Demihale Pty Ltd v Ku-ring-gai Municipal Council

[2002] NSWLEC 178

Reported Decision: 123 LGERA 94

Land and Environment Court

of New South Wales

CITATION:	Demihale Pty Ltd v Ku-ring-gai Municipal Council [2002] NSWLEC 178
PARTIES:	APPLICANT Demihale Pty Ltd RESPONDENT Ku-ring-gai Municipal Council
FILE NUMBER(S):	10316 of 2002, 10244 of 2002 and 10245 of 2002
CORAM:	Pearlman J
KEY ISSUES:	Question of Law :- preliminary question of law - dual occupancy development - SEPP 53 - meaning of "allotment" - whether certificate of title required for allotment in order for SEPP 53 to apply
LEGISLATION CITED:	State Environmental Planning Policy No 53 - Metropolitan Residential Development cl 17
CASES CITED:	Jelbart and Ors v Hume Shire Council (NSWLEC, Talbot J, 28 November 1997, unreported); Personal Design Projects Pty Ltd v Hornsby Shire Council (NSWLEC, Bignold J, 15 March 1991, unreported); S & I Investments Pty Ltd v Pittwater Municipal Council (NSWLEC, Talbot J, 13 October 1993, unreported)
DATES OF HEARING:	02/10/2002
DATE OF JUDGMENT:	10/03/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr M C Fraser (Barrister) SOLICITORS Watson & Watson RESPONDENT Mr A E Galasso (Barrister) SOLICITORS Deacons

JUDGMENT:

10316 of 2002, 10244 of 2002 and 10245 of 2002

Pearlman J

3 October 2002

DEMIHALE PTY LTD

Applicant
v

KU-RING-GAI MUNICIPAL COUNCIL

Respondent

Judgment

Introduction

1 There are presently three class 1 appeals pending in the Court. They are set down for hearing together on 9 - 11 October 2002.

2 In each of those appeals, a preliminary question of law has arisen. The question, which is identical for each appeal, is as follows:

Whether the Court has power to consent to the application pursuant to Part 3 of State Environmental Planning Policy No 53 – Metropolitan Residential Development where no certificate of title has been issued in respect of the “allotment” upon which the development is proposed to be carried out.

The factual background

3 The property in respect of which the three class 1 appeals relate is known as 79 - 81 Hampden Avenue, Wahroonga. At present, it comprises lot F in DP 30460 and lot B in DP 406302 (“the original lots”).

4 On 12 June 2001, this Court upheld a class 1 appeal, and granted development consent subject to conditions in respect of a development application numbered DA 849/00 to subdivide the original lots into three separate allotments. A linen plan and s 88B instrument in respect of that subdivision have been lodged with the council.

5 On 4 July 2002, another development consent, numbered DA 398/02, was granted (this time by the council) for the subdivision of the original lots into three separate allotments. This development consent, in effect, approved boundary changes in respect of the subdivision formerly approved by the Court. No linen plan has yet been lodged with the council in relation to this development consent.

6 The three development applications currently before the Court propose dual occupancies upon each of the three lots the subject of DA 398/02, known as lots 50, 51 and 52.

7 It is not in dispute that the zoning of the original lots permits a dwelling-house to be erected upon those lots, and that the zoning will permit a dwelling-house to be erected upon each of the lots the subject of the approved subdivision.

The statutory context

8 The question of law in each proceeding turns upon the proper construction of cl 17 of State Environmental Planning Policy No 53 – Metropolitan Residential Development (“SEPP 53”). Before examining cl 17 in detail, it is relevant to outline in general terms the nature of SEPP 53.

9 SEPP 53 is designed to implement the government’s strategy of urban consolidation. It applies to specified local government areas, one of which is Ku-ring-gai. Its aims are set out in cl 3(1) as follows:

3(1) This Policy aims to encourage the provision of housing metropolitan areas that will:
(a) broaden the choice of building types and locations available in the housing market, and
(b) make more efficient use of existing infrastructure and services, and
(c) reduce the consumption of land for housing and associated urban development on the urban fringe, and
(d) be of good design.

10 Sub-clause 2 sets out various strategies for achieving these aims, including establishing planning controls that “… will provide opportunities for a variety of housing types to be developed in areas the councils of which have not adopted residential development strategies”. Sub-clause 3 sets out an additional aim, which is “… to simplify and streamline certain aspects of the planning system relating to residential development …” by restating the provisions of earlier instruments in a single policy “… written in a manner that is easy to understand”.

11 SEPP 53 contains separate parts relating to various types of housing development, one of which is pt 3, which applies to dual occupancy. Part 5 contains design requirements for development to which SEPP 53 applies.

12 I turn now to cl 17. It is headed: “What this Part allows” and it provides as follows:

17 This Part allows development that results in two dwellings being located on the one allotment of land if another environmental planning instrument permits a dwelling-house to be erected on that allotment and the development is carried out in accordance with this Part and Part 5.

The competing arguments

13 The council’s case is that, since no plan of subdivision constituting the three allotments has been registered (and consequently no separate certificates of title have yet issued), there is no “allotment of land” within the meaning of cl 17, and hence none of the three development applications fall within SEPP 53. Therefore the Court has no power to grant development consent in respect of any of them.

14 Mr Galasso, appearing for the council, put forward the following propositions:

i. The question is one of power. Absent an “allotment of land”, there is no power to grant development consent.

ii. Clause 17 refers to “one allotment of land” and, later, to “that allotment”. The identification of an “allotment of land” is required for two things under cl 17 – first, as a prerequisite to the construction of two dwellings pursuant to SEPP 53, and, secondly, as the focus of determining whether another environmental planning instrument permits the erection of dwelling-houses.

iii. Those two things require, temporally, present consideration. An “allotment of land” for the purposes of cl 17 must exist at the time of the development application and at the time of development assessment, not in the future, and not subject to a contingency.

iv. None of the three development applications refer to an “allotment of land” within the terms of cl 17, because none of the three lots marked as 50, 51 and 52 upon the approved plan of subdivision exist, and they will not exist until the registration of the plan of subdivision creates them.

15 The applicant’s case is that cl 17 applies to each development application, because there is an approved subdivision of the original lots into three separate allotments. Mr Fraser, appearing for the applicant, submitted that each of the three separate allotments qualifies as an “allotment of land” within cl 17 because, in its ordinary sense, that phrase refers to identifiable pieces or parcels of land. The three lots are identifiable pieces or parcels of land delineated on a plan of subdivision for which development consent has been furnished. In his submission, such a conclusion conforms to the purpose of SEPP 53, which is an enabling instrument, facilitating certain residential development.

Allotment of land

16 SEPP 53 deals with permissibility. Clause 18 contemplates the grant of development consent to permit “[d]evelopment allowed by this Part” to be carried out. The development which may be the subject of such development consent is described in cl 17. It is development “… that results in two dwellings being located on the one allotment of land …”. That “result” will ensue if five conditions are met – firstly, another environmental planning instruments permits the erection of dwelling-houses, secondly, the development is carried out in accordance with pts 3 and 5, thirdly, development consent is granted under cl 18, fourthly, two dwelling-houses are constructed, and, fifthly, there is one allotment of land.

17 For this reason, I prefer to approach the preliminary question of law as one of permissibility rather than simply one of power. SEPP 53 makes permissible with development consent a development which might otherwise be prohibited. It is only to that extent that the question is about power.

18 In my opinion, an “allotment of land”, for the purposes of SEPP 53, may properly be regarded as in existence despite not having been through the formal process of registration of the approved plan of subdivision. The expression “allotment” is not defined in SEPP 53, and it does not bear a technical meaning. Rather, it bears its ordinary meaning as being an identifiable piece or parcel of land. There is nothing in SEPP 53 to suggest that the expression “allotment” means an allotment of land identifiable solely by reason of having been created by registration of a plan of subdivision. By way of contrast, Mr Fraser drew the Court’s attention to Jelbart and Ors v Hume Shire Council (NSWLEC, Talbot J, 28 November 1997, unreported) where the phrase under consideration was “… allotment created before the appointed day …” which phrase was held to require the registration of a deposited plan.

19 In the present circumstances, each of lots 50, 51 and 52 is readily identifiable as a piece or parcel of land. Each has a configuration, area and dimensions identifiable by reference, not to some informal description or proposed plan, but to a formal plan of subdivision to which development consent has been granted. There is, in the present circumstances, an identifiable piece or parcel of land which, in each case, may readily be assessed against the development standards prescribed in cl 19 of pt 3 and the design requirements stipulated in pt 5.

20 The facts of this case are not distinguishable from the facts of Personal Design Projects Pty Ltd v Hornsby Shire Council (NSWLEC, Bignold J, 15 March 1991, unreported) and, with respect, I agree with the conclusion to which his Honour came in that case. That was a case of three appeals in respect of three applications to carry out dual occupancy development upon three lots in an approved but not registered subdivision of land. The permissibility of the proposed development fell to be considered under cl 8 of Sydney Regional Environmental Plan No 12 – Dual Occupancy (since repealed), the relevant parts of which clause are almost identical to cl 17 of SEPP 53. Bignold J held that the expression “an allotment of land” refers to an identifiable piece or parcel of land, and stated, at p 4, as follows:

Having determined in a general sense the meaning of the expression ‘an allotment of land’ appearing in cl 8 I am of the opinion that each of the 3 lots in the Council approved (but not yet registered) plan of subdivision … qualifies as ‘an allotment of land’ within the meaning of cl 8 … This is because each of those 3 lots is clearly defined in the plan of subdivision approved by the Respondent … and hence each of the 3 lots in the approved subdivision is an identifiable piece or parcel of land.

21 The facts under consideration in S & I Investments Pty Ltd v Pittwater Municipal Council (NSWLEC, Talbot J, 13 October 1993, unreported) were different to the facts of the present proceedings, partly because in that case, the council had not consented to the proposed plan of subdivision. In this case, however, (as occurred in Personal Design Projects v Hornsby Council), there is an actual plan of subdivision which is the subject of development consent. In that circumstance, each of lot 50, 51 and 52 is a separate or distinct area of land with a definite identity (cf S & I Investments Pty Ltd v Pittwater Council at p 4).

22 The construction which I prefer to adopt in this case accords, in my opinion, with the aims of SEPP 53. Its purpose is facultative. It aims to encourage a particular form of housing, and one of the means of achieving that aim is to make provision for dual occupancy development. It should, therefore, be given a broad rather than narrow construction. That supports a construction which defines “allotment of land” in a more general sense rather than confining the expression to an allotment created upon registration of a plan of subdivision.

23 Even if I was wrong in my approach to the question of construction, and there is no existing “allotment of land”, I would take the view, in the circumstances of the case, that the Court as consent authority could grant development consent in each appeal subject to a condition requiring registration of the plan of subdivision before construction is carried out (cf S & I Investments Pty Ltd v Pittwater Council at p 7). This is because the parties asked the Court to proceed with determination of the preliminary question of law on the basis that there is no impediment to registration of the plan of subdivision. The position therefore is that there is a development consent in respect of the subdivision, and registration will require simply the lodgement of a signed linen plan at the office of the Registrar General.

Conclusion

24 In accordance with the foregoing, I answer the question of law in each of the three proceedings as follows:

Question:

Whether the Court has power to consent to the application pursuant to Part 3 of SEPP 53 where no certificate of title has been issued in respect of the “allotment” upon which the development is proposed to be carried out.

Answer:

Yes, the Court has power to consent to the application in that circumstance.

25 I direct that all three appeals proceed to hearing and determination having regard to the answer I have furnished to the preliminary question of law in each case.

26 I make no order as to costs. The exhibit may be returned.