ISSA v BURWOOD COUNCIL

ISSA v BURWOOD COUNCIL - [2005] NSWCA 38 - NSWCA 2005 case summary — Zoe

[23]

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.

[27]

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.

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Judgment (51 paragraphs)

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