Land and Environment Court
of New South Wales
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CITATION : |
Robson v Tweed Council
[2000] NSWLEC 170 |
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PARTIES : |
APPLICANT:
Robson
RESPONDENT:
Tweed Council |
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FILE NUMBER(S) : |
10581 of 1999 |
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CORAM: |
Bignold J |
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KEY ISSUES: |
Question of Law :- Whether
proposed development permissible under LEP. Meaning of savings
provision. Meaning of adjoining or contiguous. |
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LEGISLATION
CITED: |
Environmental Planning and
Assessment Act 1979, s 97 |
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CASES CITED: |
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DATES OF HEARING: |
08/05/00 |
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DATE OF JUDGMENT: |
04/08/2000 |
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LEGAL REPRESENTATIVES: |
APPLICANT:
Mr O Hughes, Solicitor
SOLICITORS
Trevor Beazley & Assoc
RESPONDENT:
Mr J Webster, Barrister
SOLICITORS
Halliday and Stainlay
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JUDGMENT:
IN THE LAND AND
Matter No.
10581 of 1999
ENVIRONMENT COURT OF
Coram:
Bignold J.
NEW SOUTH WALES
4 August 2000
S W AND J M ROBSON
Applicant
v
TWEED SHIRE COUNCIL
Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. The Council has raised for preliminary
determination in pending class 1 proceedings the question whether the proposed
development, being the erection of a dwelling-house, is prohibited by Tweed
Local Environmental Plan 2000 (the LEP).
2. The question was originally framed by reference
to the then applicable environmental planning instrument (Tweed
Local Environmental Plan 1987).
3. However, that instrument was repealed by the LEP
which came into force on 7 April 2000.
Hence, the same question has been reframed to refer to the LEP and the case has
been conducted on the basis that the LEP is the current governing instrument.
4. The pending proceedings involve an appeal
pursuant to the Environmental Planning
and Assessment Act 1979 (the EP&A
Act) s 97 against the Council’s determination refusing development consent to
the Applicant’s development application to erect a dwelling-house on land
known as lot 1 Deposited Plan 391120, having an area of 3,370 m2 fronting
Burringbar Road, Burringbar (the appeal site). The proposed dwelling-house would
be created by the conversion and adaptation of an existing shed building erected
on the appeal site.
5. In its Notice of Determination refusing
development consent, the Council stated six reasons for its decision, the first
of which was:
1. The subject lot does not enjoy a dwelling
entitlement in accordance with the provisions of cl
25(4) of the Tweed Local
Environmental Plan 1987.
6. Clause
25(4) was in the following terms:
Nothing in this clause prevents a
person from erecting a dwelling-house on an allotment of land lawfully
created, or the creation of which was lawfully consented to by the
council, before the appointed day and upon which a dwelling-house
could lawfully have been erected immediately prior to the appointed
day.
7. This provision is substantially re-enacted by
cl 57
of the LEP which provides as follows:
8. Both the repealed clause and cl
57 of the LEP refer to the “appointed
day”—a term employed by both
planning instruments to signify the day upon which each instrument came into
force. Thus, the “appointed day”
for the purpose of cl 25(4)
of the repealed instrument was 29 January
1988 and the “appointed
day”
for the purposes of cl
57 of the LEP is 7
April 2000.
9. It is common ground that cl
57 of the LEP provides the only possible
basis for the permissibility of the proposed development because in terms of cl
11 of the LEP, which controls
development in the various zones created by the LEP, within zone No 1(a) Rural
(the zoning of the appeal site), “dwelling-houses”
are declared to be prohibited
development except for “dwelling-houses
if each is on an allotment of at least 40 hectares or on an allotment referred
to in cl 57”.
10. By way of background fact, I would note that
the Applicant’s present development application is materially the same as an
earlier development application which had been refused by the Council on 11
May 1995 in respect of which
determination the Applicant had unsuccessfully appealed to this Court. In his
judgment delivered on 22 October 1996 in proceedings No 10247 of 1996, Assessor
Roseth, dismissed the appeal and refused development consent. In that case, the
Assessor adopted the Council’s argument that the appeal site did not have any
relevant “dwelling entitlement”
because it was not itself a separate parcel of land, but was part
of a larger parcel of land upon which a
dwelling-house was already in existence.
11. In making the present development application,
the Solicitors for the Applicant had acknowledged the earlier decision of
Assessor Roseth but had stated that in those earlier proceedings, the Applicant
had not had the benefit of legal advice, which was now to the effect that the
proposed dwelling-house development was a permissible form of development
because of the express provisions of the Tweed
Local Environmental Plan 1987,
cl 25(4).
12. The competing cases raise for determination the
true construction of cl 57
of the LEP.
13. If the Applicant’s suggested interpretation
is adopted, there will be no need to have recourse to the series of planning
instruments that have been in force prior to the LEP. (These continuously extend
back to 1964.) If however, the Council’s suggested interpretation is adopted,
that recourse will be necessary.
B. THE RELEVANT FACTS
14. According to the Agreed Statement of Facts
(Exhibit B), a copy of which is annexed
hereto, the following most material
facts can be distilled:
1. The appeal site is included within Zone No 1(a)
Rural under the LEP.
2. In the planning instruments that were in force
prior to the commencement of the LEP, the appeal site has been included within
the Non-Urban A Zone. Tracing those instruments backwards, they are as follows:
(i) Tweed
Local Environmental Plan 1987 (the
1987 LEP) that was in force from 29 January 1988 to 7 April 2000.
(ii) Interim
Development Order No 2 - Tweed (IDO
No 2), which was in force 30 September 1966 to 29 January 1988; and
(iii) Interim
Development Order No 1 - Shire of Tweed
(IDO No 1) which was in force from 29 May 1964 to 30 September 1966.
3. The planning controls on the erection of a
dwelling-house on the appeal site (qua land within the Non-Urban Zone) that have
been in force under the succeeding planning regime can be summarised as follows:
(a) The 1987
LEP
(i) cl 25(3)
prohibited the erection of a dwelling-house unless the allotment had an area of
not less than 40 ha.
(ii) However that general control was subject to cl
25(4) that I have earlier recited.
(b) IDO No 2
(i) cl 12(1)
prohibited the erection of a dwelling-house unless the parcel of land complied
with one of the several criteria stated. The only possible relevant criterion in
the present case is the following:
(d) comprises an allotment lawfully created and
upon which a dwelling-house could have been erected prior to the appointed day,
which allotment could have been created in accordance with the provisions of
clause 11 if those provisions were in force at the time such allotment was
created; or
(ii) The only relevance of the reference to cl
11 is to subclause
(3) which relevantly provided:
- Subject to subclause 5 an
allotment of land having an area of not less than 1000 square metres
may be created in a subdivision of land within Zone No. 1 (a) or 1
(b) where the Council is satisfied that such allotment is required
for the erection of a dwelling-house for actual occupation by -
(a) the owners of the land contained in such
allotment;
(b) a relative of such owner; or
(c) a person employed or engaged by such owner
in the use of land of the owner adjoining or adjacent to such allotment, for the
purpose of agriculture.
(iii) Clause
16(1) empowered the Council to approve
the erection of a dwelling-house upon land that the Shire Clerk certified to be
“an existing parcel”
and “upon which there is erected no
other dwelling-house”. Clause
16(3) defined “existing
parcel” as meaning “the
total of all adjoining or adjacent land held in the same ownership at 29 May
1964”.
(c) IDO No 1
(i) Cl 3(2)
empowered the Council to consent to the erection of a “country
dwelling” which was defined by cl
2(1) as follows:
Country dwelling means
a dwelling-house occupied in conjunction with the land within Zone
No. 1 (a) or 1 (b) such land having an area of not less than
twenty-five acres or such lesser area as may be determined under
subclause (2) and (3) of clause 11 of this Order on which there are
no other buildings or on which the only other buildings are rural
dwellings or buildings ordinarily incidental to the use and
enjoyment of a country dwelling or to the use of the land for
agriculture.
(iii) The only relevance of the reference to cl
11(2) and (3) is to subclause
(3) which empowered the Council to
approve of a subdivision excising a small allotment (not less than 1/4 acre and
not more than 1 acre) from an “existing
parcel” of 25 acres or more, subclause
(5) defining “parcel”
as meaning
(iv) Clause
15(1) empowered the Council to approve
of the erection of a dwelling-house in a similar manner to the counterpart
empowering cl 16
in IDO No 2, subclause (3) defining ‘parcel”
in the same terms as that term was defined in cl
11(5) of IDO No 1.
4. The appeal site came into existence as a
separate lot on 25 November 1955.
5. The appeal site comprises an area of 3,370 m2.
6. At all material times from November 1955 to
April 1993, the appeal site was held in the same ownership as neighbouring lands
(which were collectively known as Part Portion 37, Parish of Mooball and part
Portion 188, Parrish of Billinudgee, comprising an aggregated area of some 290
acres)
until 21 February 1989 when the appeal
site became separately known as lot 1 Deposited Plan 391120. The appeal site is
separated from the neighbouring lands by Burringbar Creek.
C. THE COMPETING CASES
15. The Council’s argument in support of its
contention that the proposed development was prohibited by the LEP proceeds
along the following lines.
1. Clause 57
of the LEP provides the only source of possible permissibility of the proposed
development.
2. Properly construed, cl
57 applies to appeal site, being “an
allotment lawfully created before the appointed day”
only if “a
dwelling-house could lawfully
have been erected (upon it) immediately prior to the appointed day”
3. A dwelling-house could not
lawfully have been erected on the appeal
site immediately prior to the appointed day because at all material times
relevant to the succession of planning controls on the erection of a
dwelling-house on the appeal site, the appeal site (i)
either lacked the requisite minimum area
prescribed for such development or (ii)
did not
itself constitute a separate “existing
parcel” of land because it was held in
the same ownership as other neighbouring lands upon which there already existed
a dwelling-house and therefore the appeal site only formed part
of an “existing
parcel”.
16. The Applicant’s competing argument proceeded
along the following lines:
1. Properly construed, cl
57 applies, inter alia, to any “lawfully
created allotment”.
2. In the alternative, if the proper interpretation
of cl 57
was that the condition concerning the question whether “a
dwelling-house could lawfully have been erected”
etc applied to the appeal site (as a
lawfully created allotment) that condition was satisfied in the present case
because either (i)
a dwelling-house could have been erected on the appeal site pursuant to cl
12(1)(d) of IDO No 2 or (ii)
the appeal site was itself a
separate parcel of land for the purposes of cl
16 of IDO No 2 or cl
15 of IDO No 1 because it was physically
entirely separated from the relevant neighbouring lands by a substantial creek.
3. In construing the savings provision contained in
cl 57
of the LEP, the Court should adopt a liberal construction so as to preserve
existing or vested entitlements.
D. ADJUDICATION AND CONCLUSIONS
17. In my judgment, cl
57 of the LEP, properly construed, does
not apply to any “allotment lawfully
created” simpliciter.
18. The express condition concerning whether “a
dwelling-house could lawfully have been erected”
applies to such an allotment in the same manner that it applies to an allotment
the “creation of which was lawfully
consented to”.
19. This is the plain meaning of the clause and
accords with ordinary principles of syntax and statutory interpretation.
20. In this respect, I accept the Council’s
suggested interpretation of cl 57
of the LEP in preference to the Applicant’s competing interpretation.
21. However, in my opinion, the Applicant has
satisfied the express condition concerning the question whether a dwelling-house
could lawfully have been erected on the appeal site immediately prior to the
appointed day.
22. That entitlement, in my opinion, flows from cl
12(1)(d) of IDO
No 2, understood in the light of cl
11(3) of the IDO.
23. The notional operation of cl
11(3) is, in my judgment, crucial to
this conclusion. What it does is to effectively deem the appeal site to be an
allotment created pursuant to cl 11(3)
of the IDO. A dwelling-house may be erected upon such an allotment.
24. If I were wrong in that conclusion, I have not
been satisfied that the appeal site forms part
only of the larger existing parcel. This
is because of the fact of its entire physical separation from the other lands by
the substantial creek. Whether that fact is sufficient to justify a finding that
the appeal site is not “adjoining”
or “contiguous”
with those other lands is ultimately a question of fact. The evidence on the
issue is far from satisfactory but as it stands, I am not persuaded that the
appeal site is relevantly “adjoining”
or “contiguous”
and it is the Council that carries the onus of establishing that it is
relevantly adjoining or contiguous.
25. For these reasons, I would conclude that the
proposed development is permissible development in terms of cl
57 of the LEP.
26. Accordingly, I would answer the question raised
by the Council in the negative.
oOo
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