Oldershaw v Albury-Wodonga (NSW) Development Corporation
[1988] NSWLEC 36
•12/23/1988
Land and Environment Court
of New South Wales
CITATION: Oldershaw v Albury-Wodonga (NSW) Development Corporation [1988] NSWLEC 36 PARTIES: APPLICANT
RESPONDENT
Oldershaw
Albury-Wodonga (NSW) Development CorporationFILE NUMBER(S): 10495 of 1987 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979CASES CITED: Byron Shire Council v. Chrestal Pty. Ltd. (1983) 49 LGRA 88);
Gergely & Pinter v. Woollahra Municipal Council (1984) 52 LGRA 400 at p.412.;
S.C.M.P. v. North Sydney Municipal Council (unreported 15th April, 1983);
Colin Graham & Partners v. The Council of the Shire of Great Lakes - Court of Appeal - unreported 6th May, 1982);
Woollahra Municipal Council v. T.A.J.J. Investments Pty. Ltd. (1982) 49 LGRA 123 at p.127;
McPhee v. S. Bennett (1954) S2WN (NSW) 8 at p.9 cf.;
Azzopardi v. Tasman UEB Industries Ltd. (1985) 4 NSWLR 139DATES OF HEARING: DATE OF JUDGMENT:
12/23/1988LEGAL REPRESENTATIVES:
JUDGMENT:
Bignold J.: This is an appeal under s.56A of the Land and Environment Court Act 1979 against the decision of an Assessor dismissing an appeal under s.97 of the Environmental Planning and Assessment Act 1979 in respect of a development application to subdivide into 2 allotments (comprising areas of 1.88ha and 2.12ha respectively) an existing parcel of land situate at Lyne Street, Lavington.
As is, unfortunately, not uncommon, in appeals under s.56A which are confined to errors of law the Appellant has experienced difficulty in propounding with any particularity or precision its appeal grounds. The initial statement of the grounds of appeal were manifestly deficient and at one stage the Respondent moved the Court to dismiss the appeal. Eventually the Appellant filed amended grounds of appeal alleging some 12 errors of law in respect of which the Respondent, upon the commencement of the hearing of the appeal, immediately raised preliminary objection that grounds 1-9 (inclusive) do not raise any questions of law. This preliminary objection took the Appellant by surprise, apparently no previous notice having been given of the preliminary objection despite the amended grounds having been filed some 6 weeks previously.
In the event I invited the Appellant to present his case, which was presented on the somewhat generalised basis that the Judgment under appeal was liable to be set aside on account of "error of law on the face of the record". The Appellant has in my opinion failed to sustain his attack on the Judgment, and the appeal, must in consequence, be dismissed with costs.
Briefly I shall state my reasons for this conclusion.
As I understood the Appellant's argument the principal attack (at least at one stage of the Appellant's case) was that the Assessor was wrong in law in his interpretation of cl. 10 of the relevant planning instrument, when he stated (p.3):-
"Clearly, the subdivision of all the land in Lyne Street, Lavington and of other lands in proximity thereto, is absolutely prohibited by the L.E.P."
The Appellant submitted that this statement demonstrated "a total misunderstanding" of the L.E.P. inasmuch as the Assessor had "read out of the proposition the application of State Environmental Planning Policy No. 1 - Development Standards". So crucial was this point in the Appellant's case that it was conceded that if the argument was wrong the appeal must fail, although it appears that the Appellant subsequently withdrew his concession by adopting a different tack.
In my opinion the Assessor's Judgment does not reveal an erroneous interpretation of cl. 10 of the planning instrument, subclauses (2) and (3) of which relevantly provided:-
"(2) Land to which this clause applies shall not be subdivided without the consent, under this plan, of the Corporation.
(3) The Corporation may grant consent under this plan in respect of an application to subdivide an existing holding of land ........ being a holding having an area of not less than 80 hectares .........."
The Assessor's Judgment had earlier noted that the Appellant's land had an area of some 4ha (p.1) and that it was 'an existing holding' as defined in the L.E.P. (p.3), these matters not being in dispute.
The Assessor also stated (by way of finding of fact) "The largest existing holding in Lyne Street and in the reasonable vicinity thereto has an area of only 29.5ha" (p.3).
Accordingly it having been established that each relevant 'existing holding of land' had an area of less than 80ha the Assessor's conclusion (the object of the Appellant's present attack) that "the subdivision of all the land in Lyne Street, Lavington and of other lands in proximity thereto, is absolutely prohibited by the L.E.P." involves firstly an implicit interpretation of cl. 10 of the relevant planning instrument and secondly an application of that implicit interpretation to the facts as found. On this understanding, the Assessor's conclusion in my opinion is clearly sound. The Appellant has not suggested that the proper interpretation of cl. 10 was otherwise than to operate as an implied prohibition on the subdivision of an 'existing holding of land' having an area of less than 80ha (cf. Byron Shire Council v. Chrestal Pty. Ltd. (1983) 49 LGRA 88). Indeed his development application recognised this to be the effect of the L.E.P. by virtue of it being accompanied and supported by an objection under Stat
e Policy No. 1.
The Assessor's Judgment clearly recognises the necessity for the exercise in a manner favourable to the Applicant of the statutory discretion conferred by State Policy No. 1 if the application was to be approved - see the references to the Policy at pp.1/2 and 6 of the Judgment.
State Policy No. 1 does not in terms amend any other environmental planning instrument. It stands by itself, although by virtue of cl. 5 thereof, it "prevails over any inconsistency between it and any other environmental planning instrument, whenever made".
As I have stated the Appellant withdrew his concession concerning the fate of the appeal if his primary submission be rejected (as I believe it was obviously bound to be) and sought to impugn the Judgment by a different attack, namely that the Assessor had legally misconceived the nature of the statutory discretion conferred by cl. 7 of State Policy No. 1 inasmuch as he had failed to have regard to the question necessarily raised by an objection made pursuant to cl. 6 of the Policy whether "compliance with the development standard is unreasonable or unnecessary in the circumstances of the case". The Appellant submitted that the effect of the Assessor's Judgment was that the development application was bound to fail simply because the existing-holding had an area of less than 80ha. In other words, as I understood the Appellant's submission, the Assessor is said to have misconceived the nature of the statutory discretion and in consequence totally failed to exercise it.
The Appellant submitted that the fact of legal error concerning the nature of the statutory discretion under State Policy No. 1 and its proper exercise, could be inferred from the fact that the Assessor's Judgment lacks any findings of fact relevant to the circumstances of the case, particularly in relation to the evidence adduced by the Appellant.
However when the Assessor's Judgment is read fairly as a whole I do not think any such inference should be drawn because it is clear that the Assessor concluded, as he was entitled so to do, as a matter of fact, that he did not ultimately accept the argument advanced by Mr. Pearce, the Consultant Town Planner, who prepared the objection under State Policy No. 1, and who gave evidence in support of the Appellant's case. Thus because of this ultimate conclusion (reflected in the final paragraph of the Judgment "Not being persuaded that compliance with the standard in the circumstances of this case would be unreasonable or unnecessary .......... I decline to exercise the discretion available under SEPP 1 ..........": (p.6) it really was not necessary for the Assessor to state his findings of fact on matters preliminary or intermediate to his ultimate finding. Indeed even if it be assumed that the Assessor accepted all of Mr. Pearce's evidence, nontheless, it is abundantly clear, he was not ultimately persuaded b
y it, and he was entitled as a matter of fact to reach that ultimate conclusion.
In any event, I am of the opinion, on a fair reading of the Assessor's Judgment, that he did not misunderstand the nature of the statutory discretion and he did not fail to exercise it. At pp.4 and 5 the Assessor fairly summarizes the evidence given by Mr. Pearce. Thereafter at p.5 the Assessor gives detailed reasons for not ultimately accepting Mr. Pearce's evidence in support of the objection made under State Policy No. 1. The Assessor states:-
"Whilst it would not be difficult to accept most of those observations, Mr. Pearce's argument is in my assessment fatally flawed as a whole, as it has not, as a complete argument, had proper regard for the deliberate severity of the zoning controls as they relate to subdivision in this area and in relation to the planning system in place at Albury."
.......................................................
.......................................................
"Mr. Pearce's argument does not, in my respectful opinion, appreciate the significant relation, which should be assumed to be deliberate and not a planning oversite (sic) or mistake, between the severity of the subdivision standard here involved and the present allotment pattern in the relevant area generally. The same arguments as here advanced by Mr. Pearce would apply to every allotment in the area. Indeed, if all the allotments in this area were to be subdivided by way of SEPP 1, there is no reason why the same arguments could not be repeated in respect of most of the resultant allotments, with a result that a second round of subdivisions by way of SEPP 1, could occur."
.......................................................
.......................................................
"That exposition is of course extreme and not likely to occur in practice, nevertheless it illustrates that in the situation as exists in the vicinity of the site, an exercise of discretion by way of SEPP 1, as sought, would be tantamount to setting aside the zoning controls rather than exercising a flexibility of discretion."
The reference in the first of these passages to "the severity of the zoning controls" and the similar reference in the second of the passages to "the severity of the subdivision standard" are references back to what the Assessor had earlier stated at p.3 when he said (in reference to the provisions of cl. 10 of the planning instrument):-
"Now those relatively severe restrictions on the subdivision of all the land in the vicinity of the site has been of some concern to the Court. Clearly, the subdivision of all the land in Lyne Street, Lavington and of other lands in proximity thereto, is absolutely prohibited by the LEP. The largest existing holding in Lyne Street and in the reasonable vicinity thereto, has an area of only 29.5ha. Due to the topography of that site and its rather irregular shape (see exhibit 4) that allotment does not lend itself to sensible subdivision in any event. Most of the other holdings in the reasonable vicinity of the site have an area of less than 12ha.
That allotment pattern must have been known to the planning bodies and the Minister at the times of the preparation of and the gazettal of the LEP, and which gazettal occurred as recently as February 1981. Thus it would appear that for whatever reason, the purpose of the 1(a) zone as it effects (sic) the subject land and all other land in the reasonable vicinity of the site, is to prevent any further subdivision of land."
I interpose that there was evidence before the Assessor from the records of the Department of Environment and Planning concerning the making of the relevant planning instrument indicating that "The rural subdivision provisions are also innovative and more restrictive than the traditional 40ha provisions".
In my opinion the passages that I have recited from p.5 of the Judgment indicate with reasonable clarity that the Assessor concluded that acceptance by the Court of Mr. Pearce's arguments in support of the objection made under the Policy would create an adverse planning precedent in the entire locality wherein the appeal site was situate in the sense that every existing allotment could likewise be the subject of objection under the Policy to enable subdivision which result would be "tantamount to setting aside the zoning controls rather than exercising a flexibility of discretion". This type of reasoning is not dissimilar to that of Perrignon J. in Gergely & Pinter v. Woollahra Municipal Council (1984) 52 LGRA 400 at p.412.
It was not suggested by the Appellant that there was no place for the doctrine of planning precedent in the determination of a development appeal involving an objection under State Policy No. 1. In S.C.M.P. v. North Sydney Municipal Council (unreported 15th April, 1983) I stated:-
""The only consideration of precedent raised in this case concerns the implications of exercising the dispensing power under State Policy No. 1 in favour of the applicant.
In a fundamental sense the nature of the dispensing power is entirely ad hoc inasmuch as its exercise in every case depends upon, inter alia, a particular development application.
Despite this, no doubt there is some scope for the operation of the established doctrine of the precedental effect of development consents granted in accordance with cl. 7 of the Policy: cf. Perry v. Waimairi County Council (1981) 8 NZTPA 372 a case dealing with s.76 of the New Zealand Town and Country Planning Act 1977. But even assuming that the exercise of the dispensing power under the Policy in this case may have a precedental effect, that effect cannot be regarded as adverse since the basis for exercising such power is the Court's finding that the objects or purposes of the relevant development standards have been fulfilled by the proposal.""
There was considerable evidence before the Assessor concerning the precedental effect of upholding the objection under State Policy No. 1. In my opinion the Assessor was entitled, as a finding of fact, to conclude that in the present case to uphold the appeal would involve the risk of an adverse planning precedent being thereby established.
Accordingly in my opinion the Appellant has failed to demonstrate that the Assessor either misunderstood or failed to apply, in the present case, the statutory discretion conferred by State Policy No. 1.
Finally I would observe that since the Appellant bore the onus of establishing in the present case that the statutory discretion should be exercised in his favour (Colin Graham & Partners v. The Council of the Shire of Great Lakes - Court of Appeal - unreported 6th May, 1982) its appeal against the ultimate finding of fact by the Assessor must be regarded as hopeless - see Woollahra Municipal Council v. T.A.J.J. Investments Pty. Ltd. (1982) 49 LGRA 123 at p.127 per Glass JA. citing McPhee v. S. Bennett (1954) S2WN (NSW) 8 at p.9 cf. Azzopardi v. Tasman UEB Industries Ltd. (1985) 4 NSWLR 139 at p.155.
None of the other grounds of appeal (which were not pressed in argument) raise any question of law.
Accordingly I order that the appeal be dismissed with costs.
Exhibits to be returned.
0
1
2