Junn v Willoughby City Council [2020] NSWLEC 1459

Land and Environment Court New South Wales

Medium Neutral Citation: Junn v Willoughby City Council [2020] NSWLEC 1459 Hearing dates: 28 August 2020 Date of orders: 28 September 2020 Decision date: 28 September 2020 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court makes the following orders: 1. The appeal is dismissed. 2. Development Application for the strata subdivision of an existing dual occupancy development (the Proposed Development) at the property at 15A Hart Street, Lane Cove North Lot 2 in DP 605537 is refused. 3. Exhibits to be returned to the parties, except Exhibits A, B and 1. Catchwords: DEVELOPMENT APPEAL – subdivision – dual occupancy - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Strata Schemes Development Act 2015 Willoughby Local Environmental Plan 2012 Cases Cited: DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358 DM & Longbow Pty Ltd v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173 Category: Principal judgment Parties: Donald Junn (Applicant) Willoughby City Council (Respondent) Representation: Counsel: F Berglund (Applicant) P Vergotis (Solicitor) (Respondent)

Solicitors: Dixon Holmes Lawyers (Applicant) McCabe Curwood (Respondent) File Number(s): 2020/142239 Publication restriction: No

Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a development application DA-2020/60 seeking development consent for strata subdivision of an existing dual occupancy development (the Proposed Development) at the property at 15A Hart Street, Lane Cove North Lot 2 in DP 605537 (the Site). 2. A description of the Site including the zoning is relevant to the issues in dispute in these proceedings. The Statement of Facts and Contentions (SOFAC) filed 9 July 2020 (Exhibit 1) provides the following succinct description of the Proposal Development and the Site: "[2] The [S]ite is proposed to be split into two strata lots, proposed lot 1 with an area of 506m2 and proposed lot 2 with an area of 329m2. Each lot will include one Level of the existing two-level dual occupancy. [3] No physical works are proposed in the Proposed Development. [4] The subject site is a battle-axe block located on the northern side of Hart Street, Lane Cove North. […] [8] The subject site contains a two-storey attached dual occupancy, an in-ground swimming pool, hard stand car park (with cabana), and outdoor terrace areas. […] [11] On 11 October 2019 an Occupation Certificate was issued in respect to the dual occupancy conversion. […] [13] The site is located within the E4 Environmental Living zone under the Willoughby Local Environmental Plan 2012 (WLEP 2012)." 1. The Respondent Council raised 3 contentions in the SOFAC of which only the first contention remains in dispute and relevant to these proceedings, namely, that the application should be refused because it does not comply with cl 4.1C of the Willoughby Local Environmental Plan 2012 (WLEP) and the Respondent provides the following two reasons: 1. Firstly, the proposed strata lots will be less than the minimum lot size (cl4.1C(1B)); and 2. Secondly, it has not been at least 5 years since the Occupation Certificate was issued for the dual occupancy (cl 4.1C(1)(e)). 1. The issue to be determined in these proceedings is fundamentally a jurisdictional prerequisite and the court is tasked with considering the legal arguments submitted by the parties regarding the argument about the Court's power being limited by the application of cl 4.1C of WLEP in circumstances where cl 4.1C(1A) of WLEP provides that "consent must not be granted to the subdivision of a lot on which there is a dual occupancy except in accordance with cl 4.1C". 2. The parties referred to the judgments of DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358 (DM & Longbow) heard by Commissioner Dixon (as she then was) and the subsequent s 56A appeal DM & Longbow Pty Ltd v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173 (DM & Longbow Appeal) heard by Preston CJ, which approved the development of a dual occupancy on the Site but dismissed the appeal directed to the subdivision of the Site. It is common ground between the parties that: 1. Commissioner Dixon (as she then was) considered whether cl 4.1 of WLEP permitted strata subdivision and she held that subdivision was not permissible; 2. the DM & Longbow Appeal did not find against the Commissioner; and 3. cl 4.1 and 4.1C of WLEP 2012 have since been amended. 1. The parties prepared and filed written submissions. Below is a table compiled by the Respondent and adopted by the Applicant in submissions. The table is useful to compare the differences between the former provisions and the current provisions: Former WLEP provisions Current WLEP provisions (commenced 20 April 2018) 4.1 Minimum subdivision lot size … (4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme. 4.1 Minimum subdivision lot size … (4) This clause does not apply in relation to the subdivision of any land— (a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or (b) by any kind of subdivision under the Community Land Development Act 1989. 4.1C Minimum subdivision lot size for dual occupancies (1A) Despite any other provision of this Plan, development consent must not be granted to the subdivision of a lot on which there is a dual occupancy except in accordance with this clause. 4.1C Minimum subdivision lot size for dual occupancies (1) … (2) To avoid doubt, this clause does not affect the right to subdivide a dual occupancy under clause 4.1. (1B) Development consent may be granted to the subdivision of a lot on which there is a dual occupancy if the size of any lot resulting from the subdivision is not to be less than the minimum size shown on the Lot Size Map in relation to that lot. (1) … (2) (Repealed)