Reported Decision : 137 LGERA 221 Land and Environment Court of New South Wales CITATION : Issa v Burwood Council [2004] NSWLEC 431 APPLICANT PARTIES : Paul Issa RESPONDENT Burwood Council FILE NUMBER(S) : 10620 of 2004 CORAM: Pain J KEY ISSUES: Question of Law :- Whether subdivision is prohibited development under LEP because relates to "dual occupancy development" - Meaning of "single allotment of land" LEGISLATION CITED: Burwood Local Environmental Plan No 56 Burwood Planning Scheme Ordinance 1979, cl 4, cl 78Q Demihale v Kuringai Municipal Council 123 LGERA 94; CASES CITED: Kingston v Keprose Pty Limited (1987) 11 NSWLR 404; S & I Investments Pty Limited v Pittwater Municipal Council [1993] NSWLEC 166 DATES OF HEARING: 05/08/2004 DATE OF JUDGMENT: 08/06/2004 APPLICANT Mr A. Maston SC with Mr M. Seymour SOLICITOR Maclarens LEGAL REPRESENTATIVES: RESPONDENT Mr R. Parry SOLICITOR Houston Dearn O'Connor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 5 August 2004 10620 of 2004 PAUL ISSA Applicant BURWOOD COUNCIL Respondent JUDGMENT 1 Her Honour: The Applicant has commenced Class 1 proceedings in relation to a subdivision application to the Council. A separate issue for determination has arisen as follows: Whether the proposed subdivision development application DA273/03 is prohibited development as a consequence of cl 78Q of Burwood Local Environmental Plan No 56. 2 The parties filed a Statement of Agreed Facts, the relevant parts of which state as follows: 1. The subject site is 102 Lucas Road, Burwood which has, at all material times, comprised two Torrens Title lots, namely, Lot 13 in DP67171 (having an area of 1043.32 square metres), and Lot 1 in DP953100 (having an area of 206.5 square metres). 2. The subject site is zoned Residential 2(a) pursuant to Burwood Planning Scheme Ordinance 1979 (BPSO). 3. On 4 March 2002 Steve Issa lodged Development Application number 59/2002 with the Burwood Council seeking development approval for: "1. Restoration to existing cottage at 102 Lucas Road, Burwood and adding a garage. 2. Proposed construction of dual occupancy consisting of three bedroom house plus attic studio and garage." 4. A dual occupancy development is permissible with consent in the Residential 2(a) zone under the BPSO. 5. Dual occupancy development is defined in clause 4 of the BPSO to mean: "development that results in two dwellings (whether attached or detached) on a single allotment of land". 6. On 17 May 2002 BLEP No. 56 ("BLEP 56") [was gazetted]. One of the stated aims of BLEP 56 is: "to prohibit subdivision (including strata subdivision) of land within the Residential 2(a) zone that contains dual occupancy dwellings" (clause 2(b)). 7. By clause 4 and Schedule 1[2], BLEP 56 inserted the following clause into the BPSO: 78Q Subdivision of Dual Occupancy Development Consent must not be granted for a subdivision (including a strata subdivision) of an allotment within zone 2(a) that creates separate allotments for each of the two dwellings resulting from a dual occupancy development". 8. On 20 December 2002 Council granted development approval to DA 59/2002 for "alterations to an existing dwelling and erection of a second dwelling with attic at the rear to create a dual occupancy at above property and new double garage". 9. The approved plans showed the proposed "dual occupancy house" as straddling the internal property boundary with slightly less than half of the house and the whole of its detached carport being within Lot 13 in DP67171. … 11. On 19 September 2003 the Applicant lodged Development Application 273/03 with the Council seeking consent for "subdivision of land to two lots" in relation to the subject site. 12. Proposed Lot 1 would contain the original dwelling house and half of the detached garage structure and would have an area of 661.8 square metres with a frontage to Lucas Road of 15.07 metres. Proposed Lot 2 being a hatchet shaped allotment would have an area of 592.1 square metres being irregular in shape including an access corridor of 2 metres with a further 0.9 metre wide easement for the tight of carriageway and easement for services for the rear allotment. 3 I note that the relevant planning instrument in relation to the question of law is in fact the Burwood Planning Scheme Ordinance ("the BPSO") which Burwood LEP 56 amends. Applicant's submissions 4 The Applicant argued that development consent DA59/02 was not for a "dual occupancy development" as defined in the BPSO. The Council approved two dwellings on two allotments of land, one of which partly encroached onto the larger Lot 13. DA59/02 was not therefore approved in relation to "a single allotment" as the definition of "dual occupancy development" requires. Consequently, the Applicant argued that cl 78Q cannot apply because there is no "dual occupancy development" the subject of his current development application, DA273/03. 5 The Applicant further argued that his current development application for subdivision merely seeks to redraw the boundaries of the two separate lots the subject of the previous DA59/02. It is not subject to cl 78Q because DA259/02 was not a "dual occupancy development" and it is not an application relating to a "single allotment" as it concerns two lots. 6 The Applicant argued that the key issue in these proceedings is what is meant by the definition of "dual occupancy development" in cl 4 of the BPSO which refers to "a single allotment of land". Demihale v Kuringai Municipal Council 123 LGERA 94 and S & I Investments Pty Limited v Pittwater Municipal Council [1993] NSWLEC 166 were relied on by the Applicant to support his contention that the reference to a single allotment must mean an individual lot such as Lot 1 or Lot 13. If this approach is correct then the current application for subdivision is not prohibited. Council's submissions 7 The Council argued that it is necessary to construe the meaning of "allotment" in cl 78Q of the BPSO. This definition does not refer to "a single allotment" as appears in the definition of "dual occupancy development" in cl 4. If a literal approach is taken, the ordinary English meaning of "allotment" as found in the Macquarie Dictionary is "a block of land, a vacant allotment". The Council argued that the Applicant's two lots, Lot 13 and Lot 1, together constitute a block of land which has been developed as a dual occupancy development. In this regard the Council argued that development consent to DA59/02 for the erection of a second dwelling house on the land could only have been granted lawfully under the BPSO if the two Torrens Title lots which formed the land the subject of the development application were together "a single allotment of land" within the meaning of the Planning Scheme Ordinance. In this case the Council argues that the relevant allotment of land is that known as 102 Lucas Road, Burwood. The meaning of allotment argued for by the Council in cl 78Q applies also to the definition of "dual occupancy development" in the definition in cl 4 so that "a single allotment" does not mean a lot identified in a certificate of title. 8 The Council argued that if a purposive construction of "allotment" in cl 78Q and the definition in cl 4 of the BPSO is applied, its interpretation upholds the aims of the BLEP 56. The relevant aim in BLEP 56 is "to prohibit subdivision … of land within the Residential 2(a) Zone that contains dual occupancy dwellings". The Council argued that use of the word "land" confirms that it is the legislative intention that cl 78Q prohibit subdivision in the present circumstances. Accordingly, the Council argued that while the development the subject of the present development application is within two certificates of title, these are to be regarded as being a single entity of land, and that entity is an allotment. Finding 9 This precise issue has apparently not arisen in any other case to date. There is no definition of "allotment" in the BPSO or BLEP 56 or in the wider relevant statutory framework so that the ordinary meaning of the word must be considered in the context in which it appears. In Demihale Pearlman J considered whether an allotment of land existed for the purposes of SEPP 53. Her Honour held at [18] that "allotment" has an ordinary meaning being "an identifiable piece or parcel of land". While the Applicant argued that this case was clear authority that "allotment" must mean a specific single lot, I do not agree that is the main point of the case. The factual circumstances and issue before Pearlman J in Demihale are different to those before me in this case. Demihale concerned whether three lots identified on a plan of subdivision which was yet to be registered each constituted an allotment of land. In the context before her Honour her finding was appropriate but the reasoning followed by her Honour does not necessarily apply here simply because the issue here is different. 10 In S & I Investments Talbot J noted that: In its ordinary sense the word allotment refers to a separate or distinct area of land with a definite identity and which is generally restricted to the ownership or control of a particular person and, in most cases, is confined to the one use or purpose. In the absence of a statutory definition it is not a technical word limited, for example, to an area of land held in a particular configuration, size or locality. In that case his Honour held that the relevant Regional Environmental Plan facilitated the erection of two dwellings on one existing undivided piece of land. That case otherwise dealt with whether there was such an identifiable piece of land or allotment. As the facts in S & I Investments were also different to those before me, I do not consider that it supports the Applicant's case either. 11 I consider that the term "allotment" should be given either its ordinary meaning of "a block of land" or the formulation stated by Talbot J in S & I Investments should apply. Either approach means that in this case Lot 13 and Lot 1 at 102 Lucas Road, Burwood should be regarded as one allotment, not two, for the purposes of cl 78Q. I also consider that applying these meanings means the two lots held in common ownership by the Applicant should be considered as "a single allotment" within the definition of "dual occupancy development" in cl 4 of the BPSO. Accordingly DA259/02 was approved as a "dual occupancy development" under the BPSO. It must also follow that cl 78Q of the BPSO prohibits DA273/03 because this subdivision application concerns land which was the subject of a "dual occupancy development" and is seeking to subdivide land, which is a single allotment, into two separate allotments for each of the two dwellings resulting from the "dual occupancy development" in DA259/02. 12 I also agree with the Council that if a purposive approach is taken, as identified in Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 424 per McHugh JA, so that the aim of BLEP 56 to prohibit subdivision of land in the Residential 2(a) zone containing dual occupancy is upheld, this also supports a conclusion that cl 78Q prohibits DA273/03. 13 The answer to the question of law is that DA273/03 is prohibited development as a consequence of cl 78Q of the Burwood Planning Scheme Ordinance. 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