Southern Highland Properties Pty Limited v Wingecarribee Shire Council

[2004] NSWLEC 141

Land and Environment Court

of New South Wales

CITATION:	Southern Highland Properties Pty Limited v Wingecarribee Shire Council [2004] NSWLEC 141
PARTIES:	APPLICANT Southern Highland Properties Pty Limited RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	11431 of 2003
CORAM:	Talbot J
KEY ISSUES:	Development Application :- whether for prohibited development - distinction between purpose and development in terms of use
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Wingecarribee Local Environmental Plan 1989 Pt 2, cl 9
CASES CITED:	Denis Leech & Associates v Warringah Council (Lloyd J, NSWLEC, 26 June 1997, unreported); McClelland and Others v Willoughby Municipal Council (1972) 25 LGRA 388
DATES OF HEARING:	02/04/2004
DATE OF JUDGMENT:	04/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr DR Parry (Barrister) with Ms MRM Carpenter (Barrister) SOLICITORS NA RESPONDENT Mr NCT Bilinsky (Barrister) SOLICITORS B Bilinsky & Co

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11431 of 2003

Talbot J

8 April 2004

Southern Highland Properties Pty Limited

Applicant
v

Wingecarribee Shire Council

Respondent

Judgment

1 Wingecarribee Local Environmental Plan 1989 (“the LEP”) provides that any purpose other than a purpose included in Item 2 or Item 4 of the Land Use Table (“the table”) in respect of zone 3(a) (Business Zone) may be carried out only with development consent. Item 2 identifies development that may be carried out without development consent but has no relevance in the present case. Item 4 includes a description of development that is prohibited as follows:-

(1) Dwelling-houses or dwellings (other than those attached to or used in conjunction with a purpose included in Item 3).

2 The applicant is the registered proprietor of land described as lot 1 and lot 2 in DP 797605 situated at the corner of Boolwey and Station Streets, Bowral, known as 40 Station Street, Bowral (“the land”). The land is within the Business 3(a) zone. The existing development consists of a basement gymnasium and a number of commercial premises on the ground or first level.

3 The applicant has lodged a development application (DA 02/1275) seeking consent for the erection of eight residential units to be comprised within two new additional levels to the existing building. Wingecarribee Shire Council (“the council”) determined the development application by refusal of consent on 26 November 2002.

4 The council has raised a preliminary issue, namely whether the proposed development is prohibited within the 3(a) Business zone under the LEP.

5 The applicant contends that the erection of the eight residential units proposed in the subject development application is permissible with development consent, as the units constitute dwellings which are physically attached to commercial premises, which is a purpose permissible with consent in the zone. The physical attachment is by means of the same structure constituting both the ceiling of the commercial premises and the floor of four dwellings and by means of each of the dwellings sharing common external walls with the existing commercial premises. Accordingly, the argument is that as development for the purpose of the erection of the dwellings proposed in the development application falls within an express exception to the prohibition upon dwellings in Item 4 of the table it is an innominate permissible purpose within Item 3 of the table.

6 “Development” is defined for the purpose of the Environmental Planning and Assessment Act 1979 as follows:-

(a) the use of land, and
(b) the subdivision of land, and
(c) the erection of a building, and
(d) the carrying out of a work, and
(e) the demolition of a building or work, and
(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,
but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

7 The objectives of the 3(a) zone are stated in Item 2 as follows:-

(a) to recognise and maintain Bowral’s predominance as the prime business and retail centre for the Tablelands subregion;

(b) to recognise and maintain the support functions performed by the smaller business centres in Mittagong and Moss Vale;

(c) to identify a small business centre at East Bowral and within the villages of Bundanoon, Welby and Berrima;

(d) to set aside, by means of a development control plan, specific areas within the zone for automotive, agricultural and building industry businesses; and

(e) to identify, by means of a development control plan, performance standards for areas in the zone relating to such matters as floor space ratio, building height, car parking provision and the like.

8 Mr Bilinsky contends, on behalf of the council, that where proposed dwellings are unconnected with a purpose included in Item 3 they cannot be regarded as being within the exclusion in Item 4.

9 Clause 9 of the LEP provides that the purposes for which “development may be carried out only with development consent” are specified under the heading “Only with development consent” appearing in the matter relating to the zone. Item 3 refers only to a “purpose” and that is the expression picked up by the words in parenthesis in Item 4.

10 In McClelland and Others v Willoughby Municipal Council (1972) 25 LGRA 388 and Denis Leech & Associates v Warringah Council (Lloyd J, NSWLEC, 26 June 1997, unreported), contrary to the present case, the Court was concerned with the description of development specifically by reference to attachment to shops or commercial premises. Here the use of the word “purpose” is consistent with the meaning of development as being the use of land rather than the subdivision of land, the erection of a building or the carrying out of a work. It is also consistent with the ordinary meaning of the word as being an object to be attained or intended rather than a structure. Although the relationship between the reference to “development” in cl 9 and to “purpose” in the Item 3 of the table is an uneasy one in some respects, there is, in my view, sufficient distinction to confine the words in parenthesis to the concept of being attached to or used in conjunction with a use identified by reference to a purpose in Item 3.

11 The objectives of the 3(a) zone are concerned with the recognition and enhancement of uses which contribute to the business centres in Bowral, Mittagong and Moss Vale. It would be the antithesis of this objective to construe the plain meaning of the words used in parenthesis by adopting the artificial connection propounded by the applicant.

12 There is no evidence of intention to connect the use of the residential components to the commercial uses on the ground floor or basement. Accordingly, the dwellings will not be attached to the commercial uses nor will they be used in conjunction therewith. They will therefore be dwellings that do not fall within the parenthesised exception in Item 4 and are thus prohibited.

13 The exhibits may be returned.