Alvanos and Ors v Shoalhaven Shire Council

IN THE LAND AND Matter No. 10777 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 20 February 2002

Michael Alvanos Penelope Alvanos Barbara Nectria Alvanos George Kypriotis Applicants v Shoalhaven City Council Respondent

HIS HONOUR: These are Class 1 proceedings by way of an appeal against the refusal by Shoalhaven City Council ("the council") of a development application lodged on behalf of the applicants to subdivide certain land at Berry.

The subject land is Lot 2 in Deposited Plan 1007873 comprising an area of 1081 square metres. It is common ground that the boundary between Zone 2(a)(1) and Zone 2(a)(2), established by the Shoalhaven Local Environmental Plan 1985 ("the LEP"), effectively bisects the land in what is generally a north-south direction.

There are constraints contained within the LEP which I am informed would necessitate the determination of the development application by refusal of the consent if the land is found to be situated within Zone (a)(2).

It is not necessary to go into those requirements in order to determine the preliminary question that has been raised. In order to understand the question that has been raised it is first of all necessary to go to the provisions of the LEP itself.

Clause 8 is in familiar terms and provides that land to which the LEP applies shall be within a zone specified in cl 8 if the land is shown on the map in the manner specified in cl 8. For example, Zone 1(a) described as Rural A (Agricultural Production) is coloured light brown and the clause then goes on to deal with each of the many zones affecting the land controlled by the provisions of the LEP.

Clause 8 is followed by cl 8A. Clause 8A contemplates that a boundary between two zones as shown on the map may not correspond with the cadastral boundary. The clause provides that in that case the council may determine the zone boundary based on a survey of the land by a registered surveyor despite cl 8.

Clause 8A(2) directs the council to have regard to characteristics of the land indicated by the survey and the relationship of those characteristics with the objectives of the zones on each side of the boundary to be determined when it undertakes the task of determining a zone boundary pursuant to cl 8A.

Clause 8A(2)(b) limits the capacity of the council to vary the zone boundary from that shown on the map to the extent that it cannot be varied by more than 20 metres from the boundary as shown on the map.

Following cl 8A is cl 9 which again is in familiar terms and dictates the purposes for which development may be carried out with or without development consent and the purposes for which development is prohibited.

The questions that arise in the statement of issues filed by the respondent and which the parties seek to have determined as preliminary points are put generally. Whether or not the Court can exercise the power of determination provided for in cl 8A of the LEP pursuant to s 39(2) of the Land and Environment Court Act 1979 ("the Court Act") and if it can, then the Court is asked to determine whether the facts and circumstances entitle the Court to exercise the power under cl 8A by determining that the zone boundary should correspond to the eastern boundary of the subject land.

Initially the matter was brought to the Court by the applicant on the basis that the second part of the combined question which I have just outlined should be answered first, in a slightly different context, namely whether the facts and circumstances entitle the respondent to exercise the powers under cl 8A to determine the zone boundary as corresponding to the eastern boundary of the subject land. It is agreed that the zone boundary as it affects the subject land does not correspond with the cadastral boundary.

An examination of the terms of cl 8A and the context of the clause in the LEP show that the draftsman has intended to enable the council to adjust a zone boundary from that which is generally shown in the map to take account of the characteristics of the land where the zone boundary has not for whatever reason coincided with the boundary of an existing lot.

Clause 8A does not give the council a power to generally rezone the land. On its face the clause provides that the council may resolve an anomaly that arises as a consequence of the way in which the boundaries of zones are determined, so often in a broad-brush fashion, without regard to cadastral boundaries of actual lots. It is a limited discretion and the council is required to take into account the matters specified specifically in cl 8A(2)(a).

When I say it is limited the discretion of the council cannot be exercised in such a way which has the effect of varying the actual boundaries shown on the map by more than 20 metres.

Clause 8A provides the council with a power to deal with the anomalous circumstances that I have described either on its own motion, upon the application of a land owner or for that matter, any other person or body who raises the matter with the council. There is no criteria for the initiation of the process of the determination other than that the circumstances of the dichotomy between the zone boundary and a cadastral boundary must exist.

It is a wide discretion limited only to the extent that I have outlined by the matters to which the council must have reference and the extent of the variation that can be created.

It is important to take into account the matters that I have just outlined in relation to the circumstances under which the determination can arise and the parameters within which it must be exercised in order to consider whether the power of determination is a function of the council, which is contemplated by the provisions of s 39(2) of the Court Act.

That subsection provides that the Court shall for the purposes of hearing and disposing of an appeal have all the functions and discretions which the council had in respect of the matter the subject of the appeal.

There have been a number of decisions by this Court and by the Court of Appeal which have, according to the circumstances of each case, sought to clarify the extent of the power which the Court has to exercise the functions and discretions of the council pursuant to s 39(2) of the Court Act.

Most of, if not all, the leading authorities are listed in the decision of the Court in Gibson v Mosman Municipal Council ( 2001) 114 LGERA 416, where, at p 419 - 20, the authorities relied upon by counsel are set out.

Two cases from that list of authorities, not all of which are analysed in the Court's decision, are particularly helpful in demonstrating how the Court should approach the question of whether it has a particular function or discretion in respect of the matter the subject of the appeal.

Firstly, in Alumino Australia Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 and Others (1995) 88 LGERA 388, the relevant statutory provision distinguished between development applications up to a certain value and development applications in respect of projects beyond that value and provided that in one case the council was entitled to determine the application as the consent authority, whereas as in the other case the matter was to be determined, that is the matter of the development application was to be determined by the relevant minister.

The question arose as to whether or not the determination of whether the minister or the council was the appropriate consent authority could be revisited on an appeal from the decision, as it turned out, of the minister.

The Court held that the establishment of who was the appropriate consent authority was not at the heart of the matter the subject of the appeal and that the formation of that opinion was not implicit in the determination of the application itself.

So that in applying an analogy to the present case, one must regard Alumino as authority for the proposition that even a decision which determines who the consent authority should be in respect of a specific development application is not a matter which falls within the contemplation of s 39(2).

The other decision to which I make specific reference, and again is dealt with in Gibson , is the decision of the Court of Appeal in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370. Stein JA delivered the leading judgment with which Justices Handley and Sheller agreed.

The analysis of the particular clause that was under consideration in that case assists with an understanding of how the law should regard what is a matter the subject of the appeal.

Clause 45 of the Byron Local Environmental Plan 1988 made it a pre-condition of the council's consent to the carrying out of development, that it be satisfied that prior adequate arrangements have been made for the provision of certain services to the land.

Stein JA came to the point succinctly when he identified two elements in the provisions of cl 45. He said in par 43 as follows:- One is the making of the "prior adequate arrangements" by the council and the second is the "satisfaction" with them prior to granting approval.

He went on in that same paragraph to state as follows:- The former is not "in respect of the matter the subject of the appeal" and the latter is.

So what his Honour decided in that case was that it was not open for the Court to in some way make the prior adequate arrangements for the provision of services to the land as the Commissioner in this Court had attempted to do at first instance. However, it was within the function of the Court, contemplated by s 39(2), as part of the process of determining the development application to be satisfied that those arrangements had been made.

In other words it was a pre-condition to the granting of consent that the consent authority, in whose shoes the Court stood, should be satisfied about something. But it was not open for the Court to stand in the shoes of the consent authority to do the something about that which it needed to be satisfied.

Applying that reasoning to the present situation there are again two elements to the process which needs to be undertaken in connection with the determination of the development application. Before the development application can be entertained as being in respect of development which is permissible under the terms of the LEP it either needs to be contemplated on land which is appropriately zoned or the power to make a determination under cl 8A must be exercised in order to alter the boundary of the zone to encompass the whole of the land within the appropriate zone within which the development is permissible.

It is only when that task has been accomplished that the development application can proceed and be determined consistently with the reasoning that I outlined in Alumino and that was subsequently dealt with by the Court of Appeal in Codlea .

Relying on established authority, it cannot be said that a determination pursuant to cl 8A goes to the heart of the matter, the subject of the appeal. It is an unrelated matter which relates to the zoning of the land and the establishment of zone boundaries. That is not a matter which can be determined as part of the consideration of the development application.

So that, unfortunately for the present applicant, it is not open for this Court to give consideration to the issues which arise under cl 8A of the LEP in the context of this appeal.

Furthermore, it is not appropriate for the Court, in these proceedings at least, to go beyond what I have already said in respect of the exercise of the power pursuant to cl 8A.

It is not for the Court, in these proceedings, to determine whether or not the exercise of the council's discretion has miscarried or for that matter has not miscarried.

It is not a matter that the Court can determine in these proceedings and hence there is no remedy available in these proceedings to challenge the council's decision in that respect.

As I have said, it would not be appropriate for the Court to go beyond what I have already said in respect of the manner in which the discretion to be exercised pursuant to cl 8A may be exercised and the limits that are imposed upon it.

Accordingly, the answers to the questions, which I am now asked, are determined by the answer to the first question which arises, namely whether the Court can exercise the power of the council pursuant to cl 8A of the LEP under s 39(2) of the Court Act. That question is answered in the negative. That effectively deals with all the consequential questions that flow from it, whatever they might be.

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