Rawson Homes Pty Limited v Pittwater Council

[2005] NSWLEC 718

Land and Environment Court

of New South Wales

CITATION:	Rawson Homes Pty Limited v Pittwater Council [2005] NSWLEC 718
PARTIES:	APPLICANT: Rawson Homes Pty Limited RESPONDENT: Pittwater Council
FILE NUMBER(S):	10947 of 2005
CORAM:	Pain J
KEY ISSUES:	Words and Phrases :- "allotment" - whether ordinary or technical meaning in LEP
LEGISLATION CITED:	Burwood Planning Scheme Ordinance 1979 Conveyancing Act 1919 Pittwater Local Environmental Plan 1993 Sydney Regional Environmental Plan No 12 - Dual Occupancy
CASES CITED:	Issa v Burwood Council (2005) 137 LGERA 221; S & I Investments Pty Limited v Pittwater Municipal Council (Talbot J, NSWLEC, 13 October 1993, unreported)
DATES OF HEARING:	13/12/2005
DATE OF JUDGMENT:	12/14/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr I Hemmings (barrister) SOLICITORS: Hones Lawyers RESPONDENT: Ms G Furness (barrister) SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

14 December 2005

10947 of 2005 Rawson Homes Pty Limited v Pittwater Council

JUDGMENT

1 Her Honour: This matter comes before the Court today on preliminary questions of law as follows:

(i) Whether for the purpose of cl 16 of the Pittwater Local Environmental Plan 1993 (“the LEP”) the whole of the land in certificate of title 5423-102 (auto-consul 5423-102), being Lot 16 in DP10529 and Lot A in DP348575, together are an allotment that was lawfully created; or
(ii) Whether for the purpose of cl 16 of the LEP, Lot 16 in DP10529 and Lot A in DP348575 are each separate allotments that were lawfully created.

Background

2 The subject property is located at 18 Palm Road, Newport (“the property”). The property comprises the land in Lot 16 in DP10529 (“Lot 16”) and Lot A in DP348575 (“Lot A”) as shown in computer folio reference auto-consul 5423-102. The property has an area of approximately 884sq m. The property is generally quadrangular in shape and has a width of 22.6m and a depth of 40.33m. The property is located on the northern (low) side of Palm Road. It is currently improved by a two storey rendered brick and weatherboard residence with tile roof. A single storey weatherboard granny flat with tile roof is located in the rear yard. The existing dwelling on the property straddles Lot 16 in DP10529 and Lot A in DP348575.

3 Prior to 1942, the property was on separate titles as Lots 16 and 17 in DP10529. On 20 May 1942, Warringah Shire Council issued a subdivision certificate in relation to Lot 17 in DP10529 which divided it into Lots A and B. The certificate records that the subdivision approval was “conditional on the Lot marked A being consolidated in Title with adjoining Lot 16 and the Lot marked B being consolidated with adjoining Lot 18”.

4 The subdivision certificate was lodged for registration under dealing number D265637 with a memorandum of transfer and plan of subdivision of Lot 17 in DP10529. The plan of subdivision was subsequently given a file plan number FP348575. No consolidation of Lot A with Lot 16 ever took place.

5 The Applicant lodged a development application with Pittwater Council (“the Council”) on 7 March 2005 (development application no NO164/05 “the DA”) seeking consent to the “erection of two dwellings of two storeys, adjustment of boundary and demolition of existing building”.

6 Clause 16 of the LEP provides:

A person shall not erect a dwelling-house on an allotment of land within Zone No 2(a), 2(b) or 2(e) unless that allotment was lawfully created.

The property is on land in Zone No 2(a)(Residential ‘A’).

7 The issue which arises from the preliminary questions of law are whether “allotment” referred to in cl 16 of the LEP means a “lot” created by a plan of subdivision registered under the Conveyancing Act 1919 or has a more general meaning. There is no dispute that the allotments in question, whether one or two, have been lawfully created.

Applicant’s submissions

8 The Applicant submitted that the reference to the word “allotment” was a reference to a “lot” created by a plan of subdivision. On a proper reading of the LEP, the Applicant argued that the word “allotment” was used interchangeably with “lot” being a lot created by subdivision and, accordingly, the relevant “allotments” were Lot 16 and Lot A, not the property located at 18 Palm Road, Newport as one allotment. This interpretation is supported by a consideration of the LEP, particularly cl 11 which refers to the aim of subdivision being to create allotments of different sizes. Therefore Lot 16 and Lot A were two separate and lawfully created “allotments”.

9 The Applicant submitted that the Council’s submissions, which equated the meaning of “allotment” with areas of common ownership, could not be correct. The preferable approach was to derive the meaning of “allotment” from certain, and public conveyancing documents, namely, a lot created by subdivision.

Council’s submissions

10 The Council submitted that the reference to the word “allotment” as it appears in cl 16 of the LEP was properly construed in a general sense as being an identifiable and distinct piece of land with a definite identity. In this sense reference to the word “allotment” in cl 16 of the LEP was not confined to the technical meaning of a lot identified by a formal conveyancing title. The Court of Appeal in Issa v Burwood Council (2005) 137 LGERA 221 is apposite and binding. In the circumstances of this case, the Council submitted that “allotment” in cl 16 was a reference to 18 Palm Road, Newport being a parcel of land consisting of Lot 16 and Lot A. The “allotment” was delineated by the address and ownership of the property and, in this case, in the auto-consul certificate of title which referred to both Lot 16 and Lot A.

11 “Allotment” and “lot” are not defined in the LEP. In S & I Investments Pty Limited v Pittwater Municipal Council (Talbot J, NSWLEC, 13 October 1993, unreported) Talbot J considered the meaning of “allotment” under cl 8 of the Sydney Regional Environmental Plan No 12 – Dual Occupancy (“REP 12”) in the context of whether it was permissible under REP 12 to erect two dwellings on one existing undivided piece of land. Talbot J stated that:

In its ordinary sense the word allotment refers to a separate or distinct area of land with a definite identity and which is generally restricted to the ownership or control of a particular person and, in most cases, is confined to the one use or purpose. In the absence of a statutory definition it is not a technical word limited, for example, to an area of land held in a particular configuration, size or locality. It may be large or small, regular or irregular but the land within it would be considered as one piece.

12 In Issa, Pearlman AJA (with whom Mason P and Tobias JA agreed) stated at [39] that:

I conclude that the word "allotment"… does not bear a technical meaning, but rather bears an ordinary meaning being a distinct, or identifiable area of land. The precise identification of an "allotment" will depend on the facts and circumstances of each case. For example the identity of the area constituting an "allotment" might be derived from delineation of a lot or lots on a plan of subdivision (which may, but need not, be registered) or it might be derived from the physical boundaries of the area in question, or it might be derived from some agreement or other document specifying the limits of the area in question.

13 Issa concerned the Burwood Planning Scheme Ordinance 1979 (“the BPSO”) and the Applicant argued it could have no application to the Pittwater LEP, a different instrument. Given the absence of a statutory definition or one in the instrument, the analysis undertaken by the Court of Appeal in Issa does have a bearing on the LEP in this case, in my view.

14 In Issa, Pearlman AJA undertook an analysis of the BPSO to consider where the word “allotment” was used. While the Applicant’s counsel argued that Pt 3 Div 1 of the LEP, particularly cl 11 dealing with subdivision in residential zones, suggested that “allotment” had the technical meaning of a “lot” created by a subdivision plan, I think the contrary argument can just as easily be put that cl 11 and thereafter has a general meaning as set out in Issa. The fact that no definition of “allotment” is provided in the LEP makes it less, rather than more, likely that a technical meaning is to apply.

15 As the Council argued, if cl 14A and 17B of the LEP are considered, which concern the rezoning and development of particular land, it is clear there is a difference in the way “allotment” and “lot” are used in these provisions. In other words, they are not used interchangeably as the Applicant argued.

16 I agree with the Council’s submissions that the word “allotment” bears its ordinary meaning as a distinct or identifiable area of land, the identity of which can be established by various means including in this case the delineation on the certificate of title as contained in the auto-consul 5423-102. The delineation need not be in a lot identified in a plan of subdivision. As stated by Pearlman AJA in Issa at [39], the identity of the area constituting an “allotment” might be derived from a number of sources and the precise identification of an "allotment" will depend on the facts and circumstances of each case. In this case ownership is one of the major factors which aids in the identification of the allotment, but that simply reflects the circumstances here. In different circumstances “allotment” will not be defined by reference to ownership of land.

17 I make no finding, and it is unnecessary that I do so, in relation to the Council’s submission that the property was lawfully created by the grant of subdivision and the consolidation in title of the Lot 16 and Lot A by issuing a certificate of title 5423-102 then auto-consul 5423-102.

18 Accordingly, in answer to the questions of law stated in par 1 above, I find that:

(i) Whether for the purpose of cl 16 of the LEP the whole of the land in certificate of title 5423-102 (auto-consul 5423-102), being Lot 16 in DP10529 and Lot A in DP348575, together are an allotment that was lawfully created –
The answer is “yes”; and
(ii) Whether for the purpose of cl 16 of the LEP Lot 16 in DP10529 and Lot A in DP348575 are each separate allotments that were lawfully created –
The answer is “no”.