ISSA v BURWOOD COUNCIL

S & I Investments Pty Ltd v Pittwater Municipal Council [1993] NSWLEC 166 Collector of Customs v Agfa-Gevaert Ltd [1996] 186 CLR 389 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422 CASES CITED: Personal Design Projects Pty Ltd v Hornsby Shire Council [1991] NSWLEC 34 Demihale Pty Ltd v Ku-ring-gai Municipal Council [2002] 123 LGERA 94 Ku-ring-gai Municipal Council v Kuttner [1980] 41 LGERA 1

PAUL ISSA Appellant PARTIES: BURWOOD COUNCIL Respondent

J B Maston Appellant COUNSEL: T F Robertson SC Respondent

Maclarens Appellant SOLICITORS: Houston Dearn O'Connor Respondent

LOWER COURT JURISDICTION: Land & Environment Court

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40727/04

MASON P TOBIAS JA PEARLMAN AJA

Monday, 21 March 2005 ISSA v BURWOOD COUNCIL Judgment

1 This appeal is concerned with whether or not a proposed subdivision development is permissible or prohibited under the relevant environmental planning instrument. In class 1 proceedings in the Land and Environment Court below, the issue of permissibility was raised for separate determination, and Pain J determined that issue by holding that the proposed subdivision was prohibited. The factual background

2 The land the subject of the proceedings is situated at 102 Lucas Road, Burwood ("the site"). It comprises two Torrens title lots, namely, lot 1 in DP 953100 and lot 13 in DP 67171. It is zoned Residential 2(a) under the Burwood Planning Scheme Ordinance ("the BPSO").

3 On 4 March 2002, a development application in respect of the site was lodged with the council and numbered 59/02. It sought development consent for "…restoration to existing cottage…and adding a garage. Proposed construction of dual occupancy consisting of 3 bedroom house and attic studio and garage". On 20 December 2002, the council granted conditional consent to development described in the following terms: Alterations to an existing dwelling and erection of a second dwelling with attic at the rear to create a Dual Occupancy…and new double garage."

One of the conditions imposed by the consent was as follows:

"5. This approval does not imply a Strata Subdivision of the Dual Occupancy which is prohibited within the Residential 2(a) zoning."

4 The plans of the approved development depicted the "dual occupancy" dwelling as straddling the internal boundary between lot 1 and lot 13. The bedrooms and part of the kitchen were to be erected upon lot 1, and the remainder of the kitchen plus the living areas and the garages were to be erected upon lot 13. It appears that development in accordance with these plans has been carried out.

5 Condition 5 of the development consent (see par 3) is imprecise in its reference to "Strata Subdivision" and prohibition but it was clear enough to alert the appellant to the fact that the development consent itself did not amount to approval of a strata subdivision of the site. In any event, the statement of environmental effects ("the SEE") that accompanied DA 59/02 said that subdivision of the site was to be dealt with under a separate application. Such a separate development application ("the subdivision application") was made on 19 September 2003, and numbered 273/03. It is the subject of the current proceedings. By the subdivision application, the appellant sought in effect an alteration of the internal boundaries of the site by dint of a re-subdivision of lot 1 and lot 13 into two new lots (proposed lot 1 and lot 2). Lot 1 would comprise the original dwelling and half of the detached garage structure and would have an area of 661.8 square metres. Lot 2 would be hatchet-shaped and would include an access corridor to Lucas Road. It would comprise the "dual occupancy" dwelling in its entirety as well as the remaining half of the detached garage structure, and it would have an area of 592.1 square metres. The straddling would, of course, be eliminated.

6 On 27 November 2003, the council informed the appellant of its view that the proposed subdivision was prohibited under the terms of the BPSO, and that accordingly it had no power to approve the subdivision application. The appellant subsequently commenced class 1 proceedings in the Land and Environment Court appealing against that determination. The issue of permissibility was raised as a separate issue in those proceedings, and Pain J determined it in the manner I have stated, that is, she decided that the proposed subdivision was prohibited under the BPSO. Accordingly, the proceedings in the court below were dismissed. The appellant has appealed against the trial judge's determination. The statutory background

7 The BPSO was gazetted on 6 April 1979. The zoning table in the BPSO referrable to the Residential 2(a) zone stipulated that certain specified development was prohibited, and all other development required development consent.

8 At the time DA 59/02 was made, the BPSO contained no reference to "dual occupancy." It did, however, contain a definition of "mixed development" (inserted by Local Environmental Plan 24 ("LEP 24") on 30 July 1993) relevantly in the following terms: "'mixed development' means a dwelling…on the same parcel of land as a building used or intended to be used for the purpose of…any other use permitted by the zoning of the land, whether or not the dwelling…will be used in conjunction with any…other permitted use on the same land." 9 On 12 April 2002 (that is, after DA 59/02 had been made but before development consent had been granted) Local Environmental Plan 35 ("LEP 35") inserted cl 53A into the BPSO. It was headed "Dual occupancy development" and it permitted certain specified forms of development which would result in two dwellings being erected "on an allotment". The development contemplated by DA 59/02 did not fall within the description of any of those specified forms of development.

10 On 17 May 2002, (that is, after DA 59/02 had been made but before development consent had been granted) Local Environmental Plan 56 ("LEP 56") was gazetted. It amended the BPSO in two relevant respects. First, it inserted in cl 4(1) a definition of "dual occupancy development" in the following terms: 'dual occupancy development' means development that results in 2 dwellings (whether attached or detached) on a single allotment of land. Secondly, it inserted cl 78Q in the following terms: 78Q Subdivision of dual occupancy development Consent must not be granted for a subdivision (including a strata subdivision) of an allotment within Zone No 2(a) that creates separate allotments for each of the two dwellings resulting from a dual occupancy development. 11 Although DA 59/02 was expressed to relate to "dual occupancy", no such expression appeared in the BPSO at the time DA 59/02 was lodged. The expression "dual occupancy" was not nevertheless a fanciful description concocted by the appellant - it was a well known component of a policy of urban consolidation, and had been the subject of regulatory provisions in Sydney Regional Environmental Plan No 12 - Dual Occupancy ("SREP 12") and State Environmental Planning Policy No 53 ("SEPP 53"). There also appears to have at some stage been a code adopted by the council entitled "Burwood Council Dual Occupancy Control Code", but this code was simply referred to in the SEE and was not in evidence before this Court or the court below. However, by the time consent was granted to DA 59/02, the BPSO had been amended by LEP 35 inserting cl 53A and by LEP 56 inserting the definition in cl 4(1) and cl 78Q. But the development proposed by DA 59/02 did not fall within any of the types of development described in cl 53A. It might have fallen within the definition of "mixed development" in cl 4(1) (see par 8). It might simply have been treated as an innominate form of development permissible by virtue of the zoning table relating to the Residential 2 (a) zone. The council's planning officer, in his report to the council, simply noted that "[t]he proposal is permissible with Council's consent". I have noted this matter for completeness, but nothing turns on it, because counsel for each of the parties assured the Court that no challenge was made to the validity of the consent granted to DA 59/02.

12 The issue on appeal depends upon the proper meaning of the word "allotment" where it appears in the definition of "dual occupancy development" in cl 4 and in cl 78Q.

13 The appellant contends that cl 78Q has no application in this case. The two dwellings on the site did not result from a "dual occupancy development" as that term is defined in cl 4(1) of the BPSO, because they did not result in two dwellings on a "single allotment of land." There was not one but two allotments prior to the construction of the two dwellings, namely lot 1 and lot 13. The proposed subdivision would create separate allotments for each of the two dwellings, but it involves, not the subdivision of a single allotment of land, but the re-subdivision of two existing allotments. On this argument, the word "allotment" has the same technical meaning as the word "lot", that is, it means a lot delineated on a registered plan of subdivision or derived from formal title under conveyancing law.

14 The council contends that the word "allotment" is not used in a technical sense in the definition of "dual occupancy development" or in cl 78Q, and it does not have the same meaning as "lot". It simply bears its ordinary meaning, namely a distinct or identifiable area of land. Accordingly, cl 78Q does apply. The two dwellings on the site resulted from a "dual occupancy development" because the construction straddled lots 1 and 13, thus involving the use of both lots as part of the one dwelling. The development resulted in two dwellings on a single distinct or identifiable area of land with a definite identity and that identity depended, not on lots 1 and 13, but on the whole area of land comprising the site.

15 In the court below, Pain J accepted the council's submission. She held that the word "allotment" bears its ordinary meaning as either a "block of land" or, in the formulation adopted by Talbot J in S & I Investments Pty Ltd v Pittwater Municipal Council [1993] NSWLEC 166, as a "…separate or distinct area of land with a definite identity and which is generally restricted to the ownership or control of a particular person and, in most cases, is confined to the one use or purpose." She held that lot 1 and lot 13 at the site should be regarded as one allotment, not two, for the purposes of cl 78Q and the two lots, held in common ownership, should be considered as a "single allotment" within the definition in cl 4 of the BPSO. Hence cl 78Q applied, and the proposed subdivision was prohibited. 16 The issue on the appeal involves a somewhat painstaking examination of the language and context of the BPSO, but it is not an arid debate. If cl 78Q applies, then development of the site by subdivision is prohibited, and the appellant will not be able to create separate lots for each of the two dwellings erected on the site without being in contravention of s 76B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 17 Another issue was raised in written submissions but rather faintly pursued in oral argument. That was whether the determination in the court below was one of fact rather than law, since an appeal to this Court from class 1 proceedings in the Land and Environment Court is confined to a question of law (s 57(1) Land and Environment Court Act 1979). 18 In my opinion, however, that issue may be immediately disposed of. Where the question is whether an expression is used in any sense other than that which it has in ordinary speech, that is a question of law: Collector of Customs v Agfa-Gevaert Ltd [1996] 186 CLR 389 at 397. Here the question is whether, on the proper construction of the word "allotment" in the relevant clauses of the BPSO, the word bears either a technical meaning or an ordinary meaning. That is a question of law. Additionally, in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, this Court has held that classification of a development as permissible with consent or prohibited involves the determination of a jurisdictional fact. Here the issue involves the permissibility or prohibition of the proposed subdivision, and that would, in my opinion, enliven the jurisdiction of this Court to review the decision of the primary judge.

19 The first matter to note is that neither of the words "allotment" or "lot" are defined in the BPSO or in the EP&A Act.

20 The second matter to note about the BPSO is that the word "allotment" is not used extensively throughout its provisions but occurs in only seven of its 87 provisions.

21 As I have already indicated, it occurs in the definition of "dual occupancy development" in cl 4(1) and it occurs in cl 78Q.

22 It also occurs in cl 52, which deals with minimum site areas for the erection of dwelling-houses. Clause 52 prohibits the erection of a dwelling-house on "an allotment" within certain specified zones unless the "allotment" has not less than a specified area. Thus, for example, cl 52(1)(a) provides that, where the "allotment" is hatchet-shaped, the area must be not less than 660 square metres.

23 The word also occurs in cl 53A. Subclause (2) permits, with council consent and in specified circumstances, the erection of two dwellings "on an allotment". Subclause (3) prohibits development in accordance with cl 53A unless the area "of the allotment" is not less than a specified minimum.

24 Clause 78E(2) states that nothing in the BPSO prevents redevelopment (with council consent) of the land to which cl 78E applies for the purpose of mixed development "…after the land has been consolidated into one allotment."

25 Clause 78P promulgates development standards for subdivision. Subclause (2) prohibits subdivision unless "…each separate allotment created by the subdivision…" has an area not less than specified. Subclause (3) prohibits subdivision unless "…each separate allotment created by the subdivision…" has a boundary facing a public road. 26 Finally, the word "allotment" occurs in one place in sch 10 which lists development that is "exempt development". One part of that schedule deals with subdivision by way of boundary adjustment, and, amongst other requirements qualifying for exemption, it requires the area of "each allotment" to change by not more than a specified percentage.

27 I can detect nothing in any of these clauses to suggest that the word "allotment" is used in a technical or conveyancing sense, that is, that it refers to a lot identified in a registered plan of subdivision or identified by formal conveyancing title. I can illustrate what I mean by reference to each group of clauses. 28 Thus, cls 52 and 53A and sch 10 refer simply to "an allotment". They deal with minimum areas, and it might, at first glance, be thought that the draftsperson must be referring, in these clauses, to an area delineated by a plan of subdivision, since the clauses deal with area in terms of square metres, that is, in terms of definable measurement. But, by contrast, no such implication arises in any of cls 50, 57, 58, 63 and 64, all of which deal with minimum areas required for development. Thus, cls 50 and 64 prescribe the minimum area for the specified development simply by reference to the "site area" being not less than the specified minimum. In cls 57, 58 and 63, the word used is simply "land", and each clause provides that development for the specified purposes shall not be carried out on "on any land" within the specified zones of less than the specified minimum area "of land". It seems clear from all these clauses that what is being referred to is an identifiable area of land, and there is nothing in these clauses which necessitates that identity depending upon registration of a plan of subdivision or formal conveyancing title.

29 In cls 78E, 78P, and 78Q, the word "allotment" is used in conjunction with other words. Thus cl 78E refers to land being "consolidated" into one allotment, and the other clauses refer to allotments "created" by subdivision. But consolidation into one allotment or creation by subdivision does not, in my opinion, necessarily indicate that the word "allotment" is equivalent to the word "lot" in its technical sense. This is consistent with s 4B of the EP& A Act, which relevantly defines "subdivision of land" as follows: 4B (1) For the purposes of this Act, 'subdivision of land' means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected: (a) by conveyance, transfer or partition, or (b) by any agreement, dealing, plan or instrument rendering different part of the land available for separate occupation, use or disposition. (2) Without limiting subsection (1), 'subdivision of land' includes the procuring of the registration in the office of the Registrar-General of: (a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or (b) …

30 I return, then, to the definition of "dual occupancy development" in cl 4 and to cl 78Q.

31 In his submissions, Mr Maston, counsel for the appellant, pointed out that the word "allotment" appears three times in cl 78Q, if the definition of "dual occupancy development" is incorporated into cl 78Q. The first occurrence is in the words "…a subdivision …on an allotment within Zone No 2(a)…" This is obviously a reference to the land upon which the two dwellings are constructed. The second occurrence is in the words "….a subdivision…that creates separate allotments…" This is obviously a reference to the proposed subdivision of the land on which the two dwellings are constructed. The third occurrence, incorporating the definition, would become "…a subdivision…that creates separate allotments for each of the two dwellings resulting from development that resulted in two dwellings (whether attached or detached) on a single allotment of land." The third occurrence is the same reference as the first occurrence, that is, it refers to the land upon which the two dwellings are constructed.

32 Mr Maston submitted accordingly that cl 78Q requires three things - there must have been one allotment existing at the time of the subdivision application (the first occurrence); there must be two or more allotments proposed to be created by the proposed subdivision out of the original one (the second occurrence); and there must not have been a development that was carried out before the subdivision application was made that resulted in two dwellings on one allotment, this allotment being the same one that was the subject of the subdivision application (the third application). In his submission, these requirements are not met in the circumstances of this case because there was not one, but two allotments existing at the time of the subdivision application, and the development carried out before the subdivision application resulted in two dwellings, not on one allotment, but on two allotments.

33 It is obvious that this submission depends upon the word "allotment" being synonymous with the word "lot", thus bearing its technical meaning of a lot in a registered plan of subdivision or a lot derived from formal conveyancing title. But in these clauses, as with the other clauses of the BPSO, I can see nothing in the use of the word "allotment" that indicates that a technical meaning is required rather than an ordinary meaning of a distinct or identifiable area of land.

34 Counsel for each of the parties cited three decisions of the Land and Environment Court dealing with the word "allotment". In Personal Design Projects Pty Ltd v Hornsby Shire Council [1991] NSWLEC 34, the issue was whether three lots delineated in a plan of subdivision that had been approved by the relevant council but not yet registered were each an "allotment" for the purpose of SREP 12. Bignold J held that the expression "allotment of land" was not a technical term in the context of a planning instrument facilitating dual occupancy, and hence meant an identifiable piece or parcel of land rather than a lot in a registered plan of subdivision. His Honour held that each of the three lots was an "allotment" because each was clearly defined in the approved plan of subdivision.

35 In S & I Investments v Pittwater Council (see par 15), Talbot J held that the word "allotment" for the purpose of SREP 12 was not a technical term but an ordinary word meaning a separate or distinct area of land with a definite identity. He rejected the notion that any identifiable piece or parcel of land without regard to how the limits of the area have been specified is an "allotment" for the purpose of the planning instrument. He held that an undivided lot in a registered plan of subdivision satisfied the meaning he had adopted.

36 In Demihale Pty Ltd v Ku-ring-gai Municipal Council [2002] 123 LGERA 94, it was held that, in the context of SEPP 53 facilitating dual occupancy as a form of housing, the word "allotment" was properly construed in a general sense as being an identifiable piece of land and was not confined to an allotment created upon registration of a plan of subdivision. Hence, each of three lots delineated upon a plan of subdivision approved by the relevant council but not yet registered was held to be an identifiable piece of land and thus to constitute an "allotment" for the purpose of the planning instrument. 37 In Mr Maston's submission, these cases establish the norm, that is, that existing allotments will be primarily identifiable by reference to registered plans of subdivision, although there may be cases where that identity is derived from plans of subdivision not so registered. I do not agree with this submission. The cases cited are authority for the proposition that the word "allotment" bears its ordinary meaning as a distinct or identifiable area of land, the identity of which might be established by its delineation on an unregistered plan or in some other manner by which the limits of the area are specified - see Personal Design Projects v Hornsby Shire at p 3; S & I Investments v Pittwater Council at p 4, and Demihale v Ku-ring-gai Council at pars 20 and 21.

38 Mr Maston referred to the decision of the Court of Appeal in Ku-ring-gai Municipal Council v Kuttner [1980] 41 LGERA 1 as authority for the proposition that, in the Ku-ring-gai Planning Scheme Ordinance there under consideration, the word "allotment" was equivalent to the word "lot". But the issue in that case turned upon whether two lots in a registered plan of subdivision were to be regarded as "as separate parcel of land" within the meaning of the particular provision of the planning instrument. Despite there being some debate as to whether the word "parcel" had the same meaning as the word "allotment", the issue turned on the word "separate" within the statutory expression, and hence the decision is of no real assistance for the determination of the issue in these present proceedings.

39 In summary, then, I conclude that the word "allotment" in the definition of "dual occupancy development" in cl 4 and in cl 78Q does not bear a technical meaning, but rather bears an ordinary meaning being a distinct, or identifiable area of land. The precise identification of an "allotment" will depend on the facts and circumstances of each case. For example the identity of the area constituting an "allotment" might be derived from delineation of a lot or lots on a plan of subdivision (which may, but need not, be registered) or it might be derived from the physical boundaries of the area in question, or it might be derived from some agreement or other document specifying the limits of the area in question. Nothing in the language or context of the BPSO indicates a contrary conclusion. Furthermore, the conclusion I have reached is supported by the line of authority in the Land and Environment Court that I have set out. Does cl 78Q prohibit the proposed subdivision?

40 Applying the construction of the word "allotment" that I have adopted for the reasons set out above to the facts of this case yields the following result: 1. The first occurrence of the word " allotment " in cl 78Q (" subdivision…of an allotment within Zone No 2(a) " ) refers to an identifiable area of land constituted by the whole of the site regardless of the existence of lots 1 and 13. This follows from the fact that the "dual occupancy" dwelling straddles both lots 1 and 13. Its erection was carried out without regard to the site boundary and indicates an intention that the site be considered as one distinct area of land despite the fact that it is formally constituted by two lots in a registered plan of subdivision.

2. The second occurrence of the word " allotment" in cl 78Q ( subdivision that creates separate allotment for each of the two dwellings ) refers to two identifiable areas of land, their identity being derived from the proposed plan of subdivision; and

3. The third occurrence of the word " allotment" in cl 78Q (incorporating the definition of " dual occupancy development " in cl 4) refers to the identifiable area of land upon which the two dwellings are erected, and thus refers to the single distinct area of land comprised of the whole site.

41 This is the approach adopted by Pain J in the court below. She answered the separate question posed for determination in the affirmative, that is, by concluding that the proposed subdivision application is prohibited development as a consequence of cl 78Q.

42 I would dismiss the appeal with costs.

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