Davis v Dodevski

Land and Environment Court (NSW)|2021-07-12|Before: Pain J

SOLICITORS: Savage and Love (Applicant) Fishburn Watson O'Brien (First and Second Respondents) Marsdens (Third Respondent) File Number(s): 21/37037

Judgment

The Applicant seeks a declaration in these judicial review proceedings that development consent for development application 2020/090 (DA 2020/090) granted by the Third Respondent (the Council) to the First and Second Respondents is invalid and of no effect. The Applicant also seeks an order restraining the First and Second Respondents from carrying out development in accordance with the development consent. The proceedings are brought pursuant to s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). All three respondents have filed submitting appearances save as to costs so that there is no contradictor in the proceedings. The Applicant bears the onus of demonstrating why the declaration it seeks ought to be made.
The Applicant advises that the First and Second Respondents are the owners of Lot 195 in DP 755564 (Lot 195). DA 2020/090 to build a dwelling house on Lot 195 was initially refused. Following a review by the Council as provided by s 8.3 of the EPA Act, development consent was granted on 12 November 2020. This challenge is therefore to the Council's review decision. At issue is the application of cl 4.2A of the Nambucca Local Environmental Plan 2010 (NLEP 2010) concerning the entitlement to build a dwelling house on land in a rural zone and predecessor planning instruments.

Nambucca Local Environmental Plan 2010 (current)

Relevant sections of the NLEP 2010 provide: Part 4 Principal development standards … 4.2A Erection of dwelling houses and dual occupancies on land in certain rural and environmental protection zones (1) The objectives of this clause are as follows - (a) to minimise unplanned rural residential development, (b) to enable the replacement of lawfully erected dwelling houses and dual occupancies in rural and environmental protection zones. (2) This clause applies to land in the following zones - … (b) Zone RU2 Rural Landscape, … (3) Development consent must not be granted for the erection of a dwelling house or a dual occupancy on a lot in a zone to which this clause applies, and on which no dwelling house or dual occupancy has been erected, unless the lot is - (a) a lot that is at least the minimum lot size specified for that lot by the Lot Size Map, or (b) a lot created before this Plan commenced and on which the erection of a dwelling house or dual occupancy was permissible immediately before that commencement, or (c) a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house or a dual occupancy would have been permissible if the plan of subdivision had been registered before that commencement, or (d) an existing holding. (4) Despite any other provision of this clause, development consent may be granted for the erection of a dwelling house or a dual occupancy on land in a zone to which this clause applies if - (a) there is a lawfully erected dwelling house or dual occupancy on the land and the dwelling house or dual occupancy to be erected is intended only to replace the existing dwelling house or dual occupancy, or (b) the land would have been a lot or a holding referred to in subclause (3) had it not been affected by - (i) a minor realignment of its boundaries that did not create an additional lot, or (ii) a subdivision creating or widening a public road or public reserve or for another public purpose. (5) In this clause - existing holding means all adjoining land, even if separated by a road or railway, held in the same ownership - (a) on 16 June 1967, and (b) at the time of lodging a development application for the erection of a dwelling house under this clause, and includes any other land adjoining that land acquired by the owner since 16 June 1967.
Pursuant to the Land Use Table in the NLEP 2010, a dwelling house is permissible with consent on land within the RU2 Rural Landscape zone. Clause 2.3 (Zone objectives and Land Use Table) and the Land Use Table to which it refers is subject to the other provisions of the NLEP 2010. Clause 4.2A(3)(a) of the NLEP 2010 imposes restrictions on the erection of a dwelling house on land in certain rural zones including the RU2 Rural Landscape zone based on the size of the land. The Lot Size Map under the NLEP 2010 specifies a minimum lot size for Lot 195 of 100 ha. Lot 195 is 66.18 ha and is within the RU2 Rural Landscape zone under the "Land Zoning Map" in the NLEP 2010.

Nambucca Local Environmental Plan 1995 (repealed)

Relevant clauses of the Nambucca Local Environmental Plan 1995 (NLEP 1995) (replaced by NLEP 2010) provided: Status Information Part 1 General provisions … 5 How are terms defined in this plan? (1) In this plan: … existing parcel of land means: (a) except as provided in paragraph (b), the area of an allotment of land as it was at 16 June 1967, or (b) where, as at 16 June 1967, a person owned two or more adjoining or adjacent allotments of land, the aggregation of those allotments as they were at that date, being an allotment, that has, or an aggregation of allotments that have, not been subdivided otherwise than for a purpose referred to in clause 6 of State Environmental Planning Policy No 4 - Development Without Consent. Part 2 Rural and environmental zones … 14 What controls apply to the erection of dwelling-houses in rural zones? (1) A dwelling-house may, with the consent of the Council, be erected on vacant land within Zone No 1 (a1), 1 (a2), 1 (a3), 1 (a4), 1 (d), 1 (f), 7 (a), 7 (b), 7 (f) or 7 (g) only where: … (c) in the case of land within Zone No 1 (a3), the land has an area of not less than 100 hectares, or … (e) the land comprises an allotment created by a subdivision to which consent was granted on or after 16 June 1967 (being the date on which Interim Development Order No 1 - Shire of Nambucca took effect) and before 1 December 1995 (being the date on which Nambucca Local Environmental Plan 1995 took effect), being an allotment on which, if it had been vacant, a dwelling-house could have been erected before 1 December 1995, or … (g) the land comprises an existing parcel, or …. (2) Subject to subclause (3), the Council may grant consent to the erection of an additional dwelling-house on land to which subclause (1) applies on which a dwelling-house is already erected if: (a) the additional dwelling-house will be actually occupied by a person related, employed or engaged by the owner of the land for the purpose of agriculture on that land, and (b) the total number of dwellings erected on the land would not: (i) exceed one for each 40 hectares of the land in the case of land within Zone No 1 (a1) (except where shown inside broken black edging on the map) or No 1 (a2), 1 (a4), 1 (d), 1 (f), 7 (a), 7 (b), 7 (f) or 7 (g), or (ii) exceed one for each 100ha in the case of land within Zone No 1 (a3). (3) The Council must not grant consent to an additional dwelling-house pursuant to subclause (2) unless it is satisfied that the needs of existing agriculture on the land genuinely require that rural workers reside on the site. (4) A dwelling-house may, with the consent of the Council, be erected on an allotment of land on which another dwelling-house is erected where the use of the first mentioned dwelling-house will not commence until the use of the second mentioned dwelling-house has permanently ceased or it has been demolished or destroyed by a fire, a flood or a similar natural event.
Lot 195 was zoned 1(a3) under the NLEP 1995.

Nambucca Local Environmental Plan 1986 (repealed)

Clause 16 of the Nambucca Local Environmental Plan 1986 (NLEP 1986) provided: 16. (1) Subject to this clause, the Council shall not grant consent to the erection of a dwelling-house unless- … (b) in the case of land within Zone No. 1 (a3), the land has an area of not less than 100 hectares; …
I note for completeness that the NLEP 1986 was replaced by the NLEP 1995. It does not need to be considered for the purposes of the Applicant's arguments. Former interim development orders (IDO) tendered in evidence provided that a dwelling house could be built on land in certain zones including Non-urban Zone No 1(a) or (b) if more than 40 ha in area.

Chronology

The following chronology of events was provided by the Applicant: Date Event 16 June 1967 Nambucca IDO No. 1 commenced. 1 December 1995 Nambucca Local Environmental Plan 1995 commenced. The Site is within the 1 (a3) (Rural (Upper Water Catchment) Zone). 18 May 1995 Report to Council: "Illegal Dwelling Survey South Arm Catchment". 30 July 2010 Nambucca Local Environmental Plan 2010 commenced. The Site is within the RU2 Rural Landscape Zone. 8 November 2018 Development consent 2018/196 granted for a dwelling house on the Site. 29 June 2020 Refusal of development application DA 2020/0904 a dwelling house on the Site (in different location from location the subject of development consents 2018/196). Undated Application for Review pursuant to section 8.3 of the Environmental Planning and Assessment Act 1979. 24 September 2020 Report to Council. Resolution: That the matter be deferred until advice is provided on the legality of the dwelling entitlement and the (sic) provide the applicant with the opportunity to meet the DCP requirements. 12 November 2020 Report to Council. Resolution: That the development application for a dwelling at 159 McHughes Creek Road (DA 2020/090) be approved, subject to the conditions listed in the attachment.

Evidence

The Applicant tendered two volumes of an evidence book (Ex A), four former planning instruments for Nambucca Shire (Ex B), a further bundle of documents (Ex C), historical land use title searches for Lot 195 and Lot 132 in DP 755564 (Lot 132) (Ex D) and a court book (Ex E).
A Nambucca Shire subdivision plan dated 26 August 1911 shows Lot 195 and adjoining lots including Lot 132. A land grant document dated 14 November 1941 records the sale of Lot 195. Historical land use title searches show that William John Brouggy held ownership of Lot 195 and Lot 132 in 1963 and William Lee Ryan held ownership of those lots in 1973. Ownership of Lot 195 was transferred on 18 August 2005 and on 6 September 2019. A title search of Lot 195 dated 11 June 2020 records the First and Second Respondents as joint tenants.
A Council report dated 18 May 1995 records that in January 1995 John Bowell was appointed to investigate and report on illegal dwellings within the South Arm Catchment of the Shire. Following receipt of information from L Kelly owner of Lot 195, it was recorded that "development consent not required for dwelling on vacant 40 ha lot under former IDO No 1 up until Nov 1987 (Applicant advises work carried out prior to 1980)". The Council resolved "that the information submitted concerning Messrs L Kelly; J Howle and J Ryall be noted (ie existing legal dwellings)".
By letter dated 11 March 2020 (the Applicant submitted it should read 2018), a Council officer states: At its meeting of 18 May 1995 Council acknowledged that a dwelling was lawfully established (without development or building approval) on the subject land [Lot 195] as some time prior to 1980. It is understood that the use of the dwelling was "abandoned", in a statutory planning sense, at some time after 2014. Under Nambucca LEP 1995 the dwelling comprised a continuance of a lawful use pursuant to s 109 of the EPA Act. This is due to cl 14(4) of Nambucca LEP 1995 which effectively allows the replacement of a dwelling house in a rural zone, with consent. Accordingly, development for the purpose of a dwelling-house was permissible with consent through until commencement of Nambucca LEP 2010. Notwithstanding this, Nambucca LEP 2010 provides that development for the purpose of a dwelling house is permissible with consent in the RU2 zone. Clause 4.2A sets a development standard comprising the minimum lot size that is required for development consent to be granted for a dwelling house. However, since the subject land has previously contained a dwelling (that was lawfully established) the provisions of cl 4.2A(3)(b) do not apply, meaning that it would not be necessary to demonstrate compliance or vary the 100 ha minimum lot size control. …
Development consent for development application 2018/196 (DA 2018/196) for a dwelling on Lot 195 was issued on 9 November 2018. The First and Second Respondents lodged DA 2020/090 for a new dwelling on Lot 195. An aerial map shows the locations of the proposed dwellings the subject of DA 2018/196 and of DA 2020/090. I was informed that no dwelling has been built pursuant to DA 2018/96. An assessment report for DA 2020/090 dated June 2020 by the Applicant states that the proposed development "complies with clause 4.2A(3)(b) as a dwelling house was permissible on the land prior to the commencement of the NLEP2010". A notice of refusal for DA 2020/090 was issued dated 29 June 2020 arising from other issues.
On 30 July 2020 the First and Second Respondents lodged an application with the Council for review of DA 2020/090. A Council report dated 24 September 2020 recommends that the refusal of DA 2020/090 is confirmed. The proposed development "complies with clause 4.2A(3)(b) as a dwelling house was permissible on the land prior to the commencement of the NLEP 2010". The Council resolved that a review of the determination of DA 2020/090 would be "deferred until advice is provided on the legality of the dwelling entitlement and provide the application with the opportunity to meet the DCP requirements".
A Council report dated 12 November 2020 recommends that DA 2020/090 be approved. Reference was made to the Council report dated 18 May 1995 summarised above in [14]. It would be impracticable to revisit the May 1995 determination recognising an "existing legal dwelling" on Lot 159. That decision has been relied upon and the Council would potentially be liable for the loss pertaining to the removal of the dwelling entitlement. DA 2020/090 "complies with clause 4.2A(3)(b) as a dwelling house was permissible on the land prior to the commencement of the NLEP 2010". The Council resolved to approve DA 2020/090 subject to conditions.
A notice of consent for DA 2020/090 subject to conditions was issued on 16 November 2020.
The following four former environmental planning instruments for Nambucca Shire were included in evidence: 1. IDO No 1 - Shire of Nambucca dated 16 June 1976; 2. Alteration of IDO No 1 - Shire of Nambucca dated 3 September 1976; 3. Nambucca Local Environmental Plan 1986 (Amendment No 1) dated 14 August 1987; and 4. Nambucca Local Environmental Plan 1986 (Amendment No 2) dated 20 November 1987.
The Applicant also tendered Nambucca Local Environmental Plan 1995 (as in force at 7 August 2009 to 29 July 2010) which commenced 1 December 1995 and NLEP 2010 which commenced on 30 July 2010.

Jurisdictional fact/condition precedent/precondition to approval

In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 (City of Enfield) Gleeson CJ, Gummow, Kirby and Hayne JJ held in their joint judgment (Gaudron J agreeing) at [28] that: 28. The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. …
In Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 (Pallas Newco) Spigelman CJ held relevantly at [46]-[49] (citations omitted): 46 Finally, as the Privy Council identified in a seminal authority on this area of the law … there is a distinction between a fact that is an "essential preliminary to the decision-making process" and a "fact ... to be adjudicated upon in the course of the inquiry". ... 47 The word "preliminary" does not, in this context, refer to a chronological sequence of events, but to matter that is legally antecedent to the decision-making process. A decision-maker may well determine whether or not s/he has jurisdiction at the same time as s/he carries out the substantive decision-making process. 48 The extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely that the fact is jurisdictional. … 49 A factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively.
In Currey v Sutherland Shire Council (1998) 100 LGERA 365 (Currey) the issue was whether cl 19 of the Sutherland Local Environmental Plan 1983 prohibited the council from consenting to development on land within a foreshore building line unless it was satisfied in relation to certain matters. Stein JA (Mason P and Handley JA agreeing) held at 374-375: It is important to note … that the consideration of cl 19(5), and its exception in cl 19(6) comes before any merit considerations under s 90 are weighed: see Clifford v Wyong Shire Council (1996) 89 LGERA 240 (at 249, 251-252). Clause 19(5) is a prohibition on certain development within the foreshore building line unless the council is satisfied that the offending building will be removed. The exception in cl 19(6) requires council's satisfaction that the removal of the building will not be inconsistent with the clause objective and was unnecessary to achieve those objectives, or is unreasonable or unnecessary having regard to the provisions of any relevant development control plan. This consideration requires some positive attention by the council. It would include consideration of the boat shed and its location, the clause objective and the exercise arising from cl 19(6)(a), (b) and (c). Was it enough that the officer's report contained a reference to cl 19 and the foreshore building line? In my opinion, it was not without some elucidation of the relevance of cl 19 to the application and the need to consider the existing two-story boat shed in the context of cl 19(5) and (6), the bare reference to cl 19 is misleading the council in its required task. This is principally because the report failed to refer to the prohibition in cl 19(5).
In Franklins Ltd v Penrith City Council [1999] NSWCA 134 (Franklins), the issue before the Court of Appeal was whether the council had failed to consider the requirement of cl 32(2) of the Penrith Local Environmental Plan No 231, which required that it be satisfied that not less than 60% of the goods sold from the premises would be resold by retail after removal from the premises. Stein JA (Powell and Giles JJA agreeing) held at [18], [28]: 18. The clause acknowledges that a wholesale and retail warehouse is prohibited on the subject land, but says that the prohibition may be relaxed if the Council forms a positive opinion that the ratio of wholesale to retail sales from the premises meets the requirement in the clause. The key words in the sub-clause are "but only if the Council is satisfied that". It is clear that the Council had to be so satisfied prior to the granting of consent to Campbells. It had to be satisfied, as a pre-condition to approval, that Campbells' operations from the premises comprised a wholesale component of not less than 60%. Council had to address itself to this criterion in order to form the requisite opinion and before embarking on a consideration of the "merits" under s 90 of the Environmental Planning and Assessment Act 1979, see Clifford v Wyong Shire Council (1996) 89 LGERA 240 and Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372 and 374. 28. … What is here involved is a question of power. If the pre-condition in cl 32 (2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an open "essential condition" or preliminary to the exercise of the power, Craig v South Australia (1995) 184 CLR 163 at 179 and Timbarra Protection Coalition Inc v Ross Mining LL [1999] NSWCA 8 per Spigelman CJ at paras 42 and 94. Accordingly, the Land and Environment Court, and this court on appeal can review whether the council held the requisite satisfaction. …
In Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251 (Bugendore) the Court needed to consider the effect of cl 22(3) of the Yarrowlumla Local Environmental Plan 2002 which relevantly provides: Despite subclause (1), consent may be granted to a subdivision of land within Zone No 2 (v) to create allotments of less than 2,000 square metres, but not less than 1,000 square metres, in the unsewered areas of Zone No 2 (v), but only if the consent authority has had regard to a detailed analysis, including consideration of: …
After reference to Currey and Franklins (and some other judgments), the Court held at [69]: 69 The wording of cl 22(3) supports the conclusion that it is a condition precedent to the exercise of the power to grant consent by the Council as it states that consent may only be granted if the consent authority has had regard to a "detailed analysis". Clause 22(3) sets out in (a) to (f) those matters to which regard must be had in the "detailed analysis", providing specificity to what should be in a detailed analysis. Clause 27 states that a dwelling house must be on a lot in a subdivision consented to in accordance with cl 21 and 22. It is a matter which the Council must have regard to before it can grant consent to a subdivision of unsewered land in the Village Zone which is less than 2,000m2 and more than 1,000m2. It is a precondition to the exercise of the Council's power to grant development consent in this circumstance and the reasoning in the cases set out above supports such a finding.

Nambucca Local Environmental Plan 2010 cl 4.2A

Clauses examined by a number of the above judgments specify the need for the consent authority to be "satisfied" of the relevant criteria in those clauses. However, the absence in cl 4.2A of the NLEP 2010 of the word "satisfied" does not affect the Council's required process to determine whether the criteria in cl 4.2A are met (ie "satisfied"). Rather than the underlying circumstances, it is the state of satisfaction which is "the criterion which preconditions the exercise of the power to grant consent": Lomman v Windbelt Pty Ltd (2018) 237 LGERA 1; [2018] NSWLEC 29 per Robson J at [74]-[75].
In the present case, the Council could not be satisfied that Lot 195 met the criteria set out in either cl 4.2A(3) or (4): 1. With respect to subcl (3) generally, the Council's reliance upon the report dated 18 May 1995 and its conclusion of an "existing legal dwelling" then on Lot 195, meant that the Council could not be satisfied of the criterion in the main paragraph of cl 4.2A(3) that Lot 195 was a lot "on which no dwelling house or dual occupancy has been erected". 2. Lot 195 does not satisfy subcl (3)(a), (c) and (d). Subclause (3)(a) requires the lot to be "at least the minimum lot size specified for that lot by the Lot Size Map", which map specifies a minimum lot size for Lot 195 of 100 ha. Subclause (3)(c) requires the lot relevantly to result from a subdivision for which development consent was granted before the NLEP 2010 commenced. Lot 195 has been in existence since about 1911. Subclause (3)(d) requires the lot to be an "existing holding" as defined in subcl (5), which definition is not met given that Lot 195 is the only site in the ownership of the First and Second Respondents. 3. Subclause (3)(b) has two criteria with respect to Lot 195, it needs to be: 1. a lot created before the NLEP 2010 commenced; and 2. on which the erection of a dwelling house or dual occupancy was permissible immediately before the commencement. The first requirement of subcl (3)(b) is met but not the second. Under NLEP 1995, Lot 195 was within the 1(a3) zone and cl 14 imposed restrictions on the grant of development consent on land in that zone, namely land had to be not less than 100 ha in area. An identical clause was considered in Lloyd v Wollongong City Council [2015] NSWLEC 146 (Lloyd) and that clause was found to require the satisfaction of the council of the same type of provision before development consent could be granted. The statements in the three council reports dated June, 24 September and 12 November 2020 that cl 4.2A(3)(b) in the NLEP 2010 can apply are wrong. 1. With respect to subcl (4): 1. there is no reference in the assessment report for DA 2020/090, and in both reports to the Council dated 24 September 2020 and 12 November 2020 respectively, of its possible application in the present case; 2. there is no evidence:
that there is a lawfully erected dwelling house or dual occupancy on Lot 195,
that the dwelling house the subject of the DA 2020/090 is intended to replace such existing dwelling house or dual occupancy.
In the present case, the Council merely stated a conclusion about the criteria in cl 4.2A(3)(b) in the assessment report for DA 2020/090, and in both reports to the Council dated 24 September 2020 and 12 November 2020 respectively. None of those reports provided (i) any elucidation of the relevance of cl 4.2A to DA 2020/090, (ii) any reference to the criteria set out therein, or (iii) any reference to the need to consider those criteria. Three council reports from June, 24 September and 12 November 2020 are referred to in the evidence and all state without further reasoning that cl 4.2A(3)(b) of the NLEP 2010 is complied with. On that basis, "the bare reference to [the clause] is misleading the Council in its required task": Currey at 375.
Under the former IDOs a dwelling house on land zoned Non-urban Zone No 1(a) was permissible on land greater than 40 ha in area. Under NLEP 1986 a dwelling house was permissible under cl 16 on land greater than 100 ha, similarly under cl 14 of the NLEP 1995 and under cl 4.2A(3) of the NLEP 2010. Immediately before NLEP 2010 came into force a dwelling house was not permissible on Lot 195 and none could therefore be approved on Lot 195. The Council provides no reasoning in any of its reports for why cl 4.2A (3)(b) was complied with when it clearly was not.
None of the council reports dated June, 24 September and 12 November 2020 make any reference to existing use rights for a house. There is no reference to another house being no longer able to be used as provided in cl 4.2A(4). No reliance was placed on cl 4.2A(4) by the Council when it granted development consent. No evidence of the maintenance of existing use rights for a dwelling house are referred to in the Council's document. There was a dwelling on Lot 195 in 1995 which is not there now. It is unknown when that dwelling house no longer existed, but the First and Second Respondents did not refer to an existing dwelling in DA 2020/090.
Lot 195 is not an "existing holding" under cl 4.2A(5) of the NLEP 2010. Historical searches show that Lot 195 and adjoining Lot 132 were held by William John Brouggy in 1963 who sold both lots to William Lee Ryan in 1973. Ownership of Lot 195 was transferred on 18 August 2005 and it was transferred again on 6 September 2019 to the First and Second Respondents so that Lot 195 is now owned by the First and Second Respondents and Lot 132 by someone else. Lot 195 and adjoining Lot 132 were held in the same ownership on 16 June 1967 satisfying subcl (5)(a), but not at the time of lodging DA 2020/090 as required by subcl (5)(b).
Lot 195 is also not an "existing parcel" under cl 5 of the NLEP 1995. It was in the same ownership as adjoining Lot 132 at 16 June 1967, satisfying subs (b), but the allotment had not been subdivided pursuant to cl 6 of the State Environmental Planning Policy No 4 - Development Without Consent.
For the above reasons, it is submitted that the Council erred at law in its failure to determine whether the criteria in cl 4.2A of the NLEP 2010 were met, and this failure was material to its decision to grant consent to DA 2020/090.
Further, the Council erred at law in granting consent to DA 2020/090 on the basis of purported compliance with cl 4.2A(3)(b) of the NLEP 2010. DA 2020/090 is invalid.

Irrelevant consideration

In relation to the issue of potential liability in negligence for the loss pertaining to the removal of the dwelling entitlement: 1. matters for consideration in determining a development application (pursuant to s 4.15 of the EPA Act) do not include the potential liability of the decision-maker; 2. a council is required to determine development applications pursuant to s 4.16 of the EPA Act; 3. a council's function under the EPA Act is part of its functions - see s 22 of the Local Government Act 1993 (NSW) (LG Act); and 4. section 731 of the LG Act relevantly provides that a council, councillors or employees of the council inter alia are not liable for things done in good faith for the purpose of executing the LG Act or any other Act.
On that basis, any potential for negligence, without any reasoning, is an irrelevant matter to have taken into account in the assessment of the review of the decision concerning DA 2020/090.

Conclusion

At issue in ground 1 is the application of provisions in the NLEP 2010 concerning limits on the erection of dwelling houses on land in certain rural zones, in turn informed by the application of NLEP 1995. The factual basis informing the issues is contained in the Applicant's evidence. In the absence of a contradictor none of this is disputed.
As the Applicant submitted, the legally correct application of cl 4.2A of the NLEP 2010 was necessary in order for the Council to have power to approve a dwelling on Lot 195 given that it is in the RU2 Rural Landscape zone and has an area of less than 100 ha, the minimum lot size under the Lot Size Map on which a dwelling is permissible. That also required the correct application of NLEP 1995 by virtue of cl 4.2A(3)(b) of the NLEP 2010.
In terms of the caselaw relied on by the Applicant set out above at [22]-[27], the correct application of cl 4.2A of the NLEP 2010 was a condition precedent to the exercise of power by the Council to approve DA 2020/090, and was a matter about which it had to be satisfied as referred to in City of Enfield, Pallas Newco, Currey, Franklins and Bungendore.
A similar provision limiting the erection of dwelling houses according to a minimum lot size in certain zones under the Wollongong Local Environmental Plan 2009 (WLEP 2009) and its predecessor Wollongong Local Environmental Plan 1990 (WLEP 1990) was considered in Lloyd as a separate question of law in Class 1 proceedings. Lloyd concerned an appeal against the refusal of development consent for a dwelling house on vacant land zoned for environmental management purposes. There was no dispute that the lot in question did not satisfy the minimum lot size requirement for the erection of a dwelling house specified in the WLEP 2009 or the WLEP 1990. A number of arguments were raised which have not been identified in these proceedings. As there is no contradictor I will identify these to the extent they are relevant in this matter.
In Lloyd, Pepper J determined that the erection of a dwelling house on the lot in issue was not permissible. The issues that arose identified at [27]-[32] were, firstly, as cl 14 in the WLEP 1990 specifying a minimum lot size identified a development standard and did not prohibit development, the applicant argued that the erection of a dwelling house was, while not permitted, permissible immediately before the commencement of the WLEP 2009. Secondly, none of the criteria in cl 14 allowing consent to build a dwelling house in certain zones where there was no existing dwelling which required the council's satisfaction (described as preconditions) derogated from the existence of the power to grant consent and did not render prohibited that which was permissible. The criteria affected the exercise of power to grant consent, not the existence of the power. The third argument is not material to this matter.
In rejecting the applicant's arguments, principles of statutory construction were identified in Lloyd at [33] and the meaning of "permissible" in the WLEP 1990 and WLEP 2009 considered. The construction of the WLEP 1990 was key, Pepper J holding that the criteria in cl 14 allowing the prohibition on the grant of development consent for a dwelling house to be lifted and consent granted, were matters that the council had to be satisfied of. Until the council was satisfied, it could not grant development consent. That the criteria included a development standard which was theoretically amenable to the dispensation power in State Environmental Planning Policy No 1 - Development Standards (now cl 4.6 of the WLEP 2009) did not render the development "permissible". The development was not allowed nor was it currently allowable under the WLEP 1990 and therefore under the WLEP 2009. Lloyd also supports the Applicant's approach to statutory construction of the NLEP 2010 and the NLEP 1995.
For the reason identified above in [29(a)], in relation to the chapeau of cl 4.2A(3), the Council's reliance on the report dated 18 May 1995 and its conclusion of an "existing legal dwelling" being on Lot 195 means that the Council could not be satisfied that the lot was one "on which no dwelling house or dual occupancy has been erected".
For the reasons identified by the Applicant above in [29(b)], subclauses (a), (c) and (d) in cl 4.2A(3) of the NLEP 2010 do not apply to DA 2020/090. Subclause (a) concerns the minimum lot size of 100 ha, which Lot 195 clearly does not meet. The lot does not result from a subdivision for which development consent was granted before NLEP 2010 commenced, as required by subcl (c). Lot 195 is not an "existing holding" for the purposes of subcl (d), as defined in subcl (5) for the reasons summarised above in [33].
The Council determined the review application under cl 4.2A(3)(b) as that was the clause of the NLEP 2010 referred to in the assessment report dated June 2020 and the two council reports dated 24 September 2020 and 12 November 2020. For the reasons identified above in [29(c)], [30] and [31], cl 4.2A(3)(b) of the NLEP 2010 did not apply. No dwelling house on Lot 195 was permitted under the NLEP 1995 as the minimum lot size was not met and Lot 195 was not an "existing parcel" as defined in that instrument for the reasons summarised above in [34].
The Applicant's submissions also addressed cl 4.2A(4). For the reasons summarised above in [29(d)] and [32] this also could not apply to DA 2020/090. Nor was it referred to in the three council reports prepared in June, September and November 2020 at the time of granting development consent, suggesting it was not considered relevant to the review application.
I do not have the benefit of submissions from the Council concerning its decision-making processes concerning DA 2020/090 and Lot 195. The review of illegal dwellings undertaken at the request of the Council in January 1995 appears to have found there was a house on Lot 195 at that time, the presence of which was noted. According to the Applicant, there was a dwelling on Lot 195 in 1995 which is not there now. That does not affect this analysis.
Other evidence in the documents before the Court which suggest a possible reason for the Council's approach is the uncertainly dated letter (whether 2018 or 2020) from a council officer set out above in [15]. While the term "existing use" is not used expressly, that appears to be what was being considered as there is reference to abandonment of a dwelling house after 2014 and to s 109 (now Div 4.11 Existing uses, s 4.68 Continuance of and limitations on other lawful uses) of the EPA Act. As the Applicant's submissions identify in [32], there is no reference to an existing dwelling at any stage on Lot 195 or the possibility of existing use rights in the council reports considering DA 2020/090. No mention is made by the First and Second Respondents in their DA 2020/090 of a house being in existence on Lot 195 or at any other relevant time. No basis for considering existing use rights arises from any of the material before the Court.
In the absence of evidence of existing use rights, that a dwelling house was permissible with consent on lots greater than 40 ha under the former IDOs is irrelevant since these instruments were replaced by the NLEP 1986 and subsequent LEPs, all of which required and continue to require a minimum lot size of 100 ha to build a dwelling house on Lot 195 under the applicable zones.
I note for completeness that a development consent granted by the Council for a dwelling house in 2018 on Lot 195 is in evidence as referred to in [16] above. This has not been considered as it is not relevant to the legal arguments I have set out.
The Applicant has satisfied the onus she bears of establishing that development consent for DA 2020/090 should be declared invalid.
Given my conclusion on ground 1, it is unnecessary to consider ground 2. For the reasons given by the Applicant, summarised at [37]-[38] the Council did take into account an irrelevant consideration for the purposes of assessment of the DA pursuant to s 4.15 of the EPA Act but whether that should vitiate the consent need not be considered.
As the Respondents filed submitting appearances save as to costs I will not make consequential orders or orders for costs without providing the opportunity for further submissions from any party.

Declaration/order

The Court makes the following declaration and order: 1. The Court declares that development consent for development application 2020/090 for the construction of a dwelling house on Lot 195 in DP 755564 is invalid and of no effect. 2. The Court orders that costs and consequential orders are reserved.

Addendum made on 22 September 2021

Further to my judgment of 27 August 2021, it is noted that the First and Second Respondents have applied to the Third Respondent for surrender of the consent for development application 2020/090. The Applicant does not seek an order for costs in the substantive matter nor any consequential orders against the First and Second Respondents.
The Court orders as follows: 1. The Third Respondent must pay the Applicant's costs as agreed or assessed.

Amendments 22 September 2021 - Addendum added at [57]-[58] of judgment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2021

Environmental Planning and Assessment Act 1979(NSW)ss 4.15, 4.16, 4.68, 8.3, 9.45

(1998) 100 LGERA 365

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