Ryan v Harden Shire Council

[2007] NSWLEC 663

Land and Environment Court

of New South Wales

CITATION:	Ryan v Harden Shire Council [2007] NSWLEC 663
PARTIES:	Applicant: James Ryan Respondent: Harden Shire Council
FILE NUMBER(S):	10604; 10605 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- concessionary allotments, rural dwellings
LEGISLATION CITED:	Interim Development Order 1
DATES OF HEARING:	05/10/2007
DATE OF JUDGMENT:	10 October 2007
LEGAL REPRESENTATIVES:	Applicant: Mr P Crennan, solicitor of McIntosh McPhillamy & Co Respondent: Mr R Graham, solicitor of HWL Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

10 October 2007

10604 of 2007
10605 of 2007 James Ryan v Harden Shire Council

JUDGMENT

1 Senior Commissioner: These are two appeals against the refusal by Harden Shire Council (the council) of two development applications to erect a dwelling house on each of lot 714 DP 753624, Cemetery Road, Harden and lot 715 DP 753624, Substation Road, Harden.

The sites

2 Each of lots 714 and 715 has an area of about 21 hectares. They are contiguous and form part of a landholding that was in single ownership on 4 June 1976 (the day IDO 1 was gazetted), and which also contained lots 554, 555 and 556. The area of that combined holding is about 180 hectares. On lot 556 there is a dwelling house and a structure that was once used as a house and is now without water and electricity.

3 I have not seen the sites and, for the purposes of this judgment, it is not necessary that I should know their characteristics.

The proposals and their history

4 The nature of the proposal has been a source of dispute and confusion. The development applications sought approval in principle for a dwelling on each of the lots. Since there is no power in the Environmental Planning and Assessment Act 1979 (the Act) to grant approvals in principle, the applicant first requested that the council (or the Court) grant consent to the use of the land for a dwelling house, and later that it grant consent for Stage 1 of a staged application.

5 The applicant lodged the development applications in November 2006. The council refused them in June 2007. The applicant lodged the appeal in June 2007.

Relevant statutory planning instrument

6 Interim Development Order No 1 (the IDO) zones the site Non-Urban 1(a).

Matters in contention

7 The council submitted its Statement of Contentions containing seven matters. The first two matters relate to the zoning and IDO and are common ground. The third matter contends that the second building on lot 556 is a dwelling house. The applicant agreed that it would demolish the structure if it were given development consent to the applications. The third matter in contention is thus resolved.

8 The last two contentions in the Statement, Nos 6 and 7, relate to whether the applications are competent. In my opinion, these are the primary issues in the case, since, if the answer is negative, the applications cannot be approved.

9 Contentions 4 and 5 contend that the proposed development is prohibited, ie dwelling houses may not be approved on lots 714 and 715.

Are the applications competent?

10 The drawings submitted with the applications are for two identical buildings, both of them designed for an address in Cowra. There is no site plan. Without information on the siting of the buildings, the applications cannot be assessed under s79A of the Act. The information is insufficient even if the applications are considered as Stage 1 applications for staged development. Without a site plan there is no application.

11 I understand that the applicant does not wish to build these particular houses; rather, it wants to have an assurance that the allotments have what is loosely referred to in planning jargon as “dwelling entitlement”. However, the Act does not allow for such assurances. The granting of consent requires that an actual proposal, to be sited on the subject land, has been assessed according to s79C. No such assessment is possible in this case and therefore the applications must fail.

12 The applicant’s advocate, Mr P Crennan, requested the Court to determined the other issues in the case notwithstanding the fact that the applications cannot be approved. The council’s advocate, Mr R Graham, opposed this on the grounds that if the applications are incompetent, there is no point in determining other issues.

13 I consider the applicant’s request reasonable. This is despite the fact that the remaining issues are more questions of law than they are questions of fact and the opinion of a legally unqualified person, such as myself, may not carry much weight. However, nothing that I say in this judgment prevents the applicant from taking the matter further, either by submitting competent applications or by seeking a declaration from the Court. Given that the cost of one day’s hearing has already been committed, my determination of the remaining issues may assist the applicant without increasing either party’s costs.

Are dwelling houses prohibited on lots 714 and 715?

14 Clause 13 of the IDO deals with subdivision.

15 Clause 13(1) provides that

Subject to this clause, land shall not be subdivided within Zone 1(a) or 1(b), unless
(a) each separate allotment to be created thereby has an area of not less than 40 hectares.
Subclauses (b) and (c) refer to attributes of the lots created that are satisfied by lots 714 and 715 and are therefore not relevant here.

16 Clause 13(2) provides that

Subject to subclause (5) an allotment of land having an area of less than 40 hectares but not less than 2 hectares may be created in a subdivision on land within zone No 1(a) and 1(b) where
(a) the council is satisfied that such allotment is intended to be used for the purpose of agriculture.
Subclauses (b) and (c) refer to attributes of the lots created that are satisfied by lots 714 and 715 and are therefore not relevant here.

17 Subclause 13(3) provides that

Subject to subclause (5) an allotment of land having an area of not less than 1,000 square metres may be created in a subdivision of land within Zone No 1(a) and 1(b) where the council is satisfied that such allotment is required for the erection of a dwelling-house for actual occupation by
(a) the owner of the land contained in such allotment;
(b) a relative of such owner; or
(c) a person employed or engaged by such owner in the use of land of the owner adjoining or adjacent to such allotment, for the purposes of agriculture.

18 Subclause 13(4) deals with subdivision for uses other than dwelling houses (ie motels and the like) and is not relevant here.

19 Subclause 13(5) states that

The total number of allotments of the types referred to in subclause (2) and (3) that may be created by subdivision of land in accordance with either of those subclauses, shall not exceed
(i)…
(ii)…
(iii)…
(iv) where the land has an area of not less than 30 hectares – 3.

20 Subclause 13(6) states that

For the purposes of subclause (5) land means the aggregation of all adjoining or adjacent land held in the same ownership on the appointed day.

21 Subclauses 13(7), (8) and (9) are not relevant here.

22 Clause 14 of the IDO deals with dwelling houses.

(1) A dwelling house shall not be erected on a parcel of land within zone No 1(a) or 1(b) unless the parcel -
(a) has an area of not less than 40 hectares;
(b) comprises an allotment created by subdivision in accordance with clause 13(2) or 13(4);
(c) comprises an allotment created by subdivision in accordance with clause 13(3); or
(d) comprises an allotment lawfully created and upon which a dwelling house could have been erected prior to the appointed day, which allotment could have been created in accordance with the provisions of clause 134 if those provisions were in force at the time such allotment was created.
(2) Not more than one dwelling house shall be erected on a parcel of land referred to in subclause (1)(b), (c) or (d).
(3) Notwithstanding subclause 1 -
(a) a dwelling house may only be erected on an allotment referred in subclause (1)(b) where the use of the dwelling house is ancillary and subsidiary to the present or intended development of that allotment; and
(b) a dwelling house shall only be erected on an allotment referred to in subclause 1(c) where the council is satisfied that the dwelling house is intended for occupation by a person referred to in clause 13(3).
(4) A dwelling house may be erected on a parcel of land referred to in subclause (1)(a) for each 40 hectares contained within the parcel, provided that any dwelling house (hereinafter called “a worker’s dwelling house) erected after the first dwelling house has been erected shall be only used to accommodate a person employed or engaged in the use of the parcel for the purposes of agriculture.
(5) (appears not to exist)
(6) Nothing in subclause (2) shall prevent the erection of a dwelling house on a parcel of land on which another dwelling house is erected where the use of such first mentioned dwelling house shall not commence until the use of the second mentioned dwelling house has permanently ceased or such dwelling house has been demolished.

23 Lots 714 and 715 come under clause 14(1)(d) since they are allotments that were lawfully created, a dwelling house could have been erected on them before the IDO came into force in 1976, and they could have been created under clause 13(2) or 13(3) if the IDO had been in force at the time of their creation. If they had been created under 13(2), the council would have had to be satisfied that the allotment was to be used for agriculture. If they had been created under clause 13(3), the council would have had to be satisfied that a dwelling house on them would be occupied either by the owner, or a relative of the owner, or a rural employee of the owner. Any consent for subdivision would carry with it a condition relating either to the future use of the allotment for agriculture, or the occupation of any future dwelling by the owner, a relative of the owner or a rural employee of the owner.

24 The council’s contention that dwelling houses on lots 714 and 715 are prohibited is therefore both right and wrong. If it refers to the dwelling houses in these applications, then it is correct, since the applications carry no information on which the council could form a view either about the future use of the allotment or the occupants of the dwelling houses. If it is to be understood as a general statement that no dwelling house of any kind is permissible on lots 714 and 715, then it is wrong. The council may consent to a dwelling house on either or both of lots 714 and 715, provided it has assessed the proposal under s79C of the Act and is satisfied either that the allotments will be used for agriculture or that the dwelling houses will be occupied by the owner, or a relative of the owner, or a rural employee of the owner.

25 I note that Mr Graham has argued that the effect of clause 14(2) is that no more dwellings are allowed on the combination of lots 554, 555, 556, 714 and 715. The term parcel of land used in the subclause is not defined either in the IDO or the Model Provisions in force in 1976. In my opinion, parcel of land in this context means allotment. Any other interpretation (eg that parcel of land means land as defined in clause 13(6)) would lead to the absurd result that most of the intent of clause 13 and 14 (ie to give permission to concessionary allotments despite the minimum allotment size of 40 hectares) would be negated. Use of the word parcel in the clause 14 strengthens me in the above interpretation.

26 I also note Mr Crennan’s submission that, because clause 14(1)(d) refers to clause 13, rather than specifically to clauses 13(2), (3) or (4), the restrictions that apply to subdivision and the erection of dwellings pursuant to clauses 13(2), (3) or (4) do not apply to dwelling houses on the allotments. This would lead to the absurd result that an allotment in existence before 1976 would not be subject to restrictions of use or occupation, while an allotment created after 1976 would be subject to it. An interpretation that does not lead to an absurd result should be preferred to one that does.

27 I note that an amalgamation of lots 714 and 715 would have an area in excess of 40 hectares. Clause 14(1)(a) permits dwelling houses on lots over 40 hectares without restriction.

Orders

1 The appeals are dismissed.

2 Development applications to erect a dwelling house on each of lot 714 DP 753624, Cemetery Road, Harden and lot 715 DP 753624, Substation Road, Harden are determined by refusal.

3 The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner