820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8

Land and Environment Court New South Wales

Medium Neutral Citation: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8 Decision date: 07 February 2013 Jurisdiction: Class 1 Before: Biscoe J Decision: (1) The Court answers the questions for separate decision as follows: Question 1: Whether development consent may be granted to the development application pursuant to clause 4.2A of WLEP 2011 notwithstanding that multi dwelling housing is prohibited in the RU1 Primary Production zone in which the land is located. Answer: No Question 2: If yes to Question 1, whether power to grant development consent pursuant to clause 4.2A(4)(a) of WLEP 2011 is confined to the replacement of elements of "the existing dwelling house" such that the power to grant consent to the development application pursuant to clause 4.2A(4)(a) is confined to the replacement of the elements of the existing building described in Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 (5 April 2012). Answer: Does not arise. (2) The appeal is dismissed. Catchwords: DEVELOPMENT CONSENT - order made in Class 1 proceedings for separate and preliminary decision of two questions - principles relating to such orders - development application for substantial repair and rebuilding of old building used as a dwelling by one person and for new facilities (kitchen, WC, electricity and water) - the building together with two other dwelling houses (previously approved by Council) on the land constituted multi dwelling housing prohibited under Wollondilly Local Environmental Plan 2011 - whether consent could nevertheless be granted under cl 4.2A(4)(a) - if so, whether consent limited to replacement of existing elements of the dwelling house. Legislation Cited: Civil Procedure Act 2005 ss 56(1)-(2) Environmental Planning and Assessment Act 1979 ss 4(2), 81A(a) Interpretation Act 1987 s 11 Uniform Civil Procedure Rules 2005 rr 28.1-4 Wollondilly Local Environmental Plan 2011 cll 2, 2.3, 3.2A, 4.2A, Dictionary Environmental Planning and Assessment Regulation 2000 cl 145(1)(b) Cases Cited: Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 Hornsby Shire Council v The Valuer General of New South Wales [2012] NSWSC 894 Hunter v Wyong Shire Council [2012] NSWLEC 250 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 Category: Separate question Parties: 820 Cawdor Road Pty Ltd (Applicant) Wollondilly Shire Council (Respondent) Representation: COUNSEL: P Rigg, solicitor (Applicant) H Irish (Respondent) SOLICITORS: Norton Rose Australia (Applicant) RMB Lawyers with Morton & Harris (Respondent) File Number(s): 11104/12