Wollongong City Council v Vic Vellar Nominees Pty Limited - [2010] NSWLEC 266 - NSWLEC 1992 case summary — Zoe

NSWNSWLEC

Wollongong City Council v Vic Vellar Nominees Pty Limited

[2010] NSWLEC 266

Land and Environment Court (NSW)|1992-06-18|Before: Biscoe J, Mr J, Commission J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1992-06-18

Before

Biscoe J, Mr J, Commission J

Source

Original judgment source is linked above.

Judgment (93 paragraphs)

[1]

INTRODUCTION 1 HIS HONOUR: The separate and preliminary questions before the Court for determination relate to the construction of the term "existing dwelling-house" in cl 13(2)(a) of the Wollongong Local Environmental Plan 1990 (WLEP) and whether each of two partially constructed dwellings is an "existing dwelling-house".

[2]

2 The parties are Vic Vellar Nominees Pty Limited (Vic Vellar) and Wollongong City Council. Prior to 1994 land owned by Vic Vellar being Lot 2 in DP 590080 on the eastern edge of the Illawarra Escarpment at Corrimal (the Land), was zoned 7(b), in which dwelling-houses were permitted with development consent. In 1993-94 the following events occurred. The Land was rezoned 7(a) in which dwelling-houses were prohibited, except for two relatively small, unconnected, semicircular areas on the eastern boundary which remained zoned 7(b). The WLEP was amended to permit two dwelling-houses on those 7(b) areas subject to transfer of most of the Land to the Council. The Land was subdivided into Lot 21 - in which the two 7(b) areas were located - and Lot 22 in DP 838638. Lot 22 was transferred to the Council pursuant to an agreement between the parties. The Council granted development consent (Consent) for subdivision of the Land into two lots. The Council granted building approval for the construction of two dwellings on Lot 21 (BA). Between about 1996 and 1999 the two dwellings were partly constructed on Lot 21.

[76]

79 An analogy is also provided by cases decided under s 95(4) of the EPA Act or equivalent earlier provisions which provided that development consent does not lapse if specified work commences before the date on which the consent would otherwise lapse. It has been held that the relevant work must be lawful: Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 at 135; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243 at [66], [97]; Green v Kogarah Municipal Council [1999] NSWLEC 256 at [32]; Green v Kogarah Municipal Council [2001] NSWCA 123, 115 LGERA 231 at [66] - [67]; Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125, 116 LGERA 158 at [38] - [59]; Besmaw Pty Ltd v Sutherland Shire Council [2003] NSWLEC 181, 127 LGERA 413 at [159] - [163]; Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404, 133 LGERA 1 at [44] - [46]. 80 Vic Vellar relies for the contrary conclusion on Wyong Shire Council v Ardi Pty Ltd [2000] NSWLEC 253, 112 LGERA 85. The issue in that case was whether a building was used as a "residential flat building" (a prohibited use), which was defined in the relevant local environmental plan as a building containing three or more dwellings. The issue turned upon the proper construction of the definition of "dwelling", which was relevantly identical with the WLEP definition of "dwelling" set out at [27] above. Ardi submitted that the upstairs section of each unit in the building was not "capable" of being occupied or used as a separate domicile because such use or occupancy would be illegal. Pearlman J did not accept the submission, at [21]: "However I do not accept this submission. It would require the word 'lawfully' to be inserted before the words 'occupied or used' in each place where they occur in the definition of 'dwelling', so that a 'dwelling' would be described by the definition only if the occupation or use of the room or number of rooms as a separate domicile was a lawful occupation or use. No such insertion is required in order to elicit the proper construction of the definition. The type of occupation or use which the definition of 'dwelling' contemplates is one which is 'as a separate domicile'. The definition qualifies 'occupation or use' only in that manner. Furthermore, the word 'capable' in the definition governs the words 'constructed or adapted'. For the reasons I have earlier outlined, those words indicate physical layout and they do not indicate any technical legal meaning. Finally, the context militates against the construction which [Ardi] espoused. The task is to construe a definition in an environmental planning instrument. The controls which that planning instrument imposes are not to be found in the definitions of terms used in the instrument; rather they are to be found in the particular clauses which apply depending upon the definition into which a particular development might fall."

[78]

82 The decision in Stephen Bowers may be harmonised with Ardi on the basis that the conclusion in Stephen Bowers was intended to address not the definition (as in Ardi) but the substantive exception provision. 83 Assume, for instance, that no development consent at all had been sought or obtained for an existing dwelling-house which was fully constructed on land to which cl 13(2)(a) applied. The existing dwelling-house would have been unlawfully constructed. Would cl 13(2)(a) nevertheless be satisfied? Vic Vellar's response to this example in argument was that it would be satisfied and that any prohibition of development consent is not to be found by implying a lawfulness requirement into that provision but is to be found in s 80(2) of the EPA Act which provides: " 80 Determination … (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development." 84 I do not accept the submission. It is contrary to the approach of the Court of Appeal in Allen which injected the word "lawfully" into a provision of a state environmental planning policy. Even absent that authority, I do not see why in principle the question of a lawfulness requirement does not arise for consideration at the stage of construing an environmental planning instrument. There is also difficulty in saying that s 80(2) is engaged in the circumstances of the present case where it is not the subdivision of land that would, if carried out, result in the contravention of the Act; rather, it is the assumed existing dwelling-house that is unlawful and in contravention of the Act. If s 80(2) were engaged, as Vic Vellar seems to contend, it is then difficult to see why it would not be fatal to its pending Class 1 appeal against the Council's refusal of its Lot 21 subdivision application.

Parties

Applicant/Plaintiff:

Wollongong City Council

Respondent/Defendant:

Vic Vellar Nominees Pty Limited

Cases Cited (30)

CITATION : Wollongong City Council v Vic Vellar Nominees Pty Limited [2010] NSWLEC 266

Ainsworth v Criminal Justice Commission [1992] HCA 10, 175 CLR 564 Allen v Bega Valley Shire Council (1994) 85 LGERA 364 Besmaw Pty Ltd v Sutherland Shire Council [2003] NSWLEC 181, 127 LGERA 413 Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97, 158 LGERA 67 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 Council of the Shire of Warringah v Jennings Group Ltd, unreported, NSWCA, 18 June 1992 Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404, 133 LGERA 1 Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119 Foster v Sutherland Shire Council [2001] NSWLEC 89, 115 LGERA 130 Green v Kogarah Municipal Council [1999] NSWLEC 256 Green v Kogarah Municipal Council [2001] NSWCA 123, 115 LGERA 231 Holden v Commissioner for Government Transport (1958) 59 SR (NSW) 331 Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Kelly v R [2004] HCA 12, 218 CLR 216 CASES CITED: KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218, 148 LGERA 117 Leichhardt Municipal Council v Mansfield (1985) 57 LGRA 214 Lewin v End [1906] AC 299 Lorimer v Smail (1911) 12 CLR 504 Louinder v Stuckey [1984] 2 NSWLR 354 Matic v Mid-Western Regional Council [2008] NSWLEC 113 MacKenzie v Warringah Council [2002] NSWLEC 246, 124 LGERA 208 Mersey Docks and Harbour Board v Henderson Bros (1888) L.R.13 App. Cas. 595 North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125, 116 LGERA 158 Peter Duffield and Associates Pty Ltd v Canada Bay City Council [2002] NSWLEC 168, 124 LGERA 349 Potter v Minahan (1908) 7 CLR 277 R v Wilson; Ex parte Kisch (1934) 52 CLR 234 Stephen Bowers Architects Pty Ltd v Waverley Council [2003] NSWLEC 16, 125 LGERA 292 TCN Channel Nine Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Townsend v Lake Macquarie City Council [2004] NSWLEC 38 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, 165 LGERA 184 Wilson v State Rail Authority (NSW) [2010] NSWCA 198 Wyong Shire Council v Ardi Pty Ltd [2000] NSWLEC 253, 112 LGERA 85

(1994) 85 LGERA 364

(1996) 186 CLR 389

(1982) 148 CLR 88

(1992) 81 LGERA 132

(1911) 12 CLR 504

(1990) 21 NSWLR 532

(1908) 7 CLR 277

(1934) 52 CLR 234

(1989) 16 NSWLR 130

(1993) 31 NSWLR 562

[2002] NSWCA 404

[2006] NSWLEC 218