Atkins v Maitland City Council - [2010] NSWLEC 36

Land and Environment Court

of New South Wales

CITATION: Atkins v Maitland City Council [2010] NSWLEC 36
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: APPLICANT
Lester Barry Atkins
RESPONDENT
Maitland City Council

FILE NUMBER(S): 10910 of 2009

CORAM: Craig J

KEY ISSUES: QUESTION OF LAW :- determination of separate question pursuant to Part 28 rule 2 of the Uniform Civil Procedure Rules 2005 - whether development permissible – interpretation of planning instrument - subdivision control – minimum allotment size – concessional allotment – context – development permissible

LEGISLATION CITED: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Maitland Local Environmental Plan 1993
Uniform Civil Procedure Rules 2005

CASES CITED: Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292
Calleja v Botany Bay City Council [2005] NSWCA 337; 142 LGERA 104
CIC Insurance Limited v Bankstown Football Club Limited [1977] HCA 2; 187 CLR 384
Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379
Harrison v Melhem [2008] NSWCA 67; 71 NSWLR 380
Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Matic v Mid-Western Regional Council [2008] NSW LEC 113
Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc [2000] NSWCA 65; 48 NSWLR 548
Wentworth Securities Ltd v Jones [1980] AC 74

DATES OF HEARING: 4 March 2010

DATE OF JUDGMENT:
18 March 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr J A Ayling SC (Barrister) with Ms H P Irish (Barrister)
AGENT
Richard Bennett of Hill Top Planners Pty Ltd
RESPONDENT
G W Williams (Solicitor)
SOLICITORS
Thompson Norrie Solicitors

JUDGMENT:

: The applicant is the owner of land at Oakhampton in the Hunter Valley of New South Wales, being Lot 100 in Deposited Plan 1083305 (Lot 100). The Deposited Plan reflected a subdivision to which development consent was granted by the respondent on 8 December 2004. The plan of subdivision was registered in the office of the Registrar General on 11 July 2005. That plan, as registered, bears the following notation in its right hand margin:

“PLAN OF SUBDIVISION OF LOTS 1, 2, 3, AND 4 D.P. 217178 AND PART OF THE LAND IN CONV 950 BK 3692”.

2 Lot 100 has an area of 9.73 hectares. While there is a farm shed presently standing on the Lot, there is no dwelling erected upon it.

3 The applicant sought development consent from the respondent to erect a single storey dwelling on Lot 100. That application was refused by the respondent on 12 November 2009. In consequence of that refusal, the applicant has appealed to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

4 By its Statement of Facts and Contentions dated 14 January 2010, the respondent has contended that the erection of a dwelling house on Lot 100 is prohibited development.…

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: [2010] NSWLEC 36
Decision Date: 18 March 2010

CaseChat Overview and Summary

Atkins v Maitland City Council was an appeal in the Land and Environment Court of New South Wales against a refusal to grant development consent by the Maitland City Council to the applicant, Lester Barry Atkins. Atkins sought to construct a single-storey dwelling on Lot 100 in Deposited Plan 1083305, located in Oakhampton in the Hunter Valley of New South Wales. The application was refused by the respondent on 12 November 2009, leading Atkins to appeal the decision to the Court.

The primary legal issue the court had to decide was whether the erection of a dwelling house on Lot 100 was prohibited development, as determined by the proper interpretation of the Maitland Local Environmental Plan 1993 (LEP). The parties agreed that this question should be determined separately from the two merit issues identified in the respondent's Statement of Facts and Contentions. The court had to interpret the relevant planning controls and provisions of the LEP, specifically focusing on the objectives and restrictions of the Secondary Rural Land (1(b) Zone) where Lot 100 was located.

In its judgment, the court found that the erection of a dwelling house on Lot 100 was not prohibited development under the LEP. The court held that the subdivision that resulted in the creation of Lot 100 was not a consolidation of allotments within the meaning of the LEP. Therefore, the concessional provisions of cl 13(3) of the LEP applied, allowing the erection of a dwelling house on Lot 100 with consent. The court rejected the respondent's argument that the provisions of cl 13(4) should be read as including a reference to a subdivision consolidating allotments, stating that the omission of such reference did not justify inferring an intention to include it. The court also found that the principles governing the interpretation of a planning instrument required giving primacy to the text of the LEP itself.

As a result, the separate question was answered in the negative, meaning that the erection of a dwelling house on land at Oakhampton, being Lot 100 in Deposited Plan 1083305, was not prohibited development under the proper interpretation of the Maitland Local Environmental Plan 1993.

Orders