Francesco Cavasinni v Holroyd Municipal Council

[1989] NSWLEC 234

Land and Environment Court

of New South Wales

CITATION:	Francesco Cavasinni v Holroyd Municipal Council [1989] NSWLEC 234
PARTIES:	APPLICANT Francesco Cavasinni RESPONDENT Holroyd Municipal Council
FILE NUMBER(S):	10526 of 1988
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act Environmental Planning and Assessment Act Interpretation Act Suitors Fund Act 1951
CASES CITED:	Ku-ring-gai Municipal Council v. Kuttner (1980) 41 LGRA 1; Ryan v. Penrith City Council (Land and Environment Court Unreported 24 September 1987)
DATES OF HEARING:
DATE OF JUDGMENT:	08/29/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This is an appeal under s.56A of the Land and Environment Court Act against a decision of an Assessor dismissing an appeal under s.97 of the Environmental Planning and Assessment Act with respect to a development application for the erection of 18 town houses on land at Sherwood Road, Merrylands.

The Assessor held that the development was not permissible under cl.43C(a)(ii) of the Holroyd Local Environmental Plan No. 25 in that the land the subject of the application comprised more than one separate parcel as at the relevant date, 26 April 1985. On behalf of the appellant Mr. Bailey submits that the Assessor fell into legal error.

The clause in question reads as follows:-

"43C. A person shall not erect or use a residential flat building Class B in zone No. 2(a) unless -

(a) the allotment of land on which it is proposed to erect the residential flat building -

(i) has an area of at least 1,300 square metres; and

(ii) was in existence as a separate parcel of land on the date of commencement of Holroyd Local Environmental Plan No. 25;"

The Assessor spelt out his conclusion in the following words:-

"In the present case, the Court considers that Lots 1 and 3 were a separate parcel as at 26 April 1985 on the evidence of Mr Kersinger at Exhibit 1, and Lot 4 was also a parcel, and an allotment separately owned at 26 April 1985. Thus, in terms of cl. 43 c the site is proposed to be made up of one parcel, being Lots 1 and 3 and portion of another parcel being part Lot 4, and thus was not a separate parcel of land on the date of commencement of Holroyd Local Environmental Plan No. 25 as required by cl. 43 c(a)(ii)."

Mr. Bailey submits that the clause may be properly construed as including the possibility of more than one separate parcel of land being involved in an application, especially where the residential flat building is proposed to be erected on more than one allotment, which he submits is also possible under the clause. However, this is providing that the separate parcels of land each have an area of "at least l,300m2" and a developer is not seeking to consolidate separate parcels to make up the minimum area.

In this case lot 1 is 1,916.4m2, lot 3 is 1,574.7m2 and the two comprise a separate parcel of 3,491.1m2. Lot 4, which is a separate parcel, comprises 1,473m2 of which the rear 877m2 is intended to form part of the town house development site together with lots 1 and 3, making a total development area of around 4,368m2.

The purpose of cl.43C, according to the appellant, is to prohibit the erection of residential flat buildings in residential 2(a) zones on land having an area of less than 1,300m2 and to prevent the consolidation of lots to create a separate parcel in excess of the minimum area. The separate parcel or parcels must of course have been in existence at the commencement of the Local Environmental Plan on 26 April 1985. Mr. Bailey submits that if a person is not permitted to develop land which comprises two separate parcels on the relevant day, each of which has an area in excess of 1,300m2, for the one residential flat building development, then this would be absurd. Such a development, as the one proposed, clearly complies with the objective of the clause.

On behalf of the Council Mr. Schofield submits that the objective of the clause is to limit flat development to a separate parcel of land in existence on the commencement date. The word 'parcel' in the clause must be construed as being confined to the singular. Mr. Schofield draws attention to the words "was in existence as a separate parcel of land". It appears that the Assessor accepted this submission for he found that the land the subject of the application comprised more than one parcel and this was impermissible.

Section 8(b) of the Interpretation Act, 1987 was not referred to in the appeal. This section provides that:-

"In any Act or instrument -

....

(b) a reference to a word or expression in the singular form includes a reference to the word or expression in that plural form;"

Applying s.8(b) to the subject clause, "parcel" may be interpreted as "parcels" unless the context or subject matter dictates otherwise. But does it? I think the objective of cl.43C is tolerably clear. It is to allow flats in residential 2(a) zones if the allotment of land on which they are proposed to be erected (a) has an area of at least 1,300m2; and (b) was in existence as a separate parcel of land as at 26 April 1985. But here both 'separate' parcels of land exceed the minimum area, (cf. Ku-ring-gai Municipal Council v. Kuttner ((1980) 41 LGRA 1). The inclusion of more than one parcel of land in the application is not intended to boost the area past the minimum required. There is no intention to defeat the object and purpose of the clause. I cannot see why "parcel" in cl.43C(a)(ii) should be interpreted as being confined to the singular. In my opinion more than one separate parcel may be involved provided that subclause (i) is complied with and each separate parcel exceeds the minimum land area required.

To construe the clause otherwise may lead to unintended and absurd situations which unreasonably restrict the type of development which the Local Environmental Plan seeks to authorise.

I do not see this conclusion as inconsistent with anything said by the Court of Appeal in Kuttner's case. Hutley J.A. (at page 5) said:-

"In my opinion "in existence as a separate parcel" points to the physical state of the land which is the parcel. It is a separate parcel if it is physically divided from other parcels, mere descriptive division not being sufficient."

(For an illuminating discussion of Kuttner's case see the Judgment of Cripps J. in Ryan v. Penrith City Council (Land and Environment Court Unreported 24 September 1987)). Applying the Kuttner test there are clearly two "separate parcels", as indeed the Assessor found. But the question is whether this is permissible within the clause. For the reasons I have given above I believe that it is permissible so long as the application otherwise complies with the clause and is consistent with its objective.

In my opinion the Assessor was in legal error in finding that the development was prohibited. The appeal is therefore upheld and the order of the Assessor dismissing the application is set aside. The matter is remitted to the Assessor to be dealt with conformably with my decision. The Council is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act, 1951.