Watling & Anor v Ku-ring-gai Municipal Council

An agreed statement of facts has been filed and from that statement I derive the following facts.

The property at 6A Tanderra Place, Curl Curl was subdivided under State Environmental Planning Policy No 25 ("SEPP 25"). Lot 2 in DP 855154 was created. That lot has an area of 401.4 square metres which was less than the minimum area which was required for subdivision under the relevant local environmental plan (the Warringah Local Environmental Plan 1985). The application for subdivision under SEPP 25 was granted, Lot 2 was created and it has been registered. At the same time as subdivision approval was granted, the council granted consent for a detached dual occupancy dwelling. What the applicant now seeks to do is to construct a dwelling on Lot 2 (which is currently vacant land) but not in accordance with the development consent which was granted initially by the council in 1994 for the attached dual occupancy. The applicant simply wants to erect a dwelling on Lot 2.

The property is presently zoned residential 2(a) under the relevant local environmental plan ("the LEP"). The zoning table to land zoned residential 2(a) in the LEP provides that dwelling-houses are permitted without development consent.

Clause 15 of the LEP provides, relevantly, that a person shall not erect a dwelling house on an allotment of land within zone 2(a) unless that allotment was lawfully created. The allotment here, Lot 2 in DP 855154, is, so Mr Hones (who appears for the applicant) contends, an allotment lawfully created. Accordingly, the construction of a dwelling-house on Lot 2 does not require development consent and the applicant is only required, as the applicant concedes, to obtain building approval.

The argument put by Mr McEwen, for the council, depends upon s 34(4) of the Environmental Planning and Assessment Act 1979, which provides as follows: "34(4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect:

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument; or (c) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation or liability, and any such investigation, legal proceedings or remedy may be instituted, continued and enforced as if the amendment, alteration, variation or repeal had not occurred."

Mr McEwen submitted that SEPP 25 survives for the purpose of the erection of a dwelling on Lot 2, because SEPP 25 casts upon the applicant in this case an obligation to obtain development consent. That obligation is to be found in pt 4 of SEPP 25, the relevant provisions of which are as follows. "21 This Part applies to land that has been subdivided in accordance with Part 3."

"23 (1) A person may, but only with the consent of the Council, carry out development (other than subdivision) for the purposes of a dwelling or dwelling-house on land to which this Part applies.

(2) The requirement for consent in subclause (1) applies despite any other environmental planning instrument. (3) In determining whether to grant consent to development referred to in subclause (1), the Council must consider the proposed development having regard to the matters referred to in clause 16 as if that development were development to which that clause applies."

Clause 16 contains various matters which a consent authority is required to consider in relation to the grant of consent to dual occupancy development in accordance with an environmental planning instrument or granting consent to development that is subdivision in accordance with pt 3 of SEPP 25.

Mr McEwen's argument is that Lot 2 has been subdivided in accordance with pt 3 of SEPP 25. Clause 11, which appears in pt 3, provides as follows: "11 Where under an environmental planning instrument dual occupancy development is permissible with or without the consent of the Council, a person may with the consent of that Council subdivide the dual occupancy development (including any land on which that development is or is to be erected).

In Mr McEwen's submission, these provisions, that is, for subdivision and for the erection of a dwelling on land subdivided in accordance with pt 3, are interconnected. They are interconnected, in his submission, for a good planning reason. SEPP 25 was an instrument designed to promote a policy of urban consolidation. It permitted the erection of dual occupancy dwellings on land that was less than the minimum size for subdivision and it did so in order to consolidate urban dwellings and take the benefit of existing infrastructure. In doing so it interlinked pt 3 and pt 4. It interlinked subdivision for dual occupancy and development of land which has been subdivided in accordance with pt 3. Therefore, it cast an obligation upon a person, the owner of land subdivided in accordance with pt 3, to obtain the consent of the council to carry out development for the purpose of a dwelling-house or dwelling. That is reinforced by cl 23(2) which refers to subs (1) as "a requirement for consent".

The contrary argument put by Mr Hones depends on a number of cases, all unreported, considered by other judges of this Court. The proposition is that, once subdivided, the subdivided lot is a separate lot and is not a dual occupancy and the provisions of SEPP 25 do not apply. According to this argument, those provisions do not apply despite the provisions of s 34(4) of the EP&A Act.

That proposition arises firstly from Watling & Anor v Ku-ring-gai Municipal Council (Bannon J, 6 November 1996, unreported). That was a case in which, on the face of it, there were similar facts to those in this case. There had been approval for a detached dual occupancy and approval for subdivision and the subdivision occurred. Two lots were created, Lot 1 and Lot 2. The approval for dual occupancy contemplated that there would be two single storey houses on each lot. Lot 2 was developed and a house was built. The owners of Lot 1 then wanted to develop it but instead of a single storey house they wanted to put a two storey detached residence on Lot 1.

However, the question in Watling v Ku-ring-gai was not the same as the question in this case, because it was not in issue in that case that a development consent was required. What was in issue was whether development could be granted for a two storey house instead of a single storey house, there being that requirement in the original consent where the dual occupancy was granted. His Honour took the view that, once the subdivision had occurred, there were separate titles and owners of the separate titles would be able to deal with their land in the future like owners of any other allotment of land. He thought that although the consent was for both lots, there was development consent combined for both dual occupancy and subdivision. His Honour thought that the subdivision consent was severable.

I do not find Watling v Ku-ring-gai to be of much assistance in this case because it dealt with a different question. The question there was whether the original dual occupancy approval was still binding so as to require a development in accordance with it. That is not the question here.

However, in Angelica Ting v Willoughby City Council (Bignold J, 13 November 1996, unreported), Bignold J at p 4 said: "… [t]he proposed development also involves the subdivision of the subject land into two lots in similar fashion to the approved subdivision granted at the same time as the dual occupancy development consent was granted but which has not yet been completed by registration of the plan of subdivision. This aspect of the development proposal means that once the subdivision has been effected, the resulting development on the subject land of two dwellings, with each erected on a separate allotment will not comprise "dual occupancy" as that term is defined by the LEP."

The question in that case was whether the demolition of the existing dwelling on one of the subdivided lots and the replacement by a new dwelling was prohibited by the provisions of the relevant local environment plan which prohibited dual occupancy development. His Honour held that this was not dual occupancy development, it was development on a separate allotment, separate from the dwelling on the other allotment which was authorised by the existing dual occupancy development consent.

That case was followed by Talbot J in the matter of Doyle v Sutherland Shire Council (12 February 1997, unreported) where his Honour held that a dual occupancy necessarily involved there being a proposed development of two dwellings on the one allotment. Notwithstanding that the houses were erected originally pursuant to a dual occupancy consent, it does not necessarily follow after subdivision that the subdivision remains a dual occupancy. This was an application for alterations to a house which had been built on an allotment approved at the time of approval of a dual occupancy development. These cases are put to me as authority for the proposition that, once subdivision has been approved, there are separate lots and those separate lots can be developed in accordance with whatever provisions of the local environment plan then apply.

Each of the cases refers to a situation where the question being asked for the Court to determine was related to the development remaining as a dual occupancy after subdivision. The Court was not prepared to hold in any of those cases that the development remained a dual occupancy.

The difficulty with the case that is before me is that the subdivision is one that was created pursuant to pt 3 of SEPP 25. The question for determination by this Court is not whether the dwelling which is to be erected upon Lot 2 is a dual occupancy dwelling, rather it is whether the council is required to grant consent to that dwelling in accordance with cl 23 of pt 4 of SEPP 25.

I have concluded that consent is required. I have concluded that, where there was a subdivision under pt 3 of SEPP 25, the carrying out of development on that subdivision for the purposes of a dwelling or dwelling-house may only be carried out with the consent of the council in accordance with cl 23 of pt 4 of SEPP 25. That obligation - and I regard it as an obligation - is an obligation which accrued under SEPP 25 and it is an obligation which subsists, in accordance with s 34(4), despite the repeal of SEPP 25.

I do not think that that conclusion is disturbed by the reference in the last part of s 34(4) to "any such investigation, legal proceedings or remedy may be instituted, continued and enforced as if the amendment, alteration, variation or repeal had not occurred". What subs (4) provides is that an obligation accrues and any remedy in respect of any such obligation may be enforced as if the repeal had not occurred. That is the case here.

What the council is seeking to do is to enforce an obligation which accrued under SEPP 25 requiring development consent for the development on land subdivided in accordance with Pt 3 of SEPP 25 for the purposes of a dwelling-house.

Accordingly I think that a question of law must be answered in the following way: "Yes, development consent is required for the construction of a new dwelling house on Lot 2, DP 855154, 6A Tanderra Place, Curl Curl".

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 6 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

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