Chapman v Lake Macquarie City Council [2005] NSWLEC 768 | Case summary

2 The matter was originally set down for determination at an onsite hearing on 9 September. During the course of that hearing it became obvious that, if the applicants were to succeed in the ordinary process of considering the appeal, an objection pursuant to State Environmental Planning Policy 1 (SEPP 1) was required to deal with the failure to comply with the minimum allotment sizes required by the Lake Macquarie Local Environmental Plan 1984 (the 1984 LEP). 3 Had such an SEPP 1 objection to non-compliance with the 1984 LEP's requirements been lodged and been sustained (after being tested in the conventional fashion against the tests set out by Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 at paragraph 26) then, and only then, would the question of the imminence and certainty of [and thus the weight to be given to] the Lake Macquarie Local Environmental Planning 2004 (the 2004 LEP) require my consideration. 4 The reasons for potential consideration of the 2004 LEP, which was made some two and a half months after the present application was lodged in January 2004, is that a combination of the land use table contained in cl 15 for the relevant zone coupled with the provisions of cl 24 dealing with subdivision requires that a minimum allotment size be complied with - with such minimum allotment size being set in Sch 2 of the 2004 LEP. 5 The dominant part of the site is Zone 10 Investigation. Part of the Zone 10 portion of the land is proposed to be added to that part of the land which is zoned residential and subdivided to create a new small residential lot at the Freemans Drive end of the site.

6 Examination of Sch 2 of the 2004 LEP discloses that subdivision is prohibited in the Investigation Zone. The consequence of that prohibition is that there is no SEPP 1 objection available to such prohibition. 7 If I were to conclude, in such ordinary course of events, that an SEPP 1 objection under the 1984 LEP was sustained, I would then need to move to the question of what weight I should give to the 2004 LEP. 8 During the period of the adjournment after the on-site hearing, Mr and Mrs Chapman and the council have both filed documents dealing with SEPP 1. 9 Mr David Hale of Hale Development Services Pty Limited prepared the document that was filed on behalf of Mr and Mrs Chapman. It is headed Objection under State Environmental Planning Policy No. 1 Development Standards and is in support of the present application. However it is not a statement of evidence complying with the Expert Witness Practice Direction and Mr Long, solicitor for the council, had indicated to me that he objected to it being so treated. Mr Hale is not available today to give evidence or be cross-examined. 10 The document which was filed and served by the council is a document prepared by Mr Randall, Principal Development Planner employed by the council, and complies with the Expert Witness Practice Direction. It would, whether or not Mr Chapman objected to it, have been admissible in the proceedings. Mr Randall was available to give evidence. 11 I indicated to Mr Chapman that, as he and his wife were applicants appearing for themselves, a degree of procedural latitude (but not merit latitude) was provided to them. As a consequence, under the circumstances of Mr Hale's absence, I indicated that it was appropriate (with the agreement of Mr Long) to treat the application in reverse order. 12 Doing so preserved the question of whether or not the SEPP 1 objection should be sustained under the 1984 LEP, leaving me to turn to the question of the 2004 LEP prohibition. 13 If, and only if, I were satisfied that the 2004 prohibition should not stand in the way of the application, would I then make arrangements to have Mr Hale available to be cross-examined or give concurrent evidence with Mr Randall. 14 Having set that background to the proceedings, the question arises as to what weight I should give to the 2004 LEP in face of the fact that it was made at the time that I am now determining this application. As a consequence of the provisions of cl 11 of the 2004 LEP, I am obliged to treat it as if the plan had been exhibited under the Act but had not been made. However, I am also entitled to have regard to the fact that, as it has been made it, was obviously imminent and certain at the time the Chapman's development application was lodged. 15 Mr Randall's statement of evidence sets out a chronology for the consideration and making of the 2004 LEP. 16 There were a variety of versions placed on display, all of which had their genesis in a document entitled Lifestyle 2020, A Strategy For our Future, which is a draft document made in 1999. 17 The relevant version immediately preceding the making of the LEP was on public exhibition from 5 August 2002 to 13 September 2002. During the process which followed there were public submissions and consideration of submissions as required by s 68 of the Act. 18 I am informed (and this was not disputed by Mr Chapman) that the relevant provisions applying to the site did not change from the conclusion of that public exhibition period in September 2002 and the making of the LEP by gazettal on 19 March 2004. The boundaries of the Investigation Zone did not change. The statement of prohibition of subdivision within the Investigation Zone in Sch 2 did not change, and the objectives of the zone did not change. 19 I am therefore entitled and, in my view, am indeed obliged, to regard all the relevant provisions in these proceedings as being imminent and certain as at the date that Mr and Mrs Chapman lodged their development application. 20 In this regard I also note that the submissions required to be forwarded to the Director General pursuant to s 58, subs 4, of the Act were made in November 2002 and that there were, as already noted, no significant or relevant alterations. 21 The site forms part of a number of parcels of land which have been subject to a substantial rezoning submission made by an entity known as the Johnson Property Group which proposes, amongst other things, that the site be rezoned in a fashion that would permit the present application to be approved. 22 This comprehensive submission was the subject of a report to the council in June 2005 in which the council was asked to, and I understand did, resolve to prepare a draft LEP to give effect to that which was sought by the Johnson Property Group including a permissive provision which would be facultative of the present application. 23 Such a proposal was put to the then Department of Infrastructure Planning and Natural Resources but by letter dated 5 August 2005 the Manager, Planning and Strategy for the Hunter Region of the Department advised the council's general manager that the Department was not prepared (by necessary implication) to accept the proponent's rezoning study as being appropriate. 24 The requirement was put to the council that it should prepare an environmental study for the land comprised in that submission. The council has subsequently resolved to do so, but such study has not in any sense been finalised or approaching finality. 25 I am therefore satisfied that with respect to the provision of the relevant objectives of the zone (that is in 1(b) of the zone objectives), that there has not been an appropriate thorough assessment to identify and substantiate future uses for the land in the zone - it being necessarily appropriate, in my view, for such an assessment to be undertaken by a council which is a body charged with having regard to the broad public interest. 26 This obligation is to be compared with a private proponent which is obliged to prepare such a document, or does prepare such a document, in their own commercial interests, even if, as in this case, their own commercial interests will also have the additional consequences of providing potential commercial benefits to persons such as the Chapmans. 27 I am also satisfied that such an independent environmental assessment as required by the Department be undertaken by the council would also ensure that objectives (d) and (e) of the zone objectives are satisfied, and I am, for similar reasons, comfortable that the Johnson Property Group submission should not be regarded as an appropriate document in discharge of those matters. 28 The two authorities to which I have been taken in these proceedings are firstly a decision of Lloyd J in Blackmore Design Group Pty Limited v North Sydney Council 118 LGERA 290. That is a decision given in December 2001. I was also taken to the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 129 LGERA 195. 29 The decision of Lloyd J dealt with the conventional propositions as to the range of weights that are to be given to a draft instrument. His Honour notes in par 30 that various expressions have been used to define the concept but a subsequent approach has been set out by the Court of Appeal in October 2003 in Terrace Tower. 30 The more lengthy decision that is relevant is dealt with by Mason P, but it is appropriate to note some remarks of Spigelman CJ in pars 5 and 6. 31 The Chief Justice notes that the President has outlined a line of authority in the Land and Environment Court to the effect that the weight to be given to a draft Local Environmental Planning Instrument will be greater after such an instrument has been gazetted on the basis of its certainty and imminence. 32 The proposition is clear that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft. Notwithstanding certainty and imminence, a consent authority may, of course, grant consent to a development which does not comply with the draft instrument. Different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 33 Mason P dealt with the question of an instrument which has come into effect but is to be treated as if it were a draft at the time of determining of an appeal at par 46, that I am entitled to treat the 2004 LEP as being imminent and certain, despite the transition provisions contained in cl 11 and the provisions of s 79(C) of the Act. 34 I am certainly not to treat the 2004 LEP as a mandatory prohibition, and I do not do so. 35 However, contrary to the written submissions made by Mr Chapman - that the relevant provisions of the objectives of the zone have been satisfied -as I have earlier indicated, although there is a substantial and substantive document by the Johnson Property Group, I am not satisfied that I should have regard to that submission in these proceedings, in the absence of an assessment by the council. 36 The objectives of the Investigation Zone are quite clearly designed to be precautionary and, although prohibitive of subdivision of this and other land in the short term, are not necessarily prohibitive of them in an absolute sense. They are prohibitive subject to the Council dealing with, and satisfying, the matters contained in the zone objectives for assessment for the future. 37 I am satisfied for the reasons I have earlier outlined that the contention by the council that it would be premature to permit the subdivision to be allowed in terms of the 2004 LEP is the correct one. I am also satisfied that it would be appropriate only to consider subdivision after the appropriate assessments in compliance with zone objectives (b), (d) and (e) have been carried out, and if they are facultative of subdivision of this and other land in the zone, then that is the appropriate time for that to be considered. 38 As a consequence, I have concluded that the appeal should be dismissed and that there is no necessity for me to consider the SEPP 1 objections pursuant to the 1984 LEP. 39 The orders of the Court therefore will be that: 1. The appeal is dismissed; 2. That Development Application 2371/2004 for subdivision of Lot 3, Deposited Plan 1078144 at 665A Freemans Drive, Cooranbong, is determined by the refusal of development consent; and 3. The exhibits are returned.

Chapman v Lake Macquarie City Council

At a glance

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Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (1)