Tobin v Shoalhaven City Council - [2001] NSWLEC 72

Land and Environment Court

of New South Wales

CITATION: Tobin v Shoalhaven City Council [2001] NSWLEC 72

PARTIES: APPLICANTS
John Timothy Tobin and Anne Michelle Tobin
RESPONDENT
Shoalhaven City Council

FILE NUMBER(S): 11065 of 2000

CORAM: Sheahan J

KEY ISSUES: Question of Law :- whether a clause in the LEP is a development standard or a prohibition

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Shoalhaven LEP
State Environmental Planning Policy No.1

CASES CITED: Bell & Anor v Shellharbour Municipal Council (1993) 78 LGERA 429;
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297;
Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103;
Fencott Drive Pty Ltd v Lake Macquarie City Council [2000] NSWLEC 146;
Franklins v Penrith City Council [1997] NSWCA 134;
Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95 ;
Kruf v Warringah Shire Council (NSWLEC 15 December 1988, unreported);
McKay v North Sydney Council (2000) 107 LGERA 203;
North Sydney Municipal Council v P D Mayoh Pty Ltd [No.2] (1990) 71 LGRA 222;
Pancho Properteis v Wingecarribee Shire Council (1999) 110 LGERA 352

DATES OF HEARING: 15/02/2001

DATE OF JUDGMENT:
04/19/2001

LEGAL REPRESENTATIVES:
APPLICANTS
Barrister
Mr I Hemmings
Solicitors
Kearns & Garside
RESPONDENT
Solicitor
Mr G Gleeson
Solicitors
Morton & Harris

JUDGMENT:

JOHN TIMOTHY TOBIN and ANNE MICHELLE TOBIN

Applicants

SHOALHAVEN CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. The Tobins own land at Agar’s Lane, Berry (“the subject land”).

2. The subject land is known as lot B in DP 336601; it has an area of approximately 2.663 ha; it is zoned rural 1(c) (Rural Lifestyle); and it has been classified as “prime crop and pasture land”.

3. The Shoalhaven City Council on 31 May 2000 refused development consent to a subdivision of the subject land into two rural residential lots.

4. In the Tobins’ class 1 appeal against Council’s refusal, the following preliminary question of law has been raised:

Whether clause 12(3) of Shoalhaven Local Environmental Plan 1985 (“the LEP”) is in the nature of a development standard or a prohibition.

5. In argument, the question was also put in an alternative way, namely whether the relevant clause is amenable to modification pursuant to the provisions of State Environmental Planning Policy No.1 (“SEPP 1”).

6. The parties agreed upon a statement of facts, filed on 9 February 2001.

The relevant provisions of the LEP

7. In cl 6 the LEP defines the concept “prime crop and pasture land” to mean:

land identified as Class 1, 2, or 3 on a map entitled ‘Agricultural Land Classification’ produced by the Department of Agriculture, dated 1986, and available for public inspection at the office of the Council, but does not include land which the Director-General of the Department of Agriculture has notified the Council in writing is not prime crop and pasture land.

8. Clause 10 provides that “Land…

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 72
Decision Date: 04/19/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal by John Timothy Tobin and Anne Michelle Tobin against Shoalhaven City Council's refusal of a development consent application for a subdivision of their rural land in Berry. The applicants sought to subdivide their rural lifestyle zoned property into two lots, each smaller than the 10-hectare minimum specified by clause 12(3)(c) of the Shoalhaven Local Environmental Plan 1985. The central legal issue was whether this clause constituted a development standard or a prohibition, and if the latter, whether it could be modified under the State Environmental Planning Policy No.1.

The Court examined the language and context of clause 12(3)(c), concluding that it imposed a prohibitive condition on the subdivision of prime crop and pasture land in the rural lifestyle zone. The use of mandatory terms like "must" and "at least" indicated an absolute restriction rather than a standard to be met. The Court found support in several precedents that distinguished between regulatory clauses that specify standards and prohibitive clauses that outright ban certain developments. The specific nature of the prohibition in this case aligned with the broader objectives of the LEP to protect agricultural land and maintain environmental quality.

As a result, the Court determined that clause 12(3)(c) was not a development standard but rather a prohibition that could not be modified under SEPP 1. This interpretation was consistent with the LEP's aim to preserve the agricultural potential of prime crop and pasture land. The Court's decision effectively prevented the subdivision of the applicants' land into lots smaller than 10 hectares, upholding the Council's refusal of the development consent.

Orders