Bella Ikea Ryde Pty Ltd v City of Ryde Council

Land and Environment Court (NSW)|2018-10-09|Before: Sheahan J, Robson J

Solicitors: Addisons (Applicant) Council of the City of Ryde (Respondent) File Number(s): 2018/93347

Introduction

In Bella Ikea Ryde Pty Ltd v City of Ryde Council [2018] NSWLEC 142 ("Bella Ikea"), Robson J ordered that the matter be set down before a Judge for the determination of two preliminary questions, and I heard argument on both questions on 9 October 2018.
The proceedings involve an appeal from "Bella Ikea" (The Applicant) against the City of Ryde Council's ("The Council") deemed refusal of Development Application ("DA") LDA2017/0063.
The DA had sought approval for the demolition of six existing dwellings, and the erection of new multi-dwelling buildings, on a site at 298-312 Blaxland Rd, Ryde.
The two questions involve the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) ("ARH SEPP").
His Honour articulated the two questions as follows (at [26]): (a) Whether the proposed development is on land which is within an accessible area for the purposes of cl 10 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW); and (b) Whether there is an "inconsistency" between cl 4.5A of the Ryde Local Environmental Plan 2014 ["the Ryde LEP"] and cl 14(1)(b) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) for the purposes of cl 8 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW).

Background

Much of the relevant factual background was explained by Robson J when he ordered separate determination of these two questions, and the parties generally agreed, before me, upon the relevant facts.
The Statement of Facts ("SOF") filed by the Applicant contained also a number of relevant annexures.
The subject land has a total area of 6,878 m2, and is zoned R2 Low Density Residential, under the Ryde LEP.
The proposed multi-dwelling housing development would comprise 33 dwellings - six two-bedroom dwellings, 24 three-bedroom dwellings, and three four-bedroom dwellings - and relies upon Part 2, Division 1 of the ARH SEPP.

Question One

The first separated question concerns the Applicant's ability to take advantage of the provisions of cl 10 of the ARH SEPP, which mandates that the development must be within an "accessible area". It is framed as follows: Whether the proposed development is on land which is within an accessible area for the purposes of cl 10 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW).
Clause 10 of the ARH SEPP provides (emphasis added): 10 Development to which Division applies (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and (b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977. (2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area. (3) Despite subclause (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use, or within a land use zone that is equivalent to any of those zones.
"Accessible area" is defined in cl 4 of the ARH SEPP to mean, relevantly, that the subject land is within: ... (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.
The SOF noted, relevantly for the purposes of cl 4(c), that the subject site is located within 400m of three bus stops along Blaxland Rd, being stops numbered 2212174, 2212175, and 2212176. Numbers "2174" and "2176" are located on the same side of the road as the proposed site (the southern side), while stop "2175" is located on the opposite side of the road. The Applicant sought to raise arguments only in respect of stops "2175" and "2176".
The relevant bus service running each way along Blaxland Rd is Route No 515, which operates both ways between Eastwood and Circular Quay.
The parties are agreed that the relevant bus stops are, therefore, serviced by a regular bus service, within the meaning of the Passenger Transport Act 1990, and the annexures to the SOF include the relevant bus timetables for route 515.
It was further agreed by the parties that, in line with the definition of "accessible area" in cl 4(c), the bus stops were serviced by a bus every hour from Monday to Saturday, within the hours stipulated by the provision.
However, the key argument concerned whether there is a bus servicing a bus stop within 400m, every hour on a Sunday, between 8:00 and 18:00 hours. As Mr McEwen said (Tp2, L50-p3, L1): … what is in issue is whether or not there is at least one bus per hour servicing the bus stop between 8am and 6pm on a Sunday.
Mr McEwen explained the Applicant's position (in pars 11-12 of its written submissions) in these terms: 11. When reference is had to the published Sunday timetable (effective 30 September 2018) for the 515 bus service (westbound) it is apparent that it services bus stop 2112176 (located on the southern side of Blaxland Road outside the site) each hour, with two exceptions: 9.54-11.00 (1 hour 6 minutes) and 12.00-13.02 (1 hour 2 minutes). 12. However, the same service (eastbound) services bus stop 2112175 opposite the site on the northern side of Blaxland Road at 10.20 am and 12.20 pm and at other times.

The Applicant

Section 8 of the Interpretation Act 1987 (NSW) provides: In any Act or instrument: … (b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form
Mr McEwen primarily submits (at par 13) that s 8(b) ought be applied to cl 4(c) of the ARH SEPP: Applying s 8(b) of the Interpretation Act, the land is within 400 metres walking distance of a bus stop(s) used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop(s) between … 08.00 and 18.00 on each … Sunday.
Mr McEwen submitted (Tp8, LL2-4): There's nothing in cl 10 and the accessibility definition which identifies that, for example, the bus service has to take anyone to any particular place.
The objective is to ensure that on a regular basis there is public transport for affordable housing residents, and the Court must find (LL20-21) "a practical construction which meets the evident goals". In his reply, he argued (Tp12, LL34-38) that "the construction for which we contend ... [is] fairly open on the words used". The residents must not be "site isolated" (Tp13, L27).
By taking into account the bus stops on both sides of the road, any 'gaps' in time, where a bus did not stop within a one hour time frame on one side of the road, would be filled by reference to stops made on the opposite side of the road. As he noted (Tp13, LL18-19), "there is nothing within the definition of accessible area which requires the bus to be going to a particular place".
Alternatively, Mr McEwen submitted that, even if the bus did not service the relevant stops strictly each hour, a bus would service the stop in every "chronological hour". As he explained his argument (Tp6, LL29-38): …if we use the chronological hour…the matter can be approached in this way. In the 8 o'clock hour, eight till nine, we have an 8.54 bus. In the 9 o'clock hour, we have a 9.54 bus. In the 10 o'clock, if we interpret ten as being ten to 11, we have an 11 o'clock bus. In the 12 o'clock hour, we have a 12 o'clock bus. In the 1 o'clock hour, we have a 1.02 bus. In each following relevant hour, we have a bus at two minutes past the hour; so, it's plainly within the hour. If it be permissible, as we submit it is, to have regard to chronological hours as opposed to the spacing between the buses, then I don't even need to have resort to plurality under the Interpretation Act.
Mr McEwen also advanced a third argument, submitting that the de minimis principle could be applied to this scenario. He submitted orally (Tp6, LL40-50): Your Honour, there is a third argument. We are dealing here, your Honour, with, at worst, a six minute gap and a two minute gap in the relevant hours to which I've taken you to. Your Honour, we would submit that this may very well be a case where your Honour could appropriately apply the de minimis principles, which your Honour of course would be well familiar with, that the law is not concerned with trifles and trifling matters; that the application of the de minimis rule adopts a purposive construction and that involves determining what's the purpose of the legislature with respect to a provision, choosing a meaning from alternative meanings which may be available which gives effect to purpose, and understanding that meanings which have no relevance to achieving the purpose would not be given to a particular purpose.
Later (Tp7, LL3-8) he added: …one could apply the de minimis principle which brings about practical and constructive approach and would conclude that a gap of six minutes or two minutes, if one is confined only to the bus on our side of the road, the 2176 service, is sufficient to meet the intent of the SEPP and that, therefore, your Honour, we are within an accessible area.
Mr McEwen also commented on the legislative intention of the SEPP. He submitted (Tp8, LL17-25): …that when your Honour has regard to context, when your Honour has regard to the circumstances of the SEPP, when your Honour has regard to the matters which the Courts are always concerned about in terms of construction, finding a practical construction which meets the evident goals, then the service which is here provided necessarily meets that requirement. It could not be put, in my respectful submission, against me that there is any hardship which would cause your Honour to take a different view of the interpretation of the SEPP which I'm urging upon your Honour in respect of an affordable housing resident.
Accordingly, it was the Applicant's submission that the answer to the first question should be Yes.

The Respondent Council

Dr Berveling argued (par 8) that the ARH SEPP is "beneficial" or "facultative" legislation, and that cl 10 acts as a "gate" which must be traversed to enable the operation of Part 2, Division 1 of the ARH SEPP (clauses 10-18).
He submitted (par 11) that the language which defines "accessible area" is "unambiguous", and sets out two criteria which a bus stop within 400m must satisfy, namely, that the bus stop needs to be used by a regular bus service, and that the bus stop needs to have one bus per hour servicing it at specified time periods.
An underlying objective for such criteria is to enable residents of affordable housing to have access to regular public transport (subs par 12), but the actual language of the criteria "does not allow for a mingling of bus services servicing different bus stops" (subs par 13).
Dr Berveling also articulated these arguments orally, in the following terms (Tp10, LL27-49): That then gets me to an analysis, in my submissions, as to what para C of the definition of accessible area actually does. In my submission, it sets out that it deals with land that is within 400 metres' walking distance of a bus stop that is used by a regular bus service, and then it provides qualifications on that bus service. It is the bus service that has to have at least one bus per hour servicing the bus stop between certain times. When one looks at those two criteria for the bus stop, not the bus service, it is my respectful submission that it cannot be that you can provide for let's see what all the bus stops that are within the requisite walking area you're doing and see if they actually enable a bus to arrive each hour that is required. That's not what cl (c) asks. Clause (c) says within walking distance of a bus stop used by a regular bus service with that quality. The quality links to the bus stop, in my respectful submission. Essentially, my para 13, my last sentence there in relation to that second point, that the bus stop needs to have at least one bus per hour servicing it at specified times, cannot enable a mingling of the bus services servicing the different bus stops. In the present case, we've got one bus service going to Eastwood and going to Circular Quay. It cannot be suggested that if one wants to go on a bus, let's go to a bus stop and then see where we go, the bus stops have a reason for being visited people want to go in the direction that the bus servicing that bus stop goes.
He further contended that the plurality provisions relied upon by the Applicant would not be of assistance, as the actual wording of the definition of "accessible area" would be "strained or exceeded", should the bus stops be able to satisfy the necessary criteria collectively (subs par 15).
His written submissions continued (par 16): A situation can be envisaged of a number of bus stops, disparate but all within 400m walking distance of the land and each serviced by a regular bus service providing buses much more than 1hr apart yet collectively providing for at least one bus per hour at the required times. However, this would not meet the underlying objective of the provision for regular public transport. [He cited Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, at 675.]
He also rejected both the Applicant's arguments based on "chronological hours", and its reliance on the de minimis principle.
On the former, he re-emphasised (Tp12, LL2-3) his submission that "the issue is for servicing of a particular bus stop rather than having a bus coming along every hour".
On the de minimis principle, Dr Berveling contended that the timetable's six minute and two minute gaps at the bus stops were significant. In any event, he submitted (Tp12, LL13-15) that: ... the legislative instrument, the SEPP, has drawn the line where it is in the definition of accessible area. That's the test that needs to be met, in my respectful submission.
Accordingly, the Respondent argued that the answer to the first question was No.

The Authorities relevant to Question One

It was acknowledged by both parties that any construction of the subject provision must be "fairly open" on the words used: Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622, at 638.
It was submitted, by Dr Berveling, that the starting point for construing remedial or beneficial legislation was as stated by Isaacs J, in Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384: … if any ambiguity existed, like all such Acts should be construed beneficially … This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.
In regard to some of the well-known principles of statutory interpretation, Mr McEwen referred the court to the following passage in the judgment of Jagot J, in Matic v Mid-Western Regional Council [2008] NSWLEC 113, at [7]- [9]: 7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379, at [37] - [46] and [63]; s 33 of the Interpretation Act 1987). "Context" has a wide scope and may include the "mischief which…one may discern the statute was intended to remedy" so that, by this method, an alternative construction to the literal meaning may be preferred if it is "reasonably open and more closely conforms to the legislative intent" (CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384, at 408). 8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested "by the use of language" in the document to be construed (Wilson v Anderson and Others (2002) 213 CLR, 401 at [8]). Accordingly: … it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred ( Singh v The Commonwealth and Another (2004) 222 CLR 322, at [19]). 9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for "some preconceived general notion of what constitutes planning" (Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30, at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490, at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104, at [25] "any attempt to always find planning logic in planning instruments is generally a barren exercise".
Mr McEwen relied upon an extract from the 1988 edition of "Statutory Interpretation in Australia", by Pearce and Geddes. That extract (section 6.27, p127) discussed the effect of "pluralising" terms in instruments, in accordance with the Interpretation Act, and highlighted the following paragraph from the decision of the Privy Council, in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, at 656: It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
Pearce and Geddes go on (at p128-129) to refer to a decision of Megarry J in No 20 Cannon St Ltd v Singer & Friedlander Ltd [1974] Ch 229, at 241-242, which noted that the Interpretation Act provision "authorises a process of selective pluralising or, for that matter, singularising". His Honour commented: It would indeed be remarkable if, for example, a statute worded in terms of "landlord" and "tenant" applied to every case where there was a landlord and a tenant in the singular or landlords and tenants in the plural, but not to cases where there were plural landlords and a singular tenant, or vice versa.
Mr McEwen also referred, by way of arguing a precedent, to my decision in Summer School Management Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 98. In that case I applied s 8 of the Interpretation Act to a clause in the relevant LEP.
Counsel for both parties also referred to various decisions of Commissioners of this Court.
Although such decisions are not binding upon me, they provide guidance on how the definition of "accessible area" has been construed in earlier instances.
In Zhang v Council of the City of Ryde [2016] NSWLEC 1179 ("Zhang"), Brown C gave consideration to the question that is presently before the Court. The factual scenario in Zhang was also remarkably similar, in that the deficiency in the bus timetabling also amounted to two periods on a Sunday, slightly longer than one hour, in which a bus did not service the relevant stops.
Brown C said (Zhang, at [21]): In reviewing the Transport for NSW timetable, I have formed the view that a small amount of common sense needs to applied in this case. For Sunday and Bus Stop No 2122102, the service is at least hourly with the exception of the service between 08.52 and 09.53 (1 hour 1 minute). For Bus Stop No 2114147, the services are also at least hourly with the exception of the services between 08.16 and 09.19 (1 hour 3 minutes) and 12.12 and 13.14 (1 hour 2 minutes). In my view, it would be totally unreasonable to refuse the application on the basis of these three exceedances for two different services on a Sunday where the maximum exceedance is 3 minutes particularly given the practical uncertainty of a bus arriving exactly at the time set out in the timetable.
Dr Berveling highlighted the decision of Gray C in Katerinis v Canterbury-Bankstown Council [2017] NSWLEC 1479. In that case, there was again consideration given to the issue of bus timetables, and whether the facts met the definition of "accessible area".
Gray C said (at [20]): There being no railway station or light rail station proximate to the site, neither (a) nor (b) can be satisfied. There are two bus stops located within 400m of the site, with a bus stop for route 487 located around 250m from the site near the intersection of Chapel Street and Canterbury Road, and a bus stop for route 946 located around 50m south of the Chapel Street site frontage. However, neither of these bus stops, nor the two bus stops together, meet the requirement for "at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday." Neither has a bus servicing the bus stop between 8 and 9pm on weekdays, with the final bus at around 7:11pm for route 487 and 7:18pm for route 946. Nor do they have a bus servicing the stop between 8am and 9am on Sundays, with the first bus at around 9:14am for route 487 and around 9:11am for route 946. As such, both parties agree that the development is not within an area that meets the definition of "accessible area".
Gray C's analysis is not inconsistent with Zhang, but the parties in her case reached an agreement that the clause was not satisfied, even by "two bus stops together".

Consideration

I do not accept Dr Berveling's analysis of the consequences of applying s 8 of the Interpretation Act.
I agree with Mr McEwen's submissions (Tp8) that (LL2-4) "there's nothing in cl 10 and the accessibility definition which identifies that, for example, the bus service has to take anyone to any particular place", and that the Court must find (LL20-21) "a practical construction which meets the evident goals" of the SEPP, in circumstances where (LL27-31): There's no difficulty with crossing Blaxland Road and we're not dealing with persons who may be physically disabled; we're dealing with persons for whom it is necessary or appropriate to provide a public transport service so we say there is nothing in the context which would cause your Honour to come to a different view.
I would also accept the Applicant's submissions on the issue of "chronological hour", were it necessary to rely upon that alternative submission.
There is also merit to be found in Mr McEwen's submissions regarding the de minimis principle. As Brown C said, in Zhang, a "small amount of common sense" must be applied in the present scenario.
I, therefore, find that the subject site is within an "accessible area" for the purposes of cl 4 of the ARH SEPP.
Accordingly, the answer to the first question is Yes.

Question Two

The second question to be determined is framed (following an agreed slight amendment - [6] above), as follows: Whether there is an 'inconsistency' between cl 4.5A(a) of the Ryde Local Environmental Plan 2014 and cl 14(1)(b) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) for the purposes of cl 8 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW).
Clause 8 of the ARH SEPP reads: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
As Robson J explained in Bella Ikea (at [5]): This question determines whether the development standard in the LEP relating to density applies to the proposed development or whether it is set aside by the ARH SEPP.
The Applicant submitted (par 16): By contention 2.2 of the SOFAC the respondent claims that cl 4.5A(a) of the Ryde LEP prevents the grant of development consent because the site area for the building is deficient by reference to the configuration of the dwellings proposed.
Clause 1.9(1) of the Ryde LEP also deals with the issue of inconsistency, and provides: 1.9 Application of SEPPs (1) This Plan is subject to the provisions of any State environmental planning policy that prevails over this Plan as provided by section 36 of the Act.
Clause 14(1) of the ARH SEPP provides: A consent authority must not refuse consent to development to which this Division applies ... (b) site area if the site area on which it is proposed to carry out the development is at least 450 square metres …
Clause 4.5A of the Ryde LEP provides: 4.5A Density controls for Zone R2 Low Density Residential Development consent must not be granted to the erection of multi dwelling housing on land in Zone R2 Low Density Residential unless: (a) the site area for the building is not less than: (i) for each 1, 2 or 3 bedroom dwelling - 300 square metres, and (ii) for each 4 or more bedroom dwelling - 365 square metres, and (b) each dwelling will have its own contiguous private open space.
'Site area' is defined in the Dictionary within the Ryde LEP in these terms: site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan.
The Respondent relies on the proposition that cl 4.5A(a) must be read as part of the whole LEP, and highlighted cl 4.1B, which provides: 4.1B Minimum lot sizes for dual occupancies and multi dwelling housing (1) The objective of this clause is to achieve planned residential density in certain zones. (2) Development consent may be granted for development on a lot in Zone R2 Low Density Residential for a purpose shown in Column 1 of the table to this clause if: (a) the area of the lot is equal to or greater than the area specified for that purpose and shown opposite in Column 2 of the table, and (b) the road frontage of the lot is equal to or greater than 20 metres. Column 1 Column 2

Dual occupancy (attached) 580 square metres Multi dwelling housing 900 square metres

Both cl 14(1)(b) of the ARH SEPP and cl 4.5A of the Ryde LEP are site area controls, and the site area for the proposed development, as agreed in the SOF, is 6,878m2 (2(a)).

The Applicant

The Applicant submitted (at par 30): … both cl 4.5A and cl 14(1)(b) are site area controls. They are directly contrary or opposed to each other and are incapable of concurrent operation. Therefore, an inconsistency arises between them, with the result that [ARH SEPP] prevails to the extent of the inconsistency as mandated by cl 8 of [ARH SEPP] and cl 1.9(1) of Ryde LEP.
Mr McEwen calculated that, in accordance with the requirements of cl 4.5A, the minimum site area required under the LEP would be 10,095m2. He explained this calculation (at Tp15, LL22-35): …the development application as amended proposes 33 dwellings configured as follows there are six two bedders; 24 three bedders; three four bedders. Then in cl (c) of the facts, "The minimum site...calculated as follows". If your Honour goes back to 4.5A, if you've got a one, two or three bedroom dwelling, you need 300 square metres per dwelling. We've got a total of 30 of those, because we've got six times two, and 24 times three, so we've got 32 three bedders. In 300 square metres, that's 9,000 square metres. We also have three four bedroom dwellings which require by reference to cl (a) of 4.5A a minimum of 365 metres per dwelling of that type so that's another 1,095 square metres. In total under cl 4.5A, you would need a minimum of 10,095 square metres which, plainly, with a site area of 6,878 one does not have.
Mr McEwen explained further (at Tp16, LL26-31): … we've got cl 8 of the SEPP and cl 1.9(1) of the LEP both identifying and confirming that where there is an inconsistency, the SEPP is to prevail so cl 14 would prevail over 4.5A(a) in the event of an inconsistency so that brings us to the relevant question is there in fact in law an inconsistency between the two which we say in the simplest terms, the answer to that must be yes because both of them are dealing with site area; they both cannot stand together.
Mr McEwen concedes that the proposed development does not meet the site area requirements mandated by cl 4.5A of the LEP, but he notes that cl 14(1)(b) of the ARH SEPP is a non-discretionary standard, which mandates that consent cannot be refused on the grounds of site area, provided that the site area of the proposed development is at least 450m2.
Accordingly, the site area for the proposed development, being calculated at 6,878m2, exceeds the 450m2 that is required by the ARH SEPP.
A finding that cl 14(1)(b) of the ARH SEPP prevailed over cl 4.5A of the Ryde LEP was "entirely consistent" with the aims of the SEPP, which he noted is beneficial and facultative legislation. He said (at Tp18, LL16-21): The aims are as follows, "To facilitate the ... nondiscretionary development standards. This is a nondiscretionary development standard, that is cl 14 of the SEPP. Then (g), "To facilitate development ... and supportive accommodation", plainly, a relaxation if one wishes to so describe it of the site area control in the Ryde LEP by the SEPP is entirely consistent with that facilitation.
Accordingly, it was the Applicant's submission that the answer to Question Two (as amended) is Yes.

The Respondent Council

The Respondent's approach involved the submission that cl 4.5A of the Ryde LEP needed to read as part of the whole LEP, including alongside cl 4.1B, which provides for minimum lot sizes for dual occupancies and multi dwelling housing.
The essence of Dr Berveling's submission is that the reference to the site area for a building in cl 4.5A of the Ryde LEP must relate contextually to the site area for a dwelling in cl 4.5A, the result being that cl 4.5A(a) becomes aligned with cl 4.1B of the Ryde LEP.
He articulated his argument within his written submissions (at pars 24-27 - footnotes omitted): 24) Both clauses 4.1B and 4.5A apply to multi dwelling housing on land within the R2 low density residential zone. 25) Clause 4.1B contains an objective (regarding planned residential density), whereas clause 4.5A does not contain an objective. 26) With the reference in clause 4.5A to (i) multi dwelling housing, to (ii) site area for the building, and to (iii) dwellings with a various number of bedrooms, the syntax of clause 4.5A is confusing. However given that multi dwelling housing can comprise separate buildings, and that building can include part of a building, it is submitted that reference to site area for the building (in contrast to site area for the development) must relate contextually to the site area for a dwelling. 27) The above provides for clause 4.5A to align with clause 4.1B, in that both require a minimum area of 900m2.
Dr Berveling submitted (Tp19, LL35-36) that it must be inherent that cl 4.5A and 4.5B "must have some different things to do and different work to do".
Clause 4.5A(a) does not deal with site area of the development, but with site area for the building (Tp19, LL40-43).
Accordingly, the Respondent submitted that the answer to question two should be No.

The Applicant's reply

In response, Mr McEwen submitted that the slight difference in wording between the two clauses (namely, the reference to the site area for a "building" in the LEP) is inconsequential, and he also disputed Dr Berveling's construction of the provisions, submitting that to require a one, two or three bedroom dwelling to be 300m2, would require "very substantial" dwellings to be erected.

The Authorities relevant to Question Two

In Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324, Kirby J discussed the meaning of the word "inconsistency". At 331, he stated, in relation to s 36 (now s 3.28) of the Environmental Planning and Assessment Act 1979: The resolution of this dispute requires only that the word "inconsistency" be given its ordinary and natural meaning without the gloss which has necessarily developed around the meaning of the word in a constitutional setting. Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument.
This approach was endorsed by McColl JA in Hastings Point Progress Association Inc v Tweed Shire Council & Anor [2009] NSWCA 285; (2009) 168 LGERA 99 at [5]. As Mr McEwen noted, McColl JA and Young JA found an inconsistency between provisions of the Tweed Local Environmental Plan 2000 and the State Environmental Planning Policy (Seniors Living) 2004 "in circumstances which are analogous to the present case".
Commissioner O'Neill, in Amine, Mouhamad & Anor v Bankstown City Council [2014] NSWLEC 1188 ("Amine"), dealt with considerations similar to those presently before the Court. She found an inconsistency between cl 14 of the ARH SEPP and clause 46 of the Bankstown Local Environmental Plan 2001.
She said (at [43]- [44]): 43 The development standards for villas, at cl 46 of LEP 2001, requiring a minimum site area of 1200sqm, an allotment 20m wide at the front building line and a minimum site area per villa of 300sqm, are all inconsistent with sub-cl 14(b) of SEPP (ARH), requiring a minimum site area of 450sqm (otherwise a standard can be used to refuse consent). The development standards for villas in LEP 2001 cannot be used to refuse consent, at cl 14 of SEPP (ARH), as the site area is 923sqm. 44 One of the aims of SEPP (ARH) is to promote the provision of affordable rental housing by the private sector, by providing incentives for development to include a component of new, affordable rental housing, including, at sub-cl 3(b), expanding non-discretionary development standards. The development standards for villas, at cl 46 of LEP 2001, work together to require villa developments to be sited on large, amalgamated sites. Importantly, this proposal is not solely a villa development, it includes a component of new, affordable rental housing and as such, the incentives of the SEPP (ARH) provisions, designed to encourage the supply of affordable rental housing, permit this development to occur on a smaller site that would otherwise be required for a villa development under LEP 2001. For this reason and pursuant to cl 14 of SEPP (ARH), the development standards for villas in cl 46 of LEP 2001 cannot be used to refuse consent and therefore a SEPP 1 objection is not required.
While Dr Berveling did not nominate any authority to support his construction of cl 4.5A(a), he challenged the decision of O'Neill C in Amine, contending that (i) para [43] of that judgment "may well amount to a constructive failure to exercise jurisdiction", and (ii) that the Commissioner's reasons (in par [44]) did not address the issue of inconsistency.

Consideration

In the event of any inconsistency between the provisions of the LEP and the ARH SEPP, the ARH SEPP is to prevail.
As to whether there is any inconsistency between cl 4.5A(a) of the LEP and cl 14 of the ARH SEPP, I consider that the submissions of the Applicant are to be clearly preferred, and I also agree with the conclusion of O'Neill C in Amine.
The inconsistency between the provisions dealing with "site area" is very clear, and cl 14 of the ARH SEPP must prevail.
I reject Dr Berveling's analysis and submissions on this aspect of the case. To have a dwelling comprising 300m2 was most unlikely to have been the drafter's intention in framing the provisions in the LEP.
Accordingly, I find that there is an inconsistency between cl 4.5A(a) of the Ryde LEP and cl 14(1)(b) of the ARH SEPP, and the ARH SEPP must prevail.
The answer to question two is, therefore, Yes.

Costs

The parties agreed (Tp18, LL21-35) that the question of costs should be reserved.

Orders

The Court makes the following orders: 1. The answer to both preliminary questions separated in the proceedings is "Yes". 2. The question of the costs of the hearing on those questions is reserved. 3. The matter is to be listed before the Registrar on Wednesday, 19 December 2018 for further directions for its disposition.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2019

(2005) 142 LGERA 104

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