Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council - [2015] NSWLEC 83

Land and Environment Court

New South Wales

Medium Neutral Citation: Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83
Hearing dates: 1 April 2015
Decision date: 21 May 2015
Jurisdiction: Class 1
Before: Pain J
Decision:
The answer to the question posed in paragraph 1, is the “no dwellings” specification for “Buffer area 1m” in the table to cl 6.1(3) of the Pittwater Local Environment Plan 2014 (PLEP) a “development standard” to which clause 4.6 of the PLEP applies, is no.

Catchwords: QUESTION OF LAW – statutory construction of environmental planning instrument - no dwelling control in buffer area not a development standard but a prohibition
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4, 26, 33A, 97
Pittwater Local Environment Plan 1993 (repealed) cl 30C
Pittwater Local Environmental Plan 2014 cll 1.2, 2.3, 4.5A, 4.6, 4.8, 5.4, 6.1, 7.3
Standard Instrument – Principal Local Environment Plan
Cases Cited: Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380
Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 31; (2006) 67 NSWLR 672
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 152 LGERA 400
Huang v Hurstville City Council (No 2) [2011] NSWLEC 151
North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222
Lowy v Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 LGERA 179
Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360
Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319
Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12; (2014) 201 LGERA 232
Category: Principal judgment
Parties: Karimbla Constructions Services (NSW) Pty Ltd (Applicant)
Pittwater Council (Respondent)
Representation:
Counsel:
Mr F Corsaro SC with Mr J Doyle (Applicant)
Mr L Waterson (Respondent)
Solicitors:
General counsel Meriton Group (Applicant)
King and Wood Mallesons (Respondent)

File Number(s): 11105 of 2014

Judgment

Separate question of law in Class 1 appeal

Karimbla Constructions Services (NSW) Pty Ltd (the Applicant) has appealed under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of its development application (DA N0431/14) by Pittwater Council (the Council). By order made on the Council's motion in these Class 1 appeal proceedings the following question has been listed for separate hearing:

Is the “no dwellings” specification for 'Buffer area 1m' in the table to clause 6.1(3) of the Pittwater Local Environment Plan 2014 ("PLEP") a 'development standard' to which clause 4.6 of the PLEP applies?

The Applicant is a private company within the Meriton group of companies, being a large national residential apartment developer.
Development standard is defined in s 4 of the EPA Act as:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are…

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: [2015] NSWLEC 83
Decision Date: 21 May 2015

CaseChat Overview and Summary

The case of Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council involved the applicant, Karimbla Constructions Services, challenging the respondent, Pittwater Council, over the interpretation of certain planning provisions. The dispute centred on the applicability of clause 4.6 of the Pittwater Local Environment Plan 2014 (PLEP) to the “no dwellings” specification for “Buffer area 1m” in the table to cl 6.1(3) of the PLEP. Karimbla Constructions Services contended that the council's interpretation of the relevant provisions was incorrect and sought clarification on the matter. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issue the court had to decide was whether the “no dwellings” specification for “Buffer area 1m” in the table to cl 6.1(3) of the PLEP constituted a “development standard” to which clause 4.6 of the PLEP applied. Clause 4.6 specifies that where a development standard is altered, a notice must be given to the affected landowners. The court needed to determine whether the “no dwellings” specification was a development standard, and if so, whether it required notice to be given under clause 4.6.

The court considered the text of the relevant provisions and the legislative framework governing planning and development in New South Wales. The court concluded that the “no dwellings” specification for “Buffer area 1m” in the table to cl 6.1(3) of the PLEP was not a development standard to which clause 4.6 applied. The court found that the specification was a design standard, which was not subject to the notice requirements of clause 4.6. The court also noted that the “no dwellings” specification was not a change to an existing standard, but rather a new standard introduced by the PLEP. As such, the court held that the council's interpretation of the relevant provisions was correct, and Karimbla Constructions Services' challenge was unsuccessful.

In conclusion, the Land and Environment Court of New South Wales found that the “no dwellings” specification for “Buffer area 1m” in the table to cl 6.1(3) of the PLEP was not a development standard to which clause 4.6 applied. The court held that the specification was a design standard and not subject to the notice requirements of clause 4.6. The challenge brought by Karimbla Constructions Services was dismissed, and the council's interpretation of the relevant provisions was upheld.

Orders

Orders of the court

The answer to the question posed in paragraph 1, is the “no dwellings” specification for “Buffer area 1m” in the table to cl 6.1(3) of the Pittwater Local Environment Plan 2014 (PLEP) a “development standard” to which clause 4.6 of the PLEP applies, is no.

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.

Medium Neutral Citation:	Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83
Hearing dates:	1 April 2015
Decision date:	21 May 2015
Jurisdiction:	Class 1
Before:	Pain J
Decision:	The answer to the question posed in paragraph 1, is the “no dwellings” specification for “Buffer area 1m” in the table to cl 6.1(3) of the Pittwater Local Environment Plan 2014 (PLEP) a “development standard” to which clause 4.6 of the PLEP applies, is no.
Catchwords:	QUESTION OF LAW – statutory construction of environmental planning instrument - no dwelling control in buffer area not a development standard but a prohibition
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 4, 26, 33A, 97 Pittwater Local Environment Plan 1993 (repealed) cl 30C Pittwater Local Environmental Plan 2014 cll 1.2, 2.3, 4.5A, 4.6, 4.8, 5.4, 6.1, 7.3 Standard Instrument – Principal Local Environment Plan
Cases Cited:	Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 31; (2006) 67 NSWLR 672 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 152 LGERA 400 Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222 Lowy v Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 LGERA 179 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319 Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12; (2014) 201 LGERA 232
Category:	Principal judgment
Parties:	Karimbla Constructions Services (NSW) Pty Ltd (Applicant) Pittwater Council (Respondent)
Representation:	Counsel: Mr F Corsaro SC with Mr J Doyle (Applicant) Mr L Waterson (Respondent) Solicitors: General counsel Meriton Group (Applicant) King and Wood Mallesons (Respondent)
File Number(s):	11105 of 2014