Gregory Travis Robinson v Pittwater Council

[1998] NSWLEC 132

Land and Environment Court

of New South Wales

CITATION:	Gregory Travis Robinson v. Pittwater Council [1998] NSWLEC 132
PARTIES:	APPLICANT Gregory Travis Robinson RESPONDENT Pittwater Council
FILE NUMBER(S):	10682 of 1996
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:	Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd (1971) AC 850 at 880).; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) 35 ALR 151 at 169.; Isaacs J in Bull v Attorney-General (NSW) (1913) 17 CLR 370).
DATES OF HEARING:	18/03/98, 04/06/98
DATE OF JUDGMENT:	06/19/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr A R Moses, Barrister RESPONDENT Mr I J Hemmings, Barrister Mallesons Stephen Jaques

JUDGMENT:

On 22 April 1998, I determined a preliminary question of law in proceedings no 10683/1996. Those proceedings involved an appeal by the applicant, Mr Robinson, against the refusal of the respondent, Pittwater Council ("the council") to grant a modification of a development consent under s 102 of the Environmental Planning and Assessment Act 1979.

In my judgment, I noted, however, that an additional question had arisen for determination, but, for the reasons I then gave, I declined to deal with that question in connection with the s 102 application. Instead, I offered to deal with it, if the parties so wished, and without the necessity for additional submissions, in connection with the applicant's pending appeal against the council's deemed refusal to grant consent to a subdivision in respect of the subject land (proceedings no 10682/1996).

On 4 June 1998, the parties approached me in chambers and took up my offer to answer the additional question without further submissions. I now proceed to do so.

The question of law, as framed by the parties, is as follows:

"Whether the Development Application is capable of being granted consent under Pittwater Local Environment Plan 1993 (as amended )?"

The "development application" refers to development application 34/97 pursuant to which the applicant sought consent to subdivide into two lots an existing dual occupancy on lot 26, DP 77307, known as 67 Therry Street, Avalon ("the subject land").

Background

On 30 May 1989, the council granted to the applicant, subject to conditions, development consent 89/218 ("the dual occupancy consent") for a two storey attached dual occupancy development on the subject land.

The dual occupancy consent was granted under the provisions of State Regional Environment Plan No 12 - Dual Occupancy ("SREP 12"), which permitted dual occupancy development with the consent of the council. However, cl 13 of SREP 12 prohibited strata subdivision.

At the time the dual occupancy consent was granted, State Environmental Planning Policy No 25 - Residential Allotment Sizes ("SEPP 25") was in force. It contained no provisions dealing with subdivision of dual occupancy development, and, in any event, its provisions did not apply to the subject land.

Since then, the pendulum has swung backwards and forwards in the Pittwater area between permissibility and prohibition of subdivision of dual occupancy developments, which is reflected in the undermentioned chronology:

1 January 1992 "Amendment No 2 - Dual Occupancy Subdivision" came into force. It amended SEPP 25, by inserting pts 2 and 3, and, in particular, cl 11, which expressly permitted subdivision of a dual occupancy development with council consent.

3 March 1995 Amendment 6 to the Pittwater Local Environmental Plan 1993 ("the PLEP") came into force. Its aim was to exclude the application of SREP 12 and SEPP 25 to certain land within the council's area, and instead to adopt local dual occupancy development controls. It permitted subdivision of dual occupancy development with council consent.

19 May 1995 SEPP 25 was further amended by amendment 4. It repealed the earlier provisions which had had the effect of permitting subdivision of dual occupancy development.

SREP 12 was also consequentially amended so as to reinforce prohibition of such subdivision.

9 February 1996 Amendment 11 to the PLEP came into force. It repealed the earlier provisions which had permitted subdivision of dual occupancy development, and inserted instead provisions prohibiting such subdivision.

It can be seen from this chronology that, as Mr Hemmings who appeared for the council put it, there was a "window of opportunity" for subdivision of the subject land, being the period commencing on 1 January 1992, when SEPP 25 was amended to permit subdivision, until 9 February 1996, when the PLEP was amended to prohibit subdivision.

The relevant control which applies at the present time is to be found in the PLEP as amended by amendment 11. The relevant provision is cl 21F, which is as follows:

"21F (1) On and after the day on which the Pittwater Local Environmental Plan 1993 (Amendment No. 11) commences, consent must not be granted for a subdivision which creates separate allotments for each of the two dwellings resulting from dual occupancy development carried out in accordance with this Division.

(2) The separate occupation of the proposed lots illustrated by a proposed strata plan relating to the two dwellings resulting from any such dual occupancy development is prohibited.

(3) This clause does not apply to any two dwellings resulting from development carried out pursuant to a consent:

(a) granted in accordance with this Division later than 14 days after Pittwater Local Environmental Plan 1993 (Amendment No.11) was first exhibited under the Act, but only if the application for the consent was made before the expiration of that 14 day period; or

(b) granted in accordance with this Division on or after 3 March 1995 and before the expiration of that 14 day period; or

(c) granted before 3 March 1995 in accordance with Sydney Regional Environmental Plan No.12 - Dual Occupancy and Part 2 of State Environmental Planning Policy No. 25 - Residential Allotment Sizes and Dual Occupancy Subdivision; or

(d) granted on or after 3 March 1995 in accordance with Sydney Regional Environmental Plan No.12 - Dual Occupancy and Part 2 of State Environmental Planning Policy No.25 - Residential Allotment Sizes and Dual Occupancy Subdivision as continued in force for certain development applications made before that date by clause 8 (Saving of certain development applications) of Pittwater Local Environmental Plan 1993 (Amendment No. 6)."

Mr Hemmings submitted on behalf of the council that cl 21F operates to prohibit the subdivision of the dual occupancy development upon the subject land. That is a consequence of the fact that, in Mr Hemmings' submission, such subdivision is not saved by subcl (3). Paragraph (c) is the only part of subcl (3) which is possibly relevant, but, according to this submission, it does not cover the dual occupancy development in this case. The dual occupancy consent was granted in 1989, which was before 3 March 1995, and it was granted in accordance with SREP 12, but it was not granted in accordance with pt 2 of SEPP 25, because pt 2 came into force in 1991.

There is an immediate difficulty with this submission. A consent of the nature contemplated by subcl (3) is not granted "in accordance with" pt 2 of SEPP 25. Part 2 dealt only with residential allotment sizes and did not apply to the subject land. A consent to develop an allotment of land by the erection of two dwellings fell to be granted under SREP 12, cl 8 of which permitted dual occupancy development with the consent of the council.

What I have just said may be better understood by directing attention to the precise changes which were effected by amendment 2. The first matter to note is that amendment 2 amended both SEPP 25 and SREP 12.

Next, amendment 2 divided SEPP 25 into three separate parts and made some changes to the text of existing clauses (as well as adding a schedule not presently relevant). The first part, called "Part 1 - Preliminary", incorporated cls 1, 2, 3, 4 and 5 as they had originally appeared, but with some textual changes not presently relevant. The second part, called "Part 2 - Residential Allotment Sizes", incorporated cls 6, 7, 8 and 9 as they had originally appeared, again with some textual changes not presently relevant (and, as before, it did not apply to the land). The third part, called "Part 3 - Subdivision for Dual Occupancy" inserted cls 10-20 inclusive which were entirely new, and which, for the first time since dual occupancy development became possible under SREP 12, expressly permitted subdivision of dual occupancy development.

Lastly, amendment 2 changed SREP 12 in ways that ensured that subdivision of dual occupancy development was not precluded by its operation.

It would seem, therefore, that SEPP 25, as amended when amendment 2 came into force on 1 January 1992, dealt with two particular matters, first, residential allotment sizes and, secondly, dual occupancy subdivision. The entitlement to apply for and gain consent to erect two dwellings upon one allotment, that is, a dual occupancy development, remained a function of SREP 12.

It follows, therefore, that when cl 21F(3) of the PLEP refers to a consent granted "in accordance with Part 2" of SEPP 25, it cannot be referring to a consent which is specifically granted under pt 2 because pt 2 has no such operation. There are two possibilities. Either it is referring to a consent granted whilst pt 2 of SEPP 25 was in force; that is, a consent granted in accordance with SREP 12 but during a period which is calculated by reference to pt 2 of SEPP 25. Alternatively, the reference to pt 2 should be ignored, and subcl (3) should be read as if the reference was simply to SEPP 25. The latter is the construction which is advocated by Mr Moses on behalf of the applicant.

His argument may, I think, be fairly put as follows:

* Subdivision of the dual occupancy development on the subject land was permissible with consent from 1 January 1992, when amendment 2 to SEPP 25 came into force;

* The effect of amendment 11 to the PLEP was to prohibit subdivision of dual occupancy development, but a savings provisions was enacted in subcl (3);

* Paragraph (c) should be construed so as to cover any consent granted before 3 March 1995 in accordance with SREP 12 and SEPP 25 (which would include the dual occupancy consent in this case) and the reference to "Part 2" should be ignored;

* Any other construction would be inconsistent with amendment 2 to SEPP 25. One of the express aims of amendment 2 (as stated in cl 3(2)(a)) was to permit the subdivision of "... existing dual occupancy development". That was achieved by cl 11, and confirmed by cl 20, which was in the following terms:

"20. A condition of consent relating to occupancy granted under the Act before the commencement of this Part does not operate so as to prevent subdivision in accordance with this Part or apply to any dwelling in a dual occupancy development."

* The obvious purpose of subcl (3) is to provide an exception to the prohibition of subdivision of dual occupancy development. To determine the extent of that exception, it is necessary to take a purposive approach (Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd (1971) AC 850 at 880).

* The purpose of subcl (3) is to preserve a right to subdivide which had already accrued and thereby to avoid a retrospective removal of that right. An interpretation of para (c) which excludes the dual occupancy consent in this case gives an improbable result because it retrospectively removes the applicant's right to subdivide. In the case of an improbable result, the Court should adopt an alternative construction which is reasonably open instead of the literal meaning (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) 35 ALR 151 at 169.

* Further, the purpose of subcl (3) is remedial and the Court should construe the provision liberally (per Isaacs J in Bull v Attorney-General (NSW) (1913) 17 CLR 370).

The proper construction of cl 21F(3)(c)

Clause 21F appears in div 3A of the PLEP. Division 3A is headed "Dual Occupancy Development", and it specifies that dual occupancy development, attached or detached as the case may be, is permitted with the consent of the council within certain areas delineated on a specified map and in certain non-urban zones. It provides that in other specified areas, dual occupancy development is prohibited. It also sets out a number of matters, such as various standards, privacy and amenity etc, about which the council must be satisfied before granting consent to dual occupancy development.

Clause 21F prohibits subdivision of dual occupancy development carried out in accordance with div 3A. However, subcl (3) expressly excludes certain dual occupancy consents from the prohibition set out in the preceding subclause of cl 21F. It is in that context that subcl (3) must be construed.

The first two paragraphs of subcl (3), that is, paras (a) and (b), are, in my opinion, designed to preserve a right of subdivision in relation to dual occupancy development which was the subject of a development consent granted in accordance with the PLEP itself. It is to be remembered that, after 3 March 1995, dual occupancy development in the Pittwater area was subject to local control and not subject to SREP 12 and SEPP 25. That was the effect of amendment 6 to the PLEP. Bearing in mind the critical date of 3 March 1995 and bearing in mind the prohibition on subdivision which amendment 11 was to effect, paras (a) and (b) can be more readily understood. Thus, para (a) preserves subdivision in relation to a consent granted under div 3A of the PLEP later than 14 days after the first exhibition of amendment 11, but only if the application for consent was made before the expiration of that 14 day period. Similarly, para (b) preserves subdivision in relation to a consent granted under div 3A after 3 March 1995 (

when SREP 12 and SEPP 25 were excluded by amendment 6 to the PLEP) but before the expiration of the 14 day period.

When amendment 6 to the PLEP came into force, it contained, in cl 8, a savings provision in the following terms:

"8 Environmental planning instruments (including State environmental planning policies and regional environmental plans and, where appropriate, Pittwater Local Environmental Plan 1993) as in force immediately before the commencement of this plan continue to apply to a development application if:

(a) the application was made but had not been finally determined before that commencement; and

(b) the development that is the subject of the application is prohibited because of the amendments made by this plan but could, with development consent, have been carried out in accordance with those instruments as so in force."

Paragraph (d) was obviously intended to cover the case of a development consent granted after SREP 12 and SEPP 25 had been excluded by amendment 6, but which was, however, granted in accordance with those instruments, the operation of which had been saved by cl 8 in relation to a development application made but not finally determined before amendment 6 came into force.

Turning back to para (c), it is apparent, I think, having regard to the other paragraphs, that it was intended simply to cover consents granted in accordance with SREP 12 and SEPP 25 before the operation of those instruments in the Pittwater area was excluded by amendment 6. The dual occupancy consent in this case is one such consent. It was granted in 1989 (before amendment 6 to the PLEP was enacted) under SREP 12, and SEPP 25 applied to it after amendment 2 came into force on 1 January 1992.

The conclusion I have reached is reinforced by Mr Moses' submission regarding retrospective removal of a right. Although the applicant had no right to subdivide the land when the dual occupancy consent was granted, that right was conferred upon him when amendment 2 to SEPP 25 came into force on 1 January 1992. That right continued throughout the "window of opportunity" period until amendment 11 to PLEP abolished the right to subdivide a dual occupancy development. The purpose of cl 21F(3) is to preserve rights to subdivide which had accrued before it came into force in its amended form on 9 February 1996. The effect of cl 21F(3), construed as I have indicated above, is not, as Mr Hemmings suggested, to extend to the applicant rights which he never had. It is to preserve a right which he acquired by dint of legislative amendment. The operation of cl 21F(3) is remedial, and should be construed liberally, as the authorities cited by Mr Moses direct.

Conclusion

For the foregoing reasons, I have concluded that cl 21F(3)(c) of the PLEP operates to preserve for the applicant a right to subdivide the dual occupancy development on the subject land.

Accordingly, I formally answer the question of law as follows:

Question

Whether the development application is capable of being granted consent under Pittwater Local Environmental Plan 1993 (as amended)?

Answer

Yes.

The applicant's appeal against the council's refusal to grant consent to a subdivision of the subject land should proceed to a hearing upon the basis of the answer I have provided to the question of law. I grant leave to the parties to approach the Registrar to seek a date for that hearing