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Matic v Mid-Western Regional Council

Matic v Mid-Western Regional Council

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Land and Environment Court

of New South Wales

CITATION: Matic v Mid-Western Regional Council [2008] NSWLEC 113

PARTIES:
APPLICANT
Branaslav Matic
RESPONDENT
Mid-Western Regional Council

FILE NUMBER(S): 11269 of 2007

CORAM: Jagot J

KEY ISSUES: Construction and Interpretation :- environmental planning instrument - permissibility of subdivision - rural land - concessional allotment - subdivision permissible with consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Interpretation Act 1987

CASES CITED: Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
Calleja v Botany Bay City Council (2005) 142 LGERA 104
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379
Singh v The Commonwealth and Another (2004) 222 CLR 322
Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30
Wilson v Anderson and Others (2002) 213 CLR 401

DATES OF HEARING: 11 March 2008

DATE OF JUDGMENT:
17 March 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan
SOLICITORS
Spiegel & Associates
RESPONDENT
Mr P Crennan, solicitor
SOLICITORS
McIntosh McPhillamy & Co.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

17 March 2008

11269 of 2007

BRANASLAV MATIC
Applicant

MID-WESTERN REGIONAL COUNCIL
Respondent
JUDGMENT

1 A question of permissibility has arisen in this appeal against Mid-Western Regional Council’s refusal of the applicant’s development application for subdivision. After discussion with the parties the question for separate determination has been framed as follows:

Is the subdivision, insofar as it proposes the creation of lots 1, 3, 5, 9 and 11, permissible pursuant to clause 13 of the Rylstone Local Environmental Plan 1996?

2 This question involves a compromise in recognition of the fact that the parties were represented before the Court on a date allocated for the hearing of a separate question and ready to deal with the application of cl 13 of the Rylstone Local Environmental Plan 1996 (the LEP) to the development proposed in the development application. However, a better question would have been whether the subdivision, insofar as it proposes the creation of lots 1, 3, 5, 9 and 11, is permissible with consent under s 76A of the Environmental Planning and Assessment Act 1979 (the EPA Act). As neither party had considered their position with respect to the potential application of State Environmental Planning Policy No 1 - Development Standards to cl 13 of the LEP, this question could not be dealt with on the allocated hearing date. As it turns out, this concern about potential inefficiency in determining the separate question as framed is moot because I have accepted the applicant’s arguments.

3 Clause 13 of the LEP relates to the subdivision of land within Zone 1(a) (General Rural) and is as follows:

(1) The Council may consent to the subdivision of land within Zone No 1(a) if the Council is satisfied that each of the allotments to be created by the subdivision is intended to be used for the purpose of a dwelling, but…

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: [2008] NSWLEC 113
Decision Date: 17 March 2008

CaseChat Overview and Summary

Branaslav Matic sought to appeal against Mid-Western Regional Council’s refusal of his development application for subdivision of rural land. The dispute centred on the permissibility of the creation of lots 1, 3, 5, 9, and 11 under clause 13 of the Rylstone Local Environmental Plan 1996. The Council argued that the creation of these lots was not permissible, while the applicant contended that the creation of these lots was permissible under the proviso in clause 13(1)(a). The Court needed to determine whether the creation of these lots was permissible according to clause 13 of the Local Environmental Plan.

The Court considered the meaning of the clause and the competing submissions of the parties. The Council argued that the proviso in clause 13(1)(a) allowed only one concessional allotment per parcel of land and that the proviso had been exhausted in a previous development consent. The Council also argued that the proviso permitted only one concessional allotment when granting consent to a subdivision of land. The applicant argued that the proviso permitted the creation of one concessional allotment for each lot of not less than 40 hectares created by the grant of consent to a subdivision of land. The Court accepted the applicant's argument, finding that the proviso allowed for one concessional allotment for each 40-hectare lot created by the grant of consent, provided the lot was less than 4 hectares and not less than 0.4 hectares and was for a relative of the owner or the owner and satisfied the requirements of the clause.

The Court found that the Council's arguments were inconsistent with the language of clause 13(1)(a) and the natural and ordinary meaning of the clause. The Court held that the applicant's argument gave a sensible meaning to all the words of the clause, and the structure and language of clause 13(1)(a) supported the conclusion that for each 40-hectare lot created by a grant of consent, there could be one concessional allotment also created, provided the lot was less than 4 hectares and not less than 0.4 hectares and was for a relative of the owner or the owner and satisfied the requirements of the clause.

The Court answered the separate question in the affirmative, finding that the subdivision, insofar as it proposes the creation of lots 1, 3, 5, 9, and 11, is permissible pursuant to clause 13 of the Rylstone Local Environmental Plan 1996.

Orders