Webb & Anor 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 APPLICANT Webb & Anor PARTIES : Respondent Warringah Shire Council FILE NUMBER(S) : 20325 of 1988 CORAM: Bignold J KEY ISSUES: :- Local Government Act 1919 LEGISLATION CITED: 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.