Aitchison v Sutherland Shire Council

[2016] NSWLEC 48

Land and Environment Court

New South Wales

Medium Neutral Citation:	Aitchison v Sutherland Shire Council [2016] NSWLEC 48
Hearing dates:	21 April 2016
Date of orders:	29 April 2016
Decision date:	02 May 2016
Jurisdiction:	Class 1
Before:	Moore J
Decision:	At [17]
Catchwords:	INTERPRETATION – meaning of use of plural terms in s 34AA(1)(a)(i) of Land and Environment Court Act 1979 – plurals used to describe categories not to cover instances of multiple occurrences in any application to the Court of the term used in the provision
Legislation Cited:	Interpretation Act 1987 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Andrew Aitchison (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: Ms L Finn, solicitor (Applicant) Ms J Amy, solicitor (Respondent)   Solicitors: Hones Lawyers (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10238 of 2016
Publication restriction:	No

Judgment

1. HIS HONOUR: The Registrar has referred to me, pursuant to the Uniform Civil Procedure Rules 2005, a question of interpretation. This question arises in these proceedings as a consequence the fact that the development application requiring consideration as a result of this appeal is one that proposes the subdivision of an existing allotment into two allotments and the erection of dual occupancies on each of the proposed resulting allotments.

2. The Registrar seeks guidance as to whether the provisions of s 34AA(1)(a) of the Land and Environment Court Act 1979 (the Court Act) mandates the referral of this matter to a conciliation conference process under that section in circumstances where the parties agree that they do not wish to proceed along that procedural path but are content to have the more general conciliation path provided for by s 34 of the Court Act engaged for these proceedings.

3. The relevant portion of s 34AA is in the following terms:

34AA   Mandatory conciliation and arbitration

(1) This section applies to the following proceedings pending in Class 1 of the Court’s jurisdiction relating to appeals, objections and applications under section 97 or 97AA of the Environmental Planning and Assessment Act 1979:

(a)  proceedings concerning development applications, or modifications to development consents, for:

(i)  development for the purposes of detached single dwellings and dual occupancies (including subdivisions), or alterations or additions to such dwellings or dual occupancies, or

(ii)  development of a kind prescribed by the regulations,

(b)  particular proceedings that the Court orders, on the application of a party to the proceedings or of its own motion, to be dealt with under this section.

4. The matter requiring consideration is whether the use of the plural for the terms “applications” and “modifications to development consents” in (a) and “dwellings” and “dual occupancies” in (a)(i) is purely for the purposes of description of the cumulative categories of matters encompassed or whether, more particularly, the use of plural terms is intended to mandate the application of the provisions in circumstances such as those in these proceedings where there is more than one proposed dual occupancy involved.

5. Ms Amy appeared for the Council and provided short but comprehensive submissions on this point. Ms Finn, solicitor for the Applicant, adopted the submissions made by Ms Amy.

6. Ms Amy canvassed the two possibilities, those of a narrow interpretation of the use of the plurals in the provision as being the specification only of the characteristic nature of types of proceedings brought within it. She and Ms Finn supported this position. Ms Amy also canvassed the alternative, broader approach that would, if adopted, permit a far less constrained range of matters involving potentially significantly sized developments being able to be encompassed within the provision.

7. As is permitted by s 34 of the Interpretation Act 1987 in circumstances such as these, Ms Amy submitted that proper consideration of the relevant portion of the Second Reading Speech, when the Court Act was amended to insert s 34AA, was relevant for a proper understanding of what was intended.

8. What I consider to be the relevant portion of the Second Reading Speech on the introduction of the Legislation (in the Legislative Council by the Minister’s Parliamentary Secretary – Hansard of 11 November 2010 at p 27686) was in the following terms:

The conciliation-arbitration scheme will provide a fair, quick and cost-effective way of reviewing council decisions on development applications and modification applications for single dwellings and dual occupancies. The Government is of the view that this scheme is best run by the court given its specialist jurisdiction and the extensive planning experience of its judges and commissioners. The new conciliation-arbitration scheme will supplement the existing alternative dispute resolution mechanisms currently run by the court. Over the last few years the court has sought to promote and expand the use of conciliation as an alternative to dealing with disputes by way of full hearings. As evidence of its success since 2007 the court has successfully increased the use of conciliation with a 158 per cent increase in the number of conciliation conferences and subsequent improvements in clearance rates. The proposed conciliation-arbitration scheme will build on the court's success by introducing a new hybrid conciliation-arbitration model designed specifically for small-scale development.

9. The nature of the proposed development in contest between the Applicant and the Council in these proceedings (specifically the complexity of the issues as well as the number of proposed dwellings sought to be approved) does not really lend itself to categorisation as “small-scale development” (and certainly not a contest about proposed development that could readily be envisaged as appropriate to be conducted by a landholder).

10. Although I asked whether the words and subdivisions in parentheses in s 38A(1)(a) should be regarded as applying only to dual occupancies rather than single dwellings, on balance, I am satisfied that it would not be appropriate to draw this conclusion given that single dwellings and dual occupancies, as used in the provision, are in the conjunctive rather than the disjunctive.

11. This is appropriate given that it is not unusual for local environmental plans to make provisions for secondary dwellings or rural workers’ dwellings to be approved and such developments might potentially be capable of encompassing subdivision.

12. I am satisfied that, in the context of the general processes for conciliation conferences established by ss 34 and 34AA of the Court Act, an approach that adopts the interpretation that the plurals are for the purpose of describing categories of activity should be preferred to that which would mandate the provision encompassing proceedings where multiple such developments were brought within its terms.

13. Although, in this instance, the scale of the contested development is modest, the more expansive interpretation would not be constrained to such circumstances but would encompass circumstances where the proposed subdivision would result in multiple allotments upon each of which it was proposed to erect a dual occupancy.

14. The triggering of the presumption in s 34AA(1)(a) that such a development proposal should be encompassed by the provision is clearly antithetical to the philosophic underpinning of the conciliation/mandated determination process in s 34AA, a process clearly directed to small-scale residential development with the broader s 34 conciliation process being available, inter alia, for larger scale residential development processes.

15. However, it is to be observed that s 34AA(1)(b) would permit the Registrar to include (on application or on her own motion) this development in the s 34AA stream. This discretionary process is to be contrasted with and distinguished from the mandatory presumption in s 34AA(1)(a). It is also to be observed that the consequences of the mandatory presumption is capable of displacement, subsequently, by application pursuant to s 34AA(3).

16. However, each of these latter processes engage discretionary considerations whereas the provision that has been referred to me for consideration is a mandatory one.

17. This appeal is to be the subject of a conciliation conference on 27 June 2016, with that conference to be held pursuant to s 34 of the Land and Environment Court Act 1979, not s 34AA of that Act.

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Decision last updated: 04 May 2016