Lyne v Moree Plains Shire Council
[1999] NSWLEC 240
•10/22/1999
Land and Environment Court
of New South Wales
CITATION:
T H and M V Lyne and Wakana Pty Ltd v Moree Plains Shire Council [1999] NSWLEC 240
PARTIES
APPLICANT
T H and M V Lyne and Wakana Pty LtdRESPONDENT
Moree Plains Shire Council
NUMBER:
10417 of 1999
CORAM:
Pearlman J
KEY ISSUES:
Question of Law :- environmental impact statement - construction of development application - characterisation of purpose - owner's consent
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Moree Plains Local Environmental Plan 1995
DATES OF HEARING:
09/28/1999
DATE OF JUDGMENT DELIVERY:
10/22/1999
LEGAL REPRESENTATIVES:
APPLICANT
Mr S B Austin QC with Mr D T Miller (Barrister)SOLICITORS
Taylor KelsoRESPONDENT
SOLICITORS
Mr C R Ireland (Solicitor)
Phillips Fox
JUDGMENT:
IN THE LAND AND 10417 of 1999
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 22 October 1999
- Applicant
Respondent
Introduction
1. Two preliminary questions of law have arisen for determination in a class 1 appeal brought by the applicants, T H and M V Lyne and Wakana Pty Ltd, against the refusal of their development application by Moree Plains Shire Council (“the council”).
2. The questions are:
(b) Whether the development application is invalid by reason of it not being made with the consent of the owner of land to which the development application relates?(a) Whether the development application may be granted development consent without the preparation and exhibition of an environmental impact statement?
Background
3 . On 16 October 1997, the applicants lodged the development application with the council. It comprised a printed form, called an “Activity Application Form”, and the proposed development was described simply by the applicants ticking a box marked “subdivide”. The land the subject of the development application was stated as being lot 1 and lot 6 DP 246571 (“the specified allotments”). The development application stated that the number of lots to be created was 33 (although subsequent documents indicate that number as 32). The specified allotments fall under zone No 1(c) (Rural Small Holdings) under the Moree Plains Local Environmental Plan 1995 (“the LEP”) and development for the purpose of subdivision is permissible with consent.
4. Accompanying the development application was a letter dated 16 October 1997 addressed to the council’s town planner from M.F-G Shaw & Associates Pty Ltd, who were surveyors acting as agents for the applicants. The letter indicated that the applicants were seeking consent to subdivide the specified allotments in accordance with an attached sketch plan. The letter also acknowledged that the specified allotments were situated in a flood plain under the Moree Flood Management Study.
5. A report prepared by Local Government Engineering Services Pty Ltd was lodged by the applicants in support of the development application. That report (“the first LGES report”) indicated the design for a common effluent collection and treatment system for the proposed subdivision. It was to comprise a septic system on each residential lot from which effluent would be pumped via a community reticulation main to an evaporation pond. According to the affidavit evidence of Mr P L Taylor, the applicants’ environmental consultant, the evaporation pond was to be located upon a travelling stock route, which council’s records show as being designated as TSR 132234.
6. On 20 May 1999, the council refused consent to the development application, citing four reasons, one of which was “effluent disposal”.
7. On 8 June 1999, the applicants’ surveyors wrote to the council requesting an alteration of the development application. They proposed the abandonment of the evaporation pond and instead proposed a system to pump septic waste from the specified allotments to the Moree sewerage system.
8. On 30 July 1999, the applicants submitted a further report (“the second LGES report”) which indicated the new design. The effluent from each septic tank would be pumped to a centralised storage well (pump well 1) or to a main storage well (pump well 2). From pump well 1, effluent would be pumped to pump well 2 and thence would be pumped 4.150 kilometres to the Moree sewerage system. Pump well 1 would have a minimum capacity of 14,000 litres, and pump well 2 would have a minimum capacity of 20,000 litres. The route of the proposed line from the specified allotments to the Moree sewerage system was to traverse TSR 132234.
9. The council apparently decided to treat the amendment as constituting an application under s 82A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) for a review of its determination to refuse consent to the development application. Although the council officers recommended approval as a consequence of that review, on 19 August 1999 development consent was again refused by the council. Four reasons for that refusal were given, but effluent disposal was not one of them.
Confusion about the amendment
10. There is considerable confusion about the amendment of the development application. It is appropriate that I explain how that confusion has arisen, and state my conclusion that the Court does not at this stage need to resolve the issue.
11. Since the development application was lodged with the council prior to amendments to the EP&A Act which came into force on 1 July 1998, it falls to be determined under the unamended EP&A Act (by virtue of cl 11 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998). Section 82A came into force as a consequence of those amendments, and hence it does not operate in relation to this development application; that is, there is no provision for a review of the council’s initial refusal of the development application.
12. The council in these circumstances contends that the development application the subject of the current appeal is the unamended development application (involving the evaporation pond), since no application has been made to the Court to amend it. The applicants on the other hand contend that a formal application to amend is not required, that the council dealt with the amended development application, that the only development application before the Court is the amended application, and that the initial sewerage design has been superseded and should be ignored.
13. It is, however, unnecessary for the Court at this stage to resolve this issue. As will be seen, the answers to the preliminary questions of law, and the respective submissions of the parties in relation to them, do not strictly depend upon whether or not the development application was effectively amended.
The council’s case
14. In relation to the question of whether or not an EIS is required, the council’s case may be summarised as follows:
(b) The council claims that the sewerage works which the applicants propose (whether they involve the evaporation pond as originally proposed or the pump wells as later proposed) fall within the following description of “designated development” in pt 1 of sch 3 of the Environmental Planning and Assessment Regulation 1994 (“the Regulation”) being:(a) The council contends that the development application sought approval for both a subdivision of the specified allotments and associated sewerage works. That is said to follow from the submission to the council of the first LGES report as part of the development application, or alternatively the submission of the second LGES report as part of the amendment;
Sewerage systems or works that:
(3) temporarily or permanently store sewage, sludge or effluent:(b) at a location:
(iv) on a flood plain…
(c) That proposition is based upon the applicants’ concession that the specified allotments are within a flood plain, and upon the description of the works which are proposed. The evaporation pond is a facility which stores sewage at location on a flood plain. Similarly, the two pump wells proposed under the amended application are sewerage works that temporarily store sewage or effluent at a location on a flood plain.
(e) The council claims that, as a consequence, the answer to the first preliminary question of law is in the negative, and is fatal to the applicants’ class 1 appeal.(d) The council relies upon s 77(3)(d) of the EP&A Act which provides that where a development application is made in respect of designated development, it must be accompanied by an environmental impact statement. It claims that failure to do so cannot be remedied on appeal ( Helman v Byron Shire Council & Anor (1995) 87 LGERA 349).
15. In relation to the question of owner’s consent, the council’s case is simply that both the evaporation pond as originally proposed, and the pipelines leading to the Moree sewerage system as subsequently proposed, constitute development which is to take place on TSR 132234, which is not land owned by the applicants. Hence, the council claims that applicants have failed to comply with cl 77(1)(b) of the EP&A Act, which provides that a development application may be made by any person with the written consent of the owner of the land to which that development application relates. The council concedes, however, that the failure to provide the owner’s written consent may be remedied, but if it is not remedied, the class 1 appeal must fail.
The applicants’ case
16 . The applicants’ case is that the development application seeks consent only for a subdivision of the specified allotments. Consent is not sought for a sewerage removal system. Alternatively, the applicants claim that the dominant purpose for which development consent is sought is that of subdivision, and the sewerage removal system is subordinate or ancillary to that dominant purpose.
17. The applicants contend that it was necessary to furnish details of a proposed sewerage removal system to the council so that it could make a proper assessment of the proposed subdivision. They claim that, as a general proposition, the council could not assess the proposed subdivision in isolation, but would need to know in general terms the services which would be provided, such as access roads and utility services. More specifically, consideration of utility services is required under the LEP. Thus, the objectives of the 1(c) zone make specific reference to services being “readily and economically accessible” (objective (a)), and to utility services being provided by persons at their own cost on-site (objective (b)). Furthermore, cl 12 of the LEP provides that the council must not consent to a subdivision of land zoned 1(c) unless it has obtained “all relevant information in relation to, and made an assessment of: (a) the primary purpose for which each allotment is to be created…” .
18. The applicants therefore claim that the first preliminary question of law should be answered in the affirmative, because development consent is not sought for designated development.
19. The applicants concede that land on which the pumps and pipes are to be located is within a flood plain, but they take issue with the council’s contention that the sewerage removal system as described in the amended application falls within the description of “sewerage systems or works” in pt 1 of sch 3 of the Regulation because the system does not involve either temporarily or permanently storing the sewerage, sludge or effluent. What is intended is to remove the effluent, and that is to be achieved by collecting it and pumping it to the Moree sewerage system.
20. In conformity with these claims, the applicants contend that the development application does not involve development being carried out upon TSR 132234, and accordingly the written consent of the owner of TSR 132234 is not a prerequisite to the grant of development consent, so that the second preliminary question of law should be answered in the negative.
What is the development for which consent is sought?
21. Section 77(1)(d) of the EP&A Act provides that a development application shall, “where the application is in respect of designated development, be accompanied by an environmental impact statement …” . Accordingly, the critical issue for determination in order to answer the first preliminary question of law is whether the development application “is in respect of designated development .
22. The determination of that issue requires the Court to decide whether or not, on the facts, the development application is only in respect of a subdivision of the specified allotments into rural residential lots (as the applicants contend) or whether the development application is in respect of both subdivision and sewerage works (as the council contends). If the development application is only in respect of subdivision, then s 77(1)(d) has no operation, because subdivision does not fall within any description of designated development in pt 1 of sch 3 of the Regulation.
23. There are a number of matters which are relevant to this issue. First, the development application form is specifically expressed to be in respect of subdivision of the specified allotments into a number of lots. That is confirmed by the accompanying consultant’s letter of 16 October 1997, which states that the consultants “act for the owners … in applying … for consent to subdivide the land generally in accordance with the sketch plan herewith”. It was also how council officers regarded the development application. A report of the director of environmental services to the general manager which became part of the minutes of the council meeting on 15 April 1999 described the development application as being for “a proposed thirty three (33) lot rural residential subdivision” on the specified allotments. A similar description is to be found under the heading of “background” in the report of the development manager for the meeting of the council on 19 August 1999.
24. Secondly, as Mr Austin QC for the applicants pointed out, matters concerning the provision of utility services are stated in the objectives of zone 1(c), and cl 12 of the LEP, which expressly provides that the council must obtain “all relevant information in relation to … the primary purpose for which each allotment to be created by the subdivision is intended to be used”. These provisions of the LEP explain the purpose for which the first and second LGES reports were furnished and it is clear from the reports to the council meetings of 15 April 1999 and 19 August 1999 to which I have earlier referred that effluent removal was an issue which the council took into account.
25. I conclude from these matters that the development application is in respect of subdivision and not in respect of sewerage works, and that, accordingly, the first preliminary question of law should be answered to the effect that an environmental impact statement is not required.
26. Mr Austin submitted that an alternative approach to the answer to the first preliminary question of law is to characterise the purpose of the proposed development. That task is a matter of fact and degree ( Lizzio and Anor v Ryde Municipal Council (1983) 51 LGRA 114 at 117) and the guiding principle may be found in the well-known passage from the judgment of Glass JA in Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157 at 161 as follows:
It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.
27. The finding I have made, which is that the development application is for subdivision and not for sewerage treatment works, makes it strictly unnecessary to consider this alternative approach, but as it was fully argued it is appropriate that I express my opinion in relation to it.
28. On this alternative approach, Mr Austin contended that the purpose for which the whole of the specified allotments are to be used is a subdivision into rural residential lots, and the sewerage removal system (whether by way of an evaporation pond, or by way of pump wells and transfer to the Moree sewerage system) is subservient to that use. He submitted that it is appropriate, in adopting the approach of Glass JA in Foodbarn v Solicitor-General , to characterise the use of the specified allotments for the purpose of sewerage effluent removal as inspired by the use of the specified allotments for the purpose of a subdivision into rural residential lots. Indeed, were it not for that proposed subdivision, there would not be a proposal for a sewerage effluent removal system.
29. According to this approach it would be legitimate to regard the subdivision into rural residential lots as the dominant purpose for which the specified allotments are proposed to be used, and to disregard the use of the specified allotments for the purpose of sewerage removal as being subordinate or subservient to the dominant use.
30. A similar approach was taken by Bignold J in Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294, where his Honour applied Foodbarn v Solicitor-General in finding (at pp 306 - 308) that the proposed sewerage system in that case was subordinate to the proposed tourist development, the latter development being appropriately regarded as the dominant purpose for which the land in that case was to be used.
31. Mr Ireland, appearing for the council, took issue with this approach and I think that he is correct. He submitted that, although “subdivision” is defined under s 4(1) of the unamended EP&A Act as included in the expression “development” , it is defined as separate from “use”.
32. In Mr Ireland’s submission, the meaning of “subdivision ” is to be found in s 4(2)(d)(i) of the unamended EP&A Act, which relevantly provides as follows:
(2) A reference in this Act to:
(d) the subdivision of land is a reference to:
(I) … the subdivision of land within the meaning of the Local Government Act 1919;
33. Section 4 of the Local Government Act 1919 defines “subdivision” as meaning “dividing land into parts” , and includes, relevantly, dividing land into parts “by procuring the creation of a folio of the Register kept under the Real Property Act 1900 in respect of a part of the land”.
34 . Therefore, according to Mr Ireland, the authorities relating to the characterisation of the use of land do not apply, because “subdivision” is defined as a matter of conveyancing, not of use. It follows that the development application seeks consent for a development which is not a “use” but a “subdivision” , and it cannot be said that the sewerage removal works constitute a use of the specified allotments which is subservient to the dominant use of the specified allotments for the purpose of subdivision.
35. A similar approach was taken in Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151, where it was held that, under the Town and Country Planning At 1961 (VIC) (which is not identical to the unamended EP&A Act but for this purpose is analogous), the definitions of “development” and “subdivision” did not fall within the definition of “use”, and that subdivision by itself did not constitute a “use”.
36 . However, although I consider for the above reasons that Mr Ireland’s submission in relation to the alternative approach is correct, I remain of the view which I have earlier set out, namely, that the development application on its facts seeks consent for a subdivision and not for sewerage removal works, and accordingly, an environmental impact is not required to accompany the development application. The first preliminary question of law should be answered in the affirmative.
Is an owner’s consent required?
37. My finding in relation to the first preliminary question of law furnishes the answer to the second preliminary question of law. No owner’s consent is required.
38. Section 77 (1) of the EP&A Act provides as follows:
77(1) A development application may be made only by -
(a) the owner of the land to which that development application relates; or
(b) any person, with the consent in writing of the owner of the land to which that development application relates.
39. The critical aspect posed by s 77(1) is “the land to which that development application relates”. I have found that the development application has been made in respect of a subdivision of the specified allotments into rural residential lots. It has not been made in respect of the sewerage removal system, and accordingly it does not involve any use of TSR 132234. Put another way, the land to which the development application relates is the specified allotments, which means that s 77(1)(a) is satisfied (because the owner of the specified allotments has made the development application) and s 77(1)(b) has no application.
40. Authority for that proposition is to be found in the following passage from the judgment of the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at pp 476 - 477 (referring to the unamended EP&A Act):
The context of s 77(1)(b) reveals the meaning of “relates” in that paragraph. A development application seeks consent to a development that a person would otherwise be prohibited from carrying out by s 76(2). The prohibition contained in s 76(2) is against the carrying out of a “development on land to which [a provision in an environmental planning instrument] applies.” Such a provision applies to particular parcels of land. A “development” can be carried out only on a particular parcel. Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application “relates” must therefore be the land on which the specified development is proposed to be carried out.
41 . In this case, the development application has been made for consent to a subdivision of the specified allotments, and the land to which the development “relates” is the specified allotments.
42. As part of the assessment of the development application, the council (and the Court on appeal) is required to take into account the relationship of the proposed development to adjoining land or other land in the locality (pursuant to s 90(1)(h) of the unamended EP&A Act) as a relevant factor in the exercise of the discretion to grant consent, but that is an issue which has not yet arisen. Another factor which may affect the exercise of that discretion is the necessity for the applicants to obtain the right (by way of easement or otherwise) to pipe the effluent through TSR 132234 but, again, that is an issue which will arise for consideration when the merits of the appeal in this matter are heard and dealt with (cf North Sydney Council v Ligon at p 476 and p 481).
43. Accordingly, the second preliminary question of law should be answered in the negative.
Conclusion
44. In accordance with the foregoing I answer the preliminary questions of law as follows:
Question 1:
Whether the development application may be granted development consent without the preparation and exhibition of an environmental impact statement?
Answer
Yes.
Question 2:
Whether the development application is invalid by reason of it not being made with the consent of the owner of land to which the development application relates?
No.Answer
45. The exhibits may be returned.
46. I make no order as to costs.
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