Young v Hunters Hill Municipal Council

[1989] NSWLEC 160

Land and Environment Court

of New South Wales

CITATION:

Young & Anor v Hunters Hill Municipal Council [1989] NSWLEC 160

PARTIES:

APPLICANT
Young & Anor

RESPONDENT
Hunters Hill Municipal Council

FILE NUMBER(S):

10500 of 1988

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

Land and Environment Court Act

CASES CITED:

DATES OF HEARING:

DATE OF JUDGMENT:

02/17/1989

LEGAL REPRESENTATIVES:

APPLICANT
Mr. Craig
RESPONDENT
Mr. McEwan

JUDGMENT:

HIS HONOUR: On 14 February 1989 the following point of law was referred to me for determination in accordance with s.36(5) of the Land and Environment Court Act. The question is:-

"In respect of land zoned 2(a2) under the Hunters Hill L.E.P. No. 1, as is the subject land, it is not open to the consent authority to refuse development consent by reference to cl.5(1) of the Model Provisions, where those provisions have been incorporated in the L.E.P."

After hearing submissions by the parties I determined the question with the answer "No, it is not open to the consent authority to refuse development consent by reference to cl.5(1) of the Model Provisions, where those provisions have been incorporated into the Local Environmental Plan". I remitted this determination to the Assessor so that he could continue to hear the application. In so doing I indicated that I would state my reasons later, which I now do.

The application concerns the erection of a dwelling house at 1 Mayfield Avenue, Woolwich. Under the Hunters Hill Local Environmental Plan No. 1 the property is within a 2(a2) Residential zone. The zoning tables are to be found in cl.9 of the LEP and the heading to Column III states, "Purposes for which development may be carried out subject to such conditions as may be imposed under the Act". Opposite the Residential 2(a2) zoning in Column III appears, "Dwelling houses". Clause 7 adopts most of the Environmental Planning and Assessment Model Provisions, 1980 The adopted provisions include cl.5(1) which provides as follows:-

"5 (1) The consent of authority shall, in respect of an application under the Act for its consent or approval to the development of land within view of any waterway or adjacent to any main or arterial road, railway, public reserve or land zoned as open space, take into consideration the probable aesthetic appearance of the proposed building or work or that land when used for the proposed purpose and viewed from that waterway, main or arterial road, railway, public reserve or land zoned for open space."

It is agreed that the proposed development is within view of a waterway. Cl. 9 of the LEP relevantly provides:-

"9. Except as otherwise provided in this plan, the purposes -

....

(b) for which development may be carried out -

(i) only with development consent, but where that consent cannot be refused; and

(ii) subject to such conditions as may be imposed under section 91 of the Act;

....

on land within each of the zones specified in Column 1 of the Table to this clause are respectively shown opposite thereto in Columns 11, 111, 1V and V of that Table."

Are there any exceptions provided in the plan? Mr. Craig, who appears for the applicants, identifies at least three - clauses 12, 15 and 16. These are quite clear and expressed exceptions. However, Mr. Craig submits that the adopted Model Provision (cl.5(1)) is not such an exception because it does not either expressly or by necessary implication qualify or negative the position otherwise provided by Cl.9 of the LEP. In his submission a reading of the incorporated model provision reveals that it does no more than refine the consideration of aesthetics in a certain circumstance. It does not expressly provide that consent may be refused, nor does such a situation arise by necessary implication. It may of course support the imposition of an appropriate conditions.

I accept Mr. Craig's submission. To conclude otherwise would make nonsense of the deliberate decision to include dwelling houses in Col. 111 for the 2(a2) zoning, while including dwelling houses in Col. 1 for zonings 2(a1), 2(b) and 2(c) and in Col. 1V for Residential 2(a3). In my opinion cl. 5(1) of the Model Provisions as adopted by cl.7 of the LEP does not amount to an exception within the introductory words to cl.9.

In so concluding I reject the submission of Mr. McEwan for the Council that cl.5(1) is a development standard the breach of which may entitle the consent authority to refuse consent. I fail to see how cl.5(1) can be said to specify any requirement or standard (see s.4 Environmental Planning and Assessment Act). In my opinion the provision does not do so, but merely provides a specific consideration arising in certain given circumstances.