Applicant v HUNTERS HILL COUNCIL

LEGISLATION CITED: Preliminary question of law - application of SEPP 53 - relationship with LEP - development standards to apply

DATE OF JUDGMENT DELIVERY: 02/23/1999

Applicant Mr J Bingham Solicitor Deacons Graham & James LEGAL REPRESENTATIVES: Respondent Mr C McEwen Barrister Mr J Cole of Abbott Tout Solicitors

IN THE LAND AND Matter No: 10739 of 1998 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 23 February 1999 MITCHELL Applicant v HUNTERS HILL COUNCIL Respondent

1. This is a Class 1 appeal against the deemed refusal by Hunters Hill Council of development application 981160, made by Mr & Mrs Mitchell, for the demolition of the existing single-storey dwelling-house, and the erection of "an integrated housing development" at No.12 Viret Street Hunters Hill. The proposed development is envisaged to contain two large dwellings within one structure, which will be strata subdivided into two lots plus common property.

2. This appeal is listed for hearing commencing Monday, 1 March 1999, and two preliminary questions of law have been posed:

1. Whether the provisions of State Environmental Planning Policy No 53 ("the SEPP") apply to an application for development consent for "integrated housing" under the Hunters Hill Local Environmental Plan No 1 ("the LEP"). 2. If the answer to Question 1 is yes, whether the LEP provides development standards that allow dual occupancy development on the subject allotment of a higher density than 0.5:1 such that Clause 19(2) of the SEPP applies to the development application.

The northern frontage of the block is relevantly the Lane Cove River and the land has a total site area of 1201 square metres. The proposed landscaped area covers 727 square metres, which represents 60.5% of the total site area.

The subject site is zoned Residential 2(a2) under the LEP, which was gazetted on 10 December 1982. "Integrated Housing" is nominated as a use which is permissible with development consent within that zone. It is common ground that the proposal fits that description and the following provisions of the LEP are relevant:

· Clause 6(1) defines "integrated housing" to include, inter alia, "the erection of a building containing two dwellings". · Clause 10(2)(a)(1) provides that the Council shall not consent to the subdivision of land within Zone 2(a2) unless each allotment created by the subdivision has an area of "in the case of land within Zone No 2(a2), not less than 900 square metres". · Clause 15(2) provides for a height limit of 8 metres on a building erected within the relevant zone and that such a building must not contain habitable rooms on more than two floors. · Clause 16 includes a schedule of floor space ratio limitations, but none is prescribed for the relevant zone. · Clause 16A(3) provides that the Council shall not grant consent to the erection or use of a building on an allotment of land within the relevant zone, with a frontage to the Lane Cove River (or the Parramatta River), unless the allotment has a garden area equal to or greater than 60% of the area of the allotment.

· Clause 17A deals specifically with "integrated housing development" and relevantly provides that a building on the subject land should occupy an area of allotment not less than 700 square metres and a garden area of at least 60%.

The term "dual occupancy" is not used in the LEP.

It is common ground that the floor space ratio of the current proposal is between 0.5:1 and 0.8:1.

The SEPP commenced on 26 September 1997, and "applies to the part of the State consisting of the local government areas described" in the schedule. According to clause 3(1), it:

"aims to encourage the provision of housing in metropolitan areas that will: (a) broaden the choice of building types and locations available in the housing market, and (b) make more efficient use of existing infrastructure and services, and (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design."

In accordance with clause 3(2) Councils were encouraged "to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims". The SEPP allows for local government areas to be exempted from the whole or various parts of the SEPP when those strategies and plans are in place. This occurs through the amendment of the policy from time to time, following agreement from the Minister regarding the Council's residential strategy and the plans it prepared to implement that strategy.

The SEPP repealed, inter alia, SREP 12 - Dual Occupancy, and clause 5(2) provides that if the SEPP is inconsistent with any other environmental planning instrument made before or after it, the SEPP is to prevail to the extent of the inconsistency, except in the case of the demolition of a heritage item. It is common ground that the Council was subject to the SEPP at the time of this development application. Hunters Hill Council was exempted from the operation of the SEPP on 13 November 1998, but a savings provision (clause 41) provides for the SEPP to apply to any development application lodged but not determined as at that date, such as the subject development application.

Part 2 of the SEPP deals with "Integrated Housing Development" and Part 3 with "Dual Occupancy". The objectives of Part 2 envisage groups of dwellings on separate small allotments of land (clause 10), whereas the objectives of Part 3 envisage the development of two dwellings on a single allotment of land (clause 15).

In the dictionary at the end of the policy (clause 6) "multi-unit housing" is defined as "a development resulting in two or more dwellings and includes dual occupancies, … integrated housing, …". However, neither integrated housing nor dual occupancy is specifically defined.

The central issue in this preliminary question of law is whether the SEPP is to be applied to the assessment of the current development application. The proposal as outlined to the Court would be "dual occupancy", as defined in clause 15. The following other provisions of Part 3 of the SEPP would be relevant, if the SEPP applies:

· Clause 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 …". (In this regard it should be noted that dwelling houses and integrated housing are permissible with consent in Zone 2(a2) of the LEP). · Clause 18: "Development allowed by this Part may be carried out only with the consent of the relevant consent authority, unless another environmental planning instrument allows that development without consent". · Clause 19: "The following development standards apply" for a relevant development. The allotment must have an area of 400 square metres or more where the two dwellings are attached and a floor space ratio of 0.5:1 or less. The subject application satisfies the requirements of the SEPP with respect to lot size, but exceeds the nominated figures for floor space ratio. · Clause 19(2) provides as follows: "However, if another environmental planning instrument provides development standards that allow higher density development on the allotment concerned, the standards that allow higher density development apply".

· Clause 20 deals with carparking requirements. · Clause 21 provides that nothing in the policy permits a subdivision on an allotment on which there are two dwellings unless it is permitted by another environmental planning instrument. · Clause 31 sits in that part of the SEPP which deals with "Design Requirements" and provides that consent is not to be granted unless the consent authority has taken into account a site analysis prepared in accordance with the clause. The site analysis must contain information specified in a schedule to the SEPP, and be accompanied by a written statement explaining how the design of the proposed development has regard to the site analysis. The Court does not need to decide this issue, but envisages that much, if not all, of the relevant material for a site analysis would be contained in a statement of environmental effects properly prepared.

The proposal as outlined to the Court is certainly for a "dual occupancy" development as envisaged by clause 15 of the SEPP, it being for two attached dwellings on a single allotment of land.

Mr Bingham, for the applicant, submits that the SEPP is designed to be facilitative, but as the applicant's development application is made pursuant to the LEP and not the SEPP, the provisions of the SEPP do not apply to it. He submits that the application complies with the requirements of the LEP and that the answer to question 1 should be "no".

However, I accept Mr McEwen's submission for the Council that SEPPs and LEPs apply to land, not to specific developments. Development applications are made to consent authorities in accordance with the provisions of the Environmental Planning & Assessment Act 1979, notably s 78A, and not "under" LEPs or other environmental planning instruments. An applicant cannot elect which of the possibly relevant environmental planning instruments should apply to the development application.

I accept the further submission of Mr McEwen's that the SEPP is designed to be restrictive as well as facilitative.

As a matter of law I determine that the SEPP applies to the subject application as it applies to the land to which the subject application relates. The first question is answered in the affirmative, and, therefore, I must now turn my attention to the second.

Question 2: What are the relevant development standards?

Clause 19(2) of the SEPP provides that provisions of planning instruments that allow higher density development than the SEPP envisages should apply.

Mr Bingham submitted that, pursuant to clause 19(2), the Court should note that clauses 16A(3) and 17A(1)(c) of the LEP provide the minimum garden area to be 60% where the allotment fronts Lane Cove River, and that clause 15(2) provides an 8 metre height limit and a maximum of two floors of habitable rooms. This is equivalent to a maximum floor space ratio of 0.8:1. Therefore, he submits that as the LEP contains development standards which allow a higher density development on the relevant allotment than the SEPP requires, the floor space ratio of 0.5:1 in the SEPP would not apply.

In this context I do not accept Mr McEwen's submission that clause 19(2) must be construed to apply only to those standards in clause 19(1), but I agree with Mr Bingham's submission that the trigger of "development standards that allow higher density development" is a term not restricted to the two particular development standards referred to in clause 19(1).

The minimum garden area provision is one example of a development standard, other than allotment size and floor space ratio, which is to be relevant under clause 19(2).

As the LEP contains development standards that allow higher density development, I conclude that the answer to Question 2 is that clause 19(2) operates to preclude the constrictive limitation of 0.5:1, thereby allowing the floor space ratio standards contained in the LEP to apply.

I would, accordingly, answer the questions as follows:

Question 1 Whether the provisions of State Environmental Planning Policy No 53 apply to an application for development consent for "integrated housing" under the Hunters Hill Local Environmental Plan No 1.

If the answer to Question 1 is yes, whether Hunters Hill LEP 1 provides development standards that allow dual occupancy development on the subject allotment of a higher density than 0.5:1 such that Clause 19(2) SEPP 53 applies to the development application.

The LEP ( Exhibit H1 ) may be returned to Mr McEwen.

26. The matter is remitted to a Commissioner for determination on the merits, on the basis of the answers to the questions posed.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 7 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

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