Young & Anor v Hunters Hill Municipal Council [1989] NSWLEC 160

Land and Environment Court of New South Wales

CITATION : Young & Anor v Hunters Hill Municipal Council [1989] NSWLEC 160 APPLICANT Young & Anor PARTIES : RESPONDENT Hunters Hill Municipal Council

FILE NUMBER(S) : 10500 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 02/17/1989

APPLICANT Mr. Craig LEGAL REPRESENTATIVES: RESPONDENT Mr. McEwan

JUDGMENT:

HIS HONOUR: On 14 February 1989 the following point of law was referred to me for determination in accordance with s.36(5) of the Land and Environment Court Act. The question is:-

"In respect of land zoned 2(a2) under the Hunters Hill L.E.P. No. 1, as is the subject land, it is not open to the consent authority to refuse development consent by reference to cl.5(1) of the Model Provisions, where those provisions have been incorporated in the L.E.P."

After hearing submissions by the parties I determined the question with the answer "No, it is not open to the consent authority to refuse development consent by reference to cl.5(1) of the Model Provisions, where those provisions have been incorporated into the Local Environmental Plan". I remitted this determination to the Assessor so that he could continue to hear the application. In so doing I indicated that I would state my reasons later, which I now do.

The application concerns the erection of a dwelling house at 1 Mayfield Avenue, Woolwich. Under the Hunters Hill Local Environmental Plan No. 1 the property is within a 2(a2) Residential zone. The zoning tables are to be found in cl.9 of the LEP and the heading to Column III states, "Purposes for which development may be carried out subject to such conditions as may be imposed under the Act". Opposite the Residential 2(a2) zoning in Column III appears, "Dwelling houses". Clause 7 adopts most of the Environmental Planning and Assessment Model Provisions, 1980 The adopted provisions include cl.5(1) which provides as follows:-