Posted on May 31, 2012 by Frances Tse
Identifying the ‘land’ on which development is to be carried out
The Court has again been required to consider what the word ‘land’ means in a planning instrument.
The Land & Environment Court has considered the meaning of words such as land, lot and allotment on a number of occasions.
In Northcote Trust v Hornsby Shire Council  NSWLEC 1134, the Land and Environment Court had to determine what constituted the land on which a development was to be carried out. The answer to that question would determine whether the development would benefit from bonus floor space ratio provisions.
The applicant lodged a development application (‘DA’) for the construction of affordable rental housing (‘Development’) on land described on the development application form as Lot A DP399538 (‘Lot A’).
Council had previously granted consent to the subdivision of Lot A into two lots. At the date of determination of the DA, the subdivision plan had not yet been registered, although by the time the appeal was heard in Court, the subdivision plan had been registered and Lot A was subdivided into Lot 1 DP1165114 (‘Lot 1’) and Lot 2 DP1165114 (‘Lot 2’).
The Development was proposed to be located on the part of Lot A that became Lot 2 and there was a heritage item under the Hornsby Shire Local Environmental Plan 1994 on the part of Lot A that became Lot 1.
If State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP’) applied to the Development, the Development would benefit from bonus floor space ratio provisions in the SEPP.
The SEPP does not, however, apply to development on land that contains a heritage item. The question was therefore whether the Development was to be carried out on the land on which the heritage item was located.
The Council contended that the relevant land was Lot A, being the land noted on the DA form, and therefore the SEPP did not apply, as the heritage item was located on that land.
The applicant contended that the relevant land was Lot 2 and therefore the SEPP applied as the heritage item was located on Lot 1.
The Commissioner relied on previous authority to the effect that the word allotment where used in a state environmental planning policy, did not have a technical meaning, but its ordinary meaning of an identifiable parcel of land, which need not be the whole of a lot in a registered plan (see Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94). The Commissioner applied that broad interpretation to the use of the word land in the SEPP.
She held that in determining the relevant land that regard must be had not only to the development application form but also to the documents submitted as part of the DA, including the statement of environmental effects and plans of the proposed development.
Having regard to those documents, however, she found that whilst the bulk of the Development was to be carried out on Lot 2, drainage works which were part of the Development were proposed on Lot 1. Therefore she held that the Development was being carried out on the land which contained the heritage item, being Lot 1.
This case is a reminder that determining what land a development is to be carried out on, does not involve merely a consideration of the title description of land. The land could be a part only of an identified lot, or could encompass more than one lot.
All of the documents lodged with a development applciation will be taken into account when determining the relevant land. Care should be taken by developers when preparing development applciations to ensure that the bounds of the land are properly described, particularly if there are relevant planning controls which may or may not apply, depending on the exact land on which the development is proposed.