Volf v Woollahra Council

[2014] NSWLEC 81

Land and Environment Court

New South Wales

Medium Neutral Citation:

Volf v Woollahra Council [2014] NSWLEC 81

Hearing dates:

20 June 2014

Decision date:

20 June 2014

Jurisdiction:

Class 1

Before:

Biscoe J

Decision:

(1) The following question be heard and determined first and before any other question in the proceedings:

Whether, on a proper construction of the Woollahra Local Environmental Plan 1995, and in particular of clauses 9(4) and (10), the council (and the Court) has the power to grant development consent for the subdivision (which the parties agree is not a subdivision under the Strata Titles Act 1973) of an approved but as yet unconstructed dual occupancy as proposed in DA138/2014.

(2) The matter is referred to the Registrar forthwith for the purpose of fixing a date for the hearing of the separate question before a judge of the Court and directions for preparation of the matter.

Catchwords:

SEPARATE QUESTION - whether power to grant development consent for a proposed development should be determined as a preliminary question.

Legislation Cited:

Strata Titles Act 1973
Uniform Civil Procedure Rules 2005 r 28.2
Woollahra Local Environmental Plan 1995 cll 9(4), 10

Category:

Separate question

Parties:

Zev Volf (Applicant)
Woollahra Council (Respondent)

Representation:

COUNSEL:
J McKelvey (Applicant)
K Webber, solicitors
SOLICITORS:
Newhouse Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10361/14

EX TEMPORE Judgment

1. This is a consent motion by the applicant in Class 1 proceedings for determination of a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 as follows:

Whether on a proper construction of the Woollahra Local Environmental Plan 1995 and in particular of cll 9(4) and (10) the Council's (and the Court) has the power to grant development consent for the subdivision (which the parties agree is not a subdivision under the Strata Titles Act 1973) of an approved but as yet unconstructed dual-occupancy as proposed in DA 138/2014.

1. The applicant owns Lot B in Deposited Plan 393404 known as 32 Girilang Avenue, Vaucluse (Land). In April 2014, the respondent Council approved DA 477/2013/1 which proposed an attached dual-occupancy development on the Land (Dual Occupancy Consent). The Dual Occupancy Consent included approval to strata subdivide the development. Construction pursuant to the dual-occupancy consent has not yet commenced.

1. In April 2014, the applicant lodged development application 138/2014 (DA) with the respondent. The DA sought development consent for "torrens title subdivision of improved attached dual-occupancy development". The DA does not propose any physical changes to the development approved by the Dual-Occupancy Consent. It only proposes a change in the type of subdivision.

1. On 30 May 2014, the applicant appealed to this Court against the respondent's deemed refusal of the DA. On 2 June 2014, the respondent issued a notice of determination actually refusing the DA. On 12 June 2014, the applicant's solicitor emailed the respondent's solicitor foreshadowing the notice of motion with which I am dealing.

1. The notice of determination lists a single reason for refusal being that the development proposed is prohibited because of the operation of cl 9(4) of Woollahra Local Environmental Plan 1995, cl 9 relevantly provides:

(1) A person may subdivide land to which this plan applies but only with the consent of the Council.

(2) Subclause (1) does not require consent for a subdivision. under the Strata Titles Act 1973.

...

(4) Despite subclause (1), the subdivision of an allotment on which development for the purpose of a dual-occupancy has previously been carried out is prohibited.

1. The applicant contends that, properly construed, cl 9(4) does not prohibit the development proposed in the DA.

1. In order to determine whether the Council and on appeal the Court has the power to grant development consent for the subdivision, the parties are agreed that it is necessary to determine whether, as the applicant contends, the development is for the purpose of dual-occupancy in which case the parties agree that there is power; or whether, as the respondent contends, it is for the purpose of a dwelling house. If the latter, the parties agree that there is no power without a variation of the standard in cl 10 of the LEP: the applicant does not contend for any such variation.

1. As the development application does not propose any other change to the development approved in the Dual-Occupancy Consent, there is no other merit issue raised or that will be raised in the proceedings. Accordingly, determination of the proposed separate question will be, or will likely be, dispositive of the proceedings.

1. In my opinion, in these circumstances, it is appropriate to order that the proposed question be determined first and before any other question in the proceedings.

1. The orders of the Court are that

(1)   The following question be heard and determined first and before any other question in the proceedings:

Whether, on a proper construction of the Woollahra Local Environmental Plan 1995, and in particular of clauses 9(4) and (10), the council (and the Court) has the power to grant development consent for the subdivision (which the parties agree is not a subdivision under the Strata Titles Act 1973) of an approved but as yet unconstructed dual occupancy as proposed in DA138/2014.

(2)   The matter is referred to the Registrar forthwith for the purpose of fixing a date for the hearing of the separate question before a judge of the Court and directions for preparation of the matter.