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:

Pittwater Local Environmental Plan 1993

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…

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: [2005] NSWLEC 718
Decision Date: 12/14/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Rawson Homes Pty Limited filed an application against Pittwater Council regarding the interpretation of the term "allotment" as used in clause 16 of the Pittwater Local Environmental Plan 1993. The central issue was whether the term "allotment" referred to a lot created by a plan of subdivision registered under the Conveyancing Act 1919 or if it had a broader, more general meaning. The applicant argued that "allotment" should be understood in its technical sense as a lot created by subdivision, while the council contended that "allotment" had a more general meaning, referring to an identifiable and distinct piece of land with a definite identity. The court had to decide whether the entire property, comprising Lot 16 and Lot A, constituted one lawful allotment or if each lot was a separate lawful allotment.
The court examined the ordinary meaning of the word "allotment" and considered relevant case law, including Issa v Burwood Council and S & I Investments Pty Limited v Pittwater Municipal Council. It found that "allotment" did not have a technical meaning limited to a lot created by subdivision but rather bore an ordinary meaning as a distinct, identifiable area of land. The identity of an "allotment" could be derived from various sources, such as the physical boundaries of the area or the certificate of title. The court concluded that the term "allotment" in clause 16 of the LEP referred to the whole of the land in certificate of title 5423-102, being Lot 16 in DP10529 and Lot A in DP348575, together as one lawful allotment.
In its judgment, Pain J held that the term "allotment" in clause 16 of the Pittwater Local Environmental Plan 1993 had an ordinary meaning as a distinct, identifiable area of land. The court found that the whole of the land in certificate of title 5423-102, being Lot 16 in DP10529 and Lot A in DP348575, together constituted one lawful allotment for the purpose of clause 16 of the LEP. Consequently, the court ruled against the applicant's contention that each lot was a separate lawful allotment.

Orders