Allison v Gosford City Council - [2001] NSWLEC 4

Land and Environment Court

of New South Wales

CITATION: Allison and Anor v Gosford City Council [2001] NSWLEC 4

PARTIES:
APPLICANTS
Allison and Anor
RESPONDENT
Gosford City Council

FILE NUMBER(S): 10677 of 2000

CORAM: Pearlman J

KEY ISSUES: Question of Law :- preliminary question of law - whether proposed development "cluster development" - prohibition or development standard - jurisdictional fact

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4
Gosford Planning Scheme Ordinance
Land and Environment Court Act 1979 s 39
State Environmental Planning Policy No 1

CASES CITED: Bell and Anor v Shellharbour Municipal Council (1993) 78 LGERA 429;
Bowen v Willoughby City Council (2000) 108 LGERA 149;
Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135;
Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318;
North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222;
Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55

DATES OF HEARING: 16/11/2000

DATE OF JUDGMENT:
02/28/2001

LEGAL REPRESENTATIVES:

APPLICANTS
Mr A J J Thompson (Barrister)
SOLICITORS
Kernans
RESPONDENT
Mr P J Donnellan (Solicitor)
SOLICITORS
P J Donnellan & Co

JUDGMENT:

IN THE LAND AND 10677 of 2000
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 28 February 2001

ROBERT ALLISON AND PAMELA ALLISON

Applicants

GOSFORD CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. Three preliminary questions of law have arisen for determination in class 1 proceedings. They are as follows:

1. Whether the proposed development is a “cluster development” within the meaning of the Gosford Planning Scheme Ordinance;

2. If the answer to 1 is “yes”, do the provisions of clause 27A(3) of the Gosford Planning Scheme Ordinance constitute a prohibition or development standard?;

3. If the answer to 1 is “no” and on the assumption that clause 48BA of the Gosford Planning Scheme Ordinance applies to the proposed development, is the proposed development subject to the development standards prescribed in clause 28?

2. The questions have arisen in relation to an appeal brought by the applicants against the refusal of Gosford City Council (“the council”) to grant consent to the demolition of an existing building and the erection of what is described in the applicants’ statement of environmental effects as three “townhouse style units”. The land upon which the proposed development is to take place is described as lot 54 DP 12468 (“the site”) which has a frontage to Auld Street, Terrigal, and is known as No 4 Auld Street. The site extends from Auld Street through to Miller Road.

3. The site is within zone no. 2(a) Residential under the Gosford Planning Scheme Ordinance (“the PSO”). In that zone, cluster development is a purpose which is permissible with development consent. However, if the proposed development is in fact cluster development, then cl 27A of the PSO applies. Clause 27A provides as follows:

Cluster Development
27A(1) This clause applies to land within Zone No. 2(a).

(2)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 4
Decision Date: 02/28/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with the case of Allison and Anor v Gosford City Council, where the applicants sought to challenge the council's refusal to grant consent for the demolition of an existing building and the construction of three townhouse style units on a site at No 4 Auld Street, Terrigal. The dispute centered around whether the proposed development constituted a "cluster development" as defined by the Gosford Planning Scheme Ordinance and whether the conditions specified in clause 27A of the Ordinance acted as a prohibition or a development standard. The applicants argued that the proposed development was not cluster development but rather a residential flat building, whereas the council contended that the development was indeed cluster development and thus subject to the conditions in clause 27A.

The court found that the proposed development was "cluster development" within the meaning of the Gosford Planning Scheme Ordinance, primarily based on the evidence from the town planners. Furthermore, the court ruled that the provisions in clause 27A(3) constituted a development standard rather than a prohibition. This conclusion was based on the court's interpretation of the Environmental Planning and Assessment Act 1979, which distinguishes between provisions that prohibit development and those that set standards or requirements for development. The court rejected the council's argument that clause 27A(3) should be regarded as a jurisdictional fact, stating that the existence of the dispensational power in the State Environmental Planning Policy No 1 made it clear that the legislature intended for the factual basis for a development standard not to be a jurisdictional fact.

Ultimately, the court provided the following answers to the preliminary questions of law: (1) The proposed development is a "cluster development" within the meaning of the Gosford Planning Scheme Ordinance, and (2) The provisions of clause 27A(3) of the Gosford Planning Scheme Ordinance constitute a development standard. The court decided that the proceedings should proceed to a hearing on the basis of these answers.

Orders