Land and Environment Court of New South Wales CITATION : Robson v Tweed Council [2000] NSWLEC 170 APPLICANT: Robson PARTIES : RESPONDENT: Tweed Council FILE NUMBER(S) : 10581 of 1999 CORAM: Bignold J KEY ISSUES: Question of Law :- Whether proposed development permissible under LEP. Meaning of savings provision. Meaning of adjoining or contiguous. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: DATES OF HEARING: 08/05/00 DATE OF JUDGMENT: 08/04/2000 APPLICANT: Mr O Hughes, Solicitor SOLICITORS Trevor Beazley & Assoc LEGAL REPRESENTATIVES: RESPONDENT: Mr J Webster, Barrister SOLICITORS Halliday and Stainlay JUDGMENT: IN THE LAND AND Matter No . 10581 of 1999 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 4 August 2000 S W AND J M ROBSON Applicant v TWEED SHIRE COUNCIL Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. The Council has raised for preliminary determination in pending class 1 proceedings the question whether the proposed development, being the erection of a dwelling-house, is prohibited by Tweed Local Environmental Plan 2000 (the LEP). 2. The question was originally framed by reference to the then applicable environmental planning instrument (Tweed Local Environmental Plan 1987). 3. However, that instrument was repealed by the LEP which came into force on 7 April 2000. Hence, the same question has been reframed to refer to the LEP and the case has been conducted on the basis that the LEP is the current governing instrument. 4. The pending proceedings involve an appeal pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act) s 97 against the Council's determination refusing development consent to the Applicant's development application to erect a dwelling-house on land known as lot 1 Deposited Plan 391120, having an area of 3,370 m2 fronting Burringbar Road, Burringbar (the appeal site). The proposed dwelling-house would be created by the conversion and adaptation of an existing shed building erected on the appeal site. 5. In its Notice of Determination refusing development consent, the Council stated six reasons for its decision, the first of which was: 1. The subject lot does not enjoy a dwelling entitlement in accordance with the provisions of cl 25(4) of the Tweed Local Environmental Plan 1987. 6. Clause 25(4) was in the following terms: Nothing in this clause prevents a person from erecting a dwelling-house on an allotment of land lawfully created, or the creation of which was lawfully consented to by the council, before the appointed day and upon which a dwelling-house could lawfully have been erected immediately prior to the appointed day. 7. This provision is substantially re-enacted by cl 57 of the LEP which provides as follows: Protection of existing dwelling entitlement Nothing in this plan prevents a person, with development consent, from erecting a dwelling house on an allotment lawfully created, or the creation of which was lawfully consented to, before the appointed day and on which a dwelling house could lawfully have been erected immediately prior to the appointed day. 8. Both the repealed clause and cl 57 of the LEP refer to the " appointed day "—a term employed by both planning instruments to signify the day upon which each instrument came into force. Thus, the " appointed day " for the purpose of cl 25(4) of the repealed instrument was 29 January 1988 and the " appointed day " for the purposes of cl 57 of the LEP is 7 April 2000 . 9. It is common ground that cl 57 of the LEP provides the only possible basis for the permissibility of the proposed development because in terms of cl 11 of the LEP, which controls development in the various zones created by the LEP, within zone No 1(a) Rural (the zoning of the appeal site), "dwelling-houses" are declared to be prohibited development except for "dwelling-houses if each is on an allotment of at least 40 hectares or on an allotment referred to in cl 57". 10. By way of background fact, I would note that the Applicant's present development application is materially the same as an earlier development application which had been refused by the Council on 11 May 1995 in respect of which determination the Applicant had unsuccessfully appealed to this Court. In his judgment delivered on 22 October 1996 in proceedings No 10247 of 1996, Assessor Roseth, dismissed the appeal and refused development consent. In that case, the Assessor adopted the Council's argument that the appeal site did not have any relevant "dwelling entitlement" because it was not itself a separate parcel of land, but was part of a larger parcel of land upon which a dwelling-house was already in existence. 11. In making the present development application, the Solicitors for the Applicant had acknowledged the earlier decision of Assessor Roseth but had stated that in those earlier proceedings, the Applicant had not had the benefit of legal advice, which was now to the effect that the proposed dwelling-house development was a permissible form of development because of the express provisions of the Tweed Local Environmental Plan 1987, cl 25(4). 12. The competing cases raise for determination the true construction of cl 57 of the LEP. 13. If the Applicant's suggested interpretation is adopted, there will be no need to have recourse to the series of planning instruments that have been in force prior to the LEP. (These continuously extend back to 1964.) If however, the Council's suggested interpretation is adopted, that recourse will be necessary. B. THE RELEVANT FACTS 14. According to the Agreed Statement of Facts (Exhibit B), a copy of which is annexed hereto, the following most material facts can be distilled: 1. The appeal site is included within Zone No 1(a) Rural under the LEP. 2. In the planning instruments that were in force prior to the commencement of the LEP, the appeal site has been included within the Non-Urban A Zone. Tracing those instruments backwards, they are as follows: (i) Tweed Local Environmental Plan 1987 (the 1987 LEP) that was in force from 29 January 1988 to 7 April 2000. (ii) Interim Development Order No 2 - Tweed (IDO No 2), which was in force 30 September 1966 to 29 January 1988; and (iii) Interim Development Order No 1 - Shire of Tweed (IDO No 1) which was in force from 29 May 1964 to 30 September 1966. 3. The planning controls on the erection of a dwelling-house on the appeal site (qua land within the Non-Urban Zone) that have been in force under the succeeding planning regime can be summarised as follows: (a) The 1987 LEP (i) cl 25(3) prohibited the erection of a dwelling-house unless the allotment had an area of not less than 40 ha. (ii) However that general control was subject to cl 25(4) that I have earlier recited. (b) IDO No 2 (i) cl 12(1) prohibited the erection of a dwelling-house unless the parcel of land complied with one of the several criteria stated. The only possible relevant criterion in the present case is the following: (d) comprises an allotment lawfully created and upon which a dwelling-house could have been erected prior to the appointed day, which allotment could have been created in accordance with the provisions of clause 11 if those provisions were in force at the time such allotment was created; or (ii) The only relevance of the reference to cl 11 is to subclause (3) which relevantly provided: Subject to subclause 5 an allotment of land having an area of not less than 1000 square metres may be created in a subdivision of land within Zone No. 1 (a) or 1 (b) where the Council is satisfied that such allotment is required for the erection of a dwelling-house for actual occupation by - (a) the owners of the land contained in such allotment; (b) a relative of such owner; or (c) a person employed or engaged by such owner in the use of land of the owner adjoining or adjacent to such allotment, for the purpose of agriculture. (iii) Clause 16(1) empowered the Council to approve the erection of a dwelling-house upon land that the Shire Clerk certified to be " an existing parcel " and " upon which there is erected no other dwelling-house ". Clause 16(3) defined " existing parcel " as meaning " the total of all adjoining or adjacent land held in the same ownership at 29 May 1964 ". (c) IDO No 1 (i) Cl 3(2) empowered the Council to consent to the erection of a " country dwelling " which was defined by cl 2(1) as follows: Country dwelling means a dwelling-house occupied in conjunction with the land within Zone No. 1 (a) or 1 (b) such land having an area of not less than twenty-five acres or such lesser area as may be determined under subclause (2) and (3) of clause 11 of this Order on which there are no other buildings or on which the only other buildings are rural dwellings or buildings ordinarily incidental to the use and enjoyment of a country dwelling or to the use of the land for agriculture. (iii) The only relevance of the reference to cl 11(2) and (3) is to subclause (3) which empowered the Council to approve of a subdivision excising a small allotment (not less than 1/4 acre and not more than 1 acre) from an " existing parcel " of 25 acres or more, subclause (5) defining " parcel " as meaning all contiguous lots, portions or areas of land held in the same ownership at the date of coming into force of this Order (That relevant date was 29 May 1964 ). (iv) Clause 15(1) empowered the Council to approve of the erection of a dwelling-house in a similar manner to the counterpart empowering cl 16 in IDO No 2, subclause (3) defining ' parcel " in the same terms as that term was defined in cl 11(5) of IDO No 1. 4. The appeal site came into existence as a separate lot on 25 November 1955. 5. The appeal site comprises an area of 3,370 m2. 6. At all material times from November 1955 to April 1993, the appeal site was held in the same ownership as neighbouring lands (which were collectively known as Part Portion 37, Parish of Mooball and part Portion 188, Parrish of Billinudgee, comprising an aggregated area of some 290 acres ) until 21 February 1989 when the appeal site became separately known as lot 1 Deposited Plan 391120. The appeal site is separated from the neighbouring lands by Burringbar Creek. C. THE COMPETING CASES 15. The Council's argument in support of its contention that the proposed development was prohibited by the LEP proceeds along the following lines. 1. Clause 57 of the LEP provides the only source of possible permissibility of the proposed development. 2. Properly construed, cl 57 applies to appeal site, being "an allotment lawfully created before the appointed day" only if "a dwelling-house could lawfully have been erected (upon it) immediately prior to the appointed day" 3. A dwelling-house could not lawfully have been erected on the appeal site immediately prior to the appointed day because at all material times relevant to the succession of planning controls on the erection of a dwelling-house on the appeal site, the appeal site (i) either lacked the requisite minimum area prescribed for such development or (ii) did not itself constitute a separate "existing parcel" of land because it was held in the same ownership as other neighbouring lands upon which there already existed a dwelling-house and therefore the appeal site only formed part of an "existing parcel". 16. The Applicant's competing argument proceeded along the following lines: 1. Properly construed, cl 57 applies, inter alia, to any "lawfully created allotment". 2. In the alternative, if the proper interpretation of cl 57 was that the condition concerning the question whether "a dwelling-house could lawfully have been erected" etc applied to the appeal site (as a lawfully created allotment) that condition was satisfied in the present case because either (i) a dwelling-house could have been erected on the appeal site pursuant to cl 12(1)(d) of IDO No 2 or (ii) the appeal site was itself a separate parcel of land for the purposes of cl 16 of IDO No 2 or cl 15 of IDO No 1 because it was physically entirely separated from the relevant neighbouring lands by a substantial creek. 3. In construing the savings provision contained in cl 57 of the LEP, the Court should adopt a liberal construction so as to preserve existing or vested entitlements. D. ADJUDICATION AND CONCLUSIONS 17. In my judgment, cl 57 of the LEP, properly construed, does not apply to any "allotment lawfully created" simpliciter. 18. The express condition concerning whether "a dwelling-house could lawfully have been erected" applies to such an allotment in the same manner that it applies to an allotment the "creation of which was lawfully consented to". 19. This is the plain meaning of the clause and accords with ordinary principles of syntax and statutory interpretation. 20. In this respect, I accept the Council's suggested interpretation of cl 57 of the LEP in preference to the Applicant's competing interpretation. 21. However, in my opinion, the Applicant has satisfied the express condition concerning the question whether a dwelling-house could lawfully have been erected on the appeal site immediately prior to the appointed day. 22. That entitlement, in my opinion, flows from cl 12(1)(d) of IDO No 2, understood in the light of cl 11(3) of the IDO. 23. The notional operation of cl 11(3) is, in my judgment, crucial to this conclusion. What it does is to effectively deem the appeal site to be an allotment created pursuant to cl 11(3) of the IDO. A dwelling-house may be erected upon such an allotment. 24. If I were wrong in that conclusion, I have not been satisfied that the appeal site forms part only of the larger existing parcel. This is because of the fact of its entire physical separation from the other lands by the substantial creek. Whether that fact is sufficient to justify a finding that the appeal site is not "adjoining" or "contiguous" with those other lands is ultimately a question of fact. The evidence on the issue is far from satisfactory but as it stands, I am not persuaded that the appeal site is relevantly "adjoining" or "contiguous" and it is the Council that carries the onus of establishing that it is relevantly adjoining or contiguous. 25. For these reasons, I would conclude that the proposed development is permissible development in terms of cl 57 of the LEP. 26. Accordingly, I would answer the question raised by the Council in the negative. ANNEXURE (4 pages) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.