Roberts v Ballina Shire Council - [2001] NSWLEC 242

Reported Decision: 116 LGERA 433

Land and Environment Court

of New South Wales

CITATION: Roberts and Ors v Ballina Shire Council and Anor [2001] NSWLEC 242

PARTIES:
APPLICANTS
Roberts and Ors
RESPONDENTS
Ballina Shire Council and Anor

FILE NUMBER(S): 10298 of 2001

CORAM: Pearlman J

KEY ISSUES: Question of Law :- preliminary question of law - SEPP 1 - prohibition or development standard

LEGISLATION CITED: Ballina Local Environmental Plan 1987 cl 12
Environmental Planning and Assessment Act 1979 s 4(1)
State Environmental Planning Policy No 1 - Development Standards

CASES CITED: Bell and Anor v Shellharbour Municipal Council (1993) 78 LGERA 429;
Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103;
Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318;
Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, NSWLEC, 2 June 1986, unreported);
North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352;
Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

DATES OF HEARING: 16/10/2001

DATE OF JUDGMENT:
10/22/2001

LEGAL REPRESENTATIVES:

APPLICANTS
Ms A Pearman (Barrister)
SOLICITORS
Somerville Laundry Lomax
FIRST RESPONDENT
Ms F J Rourke (Solicitor)
SOLICITORS
Allens Arthur Robinson
SECOND RESPONDENT
Mrs J C Kelly (Barrister)
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND 10298 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 22 October 2001

MABEL ISABEL ROBERTS, BARRY THOMAS ROBERTS

and WARREN KEITH ROBERTS

Applicants

BALLINA SHIRE COUNCIL

First Respondent

DIRECTOR-GENERAL OF THE DEPARTMENT OF

URBAN AFFAIRS AND PLANNING

Second Respondent

JUDGMENT

Introduction

1. Two preliminary questions of law have arisen for determination in these class 1 proceedings. They are as follows:

(1) Whether cl 12(3)(a)(ii) of the Ballina Local Environmental Plan 1987 (“the LEP”) is a development standard to which State Environmental Planning Policy No 1 – Development Standards (“SEPP 1”) may apply; and

(2) Whether or not, as a matter of law, SEPP 1 may be used to vary the 40 hectare development standard in cl 12(3)(a)(ii) of the LEP in the circumstances of this case.

2. A third question of law was raised but was not pressed.

3. An agreed statement of facts was filed from which the following salient facts are derived. The land the subject of the class 1 appeal (“the land”) is lot 1 in DP 575688, No 2 Old Pacific Highway, Newrybar. It has an area of 815 square metres, and is zoned 7(c) – Environmental Protection (Water Catchment) Zone under the LEP. The applicants sought development consent for the erection of a dwelling-house upon the land, and they have appealed against the council’s refusal of that development application.

4. Both the applicants and the council claim that cl 12(3)(a)(ii) is a development standard, which is therefore amenable to variation under SEPP 1. The second respondent, who is the Director-General of the Department of Urban Affairs and Planning and who raised the questions…

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: [2001] NSWLEC 242
Decision Date: 10/22/2001

CaseChat Overview and Summary

The case of Roberts v Ballina Shire Council involved a class 1 appeal against the refusal of development consent for the erection of a dwelling-house on land zoned for environmental protection in New South Wales. The applicants sought to determine two preliminary questions of law regarding the applicability of State Environmental Planning Policy No 1 (SEPP 1) to a development standard specified in the Ballina Local Environmental Plan 1987 (LEP). The first question was whether clause 12(3)(a)(ii) of the LEP constituted a development standard subject to SEPP 1. The second question concerned whether SEPP 1 could legally be applied to vary the 40 hectare development standard specified in clause 12(3)(a)(ii).

The court found that clause 12(3)(a)(ii) was indeed a development standard, as it set a requirement for the area of land upon which a dwelling-house could be erected, thereby specifying a standard in respect of an aspect of the development. This interpretation aligned with the definition of "development standards" in the Environmental Planning and Assessment Act 1979, which includes provisions fixing standards in respect of any aspect of development, including the area of land. The court dismissed the argument that the clause operated as a prohibition rather than a standard, emphasizing that the purpose of such standards, even if relaxed by SEPP 1, was to ensure compliance with the underlying objectives of the LEP.

Regarding the second question, the court ruled that SEPP 1 could be used to vary the development standard, even though doing so might result in a residential use on land not specifically zoned for such purposes. The court clarified that SEPP 1 provided flexibility in the application of development standards and did not constitute a de facto rezoning of the land. The decision whether to vary the standard under SEPP 1 was left to the merits hearing, where factual considerations would be assessed. The Director-General's argument that varying the standard would contravene the objects of the Environmental Planning and Assessment Act was rejected, as the court found that SEPP 1 operated on a case-by-case basis and did not effect general planning changes.

The court concluded that the class 1 appeal would proceed to a merits hearing, with the development consent application to be assessed in light of the findings on the preliminary questions of law. The court reserved the question of costs, and no further orders were made.

Orders