Porfiri v Ku-ring-gai Council - [2003] NSWLEC 34

Reported Decision: 124 LGERA 340

Land and Environment Court

of New South Wales

CITATION: Porfiri v Ku-ring-gai Council [2003] NSWLEC 34

PARTIES:
APPLICANT
Porfiri F.C.
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 0051 of 2002

CORAM: Cowdroy J

KEY ISSUES: Development Application :- whether provisions of planning scheme ordinance restricting erection of dwellings affects zoning of land for the purpose of the erection of dual occupancy pursuant to State Environmental Planning Policy No. 53 - inconsistency between State environmental planning policy and local environmental plan.

LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance 1971
State Environmental Planning Policy No. 53

CASES CITED: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404;
Porfiri v Ku-ring-gai Council [2002] NSWLEC 136;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319

DATES OF HEARING: 13/02/2003

DATE OF JUDGMENT:
02/28/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Preston SC
SOLICITORS
Maddocks
RESPONDENT
Mr A Hudson (Solicitor)
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

0051 of 2002

Cowdroy J.

28/02/2003

F C Porfiri

Applicant

Ku-ring-gai Council

Respondent

Judgment

Introduction

1 In March 2002 the applicant made four separate development applications to the respondent (“the council”) under Part 3 - Dual Occupancy (“Part 3”) State Environmental Planning Policy No. 53 - Metropolitan Residential Development (“SEPP 53”) in respect of land known as 8 Havilah Road Lindfield being the whole of the land comprised in lot 24 Deposited Plan No. 4880 (“the lot”). The area of such lot is 1,372m² and there is an existing dwelling and carport erected on such land.

2 In Porfiri v Ku-ring-gai Council [2002] NSWLEC 135 delivered on 22 August 2002 the Court determined a question of law concerning the application of cl 17 of SEPP 53 to the same development. Clause 17 of SEPP 53 then stated:-

17 This Part allows development that results in two dwellings being located on the one allotment of land if another environmental planning instrument permits a dwelling house to be erected on that allotment and the development is carried out in accordance with this Part and Part 5.

3 The four stage development proposal which was made by the applicant was summarised in the Court’s judgment as follows:-

Stage 1

Demolition of the existing dwelling and carport located on the subject site and construction of an attached single level dual occupancy towards and across the rear of the subject site.

Stage 2

Torrens title subdivision of the attached dual occupancy resulting from Stage 1.

Stage 3

Construction of a detached single storey dwelling upon the front setback of each of the two allotments resulting from the Stage 2 subdivisions.

Stage 4

Torrens title subdivision of each of the 2 detached dual occupancy developments resulting from Stage 3.

4 Pursuant to the Ku-ring-gai Planning Scheme Ordinance 1971 (“KPSO”) the lot is within a residential zone, namely Zone No. 2(b). Consequently SEPP 53 applies by virtue of cl 16 of SEPP 53 which relevantly states:-

16(1) This Part applies to all land…

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: [2003] NSWLEC 34
Decision Date: 02/28/2003

CaseChat Overview and Summary

Porfiri F.C. applied to the Ku-ring-gai Council for approval of a development application involving the erection of dual occupancies on a residential lot in Lindfield. The application was refused, and Porfiri sought judicial review in the Land and Environment Court of New South Wales. The court was required to decide whether the amended provisions of the State Environmental Planning Policy No. 53 – Metropolitan Residential Development permit the erection of dwellings on land that does not meet the minimum area requirements specified in the Ku-ring-gai Planning Scheme Ordinance 1971.

The court began by examining the legal principles applicable to the interpretation of the SEPP 53, noting that the court must ascertain the intention of the legislature. The court found that the amended clause 17 of SEPP 53 allows dual occupancy development if the land is within a zone under another environmental planning instrument that permits the erection of dwelling houses. The court held that the zoning of the land should be determined by considering the development control table in the Ku-ring-gai Planning Scheme Ordinance alone and not in conjunction with the minimum area requirements. The court found that there was an inconsistency between the provisions of SEPP 53 and the Ku-ring-gai Planning Scheme Ordinance; however, the provisions of SEPP 53 prevail over the Ku-ring-gai Planning Scheme Ordinance to the extent of the inconsistency.

The court answered the question of law in the affirmative and remitted the matter to the Registrar’s callover list for mention on 5 March 2003. The court reserved the question of costs.

Orders