Belle Design Group Pty Limited v Woollahra Municipal Council

I refer in particular to the introduction into Schedule 6 of the EP&A Act ("Savings, transitional and other provisions") of cl 18 which provides as follows: 18 General saving (1) If anything done or commenced under a provision of this or any other Act that is amended or repealed by the Environmental Planning and Assessment Amendment Act 1997 has effect or is not completed immediately before the amendment or repeal of the provision and could have been done or commenced under a provision of such an Act if the provision had been in force when the thing was done or commenced: (a) the thing continues to have effect, or (b) the thing commenced may be completed. (2) This clause is subject to any express provision of this Act or the regulations on the matter

Additionally, I refer to the provisions of Part 3 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 which contain savings and transitional provisions arising from the 1997 Amendment Act. In particular, cl 29 (which operated until 1 July 2001) and which specified in subclause (3) that certain development (namely (i) a "prescribed activity" which included the demolition of a building (vide Item 2 of Part A of the Table to the Local Government Act 1993, s 68); and (ii) a "subdivision of land") may not be carried out without development consent.

Importantly, cl 29(7) provided that the provision had effect "despite the existing provisions of an existing environmental planning instrument" (ie an instrument in force when the 1997 Amendment Act came into force) but "subject to the provisions of any new environmental planning instrument and to any new provisions of an existing environmental planning instrument" (where "new" relevantly means occurring at a date after the 1997 Amendment Act had come into force).

Clause 29 is, in my opinion, a clear legislative indication that it was not intended that pre-existing environmental planning instruments automatically have an expanded operation merely by virtue of the introduction into the EP&A Act of the expanded definition of "development". Rather, it evinces the intention that new provisions or instruments be made in order to exercise the expanded power conferred by the amended EP&A Act but that as a transitional device (with temporary effect) the Regulations would bridge any gap created by the 1997 Amendment Act in the controls on development operating by virtue of existing planning instruments.

It is for all the foregoing reasons that I would respectfully adopt the approach taken by the High Court in Kostrzewa in preference to the approach taken in Birch. In this respect, I must respectfully disagree with the views of the learned authors of "Statutory Interpretation in Australia" that the two High Court decisions are irreconcilable and that the approach in Birch is to be preferred.

In my respectful opinion, Birch's case depends much upon its own peculiar facts (including the most important fact that at the time that the parent Act was materially amended, so was the Regulation (albeit not as clearly drafted as it could have been) and the matters discussed in Kostrzewa in the passages recited from the judgments of the Chief Justice and Windeyer J involve matters of principle going both to questions of interpretation and validity of delegated legislation where the parent Act has been materially amended, but the delegated legislation has not been correspondingly amended. In my respectful opinion, these principles are more fundamental to the present case than is the application of the practical consideration emphasised in Birch of avoiding the potential inconvenience and difficulty of the same word "development" bearing different meanings in an environmental planning instrument according to the date when such provisions are made (by reference to the date when the 1997 Amendment Act came into force).

It is somewhat surprising that the important question raised in the present case has not previously been the subject of judicial decision because of the general significance of the amendments made by the 1997 Amendment Act to the key concept of "development" contained in the EP&A Act and because of the multitude of pre-existing environmental planning instruments controlling development which provisions constitute the cornerstone of the regime imposed by Part 4 of the EP&A Act - see in particular ss 76, 76A and 76B. (The present case demonstrates how the question is apt to arise nearly six years after the date that the 1997 Amendment Act came into force because of the continuing operation of the multitude of planning instruments which were made before that date.)

A similar question was alluded to, but not decided, by the Court of Appeal in J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223 where the argument was advanced that the expanded definition of "development" did not apply to pre-existing environmental planning instruments when the 1997 Amendment Act came into force on 1 July 1998: see par 30 of the judgment of Stein JA (with which the other members of the Court agreed).

Because Stein JA upheld the respondent's notice of contention that the relevant activity fell within the ambit of the relevant control operating under the EP&A Act, s 26(f) in combination with the operation of s 75, it was not necessary for the Court to determine the argument that the expanded definition of "development" did not apply to the pre-existent environmental planning instrument.

Nonetheless, Stein JA at 230 made the following observations against the argument - [36] The parties are in dispute as to whether the LEP operates in an ambulatory fashion. The appellant submits that the words in the instrument must have the meaning that they were intended to have at the time the LEP was made. It is submitted that to hold otherwise would defeat the consultation and public participation processes inherent in the making of the LEP. Those provisions in the Act would, in effect, be bypassed. [37] There are two answers to this proposition. First, while the public consultation process is important, the process is not, as Mr Ayling notes, sacrosanct. For example, an LEP may be substantially affected by a decision of the Minister. Moreover, State Environmental Planning Policies, the highest form of planning instruments, do not have to be preceded by any public participation. [38] The second answer is one of manifest inconvenience. If the appellant's submission is correct, then in order to facilitate the amendments made to the Act, many hundreds of LEPs would have to be amended. [39] However, because of the view I take as to the effect of s 75(1) of the unamended Act and subpar (f) of the definition of development in the amended Act, it is unnecessary to determine the ambulatory nature of the LEP and the application of Birch v Allen (1942) 65 CLR 621.

It is to be noted that the two reasons advanced by his Honour related to his rejection of the specific argument based upon the importance of the public participation processes of the EP&A Act. (Significantly, no question of the validity of the instrument had been raised - see at par 29). Moreover, the argument from inconvenience is only compelling if it is first decided that the legislative intention was for effect to be given in existing planning instruments to the expanded definition of "development" contained in the EP&A Act and in this sense, the argument is question begging.

Stein JA's observations do not directly address the arguments that have been advanced in the present case, and in my judgment, they do not undermine my conclusion in the present case or the reasons for it.

Finally, I would note that a similar question to that raised in the present case had been encountered in the much earlier decision of the Court of Appeal in Leichhardt Municipal Council v Fridrich Constructions Pty Ltd (1984) 54 LGRA 82. In that case it had been argued that the definition of "development" contained in the EP&A Act as originally enacted was automatically transmitted to an interim development order, being a species of a former planning instrument that was given continuing effect by being translated into a "deemed environmental planning instrument" under the EP&A Act by virtue of the provisions of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, which was cognate to the EP&A Act and contained detailed provisions for the continuance under the EP&A Act of planning instruments and decisions that had been made under the former legislative regime provided by Part XIIA of the Local Government Act 1919 which was repealed upon the commencement of the EP&A Act.

The Court of Appeal rejected the argument holding that the content and scope of the former planning instrument (which was governed by the then relevant statutory definition of "development' which was narrower than the definition of the same term contained in the EP&A Act) was not expanded by virtue of the specific savings and transitional provisions giving that instrument continuing force under the EP&A Act as a deemed environmental planning instrument.

Although not addressing precisely the same question as is raised in the present case, the reasoning of the judgment of Mahoney JA (with which the other members of the Court agreed), which is elaborated at pp 86 to 88 inclusive, is in my respectful opinion both helpful and relevant, by analogy, to providing the answer required of the similar question raised in the present case.

Since I have concluded that the meaning of the term "development" where employed by the LEP (and cl 8 in particular) is that contained in the EP&A Act at the time that the LEP was made in 1995 it follows that the disputed question should be answered in the negative, it being accepted that unless the expanded definition is applicable, there is nothing in cl 8 of the LEP that prohibits the demolition of a building.

This conclusion means that it is not strictly necessary to determine other matters argued on the assumption that the expanded definition of "development" applies to the LEP and to cl 8 in particular.

However, for completeness, I should briefly consider these alternative arguments. The first argument is that the development control table applies subject to the heritage provisions contained in Part 4 of the LEP: see cl 8(4).

In respect of the heritage provisions of the LEP, it is common ground that the development site is included in a heritage conservation area designated by the LEP and that the provisions of Part 4 of the LEP include the following provision: 28. Heritage conservation areas (1) A person shall not, in respect of a heritage conservation area: (a) demolish or alter a building or work within the area, (b) damage or move a relic, or excavate for the purpose of exposing or removing a relic, within the area, (c) damage or despoil a place within the area, or (d) erect a building on or subdivide land within the area, except with the consent of the Council.

Similar controls are imposed by cl 26 of the LEP in respect of "heritage items" or an "item that is part of a heritage item group".

It is clear that cl 28(1)(a) of the LEP operates in the present case to prohibit the demolition of the existing dwelling-house erected on the development site "except with the consent of the Council".

In my opinion, that provision relevantly would be inconsistent with the operation of the development control table prohibiting demolition on the assumption that the Council's argument is correct that the expanded definition of "development" applies to cl 8 of the LEP. In resolution of this inconsistency, cl 8(4) of the LEP expressly provides that the heritage provision shall prevail over the relevant inconsistency in a provision of the development control table.

The Council seeks to avoid the operation of cl 8(4) of the LEP by submitting that cl 28(1)(a) of the LEP "does not make the proposed development permissible with consent - rather it imposes a requirement for the consent of Council to be obtained for demolition of a building or work within a conservation area, if that demolition is permitted or permissible with consent pursuant to the development control table".

In my view, this submission is founded upon an unsustainable construction of cl 28 and of cl 8(4) of the LEP.

If, by assumption, the development control table relevantly prohibits the demolition of a building, that provision is relevantly inconsistent with cl 28(1)(a) of the LEP which relevantly prohibits "except with the consent of the Council" the demolition of a building situate within a heritage conservation area. It simply cannot be gainsaid that a relevant absolute prohibition on the demolition of a building is inconsistent with a relevant conditional permissibility for the demolition of a building.

Faced with such an inconsistency, cl 8(4) of the LEP provides for its resolution by assigning prevailing force to the latter heritage provision.

Accordingly, even if, contrary to my holding, cl 8 of the LEP operates upon the basis of the expanded definition of "development", the demolition of the existing dwelling-house erected on the development site would not be absolutely prohibited (as the Council's argument would have cl 8 to so operate) but would, instead, be governed by the prevailing provision of cl 28(1)(a) of the LEP overriding that absolute prohibition.

For these additional reasons, the question of law raised in these proceedings should be answered in the negative (even if it be assumed, contrary to my holding, that the expanded definition of "development" applies to cl 8 of the LEP).

The final alternative argument concerns the effect of cl 8 on the double assumption (i) that the expanded definition of "development" applies to it; and (ii) that cl 28(1)(a) is not relevantly to prevail over the effect of the inconsistent provision of the development control table.

Based on these assumptions, the Council's argument is to the effect since "development" includes "the demolition of a building" and since the proposed development in the present case is demolition simpliciter in that it does not include any other development for a permitted or permissible purpose, it follows that the proposed development is absolutely prohibited development in that it must be characterised as "any development other than development include in Item 4 or 5" within the meaning of Item 6 to the development control table as it applies to the Residential 2(b) Zone.

In support of this argument, the Council relies upon the decision of Lloyd J in Gosford City Council v Aliton Pty Ltd and Anor [2002] NSWLEC 138. That case involved the prosecution of two persons for an offence against s 125 of the EP&A Act arising from a breach of s 76A of the Act (carrying out development without the requisite development consent) in circumstances where the defendants had demolished an existing cottage.

The defendants submitted that there was no case to answer because it was argued that the demolition of the building was not development that might be carried out with development consent. Rather, it was submitted that it was prohibited development.

In upholding the defendants' no-case to answer submission Lloyd J reasoned as follows at pars 15 to 17 inclusive: 15. It is submitted on behalf of the defendants that "demolition" per se is not listed in any of the categories of development in item 2 of the zoning table under zone 2(a) and must, therefore, fall within item 3 ( "prohibited development" ). That is to say, there has been a breach of s 76B of the EP&A Act, not s 76A of the Act, so that it is said the charges in the present case disclose no offence. 16. It is submitted on behalf of Gosford City Council ("the council") that what has occurred is demolition of a dwelling house which was done for the purpose to erect another dwelling house in its place. As I understand the submission, the demolition was for a purpose. I confess that I have particular difficulty with the submission in the case of the charge against Aliton Pty Ltd. It could not be said that Aliton Pty Ltd was demolishing the dwelling house for the purpose of erecting another dwelling house. Both charges, as I have noted, are the same in each case: identical charges against separate defendants for identical breaches of identical provisions of the same Act. What has occurred is merely the demolition of a dwelling house. If it could be said that the demolition was for another purpose or was part of another purpose, such as the erection of another dwelling in its place, or for some other form of re-development, then s 76A of the EP&A Act may apply. 17. In the present case, however, there is, as far as I am aware, no current proposal for the erection of another dwelling house on the land. There is no evidence to suggest that there is a current proposal for the erection of another dwelling house. There is, however, evidence that the dwelling house that was demolished was riddled with termites. Both the flooring and the walls were riddled with termites. There may well have been good reason simply to demolish the dwelling house. In my opinion, the second limb of the "no case to answer" submission has been made out. What has occurred is an offence against a provision and against which these defendants have not been charged.

In my respectful judgment, the decision of Lloyd J, properly analysed, was essentially a decision of fact in that his Honour found that what had occurred was the mere demolition of a dwelling-house without there being any evidence of a current proposal to erect a replacement dwelling-house. Moreover, in respect of this factual finding, it should be noted that Aliton was a criminal prosecution in which the prosecution bore the onus of establishing beyond reasonable doubt the factual elements of the offence charged and in particular that the demolition was for the purpose of carrying out some other permissible development.

The decision in my respectful opinion is not authority for the proposition that the mere demolition of an existing building cannot be regarded as being for some other purpose eg erecting another building in its stead.

In the present case, although the proposed development is simply for the demolition of the existing dwelling-house that fact does not foreclose the question whether the demolition is for a purpose of permissible development eg the erection of another dwelling-house.

It is hardly to be inferred that in the present case in the absence of any evidence of a current development proposal that the demolition of the existing cottage is not "for the purpose of" some of the nominated permissible purposes of development within the Residential 2(b) zone. It is most improbable that the purpose of the demolition is to leave vacant a valuable and readily useable parcel of residentially zoned land within the suburb of Woollahra.

In any event, the fact that the present proceedings have been heard with the other class 1 proceeding which seeks development consent for the erection of a new replacement dwelling-house provides sufficient evidence of the purpose for which the demolition is proposed.

In the circumstances of this case to hold that the demolition of the existing dwelling-house is "purposeless" (except for the purpose of demolishing the existing dwelling-house) would be totally unrealistic.

Accordingly, for these additional reasons, I would hold that the proposed demolition of the existing house is not prohibited development within the meaning of cl 8 of the LEP.

It may be convenient if I summarise the somewhat elaborate reasons for my conclusion that the proposed development, being the demolition of the existing dwelling-house erected on the development site is not prohibited development. My reasons are as follows:

(i) Clause 8 of the LEP employs the term " development " according to the defined meaning of that term that was contained in the EP&A at the time that the LEP was made in 1995 and not according to the current and expanded meaning of that term. Accordingly, cl 8 of the LEP does not prohibit the demolition of a building. Indeed, it does not impose any control on the demolition of a building.

(ii) Alternatively, and assuming contrary to my holding in (i) that the current or expanded definition of "development" applies to the controls on development imposed by cl 8 of the LEP, cl 8 does not prohibit the proposed demolition because -

(a) Clause 8 is subject to the heritage provisions contained in Part 4 of the LEP, cl 28(1)(a) of which, contains an inconsistent provision to the development control table and by force of cl 8(4) that inconsistent heritage provision prevails; and (b) Clause 8 permits with development consent the demolition of a building for a permissible purpose of development and the proposed demolition in the present case is for the purpose of carrying out permissible development (ie the erection of a replacement dwelling-house on the development site after the existing dwelling-house has been demolished).

This conclusion means that it is necessary to evaluate the proposed development on the planning merits, conformably to the duty imposed by EP&A Act, s 79C. C. PLANNING EVALUATION OF THE PROPOSED DEVELOPMENT

My planning evaluation of the proposed development and the demolition component of the other proposed development for the development site which is the subject of the other proceedings heard concurrently with the present appeal, is that development consent should be refused to the demolition of the existing dwelling-house because of the adverse impact on the heritage conservation area in which the development site is situate and the inconsistency with the relevant heritage conservation objectives expressed in the LEP.

My reasons for so concluding are fully detailed in my judgment delivered contemporaneously with my judgment in the present proceedings: see Harbour Port Constructions Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 283.

For the reasons therein expressed, I have concluded that the present appeal must be dismissed and development consent refused. D. ORDERS

For all the foregoing reasons, I make the following orders -

I HEREBY CERTIFY THAT THE PRECEDING 72 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.

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.