HEALESVILLE HOLDINGS PTY LTD v PITTWATER COUNCIL [1997] NSWCA 142

HEALESVILLE HOLDINGS PTY LTD v PITTWATER COUNCIL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, POWELL and STEIN JJA 17 November 1997, 27 November 1997

[1997] NSWCA 142

CONSTRUCTION OF LOCAL ENVIRONMENT PLAN — The appellant commenced class 1 proceedings in the Land and Environment Court appealing against a decision of the respondent to refuse the appellant's application for development consent to a subdivision of land at Ingleside. The appellant had made the development application for subdivision with a view to erecting dwelling houses on fourteen one hectare lots. During the hearing of the appeal, a question arose as to whether it would in fact be permissible to erect dwelling houses on one hectare lots. By agreement between the parties, the appellant was given leave to serve a class four application seeking a declaration that it would be permissible, under cl17(2) of the Pittwater Local Environment Plan 1993 (the LEP), to erect dwelling houses on the one hectare lots without council permission. Talbot J dismissed the class 4 application.

On appeal

The appellant submitted:

1. The five paragraphs of cl17(2) of the LEP are alternatives to and independent of each other ("the disjunctive submission"), and the appellant was entitled to the declaration as its land fell within either para(1) or para(d) or para(e) of cl17(2); or alternatively;

2. If the development application for subdivision were successful then the allotments so created would have been "created by a subdivision... not prohibited under cl12" within the meaning of cl17(2)(a).

Held:

1. When the whole statutory context is considered, Talbot J's rejection of the disjunctive submission was correct and the meaning of cl17(2) is that accepted by him.

1. Although the appellant might obtain the desired subdivision by virtue of the overriding capacity of State Environment Planning Policy No 1, the possibility of that result did not alter the position that the words of cll2 were clear words within the meaning of cl17(2)(a).