The table itself refers to restrictions contained in cl 9.4, which is expressed to operate, in relation to identified areas, "notwithstanding clause 9.1". The effect of these restrictions need not, however, be further considered for present purposes.
90 Clause 10 of the LEP deals with "Development Criteria - General" and cl 11 with "Development Criteria - Protected Areas".
91 There is then a section of the LEP headed "Special provisions" which includes clauses 12-35, being the remainder of the LEP, other than the schedules. Many of the clauses in this section deal with specific classes of development, as identified in the table and as defined in Schedule 4. Whether the controls upon development of a particular kind specified in these provisions are development standards or not need not be determined for present purposes. There are other provisions, however, albeit dealt with alphabetically, which fall into a different category. Thus, cl 16 is headed "Bush rock" and imposes a prohibition on removal of bush rock from land; cl 19 is headed "Definitions" and merely provides that Schedule 4 has effect. Of present relevance is cl 29, headed "Minimum area and consolidation requirements". The key provision in this case is cl 29.2, which is set out at [60] above. As the map indicates, a consolidation requirement is shown by the symbol "(CONS)" in relation to an area, as provided in cl 29.2, "edged with a heavy black line" on the map.
92 Subject to two minor exceptions which do not affect the nature of the prohibition, cl 29.2 imposes a prohibition on all development within areas identified on the map to which the clause applies, absent consolidation into one lot. The manner in which this is achieved is by what is described as a "zone subscript".
93 The fact that a consolidation requirement is imposed as part of the zoning under the LEP is significant. Indeed, it is not even a provision identifying which kinds of development are permissible and which are prohibited, but rather it is a provision which precludes all forms of development, absent compliance with its terms. It requires a step to be taken (namely consolidation of lots) which is not itself a form of development, as a precondition to any permissible development. It does not identify any aspect of a particular development and fix a standard or specify a requirement with respect to it. It applies, indiscriminately, to every permissible development within the area covered. It is thus incapable of falling within the definition of "development standard" in s 4(1) of the EP&A Act.
94 The proposed development fails to comply with cl 29.2 in two respects. First, it involves a consolidation into 14 lots, not one lot, of the area proposed to be developed. Secondly, it does not include five or six of the lots contained within the boundary shown on the map.
95 There was an argument, somewhat faintly put, that the term "all adjoining lots" could be limited, by the proposed development, to a subset of the lots contained within the area edged with a heavy black line on the map. This construction is not tenable: the clause does not permit the division of the area into separate categories of lots, so that some can be said not to be "adjoining lots", although they share boundaries with others that are. If it be the fact that the proposed developer does not own all the lots, and does not have the consent to the development of the owner, that may render compliance with cl 29.2 impossible in the present circumstances, but the reason for the exclusion from the proposed development of the lots in the south-east corner of the area subject to the consolidation requirement is irrelevant.
96 Because cl 29.2 is not a development standard, it was not open to the company to lodge an objection pursuant to SEPP No. 1, that Policy having no application in relation to cl 29.2.
97 It remains to note that the primary judge reached a different conclusion. First, her Honour identified the nature of the proposed development: [2006] NSWLEC 74 at [32]. At [33]-[36], her Honour considered whether the development, as identified, "is prohibited under any circumstances". That was said to be "the first step" identified in Poynting at [96] and [98]: see 26 of her Honour's judgment. Her Honour then noted that, because a dwelling house is a permissible development on the land if consolidation is achieved, it therefore cannot be said that the development is prohibited under all circumstances.
98 Her Honour then identified a "more difficult issue", being "the second step" which she identified, as the question whether cl 29.2 was a provision "by or under which the requirements are specified or standards are fixed in respect of any aspect of the proposed development": at [37]. At [39] she reasoned as follows:
"The consolidation of lots with adjoining lots describes an action that results in the creation of a parcel of land of certain dimensions and area. In substance, that requirement is analogous to a provision relating to the prescribed area and shape of a parcel of land on which development may be carried out, as referred to in sub-para (a) of the definition in s 4(1). Requiring the consolidation of lots appears to me to be a means of reaching an end similar to the provision considered in Poynting - that is, for development to be carried out on land of a certain area and configuration."
99 Because of the clarity with which her Honour set out her reasoning process, it is possible to identify more readily than might otherwise be the case the error which underlies it. Reliance was placed on a 'two step' approach. As the first step she concluded that consolidation achieves a parcel of land of "certain dimensions and area". That was said to be analogous to a requirement in relation to a provision prescribing an area of land on which development may be carried out. However, the description is misleading and the analogy false. Every block of land, once identified, will have a "certain", in the sense of identifiable, area. That area may be 0.5 hectare, 10 hectares or 100 hectares. But cl 29.2 is indifferent, in its terms, to the actual area achieved. It is therefore not relevantly analogous to a provision which prescribes a minimum or maximum area for development.
100 Her Honour then considered, as the second step, the statutory question of what "aspect of that development" the consolidation requirement regulated. She held, at [41] "that the arrangement of land on which the development may be carried out as required by cl 29.2 is an aspect of the development, being development which is otherwise permissible". However, this conclusion failed to recognise that the requirement would regulate any permissible development on the land, whether it be the erection of an advertising sign, a communications facility or a high-technology industry (all being permissible uses). This renders it unnecessary to identify the particular development proposed. Something which is common to every permissible development does not readily fall within the concept of "an aspect of that development". Furthermore, to describe "the arrangement of land" on which the development is to be carried out as an aspect of the development, whatever the development may be, is to invite the conclusion that every aspect of a valid planning instrument will be a development standard. The distinction between controls which constitute development standards and those which do not, which has been accepted as inherent in the definition in the EP&A Act, is in danger of being lost. That may be because the division of the reasoning process into two steps can distract attention from the exercise required by the statute.
101 However, the critical error arose before the 'two step' approach was addressed. Her Honour commenced by identifying the development. She described the proposed development as "the erection of dwelling houses on land zoned Bushland Conservation under the LEP". That description was provided without reference to the terms of the LEP and without discussion as to why that description was adopted. What followed in the reasoning, at least in part, flowed from that identification of the development.
102 Part of that identification should have included reference to the zoning criteria for the land on which the proposed development is to take place. That is because the particular zoning criteria are essential considerations in determining whether the development is permissible. It is clear that, had the erection of dwelling houses been proposed with respect to land on which such a development was not permitted, the decision would have been different. If the consolidation requirement were understood to be a part of the zoning of the land, on the same logic the result would have been different. The lacuna in her Honour's reasoning is the failure to consider whether the consolidation requirement, identified as a "zoning subscript", should properly have been incorporated into the identification of the development. If it had been, the development should properly have been described, adopting her Honour's language, as "the erection of dwelling houses on 14 lots, on land zoned bushland conservation and comprising part only of an area subject to a consolidation requirement": see [85] above. If that had been the description of the development, no doubt her Honour would have reached a different result.
103 On one view it may be thought that there is an element of circularity in this approach, because the decision to include an element of the provision in question into the description of the development will dictate the answer to the ultimate question, namely whether that provision is a development standard or not; failure to include the element taken from the relevant provision will dictate the contrary conclusion. What the approach in fact demonstrates is not circularity, but the danger of dividing the statutory question into two or three stages, to be addressed sequentially. Her Honour reached the wrong conclusion because she derived, from existing authority, a sequential approach based on two steps which was at least conducive to error, because it distracted attention from the critical question. That question involved defining the elements of the proposed development which were essential elements in the context of the LEP.