Marcolongo v Pittwater Council

[1999] NSWLEC 85

Land and Environment Court

of New South Wales

CITATION:	Marcolongo & Anor -V- Pittwater Council [1999] NSWLEC 85
PARTIES	APPLICANT: Marcolongo & Anor
RESPONDENT: Pittwater Council
NUMBER:	10901 of 1998
CORAM:	Lloyd J
KEY ISSUES:	Question of Law :- unzoned land - whether relevantly regulated
LEGISLATION CITED:	Land & Environment Court Rules Environmental Planning & Assessment Act 1979 Pittwater Local Environmental Plan 1993
DATES OF HEARING:	04/06/1999
DATE OF JUDGMENT DELIVERY:	04/15/1999
LEGAL REPRESENTATIVES:	APPLICANT: D P Wilson SOLICITORS: Greg Dunstan & Associates RESPONDENT: I J Hemmings SOLICITORS: Malleson Stephen Jaques

JUDGMENT:

JUDGMENT

HIS HONOUR:

1. This is the separate determination of preliminary questions of law pursuant to the Supreme Court Rules Pt 31 r 2(1), which is applied to this Court by the Land & Environment Court Rules Pt 6 r 1(1).

2. Four questions were initially referred to me for determination. The parties agreed that the first question was a question of fact and not a question of law. The parties also agreed that the fourth question was no longer one which needed to be answered. Accordingly the following two questions as framed by the respondent remain:

(1) Whether the effect of part of the land being unzoned, having regard to the terms of the Pittwater Local Environmental Plan 1993 and section 76B(b) of the Environmental Planning & Assessment Act 1979 is that the development of the land for all purposes, including subdivision, is prohibited.

(2) Depending on the answer to question 2 above, whether the application may be approved in the absence of an assessment of the likely effects on the environment of the carrying out of the activity in accordance with Divisions 2 and 3 of Part 5 of the Environmental Planning & Assessment Regulation 1994.

3, The questions arise as a consequence of the following facts. On 31 March 1998 the applicant made a development application for the subdivision of a parcel of land into two allotments. The land is subject to the Pittwater Local Environmental Plan 1993 under which it is partly within zone No 2(a) (Residential A) and partly unzoned. The applicant has now appealed to the Court under the Environmental Planning & Assessment Act 1979 (“the Act”), s 97, against the deemed refusal of the development application. The respondent contends that because part of the land is unzoned no consent can be granted to the development application. Accordingly, the respondent contends that if consent is not required under Part 4 of the Act then an assessment must be undertaken under Part 5 of the Act.

4. For the purpose of answering the questions of law it is necessary to refer to the relevant provisions of the Pittwater Local Environmental Plan 1993. Clause 3 provides that the plan applies to all land within the area of Pittwater as shown on the map. This includes the subject land. Clause 8 specifies the various zones indicated on the map. Clause 9 contains the zoning table and specifies, in relation to land within a zone specified in the table to that clause, the purposes for which development may either be carried out without consent, carried out with development consent or which is prohibited.

5. Clause 10 reads:

A person shall not, without the consent of the Council, carry out any of the following development:

(a) subdivision of land, ….

6. Clause 11 applies to the subdivision of land in residential zones. It provides that a person shall not subdivide land within certain residential zones unless certain criteria are met. Clause 12 applies to the subdivision of land in non-urban zones. It provides that a person shall not subdivide land within the various non-urban zones unless certain criteria are met. Clauses 13-15A apply to the subdivision of particular parcels of land and to land at particular locations.

7. The parties accept that the development application in the present case is governed by the Act as it stood on 31 March 1998, when the development application was made. The relevant section, s 76(2) is, however, not dissimilar to the present s 76A. Section 76(2) of the Act stated:

(2) Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:


(a) that consent has been obtained and is in force under this Act, and

(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.

8. Under clause 10 of the Local Environmental Plan a subdivision of land may not be carried out without the consent of the Council. Under clauses 11 and 12 the subdivision of land may not be carried out unless certain criteria are met. These provisions fall squarely within s 76(2) of the Act which I have set out above. Unlike clauses 11 and 12, clause 10 is not limited to land within any particular zone. It applies to all land to which the Local Environmental Plan applies, which is all land within the area of Pittwater as shown on the map. That includes, of course, the subject land. It follows that the land, although unzoned, is subject to clause 10 of the Local Environmental Plan and hence is subject to s 76(2) of the Act. The Council may either consent or refuse its consent to the application for subdivision.

9. This conclusion is consistent with the judgment of the Court of Appeal in Aquatic Airways Pty Ltd v Warringah Shire Council (1990) 71 LGRA 10. In that case the Court (Clarke, Meagher and Handley JJA) said (at 15-16):

The control and regulation of the use of lands in this State is relevantly effected by planning legislation and planning instruments. If no planning instrument qualifies or regulates the use of particular land then, provided the use does not offend other areas of regulation (for example, the Crimes Act), any use is permissible and lawful without the consent of the responsible planning authority. At the relevant times land in Pittwater had not been zoned or relevantly regulated.

Accordingly, prior to 1981 it was lawful to use that land for the purpose of the landing and taking-off of helicopters. However, the right to use the land for that purpose did not arise from any planning instrument. It existed because no provision of a planning scheme affected the right to use the land for that purpose.

10. Similarly, in the present case the subject land, being unzoned, is not relevantly regulated. It is thus lawful to carry out any development on the unzoned land because no provision of the Local Environmental Plan affects the right to do so, other than the limitation on that right in clause 10. The latter limitation requires the consent of the Council for subdvision.

11. The answer to question (1) as framed must be in the negative. That is to say, the effect of the land being unzoned is that any use or development of it is permissible and lawful, including subdivision. The only restriction on any such use or development is in clause 10. Section 76B of the Act has no application in the present case.

12. The answer to question (1) also resolves question (2). Part 5 of the Act applies only to an “activity” as defined in s 110. An “activity” does not include any act, matter or thing for which development consent under Part 4 is required or has been obtained. The subdivision of land is an act, matter or thing for which development consent is required under Part 4. Accordingly the provisions of Part 5 do not apply to the subdivision in this case.

13. The questions of law are therefore answered as follows.

Question (1)

Whether the effect of part of the land being unzoned, having regard to the terms of the Pittwater Local Environmental Plan 1993 and section 76B(b) of the Environmental Planning & Assessment Act 1979 is that the development of the land for all purposes, including subdivision, is prohibited.
Answer: No.

Question (2)

Depending on the answer to question 2 above, whether the application may be approved in the absence of an assessment of the likely effects on the environment of the carrying out of the activity in accordance with Divisions 2 and 3 of Part 5 of the Environmental Planning & Assessment regulation 1994.
Answer: Yes.


I certify that this and the preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate
Dated: 15/04/99