Unicomb Development Services Pty Limited v Shellharbour City Council - [2003] NSWLEC 89

Reported Decision: 125 LGERA 170

Land and Environment Court

of New South Wales

CITATION: Unicomb Development Services Pty Limited v Shellharbour City Council [2003] NSWLEC 89

PARTIES:
APPLICANT:
Unicomb Development Services Pty Limited
RESPONDENT:
Shellharbour City Council

FILE NUMBER(S): (1)0457 of 2002

CORAM: Lloyd J

KEY ISSUES: Question of Law :- statutory interpretation - development application - appeal - subdivision - zoning - where zones 1(a)
7(d) and 2(e) adjoin within subject land - which zone's rules apply - zone objectives

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 25(3)
Interpretation Act 1987 s 35
Land and Environment Court Act 1979 s 36(5)
Shellharbour Local Environmental Plan 2000 cl 2, cl 10, cl 11(2), cl 14, cl 23(2), cl 49(2), cl 54, cl 77 and cl 83

CASES CITED: Corporate Affairs Commission v Yuill (1991) 172 CLR 319;
Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41;
Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95;
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404;
R v Wallis; Ex parte Employers' Association of Wool-Selling Brokers & H V McKay Massey Harris Pty Ltd (1949) 78 CLR 529;
Winn v Director General of National Parks and Wildlife & Ors [2001] NSWCA 17

DATES OF HEARING: 25/03/2003

DATE OF JUDGMENT:
04/23/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr D P Wilson (barrister)
SOLICITORS:
Kearns & Garside
RESPONDENT:
Mr A M Pickles (barrister)
SOLICITORS :
Peedoms

JUDGMENT:

- 4 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0457 of 2002

Lloyd J

23 April 2003

UNICOMB DEVELOPMENT SERVICES PTY LIMITED

Applicant

SHELLHARBOUR CITY COUNCIL

Respondent

JUDGMENT

Introduction

1 This is the separate determination of a question of law raised in proceedings before a commissioner and referred to the Chief Judge for determination by a judge (pursuant to s 36(5) of the Land and Environment Court Act 1979).

2 During the hearing of the proceedings before the commissioner a fundamental question of law arose:

Whether on the true construction of clause 83 of Shellharbour LEP 2000 and the whole of that plan, consent may be granted to subdivision of the subject of the appeal in these proceedings:

(a) notwithstanding non-compliance with clause 54 of that LEP as to minimum lot sizes; or

(b) only if an objection pursuant to State Environmental Planning Policy No. 1 is upheld.

The Facts

3 The applicant proposes to subdivide the subject site, located at lot 3805 in deposited plan 1009645 at Albion Park(“the land”), into six residential lots and one residue lot. The land is situated in the respondent’s local government area and the Shellharbour Local Environmental Plan 2000 (“the LEP”) applies to the land. As I understand it, the proposed residential lots are zoned part 2(e) (the Mixed Use Residential E Zone), part 7(d) (the Environmental Protection (Scenic) Zone) and part 1(a) (the Rural A Zone).

4 Clause 10 of the LEP, entitled “Zone objectives and general controls for development”, provides in…

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: [2003] NSWLEC 89
Decision Date: 04/23/2003

CaseChat Overview and Summary

Unicomb Development Services Pty Limited sought to appeal a decision of the Shellharbour City Council to refuse a development application for the subdivision of a property into seven lots. The property is situated within three different zones under the Shellharbour Local Environmental Plan 2000: Zone 2(e) (Mixed Use Residential E Zone), Zone 7(d) (Environmental Protection (Scenic) Zone), and Zone 1(a) (Rural A Zone). The primary legal issue before the court was whether the Shellharbour Local Environmental Plan 2000 (LEP) permits the subdivision of land that straddles different zones, notwithstanding non-compliance with specific zoning requirements, or if such subdivision is contingent upon the upholding of an objection under the State Environmental Planning Policy No. 1.

The court found that Clause 83 of the LEP, which pertains to flexible zone boundaries, allows for development permissible in one zone to also occur in an adjoining zone, subject to certain conditions. The court held that Clause 83 operates to modify the application of planning provisions in situations where zones adjoin, providing flexibility in development constraints. This interpretation aligns with the overall aims of the LEP, including ensuring compatible land uses, meeting the needs of an increasing population, and protecting environmentally sensitive areas. The court rejected the respondent's argument that Clause 83 does not override specific development standards in adjoining zones, finding instead that Clause 83 specifically addresses the situation where zones adjoin and provides a mechanism for development across such boundaries. Therefore, the court concluded that consent for the subdivision could be granted despite non-compliance with specific zoning requirements regarding minimum lot sizes, as long as the development is considered on its merits.

Orders