Rogan v Pittwater Council

In the present case, the Applicant's argument is principally founded on the Court of Appeal's decision in Bell.

The Council's competing argument is principally founded upon the fact that in Healesville Holdings Pty Ltd v Pittwater Council (1997) 97LGERA 95, the Court of Appeal expressly reserved the question of the correctness of the Council's concession made in that case that cl 12(2) of the LEP relevantly provided a "development standard".

In my judgment, the Applicant's argument is founded upon a far surer foundation (the Court of Appeal's decision in Bell) than is the Council's argument which is founded upon the Court of Appeal's expressed reservation of the question in Healesville. My reasons for so concluding are the same as those expressed in my judgment in Fencott Drive in the following passages at par 65 and par 66:

As I would respectfully understand the relevant decisions of the Court of Appeal, I am of the opinion that what I have said is entirely supported by the decision of the Court of Appeal in Bell v Shellharbour Municipal Council (1993) 78LGERA 429. In my respectful opinion, it is that decision (which is the latest decision of that Court which has fully considered the question of what provisions of an environmental planning instrument are development standards) that provides the most definitive guidance as to how the task of construction is to be undertaken in the present context.

That decision, although not referred to in the later Court of Appeal decisions in Healesville Holdings Pty Ltd v Pittwater Council (1997) 97LGERA 95 and in Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94, is consistent with the concession made by the Council in Healesville (where the Court considered it unnecessary to decide whether the concession was well founded) and is entirely consistent with the decision in Fast Buck$ (which is the most recent occasion that the Court of Appeal has considered the operation of SEPP No 1, but without directly addressing the question whether a development standard was involved, that fact simply being assumed.)

Immediately following those passages, I referred to my detailed analysis of Bell in Bowen v Willoughby Council [2000] NSWLEC 69, which analysis includes the following reference to Healesville:

Although the later decision of the Court of Appeal in Healesville appears to have adopted a more cautious approach as to whether a very similar statutory provision (albeit in an urban setting) operated as a development standard (inasmuch as Priestley JA who gave the leading judgment considered it unnecessary to consider whether the concession that a development standard was involved, was well founded) the Court's attention does not appear to have been directed to the decision in Bell . Rather, the argument directed attention to the earlier decisions in Vaniga and P D Mayoh .

However, in the still later decision of the Court of Appeal in Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 where the relevant statutory provisions and relevant facts were not materially different from those in Bell, the Court of Appeal proceeded on the basis that the statutory provision was relevantly a development standard amenable to the dispensational power conferred by SEPP No 1.

In my opinion, and generally for the reasons more fully elaborated in Fencott Drive , cl 12(2) of the LEP, upon its proper construction, relevantly is a " development standard ".

Accordingly, I would determine the Applicant's question of law in the affirmative.

For completeness, I should say that in considering the competing arguments on the question whether cl 12(2) of the LEP is, relevantly a "development standard", I am of the opinion that cl 12 clearly applies to the appeal site, being land within the Non-Urban 1(a) Zone.

In so concluding, I would reject the Council's interpretation of cl 13 of the LEP that it provides the sole source of power available under the LEP to grant consent to the subdivision of allotments of land to which cl 13 is expressed to apply.

In advancing that argument, the Council has placed considerable reliance upon the opening words of cl 13(2) "Notwithstanding any other provision of this plan". However, those words, do not, in my respectful opinion, have the limiting operation that the Council's argument contends for. This is because, to adopt the words of Lord Fraser of Tullybelton in the House of Lord's decision in Marren v Ingles (1980) 1 WLR 983 at 989:

The ordinary meaning of the word notwithstanding according to the Shorter Oxford English Dictionary is despite . in spite of. One might perhaps suggest also whether or not . It is a word of extension not of limitation .

Although the precise effect of the expression " Notwithstanding any other provision " in a given case can present interpretive difficulty (see Perrett v Robinson (1981) 169 CLR 172), in the present case, it is tolerably clear that the purpose and effect of cl 13 is to enable specified land to be subdivided in a form and manner that may not otherwise be permitted in terms of the LEP.

For the foregoing reasons, I would answer the question of law raised by the Council in the negative and the question of law raised by the Applicant in the affirmative.

Accordingly, I order that the questions of law be determined as follows:

Question 1 Is the proposed development prohibited by cl 13 of the LEP? Answer No

Question 2 Is cl 12(2) of the LEP a development standard? Answer Yes

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31. For the foregoing reasons, I would answer the question of law raised by the Council in the negative and the question of law raised by the Applicant in the affirmative.

32. Accordingly, I order that the questions of law be determined as follows:

Is the proposed development prohibited by cl 13 of the LEP?