Demigo Pty Ltd v Ku-Ring-Gai Municipal Council

[1988] NSWLEC 2

Land and Environment Court

of New South Wales

CITATION:	Demigo Pty Ltd v Ku-Ring-Gai Municipal Council [1988] NSWLEC 2
PARTIES:	APPLICANT Demigo Pty Ltd RESPONDENT Ku-Ring-Gai Municipal Council
FILE NUMBER(S):	20125 of 1988
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act 1979
CASES CITED:	Warringah Shire Council v. Jackson (1970); McMillan v. Commissioner of Land Tax (1972)
DATES OF HEARING:
DATE OF JUDGMENT:	05/12/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: In the course of the hearing of class 2 proceedings being an appeal against the Respondent's disapproval of a building application for the construction of a tennis court at premises No. 50 Burns Road, Wahroonga the presiding Assessor of her own motion pursuant to s.36(5) of the Land and Environment Court Act 1979 referred the following questions of law:-

"1. Is development consent required for the proposed tennis court?

2. If so, does the Court have jurisdiction to grant development consent having regard to the nature of the proceedings as presently constituted?

3. If question 2 is answered in the negative does the Court have power to amend the present proceedings so as to attract the Court's jurisdiction to grant development consent?"

The reference was immediately referred to me as Duty Judge and the hearing before the Assessor was adjourned. Following argument I immediately announced my determinations as follows:-

Question 1. No.

Questions 2. Do not arise (in view of my determination of and 3.Question 1).

Thereupon I remitted my determinations to the Assessor and the hearing before her resumed and is currently part-heard.

The Respondent has asked that I provide reasons for my determination which I now publish.

The relevant facts are not in dispute and may be briefly stated.

On 8th February, 1988 a building application was made to the Council for the construction of a tennis court on land described in the standard application form as "No. 50 (lot 2) Burns Road, Wahroonga". The accompanying plan detailed the proposed tennis court and included a site plan giving dimensions of the land upon which the court was proposed to be built. The land was shown as a battle-axe lot located at the rear of No. 50 Burns Road with an access corridor located on the eastern boundary of the lot some 4.57m wide x 32m (approx) long.

On 29th February, 1988 the Respondent notified the applicant for approval of its decision to reject the application for a number of stated reasons.

On 11th March, 1988 an appeal was lodged in this Court against the Respondent's decision.

On 8th March, 1988 the Council approved of a subdivision application to subdivide property known as No. 50 Burns Road, Wahroonga into 2 lots, lot 1 containing the existing dwelling-house known as No. 50 Burns Road and lot 2, being the battle-axe lot is vacant land except for an inground pool and some outbuildings, is the subject of the present proceedings (and is hereinafter referred to as the "appeal site"). The Council's approval was subject to a number of specified conditions.

On 23rd February, 1988 the Council received a building application from the owner of the appeal site for the erection thereon of a dwelling-house. It appears that at the present time this application has not been determined by the Council.

The appeal site is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance, clause 23 of which provides, inter alia, that within zone No. 2(c) dwelling-houses are the purposes for which buildings or works may be erected carried out or used without the consent of the responsible authority.

Question 1 of the referred questions of law asks whether development consent is required for the erection of the proposed tennis court.

Having regard to the terms of cl.23 of the Ku-ring-gai Planning Scheme Ordinance the question is properly addressed by asking whether the tennis court is "for the purpose of a dwelling-house". The Respondent's principal argument is that this question must be answered in the negative since the appeal site is not yet developed by a dwelling-house. Until a dwelling-house comes into existence on the appeal site the Respondent argues that the proposed tennis court must be regarded as a purpose for which development consent is required in terms of cl.23 of the Planning Scheme Ordinance.

I do not think this argument which involves a very restrictive interpretation of the phrase "for the purposes of dwelling-houses" is correct. In my opinion the prior existence of a dwelling-house on a residential allotment is not necessary before it can be concluded as a matter of fact and law that certain proposed buildings or works are "for the purposes of dwelling-houses". This view is supported by existing authority. In Burwood Municipal Council v. Parkes Development Pty. Ltd. (1964) 10 LGRA 415 a declaration was sought that planning consent under the County of Cumberland Planning Scheme Ordinance was necessary for the construction formation situation and laying out of roads and drainage works and to the subdivision of a parcel of land of some 16 acres zoned 'living area' under the Scheme. At p.417 Else-Mitchell J. having concluded that "it is permissible without the consent of the responsible authority to use, carry out work or erect buildings on land within a living area zone for the purposes of "dwelli

ng-houses"" went on to state:-

"In my opinion this extends to the provision and construction of those services and physical things which are normally essential to or associated with the erection, use and occupation of buildings as dwelling houses. These include roads, kerbs, gutters and drains, designed to give access to and serve dwelling houses generally, just as much as the fences, drives, paths and drains which may be erected or provided without any consent for or in connection with each individual dwelling house which may be erected on lands in a living area.

On this basis the construction and laying out of roads and drainage works within a subdivision which is designed for the erection of dwelling houses can be undertaken without the consent of the plaintiff council being obtained under the County of Cumberland Planning Scheme Ordinance."

The decision in Parkes Development was applied and explained by Hope J. in Warringah Shire Council v. Jackson (1970) 21 LGRA 204 where His Honour at p.212 stated:-

"This approach seems to me to be the approach which was adopted by Else-Mitchell J. in Burwood Municipal Council v. Parkes Development Pty. Ltd. In that case the question arose whether the construction of roads and drainage works, and the mere subdivision of land apart from carrying out those works, in a subdivision for residential purposes of land in a living area under the County of Cumberland Planning Scheme Ordinance required development consent under that Ordinance. Else-Mitchell J. held that the permission given by the Ordinance, without the consent of the responsible authority, to use, carry out work or erect buildings on land within a living area zone for the purposes of "dwelling houses" extends to the provision and construction of those services and physical things which are normally essential to or associated with the erection, use and occupation of buildings as dwelling houses, including the construction or roads, kerbs, gutters and drains. In that case, although the subdivision was a residential

subdivision, no doubt any house erected on a lot could, with the consent of the council, have been used as a convalescent home, and indeed no doubt, with the consent of the council, could have been so constructed in the first instance. Nonetheless his Honour obviously took the view that the proper inference to be drawn from the evidence before him was that the buildings to be erected on the allotments in the subdivision would be, and would be used as, dwelling houses. In the present case I also think that the proper inference to be drawn in respect of the subject land is that any building which would be erected on it or upon any part of it in the extent of any re-subdivision would be a dwelling house. In these circumstances, the restoration of the land to the condition in which it was before its wrongful excavation, if a work for the purposes of the Ordinance, is a work for the purposes of the use of the land for dwelling houses, and does not require consent."

In the present case the evidence before the Court justifies the inference that the proposed tennis court is for the purpose of a dwelling-house (to be erected on the appeal site). That evidence includes the physical dimensions and qualities of the appeal site, its residential zoning, its capacity as a site for a dwelling-house and the current undetermined building application for a dwelling-house to be erected thereon.

I take the Respondent's argument to concede (quite properly so in my opinion cf. McMillan v. Commissioner of Land Tax (1972) 1 NSWLR 545 at p.557) that a tennis court used for domestic and private purposes in connection with a dwelling-house on residential land is a "dwelling-house purpose". As I have said the Respondent's argument is based upon the fact that at the present time there is no dwelling-house erected on the appeal site and that in consequence of this fact it is not possible to conclude that the proposed tennis court is for the purpose of a dwelling-house. I apprehend that no such argument would have been advanced if the appeal site was already developed by a dwelling-house.

For the reasons I have given the proposed tennis court is properly to be regarded as the erection of a building for the purpose of a dwelling-house within the meaning of cl.23 of the Ku-ring-gai Planning Scheme Ordinance. It follows that development consent is not required for the erection of the proposed tennis court.