Young v Parramatta City Council - [2006] NSWLEC 368

Pending Appeal:

Land and Environment Court

of New South Wales

CITATION: Young v Parramatta City Council [2006] NSWLEC 368

PARTIES: APPLICANT
Greg Young
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10322 of 2006

CORAM: Pain J

KEY ISSUES: Development Application :- whether Court has power to approve application for subdivision of SEPP 5 development where no development carried out

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4, s 4B,
Interpretation Act 1987 s 33
Local Government Act 1993
State Environmental Planning Policy No 5 cl 3(1), cl 5(2), cl 9, cl 10, cl 11, cl 12, cl 13, cl 15, cl 16, cl 18,

CASES CITED: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 ALR 297;
Grant v Ku-ring-gai Council [2005] NSWLEC 1 ;
Greg Young v Parramatta City Council [2006] NSWLEC 116;
Kingston v Keprose (1987) 11 NSWLR 404;
Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179 ;
Meriton Apartments Pty Limited v Parramatta City Council [2003] NSWLEC 309 ;
Minister for Resources & Anor v Dover Fisheries Pty Ltd (1993) 116 ALR 54;
Toon v Ku-ring-gai Council [2004] NSWLEC 173;
Young v Parramatta City Council [2004] NSWLEC 245

DATES OF HEARING: 23/06/2006, 26/06/2006

DATE OF JUDGMENT:
09/01/2006

LEGAL REPRESENTATIVES: APPLICANT
Greg Young (Self-Represented)
RESPONDENT
Ian Woodward (Solicitor)
SOLICITORS
Storey & Gough Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

1 September 2006

10322 of 2006 Greg Young v Parramatta City Council
JUDGMENT

1 Her Honour: This is a preliminary question of law raised in this Class 1 appeal. The development application in issue seeks subdivision of land the subject of a development consent granted by the Court in 2004 (Young v Parramatta City Council [2004] NSWLEC 245) (“Young 2004”) pursuant to State Environmental Planning Policy No 5 – Housing for Older People with a Disability (“SEPP 5”). At issue is whether the Court has power to approve the application for subdivision until that development has been carried out. The question concerns the operation of cl 18 of SEPP 5.

2 The Applicant represented himself and the Council was represented by its solicitor. After the hearing I asked the parties for further submissions on additional issues and have prepared this judgment taking into account those additional submissions.

Agreed facts

3 The parties agreed the following facts; on 24 May 2004, the Court in Young 2004 approved a development application for the “demolition of certain structures, for alterations and additions to the existing dwelling and for the construction of a new dwelling pursuant to State Environmental Planning Policy No 5 (“the SEPP 5 development”).

4 On 10 March 2006 a development application was lodged with the Council to “subdivide land … into two allotments. The proposed two lots to be adapted for separate occupation and disposition of the approved use. Young v Parramatta City Council [2004] NSWLEC 245.”

5 This application is…

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 368
Decision Date: 01/09/2006

CaseChat Overview and Summary

In this appeal before the Land and Environment Court of New South Wales, the applicant, Greg Young, sought to challenge the respondent Parramatta City Council's refusal to approve a development application for the subdivision of land that had previously been granted development consent for a State Environmental Planning Policy No 5 (SEPP 5) development. The primary issue before the court was whether the court had the power to approve the application for subdivision of the SEPP 5 development where no development had been carried out. The court also considered whether a deferred commencement consent could be granted contingent on the construction of the SEPP 5 development, and whether the court or council had previously issued simultaneous SEPP 5 development and subdivision approvals.

The applicant argued that the development consent granted by the court in 2004 constituted a de facto approval of subdivision, and that clause 18 of SEPP 5, which allows for the subdivision of land on which development has been carried out, did not preclude the approval of the current subdivision application. The applicant also contended that the wording of clause 18 lacked parameters and was imprecise, and that the court should adopt a purposive approach to statutory interpretation to avoid an absurd result. In contrast, the council submitted that clause 18 of SEPP 5 required that a subdivision could only be consented to once the development for which consent had been granted under SEPP 5 had been fully carried out on the land.

In its judgment, the court rejected the applicant's arguments, finding that the development consent granted in 2004 did not include consent for subdivision, and that the observations of the commissioner in his judgment concerning a de facto subdivision did not provide a basis for a legal argument that there was a de facto subdivision approval. The court also held that clause 18 of SEPP 5 took precedence over any other planning instruments, and that the term "carried out" in the clause referred to the development the subject of approval under SEPP 5. The court adopted the council's interpretation of clause 18, and found that it did not have the power to consider the development application for subdivision of the SEPP 5 development granted in 2004.

The court did not determine whether a deferred commencement condition could be granted as the applicant did not press for that outcome. However, the court held that the council's argument on this issue was correct. The court ultimately concluded that it did not have the power to consider the development application for subdivision of the SEPP 5 development granted in 2004.

Orders