 2000 the Warringah LEP 2000 (WLEP 2000) was made. Clause 5 of that instrument saved both the Warringah LEP 1985 (WLEP 1985) and SEPP 5 with respect to development…

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: [2001] NSWCA 400
Decision Date: 13 November 2001

CaseChat Overview and Summary

The applicant, Yi, sought leave to appeal a decision of the respondent, The Service Arena Pty Ltd, which refused development consent for housing for aged people. The matter came before the Land and Environment Court in Class 1 proceedings.

The primary legal issues before the Court were whether the proposed development was permitted pursuant to the relevant Local Environmental Plan (LEP) or State Environmental Planning Policy (SEPP) 5. Specifically, the Court had to determine if the subject land was identified by the description "open space" within the LEP and whether the identification of land by description in the Index to the zoning map was sufficient to engage Schedule 1 of SEPP 5, and crucially, whether the heading in the Index possessed any operative force.

The Court reasoned that the zoning map, incorporated into the LEP, was the operative instrument for determining land use. It found that the Index to the zoning map, which described the land as "open space," did not have operative force in itself. The Court held that the identification of land by description in the Index was not sufficient to engage Schedule 1 of SEPP 5, as the Schedule referred to specific land identified by lot and deposited plan numbers, not by descriptive headings in an index. Therefore, the heading in the Index did not operate to classify the land in a way that would permit the development under SEPP 5.

The application for leave to appeal was dismissed.

Orders

Orders of the court

See par 38

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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