BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998) [1998] NSWLEC 36

Land and Environment Court of New South Wales

CITATION : BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998) [1998] NSWLEC 36 PARTIES : BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998) FILE NUMBER(S) : 10786 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act 1979 Wyong Local Environmental Plan 1991 CASES CITED: North Sydney Municipal Council v P D Mayoh Pty Limited [No.2] (1990) 71 LGRA 222 ("Mayoh") DATES OF HEARING: 19 February 1998 DATE OF JUDGMENT: 04/23/1998

Mr M Macrossan, Barrister LEGAL REPRESENTATIVES: Mr W O'Rourke

JUDGMENT: This judgment deals with Questions of Law raised in Class 1 proceedings which have been brought by Mr Kinley by way of appeal against a refusal by Wyong Shire Council ("the Council") of an application he made to subdivide some rural land into two lots.

The relevant application is Development Application ("DA") 1038 of 1996 and the subject land is comprised in lots 111 and 113 in Deposited Plan 800594. The application was made on 15 November 1996 and refused on 16 December 1996, for the stated reason that it was considered by Council that the proposed subdivision is prohibited under the provisions of cl 14(7) of Wyong Local Environmental Plan 1991 ("the LEP"). Mr O'Rourke, Solicitor for the Council, at the beginning of the hearing on these Questions of Law, resiled from Council's reliance on cl 14(7) of the LEP, but contends that the subdivision is prohibited in any event by the provisions of cl 14 as a whole.

Background

In DA 607/96 the then applicant sought an adjustment of the boundaries between lot 111 and 113 under which the size of 111 was reduced from 5807 square metres to 5008 square metres and the area of 113 was increased from 1.92 ha to 2 ha.