Bega Valley Shire Council v D'Arcy

16 October 2002 BEGA VALLEY SHIRE COUNCIL Applicant v JOHN KEVIN D'ARCY Respondent Ex Tempore Judgment Introduction 1 Bega Valley Shire Council (the Council) has commenced Class 4 proceedings seeking numerous declarations in relation to provisions of the Bega Valley Local Environmental Plan 1987 (the LEP) as it applies to DA98/1163, which the Council gave consent to a number of years ago. The Council also seeks declarations in relation to an application for subdivision by Mr D'Arcy (DA 2001/1022), an application which the Council has refused. Mr D'Arcy is the applicant in related Class 1 proceedings currently before the Court in matter 10945 of 2001 appealing against the Council's refusal of that development application (the Class 1 proceedings). 2 The declarations sought by the Council are as follows: 1. A declaration that the development consent DA 98/1163 was granted pursuant to the power in Clause 18(3) of the Bega Valley Local Environmental Plan, 1987 (the LEP).

2. A declaration that the effect of granting development consent to DA 98/1163 was that the land to which that consents relates, (being Portion 50 at 334 Reedy Swamp Road Bega being Lot 50 DP 750190) (Portion 50), was deemed to be an allotment created under Clause 15(2) for the purposes of Clause 15(3) of the LEP.

3. A declaration that pursuant to Clause 14(3) Portion 50 has ceased to be part of an existing holding for the purposes of the LEP. 4. A declaration that the further subdivision of Portion 50 to create lots for dwelling houses is prohibited under the existing provisions of the LEP.

5. A declaration that proposed lot "C" in development application no. 2001/1022 can only be created as an allotment for the purposes of Agriculture, pursuant to Clause 14(A).

6. A declaration that Clause 14(A)(3) prohibits the creation of an allotment for Agriculture with an area of less than 120 hectares if there is a dwelling house on the allotment.

7. A declaration that proposed lot "C" in development application no. 2001/1022 is prohibited if the building shown on the application as "existing cottage" is a dwelling house.

8. Such further or other orders as this Honourable Court considers to be appropriate.

3 I have made determinations in relation to some preliminary points of law in the Class 1 proceedings (see D'Arcy v Bega Valley Shire Council [2002] NSWLEC 88). Some of those determinations are relevant to the declarations sought in these Class 4 proceedings and I will refer to them, as relevant, later in this judgment.

4 I set out the relevant factual background in my judgment in the Class 1 proceedings. It is not necessary for me to set this out here. I repeat par 3, 4, 5, 8, 10, 11, 12, 14 and 15 of my earlier determination in the Class 1 proceedings, which set out the relevant factual background.

5 In relation to these Class 4 proceedings both the parties have presented both affidavit and oral evidence in support of their arguments which I have taken into account in this decision. The Council was represented by its solicitor Mr McMahon. Mr D'Arcy represented himself.

First declaration 6 The first declaration sought is that "the development consent to DA98/1163 was granted pursuant to the power in Clause 18(3) of the Bega Valley Local Environmental Plan 1987". In my earlier decision in the Class 1 proceedings question 3 was in similar terms to this question. In that decision I stated I was not able, in the Class 1 proceedings, to review the basis for the decision of the Council in granting development consent to DA98/1163 as that decision was not before me in the Class 1 proceedings. I was, at that stage, concerned about making a decision which could reflect on the validity of a development consent that was otherwise formally issued a number of years ago. I therefore did not answer the question as posed, but for reasons that I will come to shortly, I am going to reconsider that decision. 7 The provisions of cl 18(3) and cl 18(4) of the LEP are: Clause 18(3): Notwithstanding any other provisions of this clause, the council may grant consent to the erection of a dwelling house on an allotment (including a Crown Portion) within Zone No. 1(a) or 1(g) that was lawfully created prior to 7 January 1966 and which is not an existing holding provided that: (a) the erection of a dwelling-house will not create any substantial conflict with the objectives of the zone, and (b) the erection of a dwelling-house will not create or increase demand for the uneconomic provision of services to the locality, and (c) the effect is substantially the same as if the land was subdivided under clause 15 Clause 18(4) provides that: Where consent is granted as referred to in subclause (3), the allotment shall be deemed to be an allotment created under clause 15(2) for the purposes of clause 15(3). 8 The Council argued that cl 18(3) applied in relation to an allotment in zone 1(a), that was lawfully created in January 1966 and which is not an existing holding, meaning not the whole of an existing holding, as is the case with DA98/1163. Consequently the development consent for DA98/1163 for a house on portion 50 could only be made under cl 18(3), as portion 50 was not an existing holding, being only part of the existing holding which was the remainder of existing holding 10 after the approval of DA 97/1295. The Council file referred to cl 18(3) as the relevant part of the LEP pursuant to which consent was granted. Mr Barry, the Council's town planner, stated it was clear that when the subsequent s 96 modification of consent under the EP&A Act was granted by the Council that was for a house on portion 50 only. This was granted pursuant to cl 18(3), and the notes related to the application for modification on the Council's file clearly show that to be the case. 9 Council argued there was no other provision in the LEP which could enable the application to be consented to, although that was disputed by Mr D'Arcy.

10 Mr D'Arcy argued to the contrary, that cl 18(3) could not have applied in the circumstances. First of all he argued that his application in DA98/1163 related to three portions of land owned by him, namely portions 50, 51 and 52, and not only to portion 50. Further he argued that these portions were an existing holding and cl 18(3) could not apply as it only applied to those portions which were not an existing holding. Mr D'Arcy was effectively arguing that an entire existing holding or part of an existing holding are one and the same for the purposes of cl 18(3). 11 Mr D'Arcy argued that the consent to DA98/1163 must have been given under cl 18(2)(f) of the LEP. There are two relevant provisions of cl 18 that I will set out for completeness, cl 18(2)(a) and (f). 18(2) Subject to this plan, the council shall not grant consent to the erection of a dwelling-house on land to which this clause applies unless the land: (a) has an area of not less than 120 hectares in the case of land within Zone No. 1(a) or 1(g)… (f) comprises an existing holding on which there is no other dwelling-house and the council is satisfied that: (i) the land is of sufficient size and the soils are of appropriate quality for the effective on-site disposal of domestic waste, and (ii) the erection of a dwelling-house will not create or increase any demand for the uneconomic provision or upgrading of roads and other utilities to that land. Mr D'Arcy argued that cl 18(2)(f) applied because portions 50, 51 and 52 were an existing holding. He argued the application originally granted was in relation to all three portions owned by him being portions 50, 51 and 52 and the modification of development consent referring to the development consent for a house on portion 50 only was solely for identification purposes so that the consent granted by the Council for DA98/1163 continued to relate to all three portions 50, 51 and 52.

12 The Council did not consider cl 18(2) could have applied without the lodgement of a State Environmental Planning Policy No 1 (SEPP 1) objection to enable the variation of the 120 hectare area referred to in cl 18(2)(a). The three portions 50, 51 and 52 together were less than 120 hectares, totalling approximately 107 hectares. No SEPP 1 objection had been lodged at the time of the application. The Council also argued that cl 18(2)(f) could not apply in this circumstance because portion 50 did not comprise an existing holding. Council considered that its argument in relation to cl 18(2)(f) applied regardless of whether the application in DA98/1163 was for portions 50, 51 and 52 but in any event stated it was Council's intention to grant consent for a house on portion 50 only in relation to both the original and the modified consent. Council's witness, Mr Barry, did agree that the original development consent referred to all three portions on the face of the document, but noted that on the attached plan the house is clearly located on portion 50.

13 It is clear from the evidence of the Council's Town Planner, Mr Barry, which I accept, that the Council's decision to grant consent to DA98/1163 in the original application, and as modified, was on the basis of cl 18(3) of the LEP. While Mr D'Arcy disputes the events surrounding the granting of consent to DA98/1163 and the modification to that consent and it appears he was unaware at the time consent was granted of the legal basis on which Council approval was being given, no evidence has been presented which suggests the Council's views as to what it believed it was doing were incorrect. I therefore accept Council's submission that it granted consent to DA98/1163 on the basis of cl 18(3) and that consent was given for a house on portion 50 only.

14 I note that Mr D'Arcy has raised s 101 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as a bar to these Class 4 proceedings and the declaration being sought. Section 101 of the EP&A Act provides: If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. 15 Mr McMahon argued that the Class 4 proceedings were not challenging the validity of the earlier consent and I agree with those submissions. I do not consider the Class 4 proceedings that are before me do raise the validity of DA 98/1163 and it appears to me they are otherwise open to the Council to pursue in light of the Court's broad discretion under s 16 and s 20 of the Land and Environment Court Act 1979 (the Court Act), which allows the Court in its Class 4 jurisdiction to consider and make declarations of right as to functions exercised under the EP&A Act. 16 In relation to whether I should make the first declaration sought, to the extent that I am departing from my decision in the Class 1 proceedings not to answer the slightly different question posed there in question 3, I should note that as I did not answer that question I consider I can decide the matter in these Class 4 proceedings as I have not made any definitive finding on the legal issues posed. The opportunity to hear further argument from the parties has been of assistance in understanding the matters before the Court in these Class 4 proceedings. It also seems to me most appropriate that the issues raised are dealt with in separate Class 4 proceedings as the Council has sought to do. I am therefore prepared to make the declaration sought in par 1 of the Class 4 application.

Second declaration 17 I am also prepared to make the declaration sought in the second par of the Class 4 application. That is: A declaration that the effect of granting development consent to DA98/1163 was that the land to which that consent relates, (being Portion 50 at 334 Reedy Swamp Road Bega being lot 50 DP750190) (Portion 50), was deemed to be an allotment created under Clause 15(2) for the purposes of Clause 15(3) of the LEP.

My reason for doing so is that I think cl 18(3) and cl 18(4) are clear in referring, particularly in cl 18(4), to the fact that once a decision has been made in relation to cl 18(3), as I have found has occurred in relation to portion 50, The allotment shall be deemed to be an allotment created under clause 15(2) for the purposes of clause 15(3). Third and fourth declarations 18 The declarations sought are, in par 3: A declaration that pursuant to Clause 14(3) Portion 50 has ceased to be part of an existing holding for the purposes of the LEP. and in par 4: A declaration that the further subdivision of Portion 50 to create lots for dwelling houses is prohibited under the existing provisions of the LEP.

19 Before ruling on the declarations sought in par 3 and 4 of the Class 4 application I should note the terms of the LEP are not completely clear, in my view, in relation to the application of the so called "deeming" provisions, whereby portions of land are deemed to be no longer part of an existing holding under cl 14(3). It is the combination of cl 18(3), cl 15(2), cl 15(3)(g) and cl 14(3), which the Council argues has this result but there is room for conflicting argument on what these clauses mean. Nevertheless, for the purpose of these proceedings I accept the Council's interpretation of the LEP in relation to the application of those sections as so-called "deeming" provisions.

20 Clause 18(3) is set out above at par 7. Clause 15(2) states that, under the heading, "Subdivision for the purpose of dwellings": Subject to this clause, the council may consent to the subdivision of land in an existing holding to create allotments for the purpose of a dwelling-house . Clause 15(3) relevantly provides: The total number of allotments that may be created under subclause (2), whether by one or mote successive subdivisions, shall not exceed: … (e) where the existing holding has an area of 80 hectares or more, 3 plus 1 additional allotment for each 40 hectares in the holding. provided that : … (g) an allotment created under subclause (2) or referred to in paragraph (f) of this subclause shall not be subsequently subdivided so as to create an allotment on which a dwelling-house may lawfully be erected.

Clause 14(3) provides: Where a lot is created from an existing holding by subdivision carried out under this plan or deemed to have been carried out under this plan, the lot ceases to be part of an existing holding and the residue of the holding shall be taken to be an existing holding for the purposes of this Plan. 21 The Council submitted in the evidence of its town planner, Mr Barry, that cl 14(3) was the deeming provision which applies to decisions made under cl 18(3), which by virtue of cl 18(4) referring to cl 15(2) and then to 15(3)(g), create the deeming provision whereby portion 50 would have cl 14(3) applying to it. I have set out earlier Council's argument at par 8 as to how it applied cl 18(3) to Mr D'Arcy's land. 22 I note that Mr D'Arcy did not agree with this interpretation of cl 18(3) and its application. I have already set out what his views as to its application are at par 10 and 11. He did not consider that cl 14(3) operated in the same way as the Council argued that it operated. 23 I think that all the clauses 18(3), 15(2), 15(3)(g) and 14(3) have to be viewed in their totality in the LEP. On doing so I am prepared to accept the Council's interpretation as to the effect of cl 14(3), so that it must apply to portion 50 in this case. Accordingly, portion 50 ceases to be part of an existing holding for the purposes of the LEP so that it does not have any concessional allotment entitlements for subdivision for dwelling houses which are available under cl 15 for existing holdings.

24 For completeness I should deal with an argument Mr D'Arcy raised as to the point at which there is a change of status of a lot, such as portion 50 in these circumstances, so that it is no longer part of the existing holding. Mr D'Arcy argued that the change of status could only be at the time the land is sold but I do not think that can be the case given the provisions of the LEP which make absolutely no reference to that being the position. If it had, it would have been a very unusual provision for an LEP. Council argued the change of status must be at the time that development consent which causes the application of the LEP to a particular portion of land is granted, and I think that interpretation of the LEP must be correct. 25 I consider it is therefore appropriate that I do make the declarations sought in par 3 and 4 of the Class 4 application. 26 I note that Mr D'Arcy may well have further subdivision available to him in relation to the other portions that he owns, namely 51 and 52, as these continue to be part of the residue of the existing holding 10 following the approval of DA97/1295 by the Council and in light of my answer to question 1 in the preliminary points of law in the Class 1 proceedings. Fifth, sixth and seventh declarations 27 I have to consider whether or not I can make the declarations sought in par 5, 6 and 7 of the Council's Class 4 application given my early determinations on the questions of law in the Class 1 proceeding, and in particular my decision in relation to question 4. I refer the parties particularly to par 31 to 37 of my judgment in the earlier Class 1 proceedings. I note the question posed there was, "Does the proposed subdivision infringe cl 14A(3) of the LEP?" and I answered this in the negative. It seems to me that given my consideration of cl 14A(3) in that context I cannot make the declarations sought in paras 5, 6 and 7 by the Council here. I therefore refuse the Council's application to make the declarations sought in par 5, 6 and 7. 28 I note that the Council is instructed not to make an application for costs in the matter.

Declarations and Orders Accordingly, the Court declares that:

1. The development consent to DA 98/1163 was granted pursuant to the power in cl 18(3) of the Bega Valley Local Environmental Plan, 1987 (the LEP).
2. The effect of granting development consent to DA 98/1163 was that the land to which that consent relates, (being portion 50 at 334 Reedy Swamp Road, Bega, being Lot 50 DP750190) (portion 50), was deemed to be an allotment created under cl 15(2) for the purposes of cl 15(3) of the LEP.
3. Pursuant to cl 14(3) portion 50 has ceased to be part of an existing holding for the purposes of the LEP.
4. The further subdivision of portion 50 to create lots for dwelling houses is prohibited under the existing provisions of the LEP.

The Court orders that:

1. The related Class 1 proceedings being No. 10945 of 2001 is set down for telecallover before the Registrar on 25 November 2002 at 9.15 am.
2. No order as to costs.
3. The exhibits may be returned.

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