Separovic and Anor v Ku-ring-gai Municipal Council [2001] NSWLEC 217

Land and Environment Court of New South Wales

CITATION : Separovic and Anor v Ku-ring-gai Municipal Council [2001] NSWLEC 217 APPLICANTS Separovic and Anor PARTIES : RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 10384 of 2001 CORAM: Pearlman J KEY ISSUES: Question of Law :- SEPP 53 - dual occupancy - subdivision Ku-ring-gai Local Environment Plan No 183 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance State Environmental Planning Policy 53 - Metropolitan Residential Development pt 3 CASES CITED: DATES OF HEARING: 29/08/2001 EX TEMPORE JUDGMENT DATE : 08/29/2001

APPLICANTS Mr G N McKee (Solicitor) SOLICITORS McKees LEGAL REPRESENTATIVES: RESPONDENT Ms M L Hawley (Solicitor) SOLICITORS Phillips Fox

JUDGMENT:

IN THE LAND AND 10384 of 2001 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 29 August 2001

NED SEPAROVIC and KATY SEPAROVIC Applicants v KU-RING-GAI MUNICIPAL COUNCIL Respondent

JUDGMENT

1. In class 1 proceedings currently on foot a question of law has been referred for the determination of a judge. It is as follows:- Whether a development application for both the construction of a second dwelling on an allotment, and the subdivision of the allotment to create two separate dwellings on two separate allotments, is development allowed by Part 3 of SEPP 53.

2. The development application which is the subject of the class 1 appeal has two components of development. One is the construction of a second dwelling on a single allotment of land. The other component is the subdivision of that allotment into two allotments, the effect being that there will be one dwelling house on each of the two allotments.

3. The development application is made pursuant to State Environmental Planning Policy 53 – Metropolitan Residential Development ("SEPP 53"). It involves development which is permissible with consent under the Ku-ring-gai Planning Scheme Ordinance, ("the PSO") namely, both the construction of a dwelling house and subdivision.

4. The Ku-ring-gai Local Environment Plan No 183 ("LEP 183") which came into force on 13 March 2001, sets out development standards for subdivision. Those standards, which are set out in cl 58B, relate principally to the size of lots intended to be occupied by a single dwelling house.

5. The land the subject of the development application is within Zone 2C under the PSO. There is a specific size provision in cl 58B(3)(c) of LEP 183 in relation to that land, but, cl 58B(5) provides as follows:- 58B(5) This clause does not apply to a subdivision creating two adjoining lots if the dwelling houses on those lots are lawful because of a consent granted pursuant to Sydney Regional Environmental Plan No 12 - Dual Occupancy, or State Environmental Planning Policy No 53 - Metropolitan Residential Development, before or after the commencement of this clause. 6. In that context, I turn to the preliminary question of law. The answer depends entirely upon the proper construction of the provisions of pt 3 of SEPP 53 and in particular the meaning of cl 17. Clause 17 provides as follows:- 17 This Part allows development that results in two dwellings being located on the one allotment of land if another environmental planning instrument permits a dwelling house to be erected on that allotment and the development is carried out in accordance with this Part and Part 5. 7. It seems to me clear that what is contemplated by cl 17 is a particular type of development, that is, a development that results in two dwellings being located on one allotment of land.

8. I consider that a development application which seeks approval for development which is a subdivision is not development to which pt 3 of SEPP 53 applies. Clause 21 relevantly provides:- 21(1) Nothing in this Policy permits a subdivision of an allotment on which there are two dwellings as a result of development allowed by this Part (2) However, nothing in this Policy prevents such a subdivision if it is permitted by another environmental planning instrument. 9. At first glance it would seem artificial to find that, on its proper construction, pt 3 of SEPP 53 applied only to development which sought the construction of a second dwelling on a single allotment, because cl 21 clearly indicates that subdivision, if otherwise permissible is not affected by the operation of SEPP 53. But on reflection I think that finding is precisely what SEPP 53 sets out to do. The Court has no power under pt 3 of SEPP 53 to, on the one hand, grant development consent to the construction of a second dwelling on an allotment and, on the other hand, to grant consent to a subdivision of that allotment into two separate allotments. They are two separate things and SEPP 53 is confined to the first of them.

10. I am fortified in that conclusion by cl 15(a) of the objectives of pt 3 which refers to the opportunity for two dwellings to be developed on a single allotment of land.

11. Another indication that that is how pt 3 of SEPP 53 operates flows from LEP 183. Clause 58B(5) indicates that the development standards which are provided under LEP 183 do not apply to a subdivision of land where two dwelling houses have been constructed pursuant to a consent obtained under SEPP 53.

12. I am sympathetic to Mr McKee's passionate submission that such a conclusion will mean a waste of resources. It will mean that the applicant will be faced with lodging two development applications to achieve the one purpose which is to have a dual occupancy on separate allotments of land.

13. That, however, is the consequence of the wording of pt 3 of SEPP 53. The Court's power to grant consent under pt 3 of SEPP 53 must be carried out in the terms of that instrument.

14. I therefore answer the question of law as follows: Question:

Whether a development application for both the construction of a second dwelling on an allotment, and the subdivision of the allotment to create two separate dwellings on two separate allotments, is development allowed by Part 3 of SEPP 53.

Answer:

The answer is no.

15. I direct that the matter be remitted to the Senior Commissioner to be determined in the light of the answer to the preliminary question of law.

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