Bega Valley Shire Council v D'Arcy

Bega Valley Shire Council v D'Arcy - [2002] NSWLEC 225 - NSWLEC 2002 case summary — Zoe

[14]

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.

[18]

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.

[24]

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.

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Judgment (27 paragraphs)

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Cases Cited (1)