CATHERINE MARGARET ARMITAGE v. WARRINGAH COUNCIL [1998] NSWLEC 74 (18 February 1998) [1998] NSWLEC 44

Land and Environment Court of New South Wales

CITATION : CATHERINE MARGARET ARMITAGE v. WARRINGAH COUNCIL [1998] NSWLEC 74 (18 February 1998) [1998] NSWLEC 44 PARTIES : CATHERINE MARGARET ARMITAGE v. WARRINGAH COUNCIL [1998] NSWLEC 74 (18 February 1998) FILE NUMBER(S) : 10766 & 20187 of 1997 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 34(4) State Environmental Planning Policy No 25 pts 3, 4 Watling & Anor v Ku-ring-gai Municipal Council (Bannon J, 6 November 1996, unreported; CASES CITED: Angelica Ting v Willoughby City Council (Bignold J, 13 November 1996, unreported); of Doyle v Sutherland Shire Council (12 February 1997, unreported) DATES OF HEARING: 18 February 1998 EX TEMPORE JUDGMENT DATE : 02/18/1998

Mr B K Hones, Solicitor LEGAL REPRESENTATIVES: Mr C W McEwen, Barrister

JUDGMENT: 5

In this matter the parties seek the determination of a preliminary question of law which arises in proceedings in class 2. The question for determination is: "Whether development consent is required for the construction of a new dwelling house on Lot 2, DP 855154, 6A Tanderra Place, Curl Curl."

An agreed statement of facts has been filed and from that statement I derive the following facts.

The property at 6A Tanderra Place, Curl Curl was subdivided under State Environmental Planning Policy No 25 ("SEPP 25"). Lot 2 in DP 855154 was created. That lot has an area of 401.4 square metres which was less than the minimum area which was required for subdivision under the relevant local environmental plan (the Warringah Local Environmental Plan 1985). The application for subdivision under SEPP 25 was granted, Lot 2 was created and it has been registered. At the same time as subdivision approval was granted, the council granted consent for a detached dual occupancy dwelling. What the applicant now seeks to do is to construct a dwelling on Lot 2 (which is currently vacant land) but not in accordance with the development consent which was granted initially by the council in 1994 for the attached dual occupancy. The applicant simply wants to erect a dwelling on Lot 2.