Rogan v Pittwater Council - [2000] NSWLEC 178

Reported Decision: 109 LGERA 321

Land and Environment Court

of New South Wales

CITATION: Rogan v Pittwater Council [2000] NSWLEC 178

PARTIES:
APPLICANT:
Rogan
RESPONDENT:
Pittwater Council

FILE NUMBER(S): 10268 of 2000

CORAM: Bignold J

KEY ISSUES: Question of Law :- Preliminary Determination - (1) Is development prohibited by LEP? (2) Does LEP impose a development standard in respect of the minimum lot size in a subdivision of Non-Urban land?

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97
State Environmental Planning Policy No 1 - Development Standards

CASES CITED:

DATES OF HEARING: 23 June 2000

DATE OF JUDGMENT:
08/14/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr B Hones, Solicitor
SOLICITORS
Hones Lawyers
RESPONDENT:
Mr A Galasso, Barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No . 10268 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 14 August 2000

M AND F ROGAN

Applicant

PITTWATER COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act) s 97 against the determination by the Council refusing consent to the Applicant’s development application, supported by an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP No 1), to subdivide into two lots an existing lot known as lot 81 Deposited Plan 875079, being No 2A Minkara Road, Bayview (the appeal site).

2. In its Notice of determination, one of the reasons for Council’s refusal was stated as follows:
2. The application is prohibited by virtue of being contrary to the zoning provisions under Clause 11 and 13 of Pittwater LEP 1993 which restricts subdivision to not more than 3 lots on land to which Clause 13(2) is not a development standard for the purposes of SEPP No 1.

3. In these pending proceedings, the Council has raised for preliminary determination the following question of law:

Whether the subdivision proposed in the development application the subject of these proceedings is prohibited by operation of clause 13(1) and (2) of the Pittwater Local Environmental Plan 1993.

4. Clause 13 of the Pittwater Local Environmental Plan 1993 (the LEP) provides as follows:

13. (1) This clause applies to the allotments of land situated at Bayview Heights, being—

(a) lots 31, 32, 37 and 38, D.P. 28908;

(b) Lot 2, D.P. 577145; and

(c) Lot Y, D.P. 103881.

(2) Notwithstanding any other provision of this plan, a person may, with the consent of the council, subdivide any of the allotments to which this clause applies into not more than 3 allotments, each allotment so created being not less than 4,000 square metres in area.

5. The competing cases are based upon the application to agreed facts of different interpretations of cl 13 of the LEP—the Council contending that it provides a specific and limited power for the Council to approve the subdivision of specified land which power has been fully exercised and is now fully spent, and the Applicant contending that the clause…

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: [2000] NSWLEC 178
Decision Date: 08/14/2000

CaseChat Overview and Summary

The case of Rogan v Pittwater Council [2000] NSWLEC 178 before Bignold J in the Land and Environment Court of New South Wales involved an appeal against the refusal of a development application by the Pittwater Council. The applicant, Rogan, sought to subdivide a lot into two lots on a site at Bayview. The Council refused the application, citing that the subdivision was prohibited by the zoning provisions of the Pittwater Local Environmental Plan 1993 (LEP). Rogan argued that the LEP did not prohibit the subdivision and further contended that the LEP imposed a development standard concerning the minimum lot size in the subdivision of non-urban land.

The key legal issues before the court were whether the proposed development was prohibited by clause 13 of the LEP and whether clause 12(2) of the LEP constituted a development standard under the Environmental Planning and Assessment Act 1979 and the State Environmental Planning Policy No 1. The court first examined whether clause 13 of the LEP applied to the appeal site. Ultimately, the court concluded that clause 13 did not apply to the appeal site because the referenced allotment had been subdivided before the LEP came into effect, rendering the clause inapplicable.

The court then considered whether clause 12(2) of the LEP constituted a development standard. The applicant argued that it did, relying on the Court of Appeal's decision in Bell v Shellharbour Municipal Council (1993) 78 LGERA 429. The Council contended that the Court of Appeal had reserved the question in Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95. The court held that the applicant's argument was more firmly grounded, and clause 12(2) was indeed a development standard.

Accordingly, the court determined the questions of law in favour of the applicant, finding that the proposed development was not prohibited by clause 13 of the LEP and that clause 12(2) constituted a development standard.

Orders