Issa v Burwood Council - [2005] NSWCA 38

Reported Decision:
137 LGERA 221

Court of Appeal

CITATION:
ISSA v BURWOOD COUNCIL [2005] NSWCA 38

HEARING DATE(S):
28/02/2005

JUDGMENT DATE:

21 March 2005

JUDGMENT OF:
Mason P at 1; Tobias JA at 2; Pearlman AJA at 3

DECISION:
Dismiss the appeal with costs.

CATCHWORDS:
BUILDING CONTROL AND TOWN PLANNING - development application for subdivision - whether use permissible or prohibited - planning scheme ordinance - meaning of word "allotment" - whether technical or ordinary meaning - whether equivalent to word "lot".

LEGISLATION CITED:
Burwood Planning Scheme Ordinance
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED:
S & I Investments Pty Ltd v Pittwater Municipal Council [1993] NSWLEC 166
Collector of Customs v Agfa-Gevaert Ltd [1996] 186 CLR 389
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422
Personal Design Projects Pty Ltd v Hornsby Shire Council [1991] NSWLEC 34
Demihale Pty Ltd v Ku-ring-gai Municipal Council [2002] 123 LGERA 94
Ku-ring-gai Municipal Council v Kuttner [1980] 41 LGERA 1

PARTIES:
PAUL ISSA Appellant
BURWOOD COUNCIL Respondent

FILE NUMBER(S):
CA 40727/2004

COUNSEL:
J B Maston Appellant
T F Robertson SC Respondent

SOLICITORS:
Maclarens Appellant
Houston Dearn O'Connor Respondent

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC10620/2004

LOWER COURT JUDICIAL OFFICER:
Pain J

CA40727/04

MASON P
TOBIAS JA
PEARLMAN AJA
Monday, 21 March 2005

ISSA v BURWOOD COUNCIL

Judgment

MASON P:

I agree with Pearlman AJA.

TOBIAS JA: I agree with Pearlman AJA.

PEARLMAN AJA:

Introduction

1 This appeal is concerned with whether or not a proposed subdivision development is permissible or prohibited under the relevant environmental planning instrument. In class 1 proceedings in the Land and Environment Court below, the issue of permissibility was raised for separate determination, and Pain J determined that issue by holding that the proposed subdivision was prohibited.

The factual background

2 The land the subject of the proceedings is situated at 102 Lucas Road, Burwood (“the site”). It comprises two Torrens title lots, namely, lot 1 in DP 953100 and lot 13 in DP 67171. It is zoned Residential 2(a) under the Burwood Planning Scheme Ordinance (“the BPSO”).

3 On 4 March 2002, a development application in respect of the site was lodged with the council and numbered 59/02. It sought development consent for “…restoration to existing cottage…and adding a garage. Proposed construction of dual occupancy consisting of 3 bedroom house and attic studio and garage”. On 20 December 2002, the council granted conditional consent to development described in the following terms:

Alterations to an existing dwelling and erection of a second
dwelling with attic at the rear to create a Dual Occupancy…and new double garage.”

One of the conditions imposed by the consent was as follows:

“5. This approval does not imply a Strata Subdivision of the Dual Occupancy which is prohibited within the Residential 2(a) zoning.”

4 The plans of the approved development depicted the “dual occupancy” dwelling as straddling the internal boundary between lot 1 and lot 13. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 38
Decision Date: 21 March 2005

CaseChat Overview and Summary

The case of *Issa v Burwood Council* concerned a development application for a subdivision that was refused by the respondent council. The applicant appealed this refusal to the Land and Environment Court, which upheld the council's decision. The applicant then appealed to the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was the interpretation of the term "allotment" as used in the relevant planning scheme ordinance. Specifically, the court had to determine whether "allotment" bore its ordinary, everyday meaning or a more technical meaning, and whether it was equivalent to the term "lot". This interpretation was critical to determining whether the proposed subdivision was a permissible or prohibited use under the ordinance.

The Court of Appeal reasoned that the ordinary meaning of "allotment" in the context of land division was a parcel of land created by subdivision. The court found that the planning scheme ordinance did not intend to give "allotment" a different or more technical meaning than its ordinary one, nor did it equate it with "lot" in a way that would alter its fundamental meaning in this context. The court concluded that the proposed subdivision did not create "allotments" as defined by the ordinance, and therefore the use was prohibited.

The appeal was dismissed, and the applicant was ordered to pay the costs of the respondent.

Orders

Orders of the court

Dismiss the appeal with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ISSA v BURWOOD COUNCIL [2005] NSWCA 38
HEARING DATE(S):	28/02/2005
JUDGMENT DATE:	21 March 2005
JUDGMENT OF:	Mason P at 1; Tobias JA at 2; Pearlman AJA at 3
DECISION:	Dismiss the appeal with costs.

CATCHWORDS:	BUILDING CONTROL AND TOWN PLANNING - development application for subdivision - whether use permissible or prohibited - planning scheme ordinance - meaning of word "allotment" - whether technical or ordinary meaning - whether equivalent to word "lot".
LEGISLATION CITED:	Burwood Planning Scheme Ordinance Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
CASES CITED:	S & I Investments Pty Ltd v Pittwater Municipal Council [1993] NSWLEC 166 Collector of Customs v Agfa-Gevaert Ltd [1996] 186 CLR 389 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422 Personal Design Projects Pty Ltd v Hornsby Shire Council [1991] NSWLEC 34 Demihale Pty Ltd v Ku-ring-gai Municipal Council [2002] 123 LGERA 94 Ku-ring-gai Municipal Council v Kuttner [1980] 41 LGERA 1
PARTIES:	PAUL ISSA Appellant BURWOOD COUNCIL Respondent
FILE NUMBER(S):	CA 40727/2004
COUNSEL:	J B Maston Appellant T F Robertson SC Respondent
SOLICITORS:	Maclarens Appellant Houston Dearn O'Connor Respondent

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC10620/2004
LOWER COURT JUDICIAL OFFICER:	Pain J