Robson v Tweed Council - [2000] NSWLEC 170

Land and Environment Court

of New South Wales

CITATION: Robson v Tweed Council [2000] NSWLEC 170

PARTIES:
APPLICANT:
Robson
RESPONDENT:
Tweed Council

FILE NUMBER(S): 10581 of 1999

CORAM: Bignold J

KEY ISSUES: Question of Law :- Whether proposed development permissible under LEP. Meaning of savings provision. Meaning of adjoining or contiguous.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

CASES CITED:

DATES OF HEARING: 08/05/00

DATE OF JUDGMENT:
08/04/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr O Hughes, Solicitor
SOLICITORS
Trevor Beazley & Assoc
RESPONDENT:
Mr J Webster, Barrister
SOLICITORS
Halliday and Stainlay

JUDGMENT:

IN THE LAND AND Matter No . 10581 of 1999

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 4 August 2000

S W AND J M ROBSON

Applicant

TWEED SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Council has raised for preliminary determination in pending class 1 proceedings the question whether the proposed development, being the erection of a dwelling-house, is prohibited by Tweed Local Environmental Plan 2000 (the LEP).

2. The question was originally framed by reference to the then applicable environmental planning instrument (Tweed Local Environmental Plan 1987).

3. However, that instrument was repealed by the LEP which came into force on 7 April 2000. Hence, the same question has been reframed to refer to the LEP and the case has been conducted on the basis that the LEP is the current governing instrument.

4. The pending proceedings involve an appeal pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act) s 97 against the Council’s determination refusing development consent to the Applicant’s development application to erect a dwelling-house on land known as lot 1 Deposited Plan 391120, having an area of 3,370 m2 fronting Burringbar Road, Burringbar (the appeal site). The proposed dwelling-house would be created by the conversion and adaptation of an existing shed building erected on the appeal site.

5. In its Notice of Determination refusing development consent, the Council stated six reasons for its decision, the first of which was:
1. The subject lot does not enjoy a dwelling entitlement in accordance with the provisions of cl 25(4) of the Tweed Local Environmental Plan 1987.

6. Clause 25(4) was in the following terms:

Nothing in this clause prevents a person from erecting a dwelling-house on an allotment of land lawfully created, or the creation of which was lawfully consented to by the council, before the appointed day and upon which a dwelling-house could lawfully have been erected immediately prior to the appointed day.

7. This provision is substantially re-enacted by cl 57 of the LEP which provides as follows:

Protection of existing dwelling entitlement

Nothing in this plan prevents a person, with development consent, from erecting a dwelling house on an allotment lawfully created, or the creation of which was lawfully consented to, before the appointed day and on which a dwelling house could lawfully have been erected immediately prior to the appointed day.

8. Both the repealed clause and cl 57…

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.

Continue reading Robson v Tweed Council

Details

AGLC: Robson v Tweed Council [2000] NSWLEC 170
Case: [2000] NSWLEC 170
Decision Date: 08/04/2000

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with an appeal by Robson against the Tweed Council concerning the permissibility of a proposed development under the Tweed Local Environmental Plan 2000 (LEP). The specific issue was whether the erection of a dwelling-house on a specific lot was permissible under the LEP, particularly under the savings provision, and the interpretation of terms such as "adjoining" or "contiguous". The case hinged on interpreting clause 57 of the LEP, which provides exceptions to the prohibition on erecting dwelling-houses in certain zones.

The primary legal issue was the interpretation of clause 57 of the LEP, specifically whether it allowed the proposed development on the lot in question. The court had to determine if the lot had a "dwelling entitlement" under the LEP, considering the historical context of the lot and its ownership and zoning history under previous planning instruments. The Tweed Council argued that the lot did not qualify under the savings provision as it was not a separate parcel of land or did not meet the minimum area requirements at the time the LEP was enacted. Conversely, Robson contended that the lot was a lawfully created allotment and that a dwelling-house could have been lawfully erected on it immediately prior to the LEP's enactment.

Bignold J held that clause 57 of the LEP does not permit the erection of a dwelling-house on any lawfully created allotment without meeting the condition that a dwelling-house could lawfully have been erected on it immediately prior to the LEP's enactment. The court rejected Robson's argument that the clause should be liberally construed to preserve existing entitlements. Instead, the court found that the lot satisfied the condition under clause 12(1)(d) of the Interim Development Order No 2, which allowed for the erection of a dwelling-house on an allotment created under certain conditions. Additionally, the court found that the lot was not "adjoining" or "contiguous" with other lands, as it was physically separated by a substantial creek, thus not part of an existing parcel.

The court concluded that the proposed development was permissible under clause 57 of the LEP, and the Council's determination to refuse development consent was erroneous. The court answered the preliminary question raised by the Council in the negative, allowing the proposed development to proceed.

Orders