Yi v the Service Arena Pty Ltd

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.