Four2Five Pty Ltd v Ashfield Council

[2015] NSWLEC 90

NSW Land and Environment Court

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Interrogate

Catchwords

1. Planning and Environment Law
2. › Development consent
3. › Development standards
4. › Exceptions to development standards
5. › Clause 4.6 of local environmental plan
6. › Whether environmental planning grounds must be particular to the proposed development
7. › Whether cl 4.6(3)(a) and cl 4.6(4)(a)(ii) impose separate requirements
8. › Ashfield Local Environmental Plan 2013, cl 4.6
1. Appeal
2. › Appeal on question of law
3. › Section 56A Land and Environment Court Act 1979 (NSW)
4. › Whether ground of appeal raises question of law or finding of fact
5. › Whether commissioner misconstrued statutory provision
1. Statutory Interpretation
2. › Construction of local environmental plan
3. › Conjunctive use of 'and' between subclauses
4. › Whether clause should be construed as beneficial or remedial legislation
5. › Whether flexibility objective overrides specific requirements

Quick Take

Under cl 4.6 of a local environmental plan, the requirements in subclauses (3)(a) and (3)(b) must be addressed separately from the public interest test in subclause (4)(a)(ii). An applicant cannot satisfy the requirement to demonstrate that compliance with a development standard is unreasonable or unnecessary (cl 4.6(3)(a)) solely by demonstrating consistency with the objectives of the standard and zone (which is the separate test in cl 4.6(4)(a)(ii)). Environmental planning grounds under cl 4.6(3)(b) must be sufficient in the context of the particular proposed development, not merely grounds of general application to any development in the zone. The word 'sufficient' does not set a low bar. Clause 4.6 is to be construed strictly, not as beneficial or remedial legislation.