Foster, G and M v Hurstville City Council
[2005] NSWLEC 633
•11/07/2005
Land and Environment Court
of New South Wales
CITATION: Foster, G & M v Hurstville City Council [2005] NSWLEC 633
PARTIES: APPLICANTS
George Foster
Marie FosterRESPONDENT
Hurstville City CouncilFILE NUMBER(S): 11013 of 2005
CORAM: Talbot ACJ
KEY ISSUES: Construction and Interpretation :- whether second dwelling proposed to be erected - status of land transferred to council as access when no dedication has occurred
LEGISLATION CITED: Hurstville Local Environment Plan 1994 cl 11A(1)(a) and cl 11A(3)
DATES OF HEARING: 07/11/2005 EX TEMPORE JUDGMENT DATE: 11/07/2005
LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr D Wilson (Barrister)
SOLICITORS
Hannaford Lawyers
Ms J Hewitt (Solicitor)
SOLICITORS
Home Wilkinson Lowry
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTalbot ACJ
7 November 2005
EX TEMPORE JUDGMENT11013 of 2005 Foster, G & M v Hurstville Council
1 Talbot ACJ: By Memorandum of Real Property Act Transfer executed on 29 May 1965, Lot 3 in Deposited Plan 516864 was transferred to the Council of the Municipality of Hurstville, as it was therein described. Prior to the execution of the Transfer correspondence had passed between the council and the then owner of the land which indicates an intention, but does not confirm the fact, that council intended that Lot 3 would be transferred to the council for future road purposes, and that when adjoining land was subdivided the council would construct a kerbed and guttered and paved road on Lot 3 and dedicate the lot as a public road. The evidence in regard to dedication, carrying out of works, the creation of a road or any other act relating to the provision of access across Lot 3 to a public road does not go any further than the expression of the intention expressed in the letter I referred to. However the council does concede that it probably constructed what is now a paved carriageway along Lot 3, or part of it, and other land also held by the council and referred to throughout as David Place.
2 There is evidence before me that the land known as David Place, and including Lot 3, is in fact a made and sealed road with kerbing and guttering, driveway entrances to properties, street lighting and post boxes. There is no evidence of restriction of access along what is signposted as David Place, and the areas identified in that way, as David Place, appear to function in a practical way as a street or road.
3 On 17 July 1990 the Hurstville City Council, as it was then known, determined Development Application No 235/90 under delegated authority and granted consent to a proposal for a detached dual occupancy in respect of a property referred to in the letter of consent as 7 David Place, Peakhurst. Condition 1 of that consent provided as follows:
This consent is valid only for a period of five years from the date of council’s letter of consent. A further application is required prior to the expiration of the five-year period for any extension of time of this approval.
4 There were a number of conditions in addition to condition 1, and in particular condition 10 provided:
The details of the proposed double carport are to be submitted with the building application.
5 Condition 11 provided for the construction of a footpath crossing adjacent to the David Place boundary of the property at the applicant’s consent.
6 Erected on the land which is the subject of the proceedings, is an approved dwellinghouse and a prefabricated mobile home. It is common ground that no further application as required pursuant to condition 1 of the consent 17 July 1990 was made within the five-year period. At some recent date, the particularity of which is not highly relevant for present purposes, the council issued a notice to the present applicant by way of an order in relation to the second dwelling on the subject land. The subject land is now described as Lot 2 in Deposited Plan 516864, and has a battle-axe access to Ogilvy Street as well as the frontage to Lot 3 which I referred to a moment ago.
7 The respondent’s order, which I now note was dated 29 June 2004, was the subject of an appeal to this Court in proceedings No 10875 of 2004. Ultimately the proceedings were settled by consent orders when the order was revoked, and a number of undertakings were noted, including an undertaking by the applicants to lodge a complete Development Application with the respondent council seeking Development Consent to continue the use of the prefabricated mobile home as a detached dual occupancy dwelling at premises known as 10A Ogilvy Street, Peakhurst, within a specified time. There is no dispute that the premises 10A Ogilvy Street, Peakhurst, are indeed the same lands that I have earlier described as being Lot 2 in DP 516864.
8 A Development Application has been made to the council. That Development Application describes what is proposed as a “granny flat”. However, it is acknowledged by both the council and the applicant that the correct description is a Development Application for a dual occupancy within the meaning of the Hurstville LEP 1994.
9 The Development Application has been refused by council. The applicant has appealed to this Court in these proceedings and the council raises a number of issues, one of which I have been asked to determine as a preliminary issue as it is capable of disposing of the whole of the proceedings if it is found contrary to the submissions of the applicant.
10 The issue is Issue No 1, as follows:
- The proposed development is prohibited as it does not comply with cl 11A(1)(a) and 11A(3) of the Hurstville City Council Local Environmental Plan 1994 (as amended).
11 The issue is particularised whereby it is explained that the proposed development is for use as a second detached dwelling on premises which is not a corner allotment, nor does the premises have rear lane or dual street access. Legal access to the site is obtained by a battle-axe handle to Ogilvy Street. And furthermore, the second detached dwelling is proposed to be erected in the front yard of the subject premises.
12 The issue can be best understood by a reference to the relevant parts of the Hurstville LEP 1994. Firstly the definition of a “dwelling” is in familiar terms, as meaning:
- A room or number of rooms occupied or used or so constructed or adaptable as to be capable of being occupied or used as a separate residence.
13 Then in Part 2 cl 8 provides that:
Except as otherwise provided by the plan in relation to land within a zone the purposes for which development may be carried out only with development consent are specified under the headings “Without Development Consent.
14 Under that heading in the Table for Zone No 2, (Residential) Zone within which the land the subject of the proceedings is situated it is specified that dual occupancies, and relevantly, roads, are “development which may be carried out only with Development Consent”. It is clear, therefore, that the legislation in the LEP provides that a dual occupancy can be made the subject of a Development Consent provided of course that in accordance with cl 8(3) the council is of the opinion the carrying out of the development is consistent with the objectives of the zone. The effect of cl 8(3) is not here in contention.
15 Clause 8(2) is expressed to be subject to the other provisions in the plan, as it opens with the phrase “Except as otherwise provided by this plan.” The provision where the council claims it is otherwise provided is cl 11A. The clause 11A sets out objectives of the clause in subcl (1), and the first objective is stated as being:
To prohibit the creation of a second detached dwelling within the back yard of an existing property, except in respect of corner allotments or sites which have a rear lane or dual street access.
16 Then in subcl (3) of cl 11A it is provided as follows:
- The council must not consent to the erection of a second detached dwelling in the back yard of a dwellinghouse except in respect of corner allotments or sites which have rear lane or dual street access.
17 It is apparent from the provisions, or those parts of the provisions of cl 11A that I have referred to, that it may be necessary to have regard to the status of Lot 3 created by Deposited Plan 516864 if I decide in the first place that cl 11A(3) has any application at all.
18 The critical provisions in 11A(3) are the use of the expressions “erection” of a second detached dwelling, as well as the expression “back yard of a dwellinghouse” and also the words “rear lane or dual street access”. Prima facie cl 11A(3) has no application to the present circumstances as the applicant has not, so far as the evidence goes at the moment, proposed to erect anything, let alone a second detached dwelling.
19 The second detached dwelling, it is agreed, was erected consequent upon the grant of Development Consent on 17 July 1990. In that respect, therefore, it is the applicant’s submission that the consent is spent and can have no further work to do in regard to the erection of anything. That, of course, cannot be said about the continuing or future use of that second detached dwelling, having regard to the express provision of condition 1 in the original Development Consent.
20 It is said on behalf of the council that the reference to “erection” must be read in the context of the objective of the clause which refers to the prohibition of the creation of a second detached dwelling, and that by seeking to use the existing second detached dwelling the applicant is in fact proposing to create a second detached dwelling.
21 Contrary to that, of course, the definition of dwelling adopted by the LEP recognises that the structure or the rooms that may comprise a dwelling do not have to be occupied or used for that purpose in order to be a dwelling as they may meet the definition if they are so constructed or adapted as to be capable of being occupied or used as a separate residence. There is nothing before me that would persuade me to find that the building the subject of the current Development Application is anything other than a dwelling. So that on that basis the second detached dwelling is already erected. In those circumstances it is open for me to find that cl 11A(3) has no application to the subject Development Application. However, as I have said, the council submits that I should read the word “erection” in the wider context of the objective in cl 11A(1)(a), and that it should be construed to include the creation of the second detached dwelling. Even so, I am not convinced that the applicant is proposing to create a second detached dwelling for the same reasons that I am disinclined to find that the applicant is proposing the erection of a second detached dwelling.
22 I am prepared to find, therefore that the power to approve a dual occupancy arising pursuant to cl 8(2) and the provisions in the table in respect of zone No 2 Residential Zone, permit the council, and hence the Court, to consider the application for the use of a dual occupancy.
23 If, however, I am not right about that, I have also formed a view about whether or not what is proposed is a second detached dwelling in the back yard of a dwellinghouse which has a rear lane or dual street access. The evidence is that the main dwelling presently erected on the subject land fronts Lot 3, and that across that frontage there is constructed a driveway leading over a grassed area to kerbing and guttering and a paved carriageway. As I adverted to earlier, the property is referred to as 7 David Place, Peakhurst, in the Development Consent granted as far back as 1990, and there is evidence in photographs, which are not disputed, that the house is constructed in such a way that it would be generally regarded as having a frontage to what, for all intents and purposes, appears to be a street. In that context the location of the second dwelling would be rightly regarded as being in the back yard of the primary dwelling. The second dwelling has an access along the handle of the Lot 2, which is a battle-axe lot, to Ogilvy Street. Whether or not Ogilvy Street is to be regarded as a rear lane does not concern me greatly.
24 I have been taken to a number of authorities, many of them familiar, which deal with what is a road. Whether or not David Place should be regarded as a road is a matter that strictly does not arise, given that cl 11A(3) of the LEP makes no mention of a road. The operative noun in cl 11A(3) is the word “access”. That is a word that has a much wider connotation than “road” or even “street”, and might on the widest approach to it be recognised as any means by which the owner or occupier of a property may reach a street or rear lane, even, without necessarily for that means of travel being over a road. Whatever the reason for the council not creating a formal road or street along David Place, it has nevertheless acquiesced, at the least, or actively promoted the use of that area as if it was a road within the Hurstville Council area. I am satisfied that for the purposes of the LEP, which must be construed as a planning instrument which, it’s been said so many times, has to be looked at in a practical, common sense way, that David Place, or Lot 3, is to be regarded as a street and that in those circumstances even if the applicant was proposing to erect or create a second detached dwelling in the back yard of the existing dwellinghouse, then the land would be regarded for the purposes of cl 11A(3) as having a dual street access, albeit by the acknowledged use to pass and repass along David Place, to reach the road into which it leads, or to that part of the land nominated as David Place which comprises Lot 3 itself. So that if cl 11A(3) does apply, which I have already held that in my opinion it does not, its provisions would nevertheless be satisfied by the availability of access to Ogilvy Street in the first place and Lot 3 or David Place in the second place.
25 Accordingly I propose to find that the proposed development, being the use of the second detached dwelling on the subject premises, is not prohibited by the provisions of cl 11A(1)(a) or cl 11A(3) of the Hurstville City Council Local Environmental Plan 1994.
26 Mr Wilson has made a submission that the council should pay the applicant’s costs in relation to the determination of the preliminary issue. The rules now provide in Class 1 proceedings that the Court will not make an order as to costs unless it considers it to be fair and reasonable in the circumstances. In my view, the council was fully justified in raising the issue so that there could be no doubt that the Court had jurisdiction to determine the Development Application. The provisions of the LEP, and in particular cl 11A, are equivocal and not readily easy to construe, and were properly drawn to the attention of the Court for its consideration. Moreover, the status of Lot 3 that I have referred to, and David Place generally, within the context of cl 11A, needed to be resolved as again, the history of the dealing with this Lot, that is Lot 3, is not again readily conducive to a simple explanation that would enable me to find as I have done. It was appropriate, and indeed responsible, for the council to raise the issue in the way that it has before the merit issues are embarked upon and further expense incurred in that respect. I know that I and other judges have held that where a preliminary issue is litigated as if it was in ordinary litigation, then costs should follow the event. However in the present case the questions were at best questions of mixed fact and law, and in any event, could well have been questions that the Court itself would have raised at the merits hearing. Accordingly, I distinguish these proceedings and the arguments that are raised from those that so often arise in terms of whether or not a particular proposal is prohibited. I propose, therefore, to make no order as to costs.
27 The exhibits may be returned.
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