Agostino v Penrith City Council

Agostino v Penrith City Council - [2009] NSWLEC 76 - NSWLEC 2009 case summary — Zoe

[15]

8 Other clauses of the LEP referred to in argument were cl 18 and cl 42. Clause 18 provides: 18 Convenience and general stores The council shall only grant consent to the establishment of a convenience store or general store on land to which this plan applies where the gross floor area of the store does not exceed 200 square metres and the store is more than 3 kilometres from another general store or convenience store in the area. Clause 42 provides: 42 Development of certain land at Mamre Road, Kemps Creek (1) This clause applies to land at Mamre Road, Kemps Creek, being land shown edged heavy black on the map marked "Penrith Local Environmental Plan No 201 (Rural Lands) Amendment No 10". (2) Despite any other provision of this plan, a person may, with the consent of the Council, carry out development on the land to which this clause applies for the purposes of a produce store and wholesale and retail plant nursery. (3) The Council must not grant consent to the carrying out of such development unless: (a) the Council has taken into consideration whether the development would adversely affect the existing or future service and safety levels of roads into and out of the development site, and (b) vehicular access into the development site is via the signal-equipped intersection of Mamre Road and Baker's Lane. (4) In this clause: produce store means a building or place, not exceeding 650m2 in gross floor area with an attached awning not exceeding 330m2, that is used for the sale by retail or storage of: (a) grain, or (b) stock feed, or (c) fertilizer, or (d) veterinary medicine, and includes any ancillary office or toilet facilities. wholesale and retail plant nursery means a building or place used for any one or more of the following purposes: (a) the growing and retail selling of plants, where the growing and propagation area does not exceed 1,600m2, (b) the storage of nursery items within a shade house, (c) the storage and retail selling of bulk landscape supplies including sand, mulch and compost, and materials such as fence rails, posts, gates, logs and firewood.

[25]

18 In Poynting (2001) Giles JA (Heydon JA Young CJ in Eq concurring) identified the two step process at 343 which has been applied in numerous cases since: A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step. Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of `development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development. … In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of "development standards" in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr ) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances.

[28]

The approach required by the definition, so understood, places considerable weight on the degree of specificity with which the proposed development is defined. If the proposed development is very broadly defined, even its essential elements will become external standards. On the other hand, to include within the identification of the proposed development all aspects of the proposed use of the land is likely to incorporate what should properly be seen as aspects regulated by development standards, because external to the essential elements of the development. The correct approach depends on the terms of the planning instrument in the particular case. Thus, if an LEP distinguishes by zoning between residential flats and dwelling houses, an application to erect a block of flats should not be treated simply as an application to erect a building, or an essential distinction between a dwelling house and a block of flats will be obscured. The reason why that distinction is important (on the present hypothesis) is that the relevant LEP distinguishes between a dwelling house and residential flats for zoning purposes. 21 Basten JA did not apply the two step approach in Poynting as he did not consider it was helpful given the particular LEP provisions before him. He considered at [85] that whether a particular provision was a development standard had to be determined by considering the definition in s 4 of the EP&A Act and the particular provision. Basten JA held the provision was not a development standard. Ipp JA agreed with these findings at [27]. His Honour also identified the difficulties of applying the definition of development standard in s 4(1) at [3]-[10]. 22 In the same case, Tobias JA applied Poynting and Carr to hold that the zoning subscript was a characteristic of the land which had to be satisfied before consent could be granted. It was not therefore a development standard. All judges of appeal agreed that a prohibition on a particular kind of development would not be a development standard if it was an essential element of the particular development, rather than a standard or requirement in respect of an aspect of the proposed development (relying on Giles JA in Lowy at [36]). 23 Talbot J in Marzouk v Penrith City Council [2007] NSWLEC 415 considered Browning, particularly the decision of Tobias JA, in determining whether a provision in an LEP was a development standard. His Honour held that cl 17 of the Penrith LEP, which permitted shops or professional suites where the total of those developments approved did not exceed a certain size in a particular zone and which were otherwise prohibited under that zone, was not a development standard. It could not therefore be the subject of a SEPP 1 application. His reasoning in [13] was that shops of a particular kind were allowed in specified circumstances which were not solely referable to the internal characteristics of the development itself.

[30]

25 In Agostino No 1, Cowdroy applied the two step approach in Poynting to conclude that cl 41(3) was not a development standard. That case was determined before Browning was determined. 26 Given the different reasoning of the Court of Appeal in RAID, which applied the approach in Poynting, and Browning, in which not all of the three judges of appeal applied Poynting, it appears necessary to consider the application of the two step process in Poynting and also the approach proposed by Basten JA (Ipp JA concurring) of considering cl 41(3) in the context of the LEP as a whole. I note that the reasoning of Giles JA in Poynting (cited at par 18) also referred approvingly to the reasoning in Mayoh embracing the need to consider the particular provision in issue in the context of the whole document. 27 In relation to the definition of development standard, s 4(c) refers to the size of a building so that floor area is within the definition of development standard. Considering the LEP as a whole, shops are prohibited in the Rural 1(a) zone so that in the absence of any other provision in the LEP the Applicant's proposed fruit and vegetable store would be prohibited in the rural zone. Clause 41 of the LEP applies solely to the Applicant's land. The definition of floor area contained within the clause does not include the whole of the area of the fruit and vegetable store as also defined in the clause. The area used for bulk storage of produce is not included for the purposes of the maximum floor area of 150 sq m referred to in subclause (3). 28 There are other clauses in the LEP which regulate shops of different kinds. Clause 18 applies generally to convenience and general stores on land to which the plan applies to permit such development with consent where the development's gross floor area does not exceed 200 sq m and is more than three kilometres from other similar stores. That clause would not overcome the prohibition on a fruit and vegetable store on the Applicant's land as found in the zoning Table. It is likely that the limits on floor area and distance from other stores provided in cl 18 would be considered development standards. 29 Clause 42 applies to specified land in the rural zone (as does cl 41 in relation to the Applicant's land) and allows development with consent of a produce shop and wholesale and retail plant nursery. The Applicant accepted that cl 42 did contain a prohibition on particular shops (and was not therefore a development standard) but argued that as the whole of the area of a produce store was included in the definition in cl 42(4), unlike cl 41(2), that supported a finding that the floor area in cl 41(3) is a development standard. The Applicant's submissions emphasised that the maximum floor area in cl 41(3) is but an aspect of the development, given that fruit and vegetable stores up to 150 sq m are permissible with consent under the clause. This argument was said to be strengthened by the fact that floor area as defined in the definition does not include the whole of the area of fruit and vegetable store, in contrast to cl 42 of the LEP. Clause 42 contains a definition of produce store and wholesale and retail plant nursery which includes all of the areas occupied by such stores. I do not consider that is an important distinction in the LEP, it simply reflects different drafting approaches taken to the LEP at different times. Clause 41 was inserted into the LEP in March 1992 and amended in December 1997 whereas cl 42 was inserted in May 2004.

[31]

30 That shops including fruit and vegetable stores are otherwise prohibited on the Applicant's land but for cl 41(3) is important in determining whether cl 41(3) is a development standard, contrary to the Applicant's submission (par 14). When the provisions of the LEP are considered as a whole the requirement in cl 41(3) that a fruit and vegetable store on the Applicant's land have no more than 150 sq m of floor space as defined in the clause is the description of the permissible development. The floor area is not a separately identified control imposed on the development, but rather is an essential element of the development, which are considerations referred to by Basten JA in Browning at [79]-[80] (at par 20). This suggests that cl 41(3) is not a development standard. That conclusion is not undermined by the existence of clause 18 which does deal generally with development standards for certain types of shops. That conclusion is supported by the provisions in clause 42 as discussed in the previous paragraph. 31 If the approach identified by Giles JA in Poynting is applied, in relation to the first step cl 41(3) does not prohibit the development of a fruit and vegetable store under any circumstances. It is therefore necessary to consider the second step, whether that clause specifies a requirement in relation to an aspect of the development. Applying the second step depends on how I characterise or describe the development the subject of the clause. The Council argues that the proper characterisation or description is that a fruit and vegetable store with a floor area as defined in the clause over 150 sq m is prohibited development. The Applicant argues that a fruit and vegetable store is not prohibited depending on an aspect of that type of development, namely the maximum floor size as defined in that clause. Stores with a floor area up to 150 sq m are not prohibited and that is an aspect of the development which suggests that it is a development standard. The characterisation or description of the development prohibited but for cl 41(3) propounded by the Council is correct in the scheme of the LEP described above. On this basis also I consider that cl 41(3) is not a development standard. 32 My finding on the preliminary point of law is that clause 41(3) of Penrith Local Environmental Plan No 201 (Rural Lands) of a maximum floor area of 150 square metres for a fruit and vegetable store permitted by that clause comprises a prohibition upon development for the purposes of a fruit and vegetable store having an area greater than 150 square metres.

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