Robson v Tweed Council

Land and Environment Court (NSW)|2000-08-04|Before: Bignold J, Mr J, And J

The Applicant's competing argument proceeded along the following lines:
Properly construed, cl 57 applies, inter alia, to any "lawfully created allotment".
In the alternative, if the proper interpretation of cl 57 was that the condition concerning the question whether "a dwelling-house could lawfully have been erected" etc applied to the appeal site (as a lawfully created allotment) that condition was satisfied in the present case because either (i) a dwelling-house could have been erected on the appeal site pursuant to cl 12(1)(d) of IDO No 2 or (ii) the appeal site was itself a separate parcel of land for the purposes of cl 16 of IDO No 2 or cl 15 of IDO No 1 because it was physically entirely separated from the relevant neighbouring lands by a substantial creek.
In construing the savings provision contained in cl 57 of the LEP, the Court should adopt a liberal construction so as to preserve existing or vested entitlements.

In my judgment, cl 57 of the LEP, properly construed, does not apply to any "allotment lawfully created" simpliciter.

This is the plain meaning of the clause and accords with ordinary principles of syntax and statutory interpretation.

In this respect, I accept the Council's suggested interpretation of cl 57 of the LEP in preference to the Applicant's competing interpretation.

However, in my opinion, the Applicant has satisfied the express condition concerning the question whether a dwelling-house could lawfully have been erected on the appeal site immediately prior to the appointed day.

That entitlement, in my opinion, flows from cl 12(1)(d) of IDO No 2, understood in the light of cl 11(3) of the IDO.

The notional operation of cl 11(3) is, in my judgment, crucial to this conclusion. What it does is to effectively deem the appeal site to be an allotment created pursuant to cl 11(3) of the IDO. A dwelling-house may be erected upon such an allotment.

If I were wrong in that conclusion, I have not been satisfied that the appeal site forms part only of the larger existing parcel. This is because of the fact of its entire physical separation from the other lands by the substantial creek. Whether that fact is sufficient to justify a finding that the appeal site is not "adjoining" or "contiguous" with those other lands is ultimately a question of fact. The evidence on the issue is far from satisfactory but as it stands, I am not persuaded that the appeal site is relevantly "adjoining" or "contiguous" and it is the Council that carries the onus of establishing that it is relevantly adjoining or contiguous.

For these reasons, I would conclude that the proposed development is permissible development in terms of cl 57 of the LEP.

Accordingly, I would answer the question raised by the Council in the negative.

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(iii) The only relevance of the reference to cl 11(2) and (3) is to subclause (3) which empowered the Council to approve of a subdivision excising a small allotment (not less than 1/4 acre and not more than 1 acre) from an "existing parcel" of 25 acres or more, subclause (5) defining "parcel" as meaning

all contiguous lots, portions or areas of land held in the same ownership at the date of coming into force of this Order

(iv) Clause 15(1) empowered the Council to approve of the erection of a dwelling-house in a similar manner to the counterpart empowering cl 16 in IDO No 2, subclause (3) defining `parcel" in the same terms as that term was defined in cl 11(5) of IDO No 1.

4. The appeal site came into existence as a separate lot on 25 November 1955.

6. At all material times from November 1955 to April 1993, the appeal site was held in the same ownership as neighbouring lands (which were collectively known as Part Portion 37, Parish of Mooball and part Portion 188, Parrish of Billinudgee, comprising an aggregated area of some 290 acres) until 21 February 1989 when the appeal site became separately known as lot 1 Deposited Plan 391120. The appeal site is separated from the neighbouring lands by Burringbar Creek.

15. The Council's argument in support of its contention that the proposed development was prohibited by the LEP proceeds along the following lines.

1. Clause 57 of the LEP provides the only source of possible permissibility of the proposed development.

2. Properly construed, cl 57 applies to appeal site, being "an allotment lawfully created before the appointed day" only if "a dwelling-house could lawfully have been erected (upon it) immediately prior to the appointed day"

3. A dwelling-house could not lawfully have been erected on the appeal site immediately prior to the appointed day because at all material times relevant to the succession of planning controls on the erection of a dwelling-house on the appeal site, the appeal site (i) either lacked the requisite minimum area prescribed for such development or (ii) did not itself constitute a separate "existing parcel" of land because it was held in the same ownership as other neighbouring lands upon which there already existed a dwelling-house and therefore the appeal site only formed part of an "existing parcel".

16. The Applicant's competing argument proceeded along the following lines:

1. Properly construed, cl 57 applies, inter alia, to any "lawfully created allotment".

2. In the alternative, if the proper interpretation of cl 57 was that the condition concerning the question whether "a dwelling-house could lawfully have been erected" etc applied to the appeal site (as a lawfully created allotment) that condition was satisfied in the present case because either (i) a dwelling-house could have been erected on the appeal site pursuant to cl 12(1)(d) of IDO No 2 or (ii) the appeal site was itself a separate parcel of land for the purposes of cl 16 of IDO No 2 or cl 15 of IDO No 1 because it was physically entirely separated from the relevant neighbouring lands by a substantial creek.

3. In construing the savings provision contained in cl 57 of the LEP, the Court should adopt a liberal construction so as to preserve existing or vested entitlements.

17. In my judgment, cl 57 of the LEP, properly construed, does not apply to any "allotment lawfully created" simpliciter.

18. The express condition concerning whether "a dwelling-house could lawfully have been erected" applies to such an allotment in the same manner that it applies to an allotment the "creation of which was lawfully consented to".

19. This is the plain meaning of the clause and accords with ordinary principles of syntax and statutory interpretation.

20. In this respect, I accept the Council's suggested interpretation of cl 57 of the LEP in preference to the Applicant's competing interpretation.

21. However, in my opinion, the Applicant has satisfied the express condition concerning the question whether a dwelling-house could lawfully have been erected on the appeal site immediately prior to the appointed day.

22. That entitlement, in my opinion, flows from cl 12(1)(d) of IDO No 2, understood in the light of cl 11(3) of the IDO.

23. The notional operation of cl 11(3) is, in my judgment, crucial to this conclusion. What it does is to effectively deem the appeal site to be an allotment created pursuant to cl 11(3) of the IDO. A dwelling-house may be erected upon such an allotment.

24. If I were wrong in that conclusion, I have not been satisfied that the appeal site forms part only of the larger existing parcel. This is because of the fact of its entire physical separation from the other lands by the substantial creek. Whether that fact is sufficient to justify a finding that the appeal site is not "adjoining" or "contiguous" with those other lands is ultimately a question of fact. The evidence on the issue is far from satisfactory but as it stands, I am not persuaded that the appeal site is relevantly "adjoining" or "contiguous" and it is the Council that carries the onus of establishing that it is relevantly adjoining or contiguous.

25. For these reasons, I would conclude that the proposed development is permissible development in terms of cl 57 of the LEP.

26. Accordingly, I would answer the question raised by the Council in the negative.

Planning and Assessment Act 1979

CITATION : Robson v Tweed Council [2000] NSWLEC 170 APPLICANT: Robson PARTIES : RESPONDENT: Tweed Council FILE NUMBER(S) : 10581 of 1999 CORAM: Bignold J KEY ISSUES: Question of Law :- Whether proposed development permissible under LEP. Meaning of savings provision. Meaning of adjoining or contiguous. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: DATES OF HEARING: 08/05/00 DATE OF JUDGMENT: 08/04/2000

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