Bruce Kinley v Wyong Shire Council [1998] Nswlec 65 (23 April 1998) - [1998] NSWLEC 65

Land and Environment Court

of New South Wales

CITATION: BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998) [1998] NSWLEC 36

PARTIES: BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998)

FILE NUMBER(S): 10786 of 1997

CORAM: Sheahan J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Wyong Local Environmental Plan 1991

CASES CITED: North Sydney Municipal Council v P D Mayoh Pty Limited [No.2] (1990) 71 LGRA 222 ("Mayoh")

DATES OF HEARING: 19 February 1998

DATE OF JUDGMENT:
04/23/1998

LEGAL REPRESENTATIVES:
Mr M Macrossan, Barrister
Mr W O'Rourke

JUDGMENT:

This judgment deals with Questions of Law raised in Class 1 proceedings which have been brought by Mr Kinley by way of appeal against a refusal by Wyong Shire Council (“the Council”) of an application he made to subdivide some rural land into two lots.

The relevant application is Development Application (“DA”) 1038 of 1996 and the subject land is comprised in lots 111 and 113 in Deposited Plan 800594. The application was made on 15 November 1996 and refused on 16 December 1996, for the stated reason that it was considered by Council that the proposed subdivision is prohibited under the provisions of cl 14(7) of Wyong Local Environmental Plan 1991 (“the LEP”).

Mr O’Rourke, Solicitor for the Council, at the beginning of the hearing on these Questions of Law, resiled from Council’s reliance on cl 14(7) of the LEP, but contends that the subdivision is prohibited in any event by the provisions of cl 14 as a whole.

Background

In DA 607/96 the then applicant sought an adjustment of the boundaries between lot 111 and 113 under which the size of 111 was reduced from 5807 square metres to 5008 square metres and the area of 113 was increased from 1.92 ha to 2 ha.

The Council consented to that boundary adjustment on 24 July 1996.

The plan generated by that approval has not yet been registered by the Land Titles Office but is in evidence as Exhibit C2 .

What was sought in DA 1038/96 was the subdivision of the 2 ha lot 113 into two 1 ha lots (to become lots 1131 and 1132).

The appeal against the December 1996 refusal of DA 1038/96 was not lodged until 27 November 1997, after the Council had relevantly refused DA 531/97 dated 6 August 1997, on 10 November 1997.

DA 531/97 was also for a 2 lot subdivision of lot 113 and part lot 111 and it was refused on the grounds that it was prohibited under clauses 14(3)(a) and 14(7) of Wyong Local Environmental Plan 1991 and other considerations under s 90 of the EnvironmentaL Planning & Assessment Act 1979 (“EPAA”).

Under the proposed subdivision, lot 1131 will be located totally in land zoned 7(c)(1) with access gained by existing road and bridge through 7(a) zoned land. Zone 7(c) is entitled “Scenic Protection: Small Holdings Zone”. Zone 7(a) is a Conservation Zone.

The second 1 ha lot nominated…

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

AGLC: Bruce Kinley v Wyong Shire Council [1998] NSWLEC 65 (23 April 1998) [1998] NSWLEC 36
Case: [1998] NSWLEC 65
Decision Date: 04/23/1998

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered an appeal by Bruce Kinley against the refusal by Wyong Shire Council to approve a subdivision of rural land. The central issue was whether the proposed subdivision of the land, which lay partly within two different zones, complied with the Wyong Local Environmental Plan 1991 (LEP). The court was tasked with deciding several questions of law regarding the interpretation and application of specific clauses within the LEP and the Environmental Planning and Assessment Act 1979 (EPAA).

The questions posed included whether certain clauses in the LEP applied only to land within a single zone, whether specific clauses acted as development standards, and whether certain provisions applied to land that spanned multiple zones. The court analysed each clause in detail, drawing on precedents and statutory definitions to reach its conclusions. The court found that clause 14(3)(b) of the LEP indeed applied only to land within zone 7(c), and that clause 14(7) required consideration of all previous subdivisions of the land in question. Furthermore, the court determined that clause 14(7) operated as a development standard, while clause 14(2) did not apply to land within more than one zone. Lastly, the court concluded that paragraphs (i) to (iv) of clause 14(3)(a) did not constitute development standards.

In summary, the court's reasoning led to the conclusion that the proposed subdivision did not comply with the LEP. The court's decision was grounded in a meticulous analysis of the statutory language, the objectives of the legislation, and relevant case law. The court's findings provide clarity on the interpretation of the LEP and the EPAA, guiding future applications and appeals in similar contexts.

Orders