Bowen v Minister for Urban Affairs

Although the Court did not hear detailed argument on Quinnn O'Hanlon my tentative view is that Cripps J was clearly right. The relevant clause did not prohibit the erection of a dwelling-house on the land. It simply laid down a requirement that it be sited in a particular part of the land. That, as I presently see it, is a development standard. But as is obvious, cl 14A(1)(a) of NSLEP is in a different category to the foreshore building-line with which Cripps J was dealing.

It is correct, however, to observe that Cripps J did express the opinion, obiter, that Holland J was wrong and observed that the use of the word prohibition contributed to difficulties of interpretation. I accept that the substantial effect of particular prohibitions, such as, for instance, the prohibition in Quinnn O'Hanlon may be to impose a requirement but this recognition only serves to focus attention on the prohibition under consideration. On the other hand I agree, as I have already said, with that portion of the judgment of Holland J I have quoted (subject to the qualification I expressed). In my view it expresses with clarity the distinction between a prohibition against the carrying out of a particular development on land and the setting of a standard against which a permitted development may be measured.

Perhaps even more significantly, in the later Court of Appeal decision in Bell v Shellharbour Municipal Council (1993) 78 LGERA 429, where the judgment of the Court was given by Cripps JA (as he had become) and which was concurred in by the other members of the Court, (Mahoney JA and Clarke JA, who themselves had comprised the majority in P D Mayoh (No 2) , Quinn O'Hanlon was cited in a collection of cases (which included Kruf ) as decisions where this Court or the Court of Appeal had held in some cases the relevant statutory provisions to impose an absolute prohibition and in other cases had held the relevant statutory provisions to be " regulatory " (and hence amenable to the dispensing power conferred by SEPP No 1).

Although Clarke JA in Mayoh at 237 acknowledged the "limited assistance" of other decisions on other provisions in environmental planning instruments, in the true task of the Court in any given case to "determine the meaning and effect of the clause under consideration" it is, I think, nonetheless relevant to say that so far as Counsels' researches and my researches have revealed, there has been no case involving the interpretation of foreshore building line provisions conventionally contained in environmental planning instruments involving foreshore lands, where the relevant provision was not interpreted as a development standard. This was so, until the decision handed down last Friday by Sheahan J in McKay v North Sydney Council (2000) NSWLEC 62.

Prior to that decision, foreshore building line provisions had been held to involve a "development standard" in the following cases subsequent to Quinn O'Hanlon: (i.) Whitefield v Sutherland Shire Council (1989) 69 LGRA 48 (per Bignold J) (ii.) Currey v Sutherland Shire Council (30 November 1989, unreported per Hemmings J) (iii.) Patrial Holdings Pty Ltd v Sutherland Shire Council (unreported 29 March 1995 per Talbot J); (iv.) Pascale v Sutherland Shire Council (1995) 87 LGERA 30 (per Bannon J).

I readily accept the point made by Counsel for the Council that the various statutory provisions concerning foreshore building lines that were the subject of these decided cases are not uniform. However, a common feature of the statutory provisions in the cases is the fixing of a foreshore building line, and the consequent control on development (sometimes in the form of absolute prohibition) on the foreshore side of the foreshore building line (without there being any relevant prohibition on development on the landward side of the foreshore building line).

It is in respect of the lastmentioned common factor in the decided cases on foreshore building line provisions that decision in McKay can be meaningfully distinguished because in that case, the relevant foreshore building line statutory provision applied only to "land between the foreshore building line and the adjacent shore of Sydney Harbour or Middle Harbour". It was in those circumstances that Sheahan J held that the relevant provision which relevantly "prohibited development" (putting aside immaterial exceptions) was not a development standard.

Although it is true that in that case Sheahan J said of the applicant's reliance upon Quinn O'Hanlon, that that decision was not "authority for the proposition that foreshore building lines are relevantly always development standards": par 25, I do not understand his Honour to be doubting the correctness of Quinn O'Hanlon.

This is made especially clear by his Honour's acceptance of the general principle expounded by Cripps JA in Bell "that the terms of each particular clause must be interpreted, having regard to that clause's particular context, and that a decision in respect of one development standard or prohibition is of little assistance in the interpretation of another": see at par 24. (The same point was made by Clarke JA in P D Mayoh at 237 to the effect that the actual decisions in cases involving other statutory provisions have no relevance "to the task of construing a statutory provision to determine whether it laid down a development standard".)

In the result, Sheahan J held at par 35 the relevant statutory provision had the effect of prohibiting any development, subject to exceptions (not relevant).

The decision in McKay is, as I have mentioned, readily distinguishable on its facts, (in precisely the same manner that Kruf was distinguished in Quinn O'Hanlon), namely that the proposed development in McKay was wholly contained within the foreshore side of the foreshore building line whereas in the present case, as I have earlier stated, the internal accessway is partly located on the landward side of the FBL and partly located on the foreshore side of the FBL (the respective parts being approximately equal).

The Council did not submit that Quinn O'Hanlon was wrongly decided. (Ultimately, this position has exposed the Achilles' heel in Council's case.) Rather, it submitted that cl 16, properly construed, prohibited the proposed subdivision because some 50 per cent of the internal accessway is to be located on the foreshore side of the FBL as are the three proposed rear lots located behind the two street frontage lots.

However, it is only to the extent that the internal accessway encroaches onto the foreshore side of the FBL that the Council can assert that any building is being erected in breach of cl 16(3) of the LEP, because as I have earlier pointed out but for the accessway the re-subdivision of the existing five lots into the proposed re-configured five lots would relevantly constitute the subdivision of the development site conformably to cl 11 of the LEP.

In the course of their very helpful and comprehensive rival submissions, Counsel for the opposing parties have referred to many of the decided cases. However, as I indicated in the course of argument, the same course that was adopted by the Court of Appeal in Bell appeared eminently appropriate to be adopted in the present case.

In Bell, Cripps JA, in holding the concession that the relevant statutory provisions constituted 'development standards" to be "correctly made", considers the decided cases in the following passage at 432/433 in a manner that I would respectfully adopt:

In the course of argument, reference was made by both counsel to a number of decisions dealing with certain clauses in planning instruments and the amenability of those clauses to the dispensing power in State Environmental Planning Policy No 1: see North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2 ] (1990) 71 LGRA 222, Quinnn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114, Kruf v Warringah Shire Council (Land and Environment Court of New South Wales, 15 December 1988, unreported), Napper v Shoalhaven City Council (Land and Environment Court of New South Wales, 26 February 1988, unreported), Ford Mirvac Developments Pty Ltd v Blacktown City Council (Land and Environment Court of New South Wales, 3 April 1990, unreported), Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 and Nooramunga Holdings Pty Ltd v Shoalhaven City Council (Land and Environment Court of New South Wales, 7 February 1991, unreported). I trust I do no disservice to the arguments presented when I say it is unnecessary in this appeal to deal with these cases. There is, self-evidently, a difference between a clause absolutely prohibiting development on the one hand and a clause regulating development by specifying requirements or fixing standards on the other. Whether a particular clause in a local environmental planning instrument has the effect of regulating or prohibiting development is a matter of construction. In some of the cases the Court has held that the relevant clause was an absolute prohibition - in others it was held that the clause was regulatory. But, as was pointed out in Mayoh , the obligation of the Court is to interpret the clause in the instrument before it.

It is of more than passing interest to note the relevant statutory provisions considered in Bell in the light of the relevant facts of that case. The proposed development involved the subdivision of a parcel of land some 18 ha in area into two lots, one of 2 ha and the other of 16 ha, where both proposed lots would contain areas far less than the prescribed minimum area (40 ha ) and one of the lots would contain a frontage to the highway far less than the prescribed minimum frontage.

Relevantly, the statutory provisions contained in the Shellharbour Local Environmental Plan were to forbid the subdivision of land without development consent (cl 15) and cl 16(2)) which applied to the subject land confined the power to so consent, by providing as follows: (2) The council shall not consent to the subdivision of land to which this clause applies unless each allotment of land to be created by the subdivision will have - (a) an area of not less than 40 hectares; and (b) where the allotment has frontage to a main road - a frontage of not less than 200 metres.

Accordingly, the combined effect of the relevant statutory provisions was that subdivision of land required development consent, but that the council was forbidden from granting consent to a subdivision unless each proposed lot had a minimum area of 40 ha and where the lot had frontage to a main road, had a minimum frontage of 200 m.

Applying those provisions to the relevant facts of the case, it would be an unexceptional deduction to say that the proposed subdivision was "prohibited development" because each of the lots proposed to be created contained an area far less than the prescribed minimum area. Indeed logically it could be deduced, again unexceptionally, that the relevant land was legally incapable of subdivision for the intended purposes because it simply lacked the requisite area to be subdivided in accordance with the relevant statutory provisions.

Nonetheless, the Court held that the statutory provisions relevantly constituted development standards because cl 16(2) contained provisions "specifying requirements or fixing standards in respect of an aspect of the proposed development": at 431.

Bell, in my respectful opinion, sounds an important cautionary note against an oversimplistic or excessive reliance in this field of jurisprudence, upon the dichotomy of "prohibition" and "regulation" as providing the interpretive solvent to whether a particular statutory provision is, or is not, relevantly a development standard.

Although the later decision of the Court of Appeal in Healesville appears to have adopted a more cautious approach as to whether a very similar statutory provision (albeit in an urban setting) operated as a development standard (inasmuch as Priestley JA who gave the leading judgment considered it unnecessary to consider whether the concession that a development standard was involved, was well founded) the Court's attention does not appear to have been directed to the decision in Bell. Rather, the argument directed attention to the earlier decisions in Vaniga and P D Mayoh.

However, in the still later decision of the Court of Appeal in Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 where the relevant statutory provisions and relevant facts were not materially different from those in Bell, the Court of Appeal proceeded on the basis that the statutory provision was relevantly a "development standard" amenable to the dispensational power conferred by SEPP No 1.

It is not necessary in the present case to completely explore the ramifications of the Court of Appeal's decision in Bell for the conventional dichotomy of "prohibiting" and "regulating" controls on development other than to make two observations. Firstly, it appears too late in the day to say that the dichotomy serves no useful purpose. Clearly, it is an apt descriptor of the interpretive result in cases as to whether provisions are or are not, development standards. Secondly, that a development standard may involve "prohibition" was recognised as long ago as 1985 when Carr was decided: see at 269 per McHugh JA (as he then was). Even in P D Mayoh, which appears to be the high water mark of the influence of the dichotomy, Clarke JA recognised at 238 that the "substantial effect of particular prohibitions….may be to impose a requirement" (constituting a development standard).

In my opinion, cl 16 of the LEP (i) in fixing the FBL and (ii) in prohibiting the erection of a building (save for immaterial exceptions) on the foreshore side of the FBL, is relevantly a development standard in that (i) it is a provision of an environmental planning instrument in relation to the carrying out of development, and (ii) which specifies a requirement or fixes a standard in respect of an aspect of that development.

To elaborate upon, and to contextualise this conclusion, it is to be noted that the relevant development is the subdivision of the development site, being a development that is permissible with consent (vide cl (11)) where that development provides an internal accessway servicing the three rear lots which accessway is partly located on the landward side of the FBL and partly located in the foreshore side of the FBL. Properly construed, the FBL specifies a requirement in relation to that development, (namely by requiring any building to be located on the landward side of the FBL) which requirement is relevantly a requirement in respect of (a) the distance of any building from any specified point; (b) the proportion of the area of the site which a building may occupy; (c) the location and siting of a building or work - as these several expressions appear in the enumerated matter in the definition of "development standards" in the EP&A Act s 4.

It follows, in my opinion, that the development standard is amenable to the dispensational power conferred by SEPP No 1. It further follows that the Applicant's objection in support of the development application has enlivened the availability of that dispensational power.

This conclusion is entirely consistent with the approach taken by this Court to the interpretation of foreshore building line provisions which have been held since the decision in Quinn O'Hanlon to be development standards. (As I have already pointed out, McKay is distinguishable on the facts.)

In my respectful opinion, Quinn O'Hanlon was correctly decided, and its interpretive approach to a very similar statutory provision, is of obvious assistance in the present case.

My conclusion that cl 16 relevantly is a development standard and is amenable to the dispensational power under SEPP No 1, means that the question of law whether the proposed development is prohibited, must be answered in the negative.

However, in leaving this question, I think that I should emphasise that my conclusion that cl 16 relevantly is a development standard that is amenable, by virtue of the Applicant's objection under SEPP No 1, to the dispensational power available under that Policy, is based upon the facts of this case, and in particular, the Applicant's development application that is the subject of the proceedings.

To put the matter more bluntly, it is not a conclusion in respect of any future development that may be proposed for the proposed re-subdivision of the development site. It is apparent that the intention for creating the three rear lots is that each lot will in due course become the site of a dwelling-house. However, that is only a future possibility that is beyond the ambit of the present proceeding.

Nevertheless, it is apparent that any such future housing development will require the grant of development consent. But even more apparent is the fact that any such development proposal will inevitably encounter the effect of cl 16(3) of the LEP. If that provision remains in force, if and when, such a development application is made, it is apparent that the proposed development will only become legally permissible if the dispensational power under SEPP No 1 can be availed of by the proposed developer. In the light of these future possibilities, I think it important that I state my opinion that my present determination of the question of law, simply does not address that future situation.

In this respect, I fear that the parties may not have raised all questions truly in dispute between them concerning the effect of cl 16(3) of the LEP. It may have been thought that the question whether dwelling-house development on the proposed three rear lots was too remote from the issue raised by the present proceedings, which is confined to the proposed subdivision of the development site (although in raising the second question of law based upon the EP&A Act, s 80(2), the Council was obviously alive to the likely future development of these proposed lots by dwelling-house development).

Be this as it may, I think it necessary at this point to say, as at present advised that my construction that cl 16 of the LEP is relevantly a development standard is fundamentally connected with the present context, namely the Applicant's development application to subdivide the development site and the Applicant's objection under SEPP No1.

It might be thought that this result is unsatisfactory in that there will necessarily remain doubt whether each of the proposed three rear lots is ultimately legally capable of being developed by a dwelling-house. This was precisely the type of dilemma that was encountered in Healesville, where in the course of the hearing of a development appeal for the subdivision of land (which was dependent upon the successful invocation of SEPP No 1), the question arose as to whether it would be legally permissible to erect a dwelling-house on each of the proposed lots. It was in these circumstances that the Court granted leave for the applicant to file instanter a class 4 application (between the same parties) claiming a declaration of its entitlement to so develop each of the lots. (The necessity for separate class 4 proceedings presumably arose because of a perception that the Court's practice was not to make declarations in class 1 proceedings. For myself, I do not think any such practice, if it exists, to be immutable). For completeness, I should say that although the claimed declaration was refused in Healesville, it was because of the Court's interpretation of a relevant statutory provision, which it was conceded, was not a relevant development standard.

D. QUESTION 2 - DOES S 80(2) OF THE EP&A ACT APPLY?

The EP&A Act s 80(2) (which re-enacts s 91(2) of the original Act) provides as follows:

Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

It is to be noted at the outset that this question of law as formulated by the Council is premised upon both (i) the construction of the accessway; and (ii) the erection of dwelling-houses on the proposed lots - being contrary to cl 16 of the LEP .

In my opinion, the validity of neither premise has been established. As to the construction of the accessway, it necessarily follows from my answer to the first question of law that cl 16(3) is amenable to the dispensational power conferred by SEPP No 1 which power has been properly invoked by the Applicant's objection under SEPP No 1. Accordingly, if that objection is ultimately upheld and the dispensation power is ultimately exercised in favour of the Applicant, the construction of that part of the accessway located on the foreshore side of the FBL would not involve a contravention of cl 16(3) of the LEP and the resulting subdivision of the development site "would not result in a contravention of the Act, or any environmental planning instrument" within the meaning of the EP&A Act s 80(2).

As to the erection of a dwelling-house on each of the proposed lots, the only dwelling-houses that currently exist are located on the landward side of the FBL as it traverses the proposed two street frontage lots. The existence of such dwelling-houses cannot possibly involve any relevant contravention of the Act or an environmental planning instrument.

The possibility of some future development by a dwelling-house on each of the three proposed rear lots is just that, ie a future possibility which if it is to materialise will (assuming the continuance of the existing statutory planning regime) require the grant of the requisite development consent under cl 13 of the LEP and the successful invocation of the dispensational power conferred by SEPP No 1 in respect of the operation and effect of cl 16(3) of the LEP, which in turn will depend upon, inter alia, a decision that the FBL is relevantly a development standard.

Neither premise, upon which the Council's question is founded, having been established it necessarily follows that s 80(2) has no application in the present case.

In so concluding, it has not been necessary to determine the question whether the future erection of a dwelling-house on each of the three proposed rear lots will be legally permissible. That question is for the future. It has not been raised in the present proceedings. Had it been done so, it would have been a subset question to the first question of law. It is not properly raised by the present question founded upon s 80(2) because it is clear that that subsection is based upon existing (and not future) circumstances. The reference to "any other development" can only reasonably be construed as a reference to other existing development. The only element of futurity expressed in the subsection is that involved in the assumption, to be made at the time of determination of the development application, that the proposed subdivision is (hypothetically) immediately carried out.

To the extent that the Council's argument seeks to advance the proposition that the proposed subdivision, if approved (and it can only be approved if the claimed dispensational relief is granted under SEPP No 1 in respect of cl 16 of the LEP) would, if carried out, "result in a contravention of the Act or an environmental planning instrument", namely cl 16 of the LEP, it must be rejected out of hand as being patently absurd.

The Council's contention finds no support in the decisions (or the reasoning that produced them) of the Court of Appeal in Vaniga and in Healesville. Those decisions were directed to particular statutory provisions found in the EP&A Act (Vaniga) or the local environmental plan (Healesville) that have no bearing or relationship to s 80(2) (and the other relevant provisions of the Act).

Any development consent that might be granted to the proposed subdivision in the present case, clearly would satisfy the requirements of s 76A of the EP&A Act. Moreover, any such consent would necessarily overcome the effect of cl 16(3) of the LEP: see cl 6 and cl 7 of SEPP No 1 noting that the Policy prevails over any inconsistency in any other environmental planning instrument: vide cl 5

Examples of the meaning and operation of s 80(2) are provided in the decided cases eg G T Bissett and Co v Gosford City Council (1985) 57 LGRA 164; Smith v Wollondilly Council (1995) 86 LGERA 437; Rutland v Shoalhaven City Council (1997) 94LGERA 370.

Those cases all address the consequences, on existing circumstances, of the hypothetical carrying out of the proposed subdivision.

In the present case, for the reasons I have given, there is no existing circumstance pertaining to the development site that would, if the proposed subdivision were carried out, result in any contravention of the EP&A Act or any relevant environmental planning instrument.

For all the foregoing reasons, I would answer this question in the negative.

For all the foregoing reasons I determine the preliminary questions of law as follows: Question 1 Whether the proposed development is prohibited by Clause 16 of the Willoughby Local Environmental Plan, 1995 on the basis that the foreshore building line provisions in Clause 16 are not development standards which can be varied by operation of the State Environmental Planning Policy No. 1. Answer: No Question 2 - Whether the development consent must be refused by operation of Section 80(2) of the Environmental Planning and Assessment Act, 1979 on the basis that the construction of the driveway and erection of dwelling houses on the lots to be created by the subdivision would be contrary to Clause 16 of Willoughby Local Environmental Plan, 1995. No.

I order that Exhibits remain with the Court file. The question of costs is reserved.

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES No. 10064 of 2000

__________________________________ 1. The Applicant is the owner of land known as 70-72 Sugarloaf Crescent, Castlecrag, being lots 301-305 of deposited plan number 13613 ("the land"). 2. The land comprises five lots which are separately titled. AGREED STATEMENT OF FACTS 3. The land has a total area of 11050 square metres with each lot having a frontage to Sugarloaf Crescent of 6.095 metres. __________________________________ 4. There are two existing dwelling houses erected over the lots, sited adjacent to the street frontage of the land on Sugarloaf Crescent: number 70 Sugarloaf Crescent is erected over lots 301-303 and number 72 Sugarloaf Crescent is erected over lots 304-305. 5. The Applicant lodged development application number 1999/1630 with the Respondent Council on 25 November 1999 ("the Application"). 6. The Application seeks to reconfigure the existing five lot subdivision whereby the two existing dwelling houses will no longer be built over lot boundaries and the remaining three lots will be of sufficient proportions to reasonably contain dwelling houses. 7. The subject matter of this appeal is the deemed refusal of the Application which in terms seeks consent for subdivision of land Filed on behalf of both parties

CORRS CHAMBERS WESTGARTH Lawyers Governor Phillip Tower 1 Farrer Place SYDNEY NSW 2000 AUSTRALIA Tel: (02) 9210 6500 Fax: (02) 9210 6611 Ref: HPI:ACH

at 70-72 Sugarloaf Crescent, Castlecrag being lots 301 to 305 inclusive in Deposited Plan 13613 (the "Property"), demolition of an existing garage and the construction of an access roadway. The purpose of the subdivision is the creation of residential allotments. 8. The Application includes plans numbered C1618-01, C1618-02, C1618-03 prepared by Clark Engineering Consultants and dated October 1999, unnumbered plan entitled "Sketch Plan of Subdivision" prepared by D&LA Bowen dated 8 November 1999, drawing TPOIA prepared by Pittendrigh Shinkfield & Bruce and Clark Engineering Consultants and dated October 1999 and Survey Plan prepared by S McN Bland Pty Limited and dated 31 July 1997. Copies of these plans are annexed to the Respondent's Statement of Facts and marked "A".

9. Willoughby Local Environmental Plan 1995 (" LEP 1995 ") was gazetted on 17 November 1995.

10. The land is zoned 2(a2) - Residential Scenic Protection Zone pursuant to LEP 1995.

11. A foreshore building line (" FBL ") applies to the land pursuant to clause 16(2) of LFP 1995 as shown on sheet 12B of the map by a broken black line and unbroken red fine. A copy of sheet 12B is annexed to the Respondent's Statement of Issues and marked "B".

12. Clause 16 of the WLEP provides: "Foreshore Building Line (1) The objectives of a foreshore building line are: (i) to preserve and enhance the natural features and vegetation of the area where the land meets or is in close proximity to the water and (ii) to encourage the protection and regeneration of land which forms an integral part of the foreshore setting by controlling new development. (2) Foreshore building lines are shown on sheets 12A, 12B 12C and 12D of the map by a broken black line and unbroken red line. (3) Except with the consent of the Council granted in accordance with subclause (4), a building shall not be erected between a foreshore building line and the bay, creek, harbour, river, lake or lagoon in respect of which the line is fixed.

(4) Th e Council may, after considering the probable aesthetic appearance of the proposed structure in relation to the foreshore, consent to the erection, repair or maintenance of: (a) single storey boat sheds: or (b) retaining walls; or (c) inclinators; or (d) structures or works. such as swimming pools. below or at the surface of the ground; or (e) minor recreational and landscaping structures such as barbecues, gazebos and garden sheds between a foreshore building line and the bay, creek, harbour, river lake or lagoon in respect of which the line is fixed." 13. Clause 6 of LEP 1995 excludes the operation of clause 7 of the Environmental Planning and Assessment Model Provisions 1979 whereby a FBL may be amended by a resolution of the Council. 14. The Application proposes construction of an access roadway in part between the FBL shown on Annexure "B" and the bay in respect of which that line is fixed. 15. The Application proposes creation of 3 torrens title allotments which are wholly located between the FBL shown on Annexure "B" and the bay in respect of which that line is fixed.

Heather Patricia Irish Solicitor for the Applicant

Debra Jean Townsend Solicitor for the Respondent

Objection under SEPP No 1 to Cl 16 of WLEP 1995 Proposed Subdivision 70-72 Sugarloaf Crescent Castlecrag

Clause 16 of the LEP provides that only certain development specified in Cl. 16(4) can be located between a foreshore building line and the bay creek river etc in respect of which it is fixed. it can be determined that the control is a development standard under the terms of the Environmental Planning and Assessment Act 1979. As such the standard is able to be varied with the use of SEPP No.1 when it can be shown that the objective is achieved notwithstanding non-compliance with the numerical standard. This opinion is shared by Council and actually stated at pg 29 of the draft DCP No.16. The objectives of the FBL are explicitly stated at Cl.16 (1) as follows: a) to preserve and enhance the natural features and vegetation of the area where the land meets or is in close proximity to the water; and b) to encourage the protection and regeneration of land which form an integral part of the foreshore setting by controlling new development; Draft DCP 29 also provides additional clarification as to the use of SEPP No. 1 in relation to the FBL by stating: "3. Council may consider a development encroaching on the foreshore building line by means of a SEPP No. 1 objection, where:

the relevant objectives contained in the LEP and DCP are met;

significant trees and substantial natural landscape features on the site are retained; major rock outcrops and other topographical features are not disturbed or concealed by the development; and the development is replacing an existing dwelling, eg. one which is destroyed by fire or other natural disaster or making minimal

additions to an existing dwelling which already encroached the building line.'

It is considered that in the subject case the objectives of the standard are achieved notwithstanding non-compliance with the standard. It is therefore considered unnecessary and unreasonable for the following reasons to require compliance:

The proposed encroachment is caused only by a driveway that is required to service the three lots that are proposed below the FBL;

The proposed driveway is to be established at grades in accordance with Council's standards and will not be visually obtrusive; The site is some lkm from the nearest navigable waterway and due to the topography between the land and that waterway only limited parts of the site above approximately RL 36 could be visible in any event. From such a distance the site is not individually prominent, the view being one of a broader landscape rather than an individual property; As such it can be concluded that the land does not meet nor is it within close proximity to the water; The proposed building footprints to be established sit even lower on the site at between RL 26 and 30. At such levels, the envelopes are not visible from the waterway due to the intervening topography; Establishment of the driveway will require the removal of some trees which are generally of a poor condition and in decline as fully documented in the report of arborist Stuart Pittendrigh. The significant trees numbered 2, 3, 4, 6, 10, 11 & 12 and are assessed in numerical order as "fair condition but slight decline and weak junction within trunk", "very poor condition", "introduced poor condition and in decline", "introduced in decline and loss of vigour", "introduced suffering decay and insect damage", "'in poor condition with a large wound" . Further, 'the condition of the subject trees ranges from fair to poor/very poor and in decline. Only one tree, the Smooth Bark Apple is indigenous to the locality".'

A number of trees will also be specially protected to ensue that no damage occurs. Weed and exotic removal is also to occur and replacement indigenous planting and regeneration facilitated. It is clear that the objective relating to protection and regeneration of land forming part of the foreshore setting will be achieved notwithstanding the encroachment;

No natural landscape features such as rock outcrops and topographical features will be removed. Amounts of cut and fill are proposed however there is no visual impact upon neighbours caused due to the location of the driveway. Cuts and fills will be appropriately retained and treated. It is my opinion that compliance with the standard is unreasonable and unnecessary in the circumstances of the case and Council is requested to use its discretion in this case to approve the departure as proposed. C.F.Blyth, MRAPI, Director THE TURNBULL GROUP PTY LTD

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.

91. The Council's contention finds no support in the decisions (or the reasoning that produced them) of the Court of Appeal in Vaniga and in Healesville. Those decisions were directed to particular statutory provisions found in the EP&A Act (Vaniga) or the local environmental plan (Healesville) that have no bearing or relationship to s 80(2) (and the other relevant provisions of the Act).

92. Any development consent that might be granted to the proposed subdivision in the present case, clearly would satisfy the requirements of s 76A of the EP&A Act. Moreover, any such consent would necessarily overcome the effect of cl 16(3) of the LEP: see cl 6 and cl 7 of SEPP No 1 noting that the Policy prevails over any inconsistency in any other environmental planning instrument: vide cl 5

93. Examples of the meaning and operation of s 80(2) are provided in the decided cases eg G T Bissett and Co v Gosford City Council (1985) 57 LGRA 164; Smith v Wollondilly Council (1995) 86 LGERA 437; Rutland v Shoalhaven City Council (1997) 94LGERA 370.

94. Those cases all address the consequences, on existing circumstances, of the hypothetical carrying out of the proposed subdivision.

95. In the present case, for the reasons I have given, there is no existing circumstance pertaining to the development site that would, if the proposed subdivision were carried out, result in any contravention of the EP&A Act or any relevant environmental planning instrument.

96. For all the foregoing reasons, I would answer this question in the negative.

97. For all the foregoing reasons I determine the preliminary questions of law as follows:

Whether the proposed development is prohibited by Clause 16 of the Willoughby Local Environmental Plan, 1995 on the basis that the foreshore building line provisions in Clause 16 are not development standards which can be varied by operation of the State Environmental Planning Policy No. 1.

Whether the development consent must be refused by operation of Section 80(2) of the Environmental Planning and Assessment Act, 1979 on the basis that the construction of the driveway and erection of dwelling houses on the lots to be created by the subdivision would be contrary to Clause 16 of Willoughby Local Environmental Plan, 1995.

I order that Exhibits remain with the Court file. The question of costs is reserved.

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

__________________________________

__________________________________

1. The Applicant is the owner of land known as 70-72 Sugarloaf Crescent, Castlecrag, being lots 301-305 of deposited plan number 13613 ("the land").

2. The land comprises five lots which are separately titled.

3. The land has a total area of 11050 square metres with each lot having a frontage to Sugarloaf Crescent of 6.095 metres.

4. There are two existing dwelling houses erected over the lots, sited adjacent to the street frontage of the land on Sugarloaf Crescent: number 70 Sugarloaf Crescent is erected over lots 301-303 and number 72 Sugarloaf Crescent is erected over lots 304-305.

5. The Applicant lodged development application number 1999/1630 with the Respondent Council on 25 November 1999 ("the Application").

6. The Application seeks to reconfigure the existing five lot subdivision whereby the two existing dwelling houses will no longer be built over lot boundaries and the remaining three lots will be of sufficient proportions to reasonably contain dwelling houses.

7. The subject matter of this appeal is the deemed refusal of the Application which in terms seeks consent for subdivision of land

at 70-72 Sugarloaf Crescent, Castlecrag being lots 301 to 305 inclusive in Deposited Plan 13613 (the "Property"), demolition of an existing garage and the construction of an access roadway. The purpose of the subdivision is the creation of residential allotments.

8. The Application includes plans numbered C1618-01, C1618-02, C1618-03 prepared by Clark Engineering Consultants and dated October 1999, unnumbered plan entitled "Sketch Plan of Subdivision" prepared by D&LA Bowen dated 8 November 1999, drawing TPOIA prepared by Pittendrigh Shinkfield & Bruce and Clark Engineering Consultants and dated October 1999 and Survey Plan prepared by S McN Bland Pty Limited and dated 31 July 1997. Copies of these plans are annexed to the Respondent's Statement of Facts and marked "A".

9. Willoughby Local Environmental Plan 1995 ("LEP 1995") was gazetted on 17 November 1995.

10. The land is zoned 2(a2) - Residential Scenic Protection Zone pursuant to LEP 1995.

11. A foreshore building line ("FBL") applies to the land pursuant to clause 16(2) of LFP 1995 as shown on sheet 12B of the map by a broken black line and unbroken red fine. A copy of sheet 12B is annexed to the Respondent's Statement of Issues and marked "B".

(1) The objectives of a foreshore building line are:

(i) to preserve and enhance the natural features and vegetation of the area where the land meets or is in close proximity to the water and

(ii) to encourage the protection and regeneration of land which forms an integral part of the foreshore setting by controlling new development.

(2) Foreshore building lines are shown on sheets 12A, 12B 12C and 12D of the map by a broken black line and unbroken red line.

(3) Except with the consent of the Council granted in accordance with subclause (4), a building shall not be erected between a foreshore building line and the bay, creek, harbour, river, lake or lagoon in respect of which the line is fixed.

(4) Th_e Council may, after considering the probable aesthetic appearance of the proposed structure in relation to the foreshore, consent to the erection, repair or maintenance of:_

(d) structures or works. such as swimming pools. below or at the surface of the ground; or

(e) minor recreational and landscaping structures such as barbecues, gazebos and garden sheds between a foreshore building line and the bay, creek, harbour, river lake or lagoon in respect of which the line is fixed."

13. Clause 6 of LEP 1995 excludes the operation of clause 7 of the Environmental Planning and Assessment Model Provisions 1979 whereby a FBL may be amended by a resolution of the Council.

14. The Application proposes construction of an access roadway in part between the FBL shown on Annexure "B" and the bay in respect of which that line is fixed.

15. The Application proposes creation of 3 torrens title allotments which are wholly located between the FBL shown on Annexure "B" and the bay in respect of which that line is fixed.

Proposed Subdivision 70-72 Sugarloaf Crescent Castlecrag

Clause 16 of the LEP provides that only certain development specified in Cl. 16(4) can be located between a foreshore building line and the bay creek river etc in respect of which it is fixed. it can be determined that the control is a development standard under the terms of the Environmental Planning and Assessment Act 1979.

As such the standard is able to be varied with the use of SEPP No.1 when it can be shown that the objective is achieved notwithstanding non-compliance with the numerical standard. This opinion is shared by Council and actually stated at pg 29 of the draft DCP No.16.

The objectives of the FBL are explicitly stated at Cl.16 (1) as follows:

a) to preserve and enhance the natural features and vegetation of the area where the land meets or is in close proximity to the water; and

b) to encourage the protection and regeneration of land which form an integral part of the foreshore setting by controlling new development;

Draft DCP 29 also provides additional clarification as to the use of SEPP No. 1 in relation to the FBL by stating:

"3. Council may consider a development encroaching on the foreshore building line by means of a SEPP No. 1 objection, where:

> the relevant objectives contained in the LEP and DCP are met;

> significant trees and substantial natural landscape features on the site are retained;

> major rock outcrops and other topographical features are not disturbed or concealed by the development; and

> the development is replacing an existing dwelling, eg. one which is destroyed by fire or other natural disaster or making minimal

additions to an existing dwelling which already encroached the building line.'

It is considered that in the subject case the objectives of the standard are achieved notwithstanding non-compliance with the standard. It is therefore considered unnecessary and unreasonable for the following reasons to require compliance:

> The proposed encroachment is caused only by a driveway that is

required to service the three lots that are proposed below the FBL;

> The proposed driveway is to be established at grades in accordance with Council's standards and will not be visually obtrusive;

> The site is some lkm from the nearest navigable waterway and due to the topography between the land and that waterway only limited parts of the site above approximately RL 36 could be visible in any event. From such a distance the site is not individually prominent, the view being one of a broader landscape rather than an individual property;

> As such it can be concluded that the land does not meet nor is it within close proximity to the water;

> The proposed building footprints to be established sit even lower on the site at between RL 26 and 30. At such levels, the envelopes are not visible from the waterway due to the intervening topography;

> Establishment of the driveway will require the removal of some trees which are generally of a poor condition and in decline as fully documented in the report of arborist Stuart Pittendrigh. The significant trees numbered 2, 3, 4, 6, 10, 11 & 12 and are assessed in numerical order as "fair condition but slight decline and weak junction within trunk", "very poor condition", "introduced poor condition and in decline", "introduced in decline and loss of vigour", "introduced suffering decay and insect damage", "'in poor condition with a large wound" . Further, 'the condition of the subject trees ranges from fair to poor/very poor and in decline. Only one tree, the Smooth Bark Apple is indigenous to the locality".'

A number of trees will also be specially protected to ensue that no damage occurs. Weed and exotic removal is also to occur and replacement indigenous planting and regeneration facilitated.

It is clear that the objective relating to protection and regeneration of land forming part of the foreshore setting will be achieved notwithstanding the encroachment;

> No natural landscape features such as rock outcrops and topographical features will be removed. Amounts of cut and fill are proposed however there is no visual impact upon neighbours caused due to the location of the driveway. Cuts and fills will be appropriately retained and treated.

It is my opinion that compliance with the standard is unreasonable and unnecessary in the circumstances of the case and Council is requested to use its discretion in this case to approve the departure as proposed.