Ward v Tamworth Regional Council [2008] NSWLEC 1399

Land and Environment Court of New South Wales

CITATION : Ward v Tamworth Regional Council [2008] NSWLEC 1399

APPLICANT Nathan Ward PARTIES : RESPONDENT Tamworth Regional Council

FILE NUMBER(S) : 10188 of 2008

CORAM: Moore C

KEY ISSUES: Construction and Interpretation - Development Application - Planning Instruments :- Permissibility of development

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Peel IDO No 2 Parry Shire IDO No. 1 Parry Local Environmental Plan 1987

CASES CITED: Project Blue Sky Inc v Australian Broadcasting Authority 1998 194 CLR 355 Port Stephens Council v Chan Industrial Pty Limited (2005) 141 LGERA 226

DATES OF HEARING: 1 September 2008

EX TEMPORE JUDGMENT DATE : 1 September 2008

APPLICANT In person

LEGAL REPRESENTATIVES: RESPONDENT Mr R Mallik, solicitor Mallik Rees

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C

1 September 2008

10188 of 2008 Nathan Ward v Tamworth Regional Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: Shortly before the Peel IDO No 2 came into effect on 31 August 1973, Peel Shire Council granted consent to a subdivision of a large rural allotment located some 20 kilometres toward Sydney from Tamworth along the New England Highway and some one and a half kilometres or so to the west of the highway on Duri-Dungowan Road. That subdivision had the effect of creating 19 allotments, each of which was a little more than 2 ha in area, and a residual allotment, accessed by an access handle from the road, of a little over 165 ha. 2 Because the subdivision was granted in August 1973, prior to the coming into effect of Peel IDO No 2, which was gazetted on 31 August 1973 (and by virtue of cl 2(1) of the IDO came into effect on the date of gazettal), a dwelling house was permissible on each of the 2 ha allotments. However the coming into effect of Peel IDO No 2 had, by virtue of the provisions of cl 12 of that IDO, the effect of extinguishing that entitlement to construct a dwelling house. As a consequence of changes in local government arrangements, Peel IDO No 2 then applying was replaced, in late 1980, by Parry Shire IDO No. 1. 3 The relevant clause dealing with entitlements to erect dwelling houses was contained in clause 7 of that IDO and it continued, for the land, the position which applied under Peel IDO No. 2 – that is the prohibition of the erection of a dwelling house on the land. 4 In 1987, the Parry Local Environmental Plan 1987 came into effect on 16 October of that year. It applies to Mr Ward's parcel of land (which is one of the 2 ha allotments to which I have earlier adverted). Mr Ward has lodged an application for consent to erect a dwelling on the land. 5 The land is now in the local government area of the Tamworth Regional Council. The Council resists a consent being given to the erection of the dwelling on a number of bases. The first is that there is, as a matter of proper construction of the relevant provisions of Parry Local Environmental Plan 1987, no entitlement to erect a dwelling on the land. If that position is not correct, the Council then proceeds to raise a variety of merit objections to the proposal. 6 The relevant clause in the 1987 LEP has also undergone a number of what might be described as prospective metamorphoses in 2004, 2005 and 2006 enunciations of a draft Local Environmental Plan to replace the 1987 LEP. I am not satisfied that any of those subsequent versions, despite the fact that a certificate has been issued and the most current version awaits the Minister's signature, should be regarded as imminent and certain for the purposes of these proceedings. However, nothing, in my view, hinges on that point. 7 Mr Ward has provided a wide range of historical documents and has conceded that, unless he is entitled to erect a dwelling house on the land subject to the consent of the Council pursuant to cl 17(2)(d) of the 1987 LEP, he has no such entitlement and that none of the other provisions of cl 17 would give rise to such an entitlement. 8 Although he has advanced his case on this basis, I am independently satisfied, from an examination of all of the provisions of cl 17, that the position he has taken is the correct one. It is also the position adopted by the Council in these proceedings. 9 Clause 17(2)(d) requires that the allotment must comprise an allotment created by a subdivision to which the consent of the Council was granted before the appointed day and on which a dwelling house could have been lawfully erected under the provisions then in force. 10 Although Mr Mallik, solicitor for the Council, has put some material suggesting that the Council contests the proposition that the subdivision was one to which the Council granted its consent, I am satisfied, prima facie, on the material in evidence, including relevant records of the Registrar General, that there should be a presumption that the subdivision was granted by the Council giving consent to it at the relevant date in 1973. 11 The second of the tests that arises in 17(2)(d) requires that a dwelling house could have been lawfully erected under the provisions then in force. Critical words in that part of 17(2)(d) are the words "then in force". It is Mr Ward's submission that the words "then in force" relate to the date in 1973 when the subdivision came into existence. 12 Mr Mallik puts the proposition that the words "then in force" mean at the time of the appointed day, being 9 October 1986. 13 The High Court considered the question of interpretation in Project Blue Sky Inc v Australian Broadcasting Authority 1998 194 CLR 355. It is adverted to the case to which Mr Ward has taken me, Port Stephens Council v Chan Industrial Pty Limited (2005) 141 LGERA 226 at 233. 14 In that case, the decision given by Tobias J (and adopted, without additional comment by his Honour's colleagues), at para 34, makes it clear that, consistent with what the High Court said in Project Blue Sky, what should be accorded as a meaning to the provision of a document such as the Parry Local Environmental Plan 1987 is what was the intention or object or purpose of the particular clause. 15 In this case, for me to adopt the reading that Mr Ward presses, I would have to accept that a natural and logical meaning was to have a 1987 document perform a resuscitation of a right for a dwelling house on his site which right had been extinguished by the provisions of Peel IDO No 2 in August of 1973. That extinguishment had been continued by the terms of Parry IDO No 1 in 1980. 16 I am satisfied that, if the ordinary English meaning of the provisions of clause 17(2)(d) had been to effect the resuscitation of a previously existing right [but one which had been extinguished for over 14 years], then it would have been reasonable to expect that the LEP would have expressly and distinctly created such resuscitation. The contra position, that is that the LEP was, with the degree of imprecision which can be accorded to such subordinate legislation, simply seeking to preserve the status quo ante at the time of its coming into a force, is, in my view, the compelling and logical interpretation to be adopted (absent a specific expression in the LEP resuscitating the right that had otherwise long passed). 17 As a consequence, in my view, I am obliged to conclude that Mr Ward's application is for a form of development that is prohibited as it fails to comply with any of the provisions of (or get through any of the gateways in), cl 17 of the Parry Local Environmental Plan 1987. The appeal must therefore be dismissed. The exhibits are returned and the Development Application is refused development consent.