Wiggins v Pittwater Council - [2006] NSWLEC 543

Land and Environment Court

of New South Wales

CITATION: Wiggins v Pittwater Council [2006] NSWLEC 543

PARTIES:
APPLICANT:
James Joseph Kenneth Wiggins
RESPONDENT:
Pittwater Council

FILE NUMBER(S): 11476 of 2005

CORAM: Lloyd J

KEY ISSUES: Appeal :- under section 56A of the Land and Environment Court Act 1979 – error of law – misconstruction of a relevant provision – consideration of the development control plan as a fundamental element in the decision-making process – applicable clause in development control plan – taking into account an irrelevant consideration

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C
Interpretation Act 1987 s 35(2)
Land and Environment Court Act 1979 s 56A

CASES CITED: Ai v Newcastle City Council (2003) 126 LGERA 194;
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139;
Wiggins v Pittwater Council [2006] NSWLEC 286;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 11/08/2006

DATE OF JUDGMENT:
09/12/2006

LEGAL REPRESENTATIVES:
APPLICANT:
S N Griffiths (solicitor)
SOLICITORS:
Pike Pike & Fenwick
RESPONDENT:
D T Miller (barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

- 9 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 12 September 2006

LEC No. 11476 of 2005

WIGGINS v PITTWATER COUNCIL [2006] NSWLEC 543

JUDGMENT

Introduction

1 HIS HONOUR: The applicant, Mr James Joseph Kenneth Wiggins, applied to the respondent council for re-subdivision of two existing allotments into three. The application was recommended for refusal by the council’s development unit. The council subsequently invited the applicant to submit amended plans to address the recommended reasons for refusal. The offer was not taken up and the matter proceeded to an appeal in this Court.

2 The appeal was heard by Commissioner Bly who, in an extempore judgment on 11 April 2006, upheld the appeal and granted development consent to the application subject to conditions: Wiggins v Pittwater Council [2006] NSWLEC 286.

3 The council, being dissatisfied with the commissioner’s decision, now appeals to the Court against that decision, such appeal being limited to a question of law: s 56A of the Land and Environment Court Act 1979.

The proposed development

4 The subject land comprises at present two allotments known as lots 91 and 93, Powder Works Road, North Narrabeen. Lot 91 has a frontage to Powder Works Road. Lot 93 is a battle-axe or hatchet-shaped allotment which sits behind lot 91 and is accessed by a driveway from Powder Works Road which runs along the northern boundary of lot 91.

5 The development application seeks a subdivision of the two lots into three. This is to be achieved by reducing the size of lot 93 and then creating two lots out of the residue (that is, out of the existing lot 91 and the part of lot 93 excised therefrom), so as to create new lots, 91, 91A and 93. Access to lots 91A and 93 is to be by the existing access to lot 93, which is to be…

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: [2006] NSWLEC 543
Decision Date: 12/09/2006

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, James Joseph Kenneth Wiggins appealed against the decision of Commissioner Bly, who had granted Wiggins' application for the re-subdivision of two allotments into three. Pittwater Council, dissatisfied with the decision, appealed to the Court, limited to a question of law under section 56A of the Land and Environment Court Act 1979. The key issue was whether the commissioner erred in law by applying the wrong clause of the Development Control Plan (DCP) in his decision.

The court had to determine whether the commissioner correctly identified and applied the relevant clause of the DCP to the proposed development. The DCP contains two clauses regarding access driveways: clause B6.1, which applies to residential development up to two dwellings, and clause B6.2, which applies to all other developments. The commissioner had applied clause B6.1 instead of clause B6.2, which the council argued was the applicable clause. The court needed to assess whether this misapplication of the DCP constituted an error of law.

The court held that the commissioner erred in law by applying clause B6.1 instead of clause B6.2. The court noted that while the headings of the clauses might be misleading, the applicable clause is determined by the specific development listed in the body of each clause. The court found that clause B6.2 was the relevant clause for the proposed land subdivision, as it expressly includes such developments. The court concluded that the commissioner’s reliance on an inappropriate and more lenient control amounted to a misconstruction of a relevant statutory provision, which is always an error of law. The appeal was upheld, the commissioner's decision was set aside, and the matter was remitted for re-hearing and determination in accordance with the court's judgment. The applicant was ordered to pay the council's costs of the appeal.

Orders