50 Burchmore Road Pty Ltd v Warringah Council [No 1] [2003] NSWLEC 394

> Land and Environment Court of New South Wales

CITATION : 50 Burchmore Road Pty Ltd v Warringah Council [No 1] [2003] NSWLEC 394 APPLICANT 50 Burchmore Road Pty Ltd PARTIES : RESPONDENT Warringah Council . FILE NUMBER(S) : 10877 of 2003 CORAM: Moore C KEY ISSUES: Construction and Interpretation :- . Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Warringah Local Environmental Plan 2000 . Mackenzie v Warringah Council [2002] NSWLEC 131; Gray v Pearson (1857) 6 HLC 61; 10 ER 1216; CASES CITED: Corporate Affairs Commission v Yule (1991) 172 CLR 319; Leaross Pty Limited v Tarara Pty Limited (1991) 174 CLR 407; . DATES OF HEARING: 1 and 3 December 2003 EX TEMPORE JUDGMENT DATE : 12/03/2003

APPLICANT Mr P McEwen SC, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr T Robertson SC, barrister INSTRUCTED BY Wilshire Webb

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10877 of 2003 Moore C 3 December 2003 50 Burchmore Road Pty Ltd Applicant

v

Warringah Council Respondent

Judgment

1 . The matter that is presently before the Court involves three possible steps in the decision making process for the Court pursuant to the Warringah Local Environmental Plan 2000 ("the LEP") and the Environmental Planning and Assessment Act 1979 . The first matter is an issue concerning the construction of the LEP as to the housing density and whether there is an exemption which permits the applicant, as of right, to have lodged the application that is currently before the Court. If that plan is interpreted so that the applicant is not able to lodge the application as of right, there is an internal provision within the Local Environmental Plan that is analogous, in some respects, to the ability under State Environmental Planning Policy No. 1 to set aside the relevant development control. If the applicant were to succeed on that point (if it were necessary for it to do so), there would still be the necessity for a hearing of the matter on the merits. I am presently merely determining the first of those issues.