Bowen v Willoughby City Council

LEGAL REPRESENTATIVES: RESPONDENT: Mr B Preston SC with Mr J Robson, Barrister SOLICITORS Mallesons

IN THE LAND AND Matter No. 10064 of 2000 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 4 December 2001

This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council's deemed refusal of development consent to the Applicants' development application for the re-subdivision of land known as Nos 70-72 Sugarloaf Crescent Castlecrag, being lots 301 to 305 (inclusive) in Deposited Plan 13613 (the development site) into the same number of lots but having different shapes and sizes from the existing five lots. Annexed hereto and marked "A" is a plan showing the existing five lots.

As will presently appear, the Council subsequently determined the development application by refusing development consent.

Since the proceedings were commenced on 28 January 2000, they have given rise to an unusually large number of interlocutory actions which explain how it came about that hearing of the appeal was unusually delayed. As these interlocutory actions bear upon the issues requiring adjudication, I must refer to them in some detail.

On 14 March 2000, the Council raised the following two discrete preliminary questions of law in its Statement of Issues (which also raised a considerable number of planning merit issues): - 1. Whether the proposed development is prohibited by cl 16 of the Willoughby Local Environmental Plan 1995 on the basis that the foreshore building line provisions in cl 16 are not development standards which can be varied by operation of the State Environmental Planning Policy No. 1. 2. Whether the development consent must be refused by operation of s 80(2) of the Environmental Planning and Assessment Act, 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 cl 16 of Willoughby Local Environmental Plan 1995.

Following the hearing on these legal questions on 6 April 2000, I delivered judgment answering each question in the negative: see Bowen v Willoughby City Council (2000) 108 LGERA 149.

In answering the first question in the negative, I concluded at par 76 that cl 16 of the LEP relevantly was a development standard that was amenable to the dispensational power under SEPP No 1. However, in the following passages at par 77 to par 82 (inclusive), I went on to explain that my conclusion did not address the future situation that was obviously contemplated by the present development application, re-subdividing the five lots, namely the future development of each of those lots (assuming that they are created) by a dwelling-house. 77 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 Applicants' 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 Applicants' development application that is the subject of the proceedings. 78 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. 79 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. 80 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). 81 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 Applicants' development application to subdivide the development site and the Applicants' objection under SEPP No1. 82 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.

It is apparent that these passages in my judgment prompted the Council to file class 4 proceedings (No 40079 of 2000) on 22 May 2000 seeking a declaration that development for a dwelling-house on each of the three lots proposed to be created situate wholly on the foreshore side of the foreshore building line established by cl 16 of the LEP was prohibited development.

On 23 June 2000, I heard the present Applicants' Notice of Motion seeking an order that the Council's class 4 proceedings be struck out or permanently stayed and on 31 August 2000 I delivered judgment which made the following orders:

1. The proceedings are permanently stayed.
2. The Applicant shall pay the Respondent's costs in the sum agreed or failing agreement as assessed.
3. The Council is given leave to raise in the pending class 1 proceedings (10064 of 2000) the question of the legal permissibility of development by a dwelling-house of each of the proposed vacant lots.
4. The Respondent has leave to obtain a hearing date for the pending class 1 proceedings.

My reasons for making order 3 were explained in the following passages: (ix) It follows from the foregoing reasons and especially reason (viii), that the Council, in bringing the Class 4 proceedings is seeking an adjudication upon the question of the legal permissibility of any future dwelling-house development of the proposed lots, being the question that it unsuccessfully sought to raise in formulating the second question of law in the class 1 proceedings, being an adjudication that will impact upon the fate of the pending class 1 proceeding. That this is the case is clearly shown in the Council's Solicitor's letter to the Respondent's Solicitor advising of the proposed class 4 proceedings and was made even clearer by the submissions made on behalf of the Council on the hearing of the Motion by its Senior Counsel who freely conceded that if the Council were permitted to raise in the pending class 1 proceeding the question whether the development by a dwelling-house of each of the three proposed vacant lots was legally permissible that would provide an appropriate vehicle with the consequence that there would be no need for the class 4 proceedings to be continued. (x) In my opinion, the pending class 1 proceedings provide a far more appropriate and fairer basis and vehicle for the raising of the issue sought to be raised by the Council than are provided by the separate class 4 proceedings. Far more appropriate because the question will be properly contextualised and confined to the development application which is the subject of the pending class 1 proceedings (when both the question and its answer will form part of the overall complex of considerations relevant to the exercise of the statutory discretion conferred by the EP&A Act s 79C in the determination of a development application). Far fairer because the Respondent will not be involved in separate and additional litigation of having to confront an issue in vacuo which may never relevantly arise (eg if the development application is refused), and hence will not be exposed to the risk of incurring additional legal costs which would carry the grave risk of imposing an unfair financial burden upon a person seeking to obtain development consent under the EP&A Act. In respect of this last-mentioned factor, it is timely to recall the salutary criticism in the Court of Appeal's judgment in Gemsted Pty Ltd v Gosford City Council (1993) 78LGERA 395 of the practice of a council in the context of a pending development appeal to this Court raising in separate class 4 proceedings questions of law which could just as readily have been raised in the pending class 1 proceedings. I would respectfully adopt all that fell from Cripps JA in that case in giving the judgment of the Court of Appeal.

Conformably to the leave granted by Order 3, in my judgment of 31 August 2000, on 14 September 2000 the Council filed in Court the following preliminary point of law: Whether the erection of dwelling houses on proposed lots 2, 3 and 4 in the plan of subdivision proposed by development application number 1999/1630 made in respect of the property known as 70-72 Sugarloaf Crescent, Castlecrag being lots 301 to 305 in Deposited Plan 13613 is prohibited.

On 25 October 2000, the Applicants filed Notice of Motion seeking the following orders:

1. That the Respondent's Preliminary Question of Law dated 14 September 2000 be heard together with the Respondent's Merit Issues dated 14 March 2000.
2. That the proceedings be listed before a judge.

On 14 November 2000, the Registrar granted the relief claimed in the Applicants' Notice of Motion and fixed the hearing of the appeal for 6 to 9 February 2001.

By Notice of Motion filed 12 January 2001, the Applicants sought the Court's leave to file amended plans for the proposed development (Revision C Series ) and on 18 January 2001, the Registrar made orders, by consent, vacating the hearing dates to enable the Council to take action of publicly notifying the Applicants' amended plans.

On 12 February 2001, the Applicants filed in the Court Registry further amended plans of the proposed development (Revision D Series) and a Statement of Environment Effects noting that the Council had given its consent pursuant to Part 13 r 16(b1) of the Rules of Court to the Applicant's relying in these proceeding upon those further amended plans. (Those plans did not change the essential character of the proposed development - rather, they contained minor variations and provided much more detail of the proposal.)

On 15 February 2001 the Council notified the Applicants of its determination refusing development consent to their development application for the following reasons:

1. The proposal is inconsistent with the general aims and objectives of WLEP 1995 as specified by Clauses 2(b), 2(c, 2(d), 2(e) and 2(g).
2. The proposal is inconsistent with both the general and specific objectives of the Residential 2 (a2) zone as specified by Clause 14 of WLEP 1995.
3. The proposal is inconsistent with the Clause 16 of WLEP 1995 in that the proposed access road is considered to have an adverse impact on the scenic quality of the site an (sic) locality.
4. The proposal is inconsistent with Clause 16(3) of WLEP 1995 in that the resultant development would in effect locate buildings below the Foreshore Building Line contrary to the objectives of Clause 16(1) of WLEP 1995.
5. The proposed driveway and structure located between the FBL and the bay, creek harbour in respect of which the line is fixed is considered to detrimentally affect the aesthetic quality of the locality and as such does not satisfy Clause 16(4) of WLEP 1995.
6. The proposal does not satisfy the heads of consideration relevant to development within the Residential 2(a2) - Scenic Protection Area as stipulated by Clause 17 of WLEP 1995.
7. The proposal is contrary to the guiding principles of SEPP No. 56 - Sydney Harbour Foreshores and Tributaries.
8. The proposal is not acceptable in terms of the aims and objectives or Clause 9, which relates specifically to land adjoining land zoned for public open space, as set out in SEPP No 19 - Bushland in urban Areas.
9. The proposal is not acceptable in relation to SREP No. 23 - Sydney and Middle Harbours particularly having regard to the general and specific aims and objectives set out under Clause 2 and the matters for consideration in determining development applications as set out in Clause 18.
10. The proposal is inconsistent with DCP No 16 - Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones particularly with regard to the aims and objectives, locality statement and special controls specific to Castlecrag, special controls of the Residential 2(a2) zone and the General Design Elements for development.
11. The proposal is inconsistent with the aims and objectives and minimum requirements of Council's Subdivision Code.
12. The proposal will have detrimental environmental impacts on the natural environment of the locality.
13. The site is not suitable for the development proposed.
14. The proposal is not in the public interest.

On 12 April 2001 the Council filed in the Court Registry its Final Amended Statement of Issues (a copy of which is annexed hereto and marked "B") which raises in addition to the merit issues generally reflecting the reasons notified to the Applicants in the Council's Notice of Determination, the legal question whether the erection of a dwelling-house on each of the three proposed lots wholly located on the foreshore side of the foreshore building line is prohibited development.

This legal question remains of fundamental importance in the present proceedings because it is accepted by the Applicants that unless development by a dwelling-house of each of the three proposed lots located wholly on the foreshore side of the foreshore building line is a permissible form of development, there is no real purpose or benefit in pursuing the present development proposal for the re-subdivision of the existing five lots. In other words, it is recognised that the present development proposal to re-subdivide the development site is, in a practical sense, but a prelude to, by way of facilitation of, the proposed future development, by the erection of a dwelling-house, on each of the three lots which are currently undeveloped, while retaining the existing two dwellings on the lots fronting Sugarloaf Crescent.

Accordingly, the determination of that legal question remains foundational to the overall adjudication required in the present case, in the sense that if, as the Council contends, the development by a dwelling-house of each of the proposed three lots which are presently undeveloped is absolutely prohibited development, the present development application should itself be refused (notwithstanding the fact that the proposed re-subdivision is legally capable of being approved by virtue of the availability of the dispensational power conferred by SEPP No 1 as so held in my earlier determination in the proceedings).

In view of the foregoing, my adjudication shall proceed along the following lines, recognising that the order in which I have formulated the questions requiring adjudication accords with, and reflects, the legal realities and priorities applying to the proposed development, namely: - (i.) Is development by the erection of a dwelling-house on each of the three lots which are wholly located on the foreshore side of the foreshore building line created by the LEP absolutely prohibited development? (ii.) Is the Applicants' objection under SEPP No 1 that compliance by the proposed development with the requirements of cl 16 of the LEP is, in the circumstances of this case either unnecessary or unreasonable, well founded? (iii.) If the Applicants' objection under SEPP No 1 is held to be well founded, should development consent be granted in the exercise of planning discretion on the planning merits of the proposed development?

If the answer to the first question is that the development is prohibited, the appeal must, by virtue of the Applicants' concessions, fail, in the exercise of planning discretion, because the creation of the three rear lots to be developed by the erection of a dwelling-house on each lot, would be a futility.

However, even if this is the outcome, the Applicants seek my adjudication on the other issues raised by their appeal. In view of the particular circumstances of this very unusual case, I am satisfied that it is entirely appropriate that I adjudicate upon each of the disputed issues raised by the case, in deference to the Applicants' wishes who have been seeking to develop the development site since 1996 and in so seeking, have been involved in litigation seeking to have the foreshore building line declared invalid and have made representations to the Council and to the Minister to have that line amended to accommodate their proposed development, in addition to the present proceedings with their complex and protracted history.

However, before considering each of these three questions, it is first necessary to describe in some detail each of the following matters - (i.) the development site and its physical context; (ii.) the relevant planning controls; and (iii.) the proposed development. B. THE DEVELOPMENT SITE AND ITS PHYSICAL CONTEXT

In my opinion, this subject is aptly described by Mr Jeff Ellis (Council's Special Projects Officer) in the following sections of his Report (Exhibit 1) which I am content to adopt: 2. THE SITE AND LOCALITY 2.1 The Site The subject site is located on the southern side of Sugarloaf Crescent and consists of five (5) allotments being Lots 301 -305 in DP 13613. The total site area is 1.1 05ha and has a total frontage of 30.48m to Sugarloaf Crescent. The site is fan-shaped with a rear boundary length of 136.55m adjoining a Council bushland reserve. The property known as no 70 Sugarloaf, Crescent consists of two allotments (Lots 304 and 305) and contains an existing dwelling house and detached garage. The property known as no 72 Sugarloaf Crescent consists of three allotments (Lots 301, 302 and 303) and also contains an existing dwelling house. The topography of the site has a fall of in excess of 45m from Sugarloaf Crescent to the rear boundary. The top one third of the site is steeply sloping, with the slope then lessening over the central portion of the site. There is a significant change in topography over the last 5 - 20m of the site where a natural cliff line exists. Beyond the rear of the two existing dwellings (which are situated toward the street) the site is well vegetated although considerable clearing and gardening works appear to have been undertaken. The foreshore building line gazetted pursuant to Willoughby Local Environmental Plan 1995 (the "WLEP") extends across the property in the vicinity of 40 -50m from Sugarloaf Crescent. (Identified on Boundary Levels Survey). 2.2 The Neighbourhood Context The residential zoning that applies to the site and the surrounding residential properties is the Residential 2(a2) -Scenic Protection under the provisions of WLEP. The general character of Sugarloaf Crescent is single detached dwelling houses that front the street and that have vistas to the well-vegetated bushland setting of Sugarloaf Bay and Harold Reid Reserve. Overall the street does have several distinct changes in its character set by subdivision configuration., such as lot size and shape, topography, vegetation , type and density, geological features, the proximity of bushland, reserves and Middle Harbour as well as the type of housing stock. Generally the first section of Sugarloaf Crescent, after the intersection with Lincoln Avenue, consists of average sized residential allotments, gently sloping with landscaped gardens. In this section, a number of the allotments on the low side of the crescent adjoin a Council bushland reserve, although the actual allotments do not contain bushland. In the vicinity of the apex of the bend in the crescent, on the low side of the road, the allotments gradually increase in size, are fan shaped, become more steeply sloping, have a greater interface with the reserve beyond and contain more remnant bushland. The dwellings tend to be on the upper parts of the allotments with the area beyond being generally undeveloped. Beyond the bend, on the low side of the street the allotments are relatively larger in size and have a more rectangular shape. These allotments also continue to contain bushland and adjoin a bushland reserve. The high side of the street in this section contains sites that slope up from the street, are slightly larger than average, but whilst well landscaped and containing geological features, do not have the appearance of urban bushland. At the end of the street the subdivision pattern becomes convoluted with the allotments requiring access via a single private roadway made up of many rights of way. It is also noted that several dwellings/sites span several allotments in this regard the following is noted: · 70 Sugarloaf Crescent - two lots · 72 Sugarloaf Crescent - three lots · 80 Sugarloaf Crescent - two lots · 84 Sugarloaf Crescent - four lots In the vicinity of the subject site are two variations to the general location of built form being: · 66 Sugarloaf Crescent This site consisting of one allotment contains a dwelling house quite low on the site between contours 28 and 36. Council approved the dwelling in 1977. The dwelling has no vehicular access directly to the dwelling, rather the resident's park within a garage at the top of the site and walk down to the dwelling. Above and below the dwelling, the site is well vegetated. · 80 Sugarloaf Crescent This site consists of two allotments and contains a single dwelling house and swimming pool at the top of the site and a tennis court lower and angled across the site. Council approved the tennis court in 1981. Above and below the tennis court, the site is well vegetated. In relation to the neighbourhood's natural heritage, the locality is identified by the National Trust as part of the Middle Harbour Landscape Conservation Area and being of scenic, cultural and conservation value, with the trust recommending the maintenance of strict controls by the Authorities. The locality has also been nominated for the Register of National Estate, although to date no assessment by the Heritage Commission has been undertaken. C. THE RELEVANT PLANNING CONTROLS APPLYING TO THE DEVELOPMENT SITE

Here, again I consider that Mr Ellis' Report (Exhibit 1) aptly summarises the multiple planning controls (I use the term "planning controls" in its widest sense) applying to the development site (and other sites forming its physical context) which I am content to adopt: 4 PLANNING CONTROLS 4.1 Willoughby Local Environmental Plan 1995 The subject sites are zoned Residential 2(a2) under the provisions of WLEP No.1995. The aims and objectives of the plan relevant to this application include: Clause 2 b) to allow development at a scale that is sensitive to environmental and planning constraints; c) to control and manage adverse environmental impacts of development; d) to maintain and enhance the amenity of residential areas, for example by protecting these areas from inappropriate development; e) to ensure that residential development conforms with the scale and character of the individual residential development areas; f) to identify and protect environmentally sensitive areas. Clause 14A The General objectives of the Low Density Residential Areas - zones 2(a) and 2(a2) relevant to this application include: b) to maintain the scale, character and streetscape of individual localities; c) to retain and enhance residential amenity, including views, solar access, aural and visual privacy and landscape quality. Clause 14C The specific objective of the Residential "A2" Scenic Protection Zone is To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshores and bushland areas are maintained by protecting the land in this zone from overdevelopment on visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality. Clause 16 The development sites are subject to a Foreshore Building Line (FBL); Clause 16 of the WLEP stipulates the parameters of the FBL namely: (1) The objectives of a FBL a) to preserve and enhance the natural features and vegetation of =8 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 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 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) The 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 barbeques, 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. Clause 17(2) (1) Land within Zone 2(a2) is within a Scenic Protection Area. (2) The Council shall not consent to the carrying out of any development =- within a Scenic Protection Area unless it has considered the appearance and impact of that development on a) the amenity of surrounding properties, including loss of views to and of the foreshore, bushland and any waterways, b) the scenic qualities of the foreshore, including whether manmade structures visually dominate the natural landscape through excessive height and bulk and whether buildings, structures and other works are aesthetically and sympathetically integrated with the form and features of the local topography; c) bushland within the immediate locality, including loss of natural vegetation and significant geological features, disruption of drainage patterns, alterations to water tables and increase bushfire hazard potential; and d) achieving the objectives of any development control plan applying to those areas. (3) Despite clause 4, the Council shall not consent to any development other than drainage, landscaping, gardening or bush fire hazard reduction, on the land, being part of lot 1, DP 568911, known as 233 Edinburgh Road, Castlecrag, and shown cross-hatched on sheet 6 of the map 4.2 State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries Guiding principles relevant to this proposal include: 7 (d) the conservation of significant bushland and other natural features along the foreshore, where consistent with conservation principles, and their availability for public use and enjoyment,

(f) the protection of significant natural and cultural heritage values, including marine ecological values, (g) the protection and improvement of unique visual qualities of the Harbour; its foreshores and tributaries, (k) the character of any development as viewed from the water and its compatibility and sympathy with the character of the surrounding foreshores, (l) the application of ecologically sustainable development principles,

The definition of Foreshore as contained within SEPP No 56 is as follows: Foreshore includes land with a water frontage and land that is separated from the waterfront by a public reserve, road, or open space. 4.3 State Environmental Planning Policy 19 - Bushland in Urban Areas

2. (1) The general aim of this Policy is to protect and preserve bushland within the urban areas referred to in Schedule 1 because of. (a) its value to the community as part of the natural heritage; (b) its aesthetic value; and (c) its value as a recreational, educational and scientific resource (2) The specific aims of this policy are: (a) to protect the remnants of plant communities which were once characteristic of land within an urban area; (b) to retain bushland in parcels of a size and configuration which will enable the existing plant and animal communities to survive in the long term; (c) to protect rare and endangered flora and fauna species; (d) to protect habitats for native flora and fauna; (e) to protect wildlife corridors and vegetation links with other nearby bushland; (f) to protect bushland as a natural stabiliser of the soil surface; (g) to protect bushland for its scenic values, and to retain the unique visual identity of the landscape; (h) to protect significant geological features (i) to protect existing landforms, such as natural drainage lines, watercourses and foreshores; (j) to protect archaeological relics; (k) to protect the recreational potential of bushland; (l) to protect the educational potential of bushland; (m) to maintain bushland in locations which are readily accessible to the community; and (n) to promote the management of bushland in a manner which protects and enhances the quality of the bushland and facilitates public enjoyment of the bushland compatible with its conservation. 9. (1) This clause applies to land which adjoins bushland zoned or reserved for public open space purposes.

(2) Where a public authority: (a) proposes to carry out development on land to which this clause applies, or (b) proposes to grant approval or development consent in relation to development on land to which this clause applies, the public authority shall not carry out that development or grant the approval or development consent unless it has taken into account: (c) the need to retain any bushland on the land; (d) the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, on the erosion of soils, the siltation of streams and waterways and the spread of weeds and exotic plants within the bushland; and (e) any other matters which, in the opinion of the approving or consent authority, are relevant to the protection and preservation of bushland zoned or reserved for public open space purposes." The definition of Bushland as contained within SEPP No 19 is as follows: Bushland means land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation. 4.4 Sydney Regional Environmental Plan No.23 - Sydney and Middle Harbours The general aims of the is plan relevant to the application are 2(1)(c) to ensure that the Harbours and their foreshores are developed and promoted as a community asset, with due recognition being given to their role as a recreation and tourist focal point. 2(1) (e) to recognise, protect and enhance the natural, scenic, environmental, cultural and heritage qualities of the land to which this plan applies in future planning and development control. 2 (1) (j) to encourage an appreciation of the remaining natural foreshores around the Harbours 2(2)(e) in relation to the natural environment - (i) to protect flora and fauna habitats, including wetland areas, in a manner that is consistent with their conservation value, while also recognising the validity of other uses of the foreshores and the waterway; and 2(2)(f) in relation to the visual environment - (i) to protect and enhance the landscape and special scenic qualities of the Harbours; and (ii) to ensure that adequate consideration is given to the visual impact of development; and (iii) to preserve the natural foreshores of the Harbours and to ensure development does not detract from their natural character. 18 A consent authority must not consent to the carrying out of development unless it is satisfied that the proposed development is consistent with development of the land to which this plan applies in accordance with the objectives of this plan, and it has considered such of the following matters as are of relevance to the development- (a) the appearance of the development from the waterway and the foreshores; (b) whether the development will have an adverse effect on wetlands or flora and fauna habitats. 4.5 Development Control Plan 16- Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones DCP No.16 recognises the important environmental qualities of Castlecrag and reiterates the established character in the description of the desired future character of the locality. In particular relevance to this site and proposed development the DCP requires: 2.2.2 Desired future Character of Castlecrag 1. Minimising the impact of the built environment by siting buildings sensitively, integrating the built form with the natural landscape, with the built form subsequent to the landscape and the predominance of natural landscaped areas on the site. 5. The predominance of a landscape of native vegetation and tree cover with informally landscaped private gardens merging into one another with minimal fences and walls, in particular to the street. 7. Retention of significant. trees and stands of significant natural vegetation. Plant locally indigenous trees and dense vegetation, both within the site and to the street frontage to maintain the natural landscape characteristics of the locality. 8. Avoiding loss of vegetation between and around dwellings to reduce the prominence of the built form when viewed from Middle Harbour and other vantages. 10. Minimising areas of driveways and paved surfaces at the street frontage and avoiding unbroken double garages facing the street. 12. Ensuring the preservation of remnant bushland and encouraging revegetation of foreshore properties to protect the visual amenity of the natural foreshore areas. Section 3 Residential 2(a2) zone - Special Controls In relation to the Residential 2(a2) - Scenic Protection area the DCP stipulates specific landscape and Scenic Amenity Controls. The intent of this section is: To ensure that the predominant landscape character of the foreshore and bushland area is maintained. To protect land in environmentally sensitive and scenic protection areas from over development and to ensure development does not visually dominate the natural scenic qualities of the locality. To minimize the effects of development on the ecology of the environmentally sensitive areas To maintain and enhance the integrity of bushland through the use of native species in landscaping works. To protect the bushland as a natural stabiliser of the soil surface. Section 3.2 is concerned specifically with Foreshore Building Line. The intent of the Section is: To preserve and enhance the natural features and vegetation of the foreshore area for its scenic and ecological value and to ensure development does not detract from the natural character of these areas To encourage the protection. and regeneration of land which forms an integral part of the foreshore setting and to maintain the amenity of foreshore properties. Section 3.3 of the DCP is concerned with Bushfire, the intent of this Section is: To minimise risk to person and property from bushfire. To design for bushfire prevention so that the landscape and environmental qualities of the locality are maintained. The specific performance criteria of this Section are- A. Development of sites prone to bushfire hazard are to be designed and/or adopt measures which minimize potential hazard. B. Sites are to be maintained to minimize bushfire hazard without unduly altering the natural qualities of the area. C. Unencumbered access is to be provided for Bushfire purposes. Section 4.01 Minimum Site Area The intent of this section is to ensure allotments have sufficient area for the siting of development to achieve a good relationship to adjoining dwellings, provide adequate space for landscaped open space, drainage, parking, residential amenity and other services and be compatible with the general pattern of spacing of buildings in the area. To achieve an efficient use of land for new housing. The performance criteria relevant to this development are i) Provide for usable open space and landscaping; ii) Allow convenient vehicle access and parking; iv) Have regard to topographical constraints and retention of significant trees; v) Ensure development is compatible with the spacing and pattern of surrounding development Section 4.03 Character, Design and Streetscape The intent of this section relevant to this application is -

To ensure that new development is consistent with the scale of and complements the character of existing buildings in the streetscape. To preserve and enhance the features which contribute to the important environmental and landscape qualities of the area. To ensure that development enhances the existing streetscape, contributes to the creation of an attractive residential environment and maintains existing residential amenities.

Section 4.12 Parking and Access The intent of this section is - To ensure that driveways and carparking facilities meet the needs of residents without adversely affecting the visual quality of the dwelling or the streetscape. To maintain open frontages for passive surveillance and to ensure that carparking facilities contribute positively to the public domain. To minimise hard surfaces in order to enhance areas for on site infiltration of stormwater Definitions The following definitions are contained within DCP No.16: Bushland means land on which there is vegetation which is either a remnant of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation. Modified foreshore land means foreshore land: a) on which the natural vegetation structure has been substantially altered or removed; or b) a topography which has been substantially modified by human development such as excavation, retaining walls or similar structures. Natural foreshore land means foreshore land: a) on which the natural vegetation remains or, if altered, is still representative of the structure and floristics of the natural vegetation; or b) a topography which has not been substantially altered by human development. Public domain (public place) means a roadway, public reserve, national park, waterway or other open space accessible to the general public. Significant views means views of Middle Harbour and other waterways, bushland valleys and escarpments, major skylines and important landmarks. Visually prominent site means a ridge top location, escarpments, environmentally sensitive sites on sloping land, elevated corner allotments and any site that has the potential to degrade visual amenity. 4.6 Subdivision Code The principal aims and objectives of this code are to:

Ensure that allotments of land are of adequate size and shape to permit an acceptable living amenity for residents of the particular parcel, adjoining land and land in the locality Identify appropriate minimum allotment size requirements having regard to the geography of the Municipality and particularly, the topography, vegetative cover, heritage significance and overall landscape qualities of particular areas Retain specific significant trees Provide adequate vehicular and pedestrian access. Ensure the land can be adequately serviced in terms of drainage, water supply, sewerage etc.

In terms of street frontage the code requires 15m for allotments other than Battle-axe allotments. With regard to battle axe allotments the minimum aggregate road frontage and minimum total mean width of an accessway to battle-axe allotments to between 3 and 5 adjoining battleaxe allotments is 6m with reciprocal rights of way over each separate access strip. D. THE PROPOSED DEVELOPMENT

The proposed development being the re-subdivision of the existing five lots is aptly described in the following section of the Report of Mr Neil Ingham, Consultant Planner, (Exhibit Q) which I am content to adopt: The Proposed subdivision does not create any more allotments than currently exists but rather retains the two existing dwelling houses and adjusts the boundary of the five lots to create lots of more appropriate dimensions for the erection of a dwelling house on each lot. The proposed lot areas are as follows: Proposed Lot Area 1 1576 sqm 2 1725 sqm 3 1822 sqm 4 1867 sqm 4060 sqm 5 Proposed lots 1 & 5 are designed to retain the two existing dwelling houses close to the Sugarloaf Crescent street frontage on individual land parcels. Two new parking decks, each accommodating 2 spaces, are proposed to be constructed with access from the common driveway designed to service all five lots.

The S shaped driveway will extend through parts of both proposed lots 1 & 5 providing access to the three (3) lower lots (Proposed lots 2, 3 & 4). The driveway connects with Sugarloaf Crescent in front of the existing dwelling on proposed lot 5 and extends down the site between the two existing dwellings to the lower portion of the site. The driveway is single lane in part and widens at a number of points to 5.5 metres to allow for passing movements if required. The proposed driveway has been kept as low to the ground as possible within the limits of achieving acceptable grades. Proposed lots 2, 3 & 4 are located on the site approximately below contour level RL 30 on the relatively gently sloping part of the site. Proposed Indicative Dwelling Footprints are indicated on the three proposed lots generally between RL 30 and RL 26. Whilst some trees will be affected these are of average to very poor condition and new planting, weed removal and regeneration will in fact enable enhancement of the vegetative environment in accordance with the objectives of the planning controls for development in such areas. The tree canopy stands at about 12 metres and will substantially remain intact.

The proposed re-subdivision is shown on Drawing No A06 (Series D) a copy of which is annexed hereto and marked "C". I should also note that the amended plans of the proposed development (Series D) reflect only minor changes to the original version of the development plans which were the subject of my earlier judgment on the Council's original preliminary questions of law. E. ASSUMING RE-SUBDIVISION OF DEVELOPMENT SITE AS PROPOSED, WILL DEVELOPMENT BY THE ERECTION OF A DWELLING-HOUSE ON EACH OF THE THREE REAR LOTS BE PROHIBITED DEVELOPMENT AS CONTENDED BY THE COUNCIL?

As earlier noted, the Applicants accept that this is a vital and fundamental question to be determined in these proceedings. They also accept that if the question be determined adversely to them (ie if the Council's contention be upheld), that result will inevitably vitally influence the result in the present appeal inasmuch as the proposed re-subdivision would involve a total futility if the resultant three rear lots (ie the lots that are wholly contained on the foreshore side of the foreshore building line created by cl 16(2) of the LEP could not each be developed by the erection thereon of a dwelling-house because that legal result would entirely frustrate the sole purpose and reason for the proposed re-subdivision.

In my judgment, these implied concessions recognise the realities of the situation and it is entirely appropriate that the question be determined as the first and cardinal adjudication required in these proceedings.

The question to be determined necessarily assumes (i) that re-subdivision as proposed has been undertaken; and (ii) the continuing application to the re-subdivided land of the planning controls imposed by the LEP that currently apply to the development site.

Relevantly, what I have referred to as the three rear lots are the lots in the re-subdivision which are wholly located on the foreshore side of the foreshore building line that traverses the development site and other neighbouring sites in the vicinity of Sugarloaf Bay.

Each of the three rear lots is also located within Zone No 2(a2) designated by the LEP within which Zone development for the purpose of a dwelling-house is a permissible form of development but only with development consent: vide cl 13(2) of the LEP.

Clause 16(3) and (4) of the LEP provides as follows: (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) The 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.

(I interpose that the zoning and foreshore building line controls that I have just noted are precisely the same controls that were applicable to the development site when I determined the Council's original preliminary questions of law.)

The Council's argument fastened upon the fact that the present question is not the same as the preliminary questions determined by my earlier judgment (and was therefore not governed by those determinations) and more importantly, upon the factual difference that the present question is exclusively focussed on the three rear lots that are located wholly on the foreshore side of the foreshore building line created by cl 16(2) of the LEP whereas the questions raised by the Council's original preliminary questions of law were focussed on the development site part of which was located on the landward side of the foreshore building line and part of which was located on the foreshore side of the foreshore building line.

The Council's argument that the effect of cl 16(3) of the LEP is to absolutely prohibit the erection of a dwelling-house on each of the three rear lots proceeded along the following lines: (i.) Although cl 13(2) of the LEP nominated development for the purposes of a dwelling-house to be a permissible development with development consent within Zone No 2(a2) that provision was expressed to operate "(E)xcept as otherwise provided by this plan"; (ii.) Clause 16 of the LEP (which was relevantly comprehended by that express exception) provided in subclause (3) an absolute prohibition on the erection of all buildings on land on the foreshore side of the foreshore building line, subject only to the exceptions provided by subclause (4) (which exceptions did not comprehend dwelling-house development); (iii.) The present factual situation involving each of the three rear lots being wholly located on the foreshore side of the foreshore building line was crucially different from the factual situation pertaining to the Court's earlier determination and the reasoning supporting that determination did not apply to the present facts; (iv.) Clause 16(3) of the LEP in its application to each of the three rear lots relevantly absolutely prohibited development by the erection of a dwelling-house on each of the lots and accordingly cl 16(3) did not operate as a "development standard" within the meaning of the EP&A Act and accordingly, the dispensational power conferred by SEPP No 1 was not available.

The Applicants' competing argument relied heavily upon my earlier determination and the reasons for it. Indeed the Applicants submitted that the present question was governed by my earlier determination, but if this submission was not accepted, it was submitted that the reasoning for that earlier determination was equally applicable to present determination, which like the earlier determination should be that cl 16(3) of the LEP operated, not as an absolute prohibition on dwelling-house development on each of the three rear lots, but operated as a development standard whereby requirements were specified or standards were fixed in respect of an aspect of that development, namely the "location" and "siting" of a "building": vide par (c) of the definition of "development standards" contained in the EP&A Act, s 4(1): (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work .

The Applicants also relied upon a number of more recent decisions of this Court (decided since my earlier determination in this case) which have held various provisions of various environmental planning instruments operate as "development standards" within the meaning of the EP&A Act and SEPP No 1.

I need not stay to examine each of these decisions (the numbers of which appear to be constantly increasing) because of the supervening decision of the Court of Appeal in Strathfield Municipal Council v Poynting (2001) NSWCA 270 which has comprehensively considered all of the previous decisions of the Court of Appeal and a number of decisions of this Court, on what has become the vexed question of construction as to whether a particular provision of an environmental planning instrument operated as a development standard, or as an absolute prohibition on development.

Indeed, when I reserved my judgment in the present case, I was aware of the fact that the Court of Appeal had recently heard argument in the Poynting appeal (in which I had written the trial judgment) and had reserved its decision, and anticipating a comprehensive review by the Court of Appeal of the multitude of authorities on the vexed question of what distinguishes control of development by provisions contained in an environmental planning instrument by way of development standard from control by any other means (including an absolute prohibition on development) I have deliberately awaited the Court of Appeal judgment before completing my judgment in these proceedings.

The Court of Appeal's judgment in Poynting was handed down on 8 November 2001 with the leading judgment being given by Giles JA (who presided) whose judgment, if I may respectfully say so, is a judicial tour de force in its review and penetrating analysis of the host of decided cases in search for what has proved to be an elusive unifying principle or approach to the vexed question of construction of various provisions of environmental planning instruments to determine whether they are "development standards" within the meaning of the EP&A Act and SEPP No 1.

His Honour's judgment on a number of occasions notes the difficulty of the relevant task of construction. Thus, at par 33 he states: It has long been accepted that not all provisions controlling development in environmental planning instruments are development standards. The words of s 26(1)(b) and the definition in the Act so indicate. How is a development standard to be distinguished from a provision controlling development in some other way? The immediate answer is that a provision controlling development is a development standard if it satisfies the definition in s 4(1) of the Act, but not otherwise. But that leads to a further question, and it has not proved easy to determine whether a provision controlling development satisfies the definition.

Following a detailed examination of many relevant cases (decided either by the Court of Appeal or by this Court) his Honour returns to the difficult nature of the requisite task of construction in the following passages at pars 93 to par 95: 93 I do not think it profitable to go to further decided cases, which will only reveal how a provision has been categorised in the interpretation of the particular environmental planning instrument. It is evident that a process of construction to find regulation on the one hand or prohibition on the other hand will bring finely divided decisions. Care must be taken lest form govern rather than substance. A provision in the form, "A building may be erected on land in a particular zone if the land has an area greater than a particular area" appears regulatory, whereas a provision in the form, "A building must not be erected on land if the land has an area less than a particular area" appears prohibitory, but the substance is the same. 94 As was done in, for example, Fencott Drive Pty Ltd v Lake Macquarie City Council , the provision must be seen as part of the environmental planning instrument as a whole. Regulation or prohibition may depend on the governing characteristic perceived in the provision. In the second form of provision just set out, if the characteristic is land in the particular zone the area requirement may be seen as stating a permissible way or extent of development, but if the characteristic is land with the particular area no development may be carried out. I do not find the so-called dichotomy, or its expression in the two different kinds of provision, either clear or providing ready answers. 95 There must be found a distinction between a provision which is a development standard and a provision which controls development in some other way, and the guidance of the dichotomy in providing a conceptual basis for the distinction must be acknowledged. But neither the dichotomy itself nor its expression in the two different kinds of provision can replace the definition in the Act.

It is the last sentence which provides the answer to his Honour's quest for the relevant discrimens. This leads him back to his earlier extended analysis at pars 40 to 58, and his adoption of the majority judgments in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 when he propounds in pars 96 to 99 the following two step approach to the required task of construction in order to determine whether the dispensing power conferred by SEPP No 1 is available in a given case - 96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step. 97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of 'development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development. 98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard. 99 In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of development standards in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr ) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances . Healesville Holding Pty Ltd v Pittwater Council must be explained in a similar way. The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed - siting of the building ( Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council ), number of storeys of the building (Scott Revay & Unn v Warringah Council ), minimum subdivisible area ( Bell v Shellharbour Municipal Council ).

Poynting provides an apt illustration and application of the enunciated two step approach to the task of construction when Giles JA applies that approach to his construction of the particular provision of the Strathfield Planning Scheme Ordinance (the relevant environmental planning instrument) which was in the following terms: cl 41(2) A single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing must not be erected on an allotment of land within Zone No 2(a) or 2(b) which has an area of less than 560 square metres or a width at the front building line of less than 15 metres.

The first step in the approach to construction, which is undertaken in the manner, and with the result, expounded in par 102, leads his Honour to take the second step in the manner and with the result that are expounded in par 103. Those passages read as follows: 102. So far as cl 41(2) is concerned with a single dwelling or with the dual occupancies, erection of a building on Residential 2(a) land for those purposes is generally permissible with consent (cl 22(b)(ii)). Clause 41(2) then provides that consent shall not be given unless the land has an area not less than 560 square metres. Reading the provision as part of the Ordinance as a whole, this is not a prohibition on the erection of a building for the stated purposes on Residential 2(a) land in any circumstances. It is prohibitory so far as it precludes development in particular cases, but not prohibitory of development by erection of a building for the stated purposes on Residential 2(a) land. The development is permissible in the circumstances (negatively) expressed in cl 41(2). 103. Does cl 41(2) specify a requirement or fix a standard in respect of an aspect of the development? In my opinion it does. On one view the area of the land on which the building is to be erected is not an aspect of the development. The size, height, distance from boundaries and so on of the building are aspects of the development, but it matters not to the development whether the building is to be erected on a small or large parcel of land. On a wider view, the aspects of the development include the size of the parcel on which the building is to be erected, and both independently and because para (a) of the definition of "development standards" includes area and dimensions of land I consider that to be correct. The opinion expressed in Bell v Shellharbour Municipal Council , although on a different worded provision and not elaborated, is consistent with this.

In my respectful opinion, although Giles JA's judgment in Poynting essentially re-asserts the approach to construction that is discernible collectively in the majority judgments in P D Mayoh (No 2) it introduces important qualifications that in undertaking that task (i) "care must be taken lest form govern rather than substance" (see at par 93); (ii) the particular provision being construed "must be seen as part of the environmental planning instrument as a whole" (see at par 94); and (iii) if the provision does not prohibit the development "in any circumstances" (absolutely) and the development is permissible in circumstances expressed in the provision (whether positively or negatively) generally such a provision will be a development standard (see at par 98).

The significance of his Honour's adoption of the majority judgments in P D Mayoh No 2 as providing the proper approach to construction, is, I think exemplified in his Honour's rejection at pars 52 to 58 of the appellant's argument to the effect that a provision of an environmental planning instrument falling within one of the several paragraphs ((a) to (o)) comprising "any aspect of a development" contained in the definition of "development standards" in the EP&A Act, s 4(1) will by that fact alone, qualify as a development standard "whether or not it is regarded as a prohibition".

In rejecting the argument as "unsound" (par 57), Giles JA said at 58: 58. The provision must be a provision "in relation to the carrying out of development". On the reasoning of Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2), a provision falling within one of the paragraphs will not be such a provision if it prohibits development as distinct from regulating it. The provision must also be a provision by or under which requirements are fixed or standards are fixed in respect of any aspect of that development . The paragraphs describe possible aspects of a development in respect of which requirements or standards may be fixed, but that a provision falls within one of the paragraphs does not mean that it is with respect to an aspect of the development or that it fixes a requirement or standard, and on the reasoning of Clarke JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) the notion of requirements or standards qualifies the paragraphs and must be satisfied. It remains necessary, even if a provision is to do with one of the stated aspects of a development, to consider whether it is in relation to the carrying out of development and whether it fixes requirements or standards in respect of that aspect of the development.

In my judgment, the two step approach to the construction of a provision of an environmental planning instrument to determine whether or not it functions as a "development standard" adopted by the Court of Appeal's decision in Poynting is applicable to my task of construing cl 16(3) of the LEP in its operation and effect in respect of development of each of the three rear lots by a dwelling-house.

In my judgment, and contrary to the Applicants' submission, the present task is not the same as the task that I undertook in my earlier determination of the original preliminary questions of law raised by the Council in these proceedings. That determination concerned the question whether the Applicants' proposed re-subdivision of the development site was relevantly prohibited development by virtue of the effect of cl 16(3) and (4) of the LEP. It did not concern the present question which is exclusively directed to the development by the erection of a dwelling-house on each of the three rear lots (on the assumption that they are created in accordance with the Applicants' proposed re-subdivision).

Moreover, in the passages that I have previously recited from my earlier judgment (ie pars 77 to 82 inclusive), I expressly held that my determination was "not a conclusion in respect of any future development that may be proposed for the proposed re-subdivision of the development site".

Nor, with respect to the Applicants' argument, do I think that the reasoning in support of my earlier determination is equally applicable to my present task, because of the crucial factual difference between (i) the "development site" which was relevant to my earlier determination; and (ii) the reduced development site (comprising the three rear lots in the proposed re-subdivision of the development site) which is relevant to my present determination.

My reasons in my earlier judgment for concluding that cl 16 of the LEP was relevantly a "development standard" expressed in pars 71 and 72 were as follows: 71. 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. 72. 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.

In respect of those reasons, it cannot be said in relation to my present task (i) that the proposed dwelling-house development of each of the three rear lots is relevantly "development that is permissible with consent"; (ii) that the proposed development is located on both the landward and foreshore sides of the foreshore building line; and (iii) that the foreshore building line specified a requirement (eg the siting of a building) in relation to that development.

Having concluded that the present question is not determined by my earlier determination or by ready application of the same reasoning that supported that determination, I must approach the present task of construction along the lines adopted in Poynting.

Applying that approach, I have concluded that the answer to the present question is to be found in the application of the first step, namely that cl 16(3) absolutely prohibits development of land located on the foreshore side of the foreshore building line (other than for immaterial exceptions provided for in cl 16(4) which exceptions obviously do not embrace "dwelling house" development, and can for present purposes be disregarded as being entirely irrelevant).

In concluding that the effect of cl 16(3) is to absolutely prohibit the erection of a dwelling-house on each of the three rear lots, I have construed that clause in the context of the whole of the LEP which context obviously includes cl 12 which includes the land comprising the three rear lots within Zone No 2(a2) ("Residential `A2' - Scenic Protection") and cl 13(2) which declares a dwelling-house to be a type of development that may be carried with development consent, within that Zone.

However, it is to be noted that cl 13(2) is expressed to operate "Except as otherwise provided in this plan" and cl 16(3) which clearly operates to prohibit the erection of a dwelling-house on the foreshore side of the foreshore building line, obviously "provides otherwise".

A difficulty in arriving at a proper understanding the relationship between cl 13(2) and cl 16(3) is that the former provision is expressed to operate in respect of land with the Zone designated by the LEP as No 2(a2) (Residential Scenic Protection) whereas the latter provision is expressed to operate in respect of land located between a foreshore building line and the bay etc in respect of which the line is fixed. Thus, as a matter of legislative text, there is no coincidence or commonality between land so zoned and land so affected by a foreshore building line.

It is only when regard is had to the relevant maps incorporated in the LEP that depict both (i) the various zones created by the LEP; and (ii) the foreshore building lines created by cl 16(2) of the LEP that it is apparent that the foreshore building lines so created generally traverse lands so zoned, but in so doing they do not follow existing property boundaries. Again, by reference to the said maps, it can be appreciated that the foreshore building lines transect existing allotments which are so zoned (such as the development site) with the result that it can generally be said that there is a portion of the existing allotment that is located on the foreshore side of the foreshore building line and a portion of the allotment that is located on the "landward" side of the line.

Although it is presently convenient to refer to those terms, ("landward side" and "foreshore side") it is to be noted that cl 16(3) does not adopt them and that its exclusive focus or address is confined to the land located on the foreshore side of the foreshore building line.

What emerges from the foregoing facts (which are deducible from permissible reference to the relevant maps incorporated in the LEP) which is of importance to a proper understanding of the relationships between cl 13(2) and cl 16(3) is that the two provisions overlap and, in so doing, collide but only in respect of land located on the foreshore side of the foreshore building line. The resulting collision is resolved by the operation cl 16(3) prevailing over the operation of cl 13(2) by virtue of the opening express qualifying words of cl 13(2).

The proper effect to be given to cl 16(3) of the LEP construed as a provision of the overall instrument which includes cl 12 and cl 13(2) (respectively zoning the land affected by the foreshore building line and prescribing the forms of permissible development on land so zoned), in my opinion, is one that recognises the various circumstances in which the relevant provisions of the LEP may possibly interact.

Those circumstances are limited to the following: - (i.) the case of a proposed residential development of an allotment of residentially zoned land which is transected by the foreshore building line in such a manner that a portion of the allotment is located on the landward side of the foreshore building line and the remaining portion of that allotment is located on the foreshore side of that land; and (ii.) the case of a proposed residential development of an allotment which is wholly located on the foreshore side of the foreshore building line (including the situation presently encountered where the foreshore building line is located in a more remote landward position than is the location of the allotment to be developed).

which are the very circumstances respectively encountered by my determination of the Council's original question of law (circumstance (i)) and by my present determination (circumstance (ii)).

Whereas it would be possible to adopt a literal construction of cl 16(3) as having the same effect in respect of both possible circumstances of its application, namely to absolutely prohibit the erection of a dwelling-house on any part of the allotment that is located on the foreshore side of the foreshore building line, such a construction in relation to circumstance (i) would appear to give (i) insufficient effect to the fact that cl 13(2) declares a dwelling-house to be permissible development in the zone and (ii) an unwarranted extension of the effect of cl 16(3) to land that located on the landward side of the foreshore building line.

A preferable construction, in my opinion, would be to construe cl 16(3) as imposing a locational 5requirement for the erection of a building on the landward side of the foreshore building line (because such development is permissible development by the operation of cl 13(2)) but as imposing an absolute prohibition on the erection of a dwelling house an allotment wholly located on the foreshore side of the foreshore building line (because there is simply no landward component of that allotment) and hence cl 16(3) cannot be construed as only imposing a locational requirement on a permissible development because cl 13(2), in declaring a dwelling-house to be permissible development in the Zone is overridden by the express qualifying exception contained in cl 13(2) giving supremacy to cl 16(3)).

Accordingly, the interplay between cl 13(2) and cl 16(3) as they apply to the land comprising the three rear lots is that although the former provision permits dwelling-house development with development consent on each of the three lots, the latter provision (which is expressed to prevail over cl 13(2)) absolutely prohibits a dwelling-house development on land located on the foreshore side of the foreshore building line and since each of the three rear lots is so located, cl 16(3) has the effect of absolutely prohibiting the erection of a dwelling-house on each of the three rear lots.

In so concluding that this is the effect of cl 16(3) in the present case, I would note that the relationships between cl 13(2) and cl 16(3) in their respective applications (or potential applications) to each of the three rear lots is not the same as the relationship between cl 22(b)(ii) and cl 41(2) of the Strathfield Planning Scheme Ordinance as that relationship was analysed and construed by Giles JA at par 102 in his judgment in Poynting that I have earlier recited.

In that analysis, Giles JA emphasised the fact that cl 41(2) (read in the context of the whole of the planning instrument) was not a prohibition on the erection of a building for the stated purposes on Residential 2(a) land "in any circumstances" rather, it was prohibitory "in particular cases", justifying the ultimate conclusion that "development is permissible in the circumstances (negatively) expressed in cl 41(2)".

In the present case, the proper construction of cl 16(3) in its relationship with cl 13(2) is incapable, in my judgment, of yielding the same analysis or result as was reached in Poynting at par 102 of the judgment of Giles JA for the essential reason that cl 16(3) is expressed in terms of an absolute prohibition on the erection of a building on the foreshore side of the foreshore building line (excluding the immaterial exceptions provided for by subclause (4)) and is not capable of being construed as permitting that development in the circumstances negatively expressed.

In further elaboration, whereas it is obvious that the effect of cl 41(2) of the Strathfield Planning Scheme Ordinance, though negatively expressed, was that an allotment of land, having an area of not less than the prescribed minimum area, could be developed by permissible residential development, by way of contrast cl 16(3) of the LEP is simply incapable of being construed as permitting development (albeit negatively expressed). In other words, an absolute prohibition of a building on the foreshore side of the foreshore building line, is simply incapable of being construed as permitting development otherwise than on the foreshore side of the foreshore building line because there is no possibility of there being a relevant "otherwise" in a situation where there is no landward side component of the allotment (as is the present case).

In so concluding, I do not, of course, intend to cast any doubt upon my earlier determination that cl 16(3) operated as a development standard in its application to the Applicants' development application for the re-subdivision of the development site. Nor do I think that my present determination, or its supporting reasoning, undermines that earlier determination. One of the many cases discussed and considered by Giles JA in Poynting was my earlier determination in those proceedings - see at pars 61, 76 and 77. His Honour's judgment casts no doubt upon its correctness, which is referred to by his Honour in the following statement at par 99. ….The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed - siting of the building ( Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council ), number of storeys of the building ( Scott Revay & Unn v Warringah Council ), minimum subdivisible area ( Bell v Shellharbour Municipal Council ).

For all the foregoing reasons, I have concluded that by cl 16(3) of the LEP has the effect of absolutely prohibiting the erection of a dwelling-house on each of the three rear lots in the Applicants' proposed re-subdivision.

It follows from this conclusion and the Applicants' concession that there is no utility in obtaining development consent for the proposed re-subdivision of the development site (because the sole purpose of the re-subdivision was to create, inter alia, the three rear lots upon which a dwelling-house may be erected) that development consent must, in the proper exercise of planning discretion, be refused to the Applicants' present development application.

Notwithstanding this conclusion, I shall, for the reasons earlier stated and in deference to the parties' presentation of the comprehensive competing cases, proceed to consider the other two questions raised by the issues in dispute in these proceedings. F. IS THE APPLICANTS' SEPP NO 1 OBJECTION WELL FOUNDED?

The Applicants' original development application was supported by a written objection pursuant to SEPP No 1 prepared by planning consultants then retained by the Applicants.

That objection was premised on the fact that cl 16 of the LEP was relevantly a "development standard" and that the objectives of the standard were expressed in cl 16(1). The objection is then formulated as follows: 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 1km 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.

In Section 8.2 of his Report (Exhibit Q), Mr Neil Ingham, Consultant Planner, considers that objection in some detail concluding with his opinion that the objection "was well founded and should be upheld".

I note in passing that included as Appendix C to the Statement of Environmental Effects prepared by Mr Ingham (Exhibit B) which supported the Applicants' amended development plans that were submitted to the Council in February 2001 is another written objection pursuant to SEPP No 1 to compliance with the requirements of cl 16 of the LEP. However, a comparison of the text of that objection with the text of the original objection (which is the only objection addressed by Mr Ingham in his Report (Exhibit Q) satisfies me that there is little or no substantive variation in the grounds stated in support of the respective objections. Since Mr Ingham's evidence addresses the original objection, I too shall regard that as the relevant objection relied upon by the Applicants in the present case.

Section 8.2 of Mr Ingham's Report sets forth the reasons for his opinion that the objection pursuant to SEPP No 1 "that compliance with the foreshore building line controls of the LEP is unreasonable and unnecessary in the circumstances of this case". Those reasons may be summarised as follows: (i.) This Court's earlier judgment determined that cl 16 of the LEP was relevantly a development standard; (ii.) The object or purpose of that development standard is stated in cl 16(1); (iii.) The development site is not land "that meets or is in close proximity to the water" and is not land that is part of the "foreshore setting" because the foreshore building line as it affects the development site is 300 m distant from mean high water mark of Sugarloaf Bay and that separation is "totally unnecessary to meet the objectives of the LEP in order to establish a setback and an appropriate level of vegetation between the foreshore building line and dwelling-houses"; (iv.) The foreshore building line as it affects the development site is "extremely onerous and has the effect of sterilising development of the five existing lots and the foreshore building line is not necessary in the existing location to satisfy the objectives of the foreshore building line" because: - (a) the area where the foreshore building line is located cannot be seen from Sugarloaf Bay; (b) "nowhere else around Sydney Harbour, except Castlecrag, does such an expanse of foreshore preservation occur on privately owned residential land"; and (c) the foreshore building line "creates a de facto reservation of the land for purposes other than those permitted within the Residential 2(a2) Zone" and as such, the foreshore building line "does not allow for the orderly use and development of residential land" (cf s 5 (a) (ii) of the EP&A Act); (v.) the foreshore building line is inconsistent with the following provision of Council's DCP 16 because "it does not allow for the future development of the existing residential land" : - where a site is vacant, the FBL is placed in a position that meets the WLEP 1995 objectives and the intent of this clause, but which provides for future development and is consistent with the general placement of dwellings in the area. (vi.) The location of the "indicative dwelling footprints" (shown on the amended development application plans) on each of the three rear lots is similar to the location and land contour of the existing dwelling-house situate on the lot (No 66 Sugarloaf Crescent) immediately to the South of the development site and to the location of the existing tennis court situate on the lot (No 80 Sugarloaf Crescent) immediately to the north of the development site; (vii.) For reasons of topography, the construction of the proposed access driveway to the proposed three rear lots necessarily involves construction in places above the ground level.

Earlier in his Report in Section 4, Mr Ingham provides an extensive review and analysis of the foreshore building line as it affects the development site. The principal matters raised in that review may be summarised as follows: (i.) Based upon the evidence of relevant survey plans, it is apparent that over the years a considerable amount of accretion has occurred to the foreshores of Sugarloaf Bay in the vicinity of the development site, with the mean high water mark currently being some 180 distant from the rear boundary of the development site compared with 12 m when the Castlecrag residential estate was first created; (ii.) The existing foreshore building line as it affects the development site (and neighbouring sites) was first imposed in 1986; (iii.) The degree of affectation of the development site is that only some 15 per cent of the agglomerated area of the existing five lots is located above the foreshore building line with the result that the vast majority of the land within each lot is located below the foreshore building line and is not able to be developed by a dwelling-house (except by application of SEPP No 1); (iv.) The Applicants' attempt in 1997 to develop the existing lots by a form of terrace housing development had been met by the Council's refusal on the ground that that form of residential development was not permissible development within Zone No 2(a2); (v.) It was virtually impossible that each of the existing lots could be developed by a dwelling-house development that would be acceptable on town planning grounds because of the configuration of the lots and the portion of each lot located on the landward side of the foreshore building line; (vi.) In these circumstances, the foreshore building line would appear to be intended to sterilize residential development of the existing five lots; (vii.) There is no "relevant ground" (or justification) that requires the foreshore building line to be placed so close (ranging from 37 to 42 metres) to the Sugarloaf Crescent frontage of the development site and consequently so far distant from mean high water mark of Sugarloaf Bay. (Mr Ingham's Report at this point articulates the arguments that are reflected in his reasons for concluding that the objection under SEPP No 1 is well founded, which reasons I have earlier summarised).

Mr Ingham's Report concludes his review and analysis of the foreshore building line with the following flourish: - The owner at the present time has two houses on the five lots which have been created historically by two houses being located close to Sugarloaf Crescent. However, the five existing lots are in separate titles and each of the lots should be able to be developed in accordance with the provisions of Willoughby LEP 1995 independently of each of the other lots. The Council in preventing this from taking place has reduced the value of the land to a very significant degree, and has, in my opinion, placed a de-facto reservation on the land. It is my opinion that this action of the Council's is unreasonable and unfair. If the Council wishes to reserve the land then it should take the step of placing the land with an appropriate reservation and acquiring the land in due course. If it does not intend to do this then it should move the Foreshore Building Line substantially from where it is in an easterly direction to ensure that each of the lots can independently be built upon by a dwelling house in a manner which is consistent with the general form and scale of dwelling houses in the locality. The owner has provided Council with information relating to this matter which council has refused to accept. The development application currently before the Land and Environment Court involves the reconfiguration of the five existing lots and the construction of an access driveway in order to allow for a reasonable development of each of the five lots. The purpose of the subdivision is thus to allow for the appropriate development of five dwelling houses on five residential lots, while retaining a significant part of the natural bushland with minimal disturbance to the site.

Town planning opinions contrary to Mr Ingham's opinion concerning the Applicants' objection pursuant to SEPP No 1 were given in the Reports by Mr Ellis (the Council's Special Projects Officer) (Exhibits 1 and 17) and by Mr H Sanders, Consultant Town Planner (Exhibit 12) who had been retained by Mr and Mrs Spies, the owners of No 66 Sugarloaf Crescent, situate immediately to the south of the development site, to make representations on their behalf to the Council in response to the Applicants' development application.

In concluding that the Applicants' objection pursuant to SEPP No 1 had not been substantiated, Mr Ellis was of the opinion that the proposal (which should be regarded as including the three dwelling footprints located at the terminus of the internal access road) involved "a complete abandonment of the foreshore building line" and was "so vast that it requires a rezoning" particularly in the light of the Minister's recent rejection of the Council's draft Amendment No 3 to the LEP which had proposed a significant reduction in the extent that the foreshore building line affected properties in Sugarloaf Crescent (including the development site). It was Mr Ellis' opinion "(T)hat the construction of the proposed driveway as well as the footprint of the driveway involves considerable site disturbance, loss of vegetation, scarring of the site in an area that I consider to be a natural foreshore. It will be visible from several district public domain vantage points and from neighbouring properties and as such I consider (it) to be visually intrusive" (Ex 1 at pp 16/17).

In his Report in reply to Mr Ingham (Exhibit 17), Mr Ellis proffered the following rebuttals of various arguments that had been advanced by Mr Ingham: a) The dwelling house at No. 66 and the tennis court at No. 80 were both constructed prior to the FBL being adopted. b) The line historically is the result of lengthy community consultation, site-specific analysis and in more recent time a consultant's report. The recent draft amendment that was put to the Minister proposed a major relaxation of the line; but the Minister did not accept it. c) The location of the existing dwellings on the subject sites as well as others on nearby properties reflects the site constraints of bushland, topography and access. It is noted that these dwellings were constructed prior to an FBL. d) Another example of the difficult site constraints is No 66, which due to topography has no vehicular access, rather has to walk down the site. e) The remark that nowhere else in Sydney do you find a similar FBL in terms of its location I believe indicates just how sensitive the issue is. Clearly a lot of thought has gone into its position, as it is so different to other locations. I believe its position reflects the uniqueness of the Sugarloaf Bay environs.

Mr Sanders' Report (Exhibit 12) urged the need for consideration of the Applicants' objection pursuant to SEPP No 1 to include consideration of the environmental impact of the likely future dwelling-house development of each of the proposed three rear lots.

It contended that consideration of the visual impact of the proposed development should not be confined to views from the waters of Sugarloaf Bay or the immediate foreshores but should include the numerous elevated vantage points from which the development site was visible including the public open space of the Harold Reid Reserve, Mills Point Lookout and Old Man's Cave, from which vantage points the proposed development (including future residential development of the three rear lots) would have an adverse visual impact.

Mr Sanders was of the opinion that the existence of his client's dwelling-house at No 66 Sugarloaf Crescent and of the tennis court at No 80 Sugarloaf Crescent (both structures being located wholly on the foreshore side of the foreshore building line) provided no justification for the proposal's breach of the foreshore building line because they had come into existence at a time when the current planning controls were not in place.

Finally, Mr Sanders expressed the opinion that if the Applicants' development application were approved, it would create an undesirable precedent for future development in the locality in breach of the foreshore building line which would be an unacceptable outcome "having regard to the national regional and local significance of the existing landscape" of the area.

In my judgment, it is entirely appropriate if not imperative, that consideration of the Applicants' objection pursuant to SEPP No 1 include consideration of: - (i.) the fact that the sole purpose of the Applicants' proposed re-subdivision of the development site is to create five lots (two at the street frontage which are each developed by an existing dwelling-house and the three rear lots) to facilitate the contemplated result of each lot being developed by a separate dwelling-house; and (ii.) the environmental impact of the future dwelling-house development of each of the three rear lots.

In respect of these additional considerations, I note that Issue 4 of the Council's Statement of Issues is as follows: Whether the proposed subdivision which envisages the erection of dwelling-houses on lots 2, 3 and 4 is appropriate given the Minister's decision to refuse to make draft Willoughby Local Environmental Plan 1995 Amendment No 3.

As I have earlier noted, Mr Ingham's Report (Exhibit Q) extensively reviews and critically analyses the foreshore building line. Accordingly, it is appropriate that I now consider the history of the foreshore building line, particularly as it affects properties (such as the development site) in the vicinity of Sugarloaf Bay.

The foreshore building line that affects the development site first came into existence in 1986.

During 1993/4 the Council commenced preparation of a consolidated environmental planning instrument (which ultimately came into force on 17 November 1995 as the LEP). The draft consolidating instrument perpetuated the existing foreshore building lines, and on that account, attracted some community response. However, Council, while acknowledging some anomalies and inconsistencies, decided to generally maintain in the consolidated instrument the existing foreshore building lines. In 1995 the Council established a Foreshore Building Line Review Committee (comprising councillors and local residents) and in the same year the Council commissioned planning consultant, ERM Mitchell McCotter, to review all existing foreshore building lines.

The consultants organised community workshops and inspected foreshore properties affected by the foreshore building lines. In February 1996, the Council received the final report of its consultants and resolved to prepare Amendment No 3 to the LEP based upon the consultants' report.

However, implementation of the Council's resolution was stayed during 1996 pending the outcome of litigation in this Court, and on appeal to the Court of Appeal, brought by a number of owners, including the Applicants, of foreshore properties affected by the foreshore building lines at Sugarloaf Bay.

In this Court, the litigation was successful when Bannon J declared invalid the two foreshore building lines affecting properties in the vicinity of Sugarloaf Bay: see Bowen v Minister for Urban Affairs (1996) 90 LGERA 368.

However, on appeal, the decision of Bannon J was reversed and the application for declaratory relief that the foreshore building lines were invalid was dismissed, in the unanimous decision of the Court of Appeal: see Willoughby City Council v Bowen (1996) 92 LGERA 410 delivered on 15 November 1996.

Following the completion of that litigation, the Council exhibited the draft LEP Amendment No 3 which adopted the consultants' recommendations and invited public comment on the proposal to relocate the foreshore building lines penetrating private property no more extensively than for a depth of not more than 100 metres.

During 1998, the Council considered submissions made in respect of the draft LEP Amendment No 3, conducted workshops, inspected properties as requested by affected property owners, re-exhibited a revised version of the draft LEP Amendment No 3 before finally concluding the matter at its meeting held on 9 November 1998 at which meeting 21 members of the public addressed the Council, before it resolved to adopt the recommendations of Council officers except the recommendations made in respect of properties Nos 58 - 108 Sugarloaf Crescent (in respect of which matters the Councillors exercised their own judgment to relocate the foreshore building line).

Annexed hereto and marked "D" is a plan prepared by Mr Ellis depicting the foreshore building line as it affects properties fronting Sugarloaf Crescent. The plan shows in addition to the foreshore building line created by cl 16(2) of the LEP the following three suggested variations of that line that had been either recommended to, or made by, the Council during the lengthy course of Council's consideration of draft LEP Amendment No 3 - (i.) as recommended by Council officers in 1997; (ii.) as recommended by Council officers in 1998; and (iii.) as adopted by the Council in 1998.

I interpose the observation that the proposed dwelling footprints located on each of the three rear lots proposed are situate wholly beyond (ie on the foreshore side) the two variations that had been recommended by the Council Officers, but are probably just accommodated by the variation adopted by the Council.

On 18 December 1998, the Council submitted the draft LEP Amendment No 3 to the Department of Urban Affairs and Planning pursuant to the EP&A Act, s 68.

On 4 August 1999, the Minister wrote to the Council in the following terms; I refer to the draft Local Environmental Plan (LEP) in respect of the Foreshore Building Line in Willoughby LGA, submitted to the Department of Urban Affairs and Planning under section 68(4) of the Environmental Planning and Assessment Act, 1979. As Council is aware, the issue of the Foreshore Building Line (FBL) is of great importance as a planning tool for achieving a consistent approach to development around the Willoughby foreshore area and a means to protecting the visual amenity of the Harbour. Although the proposed FBL is appropriate along most properties in Willoughby, I am concerned about the resultant impact of development that would possibly occur if Council's final recommendation on certain parts of Willoughby's foreshore were implemented. Such an impact would seriously affect the aims and objectives of State Environmental Planning Policy (SEPP) No. 56 and Sydney Regional Environmental Plan (SREP) No. 23. Further, the changes as recommended by Council, are a significant departure from the report prepared by Council's staff but without justification. If implemented it could have major detrimental effects in the long term on the environmental and visual catchment of the Harbour. Therefore I have decided not to proceed with the draft LEP in accordance with section 70(1)(c) of the Act. Given the above, I request Council to reconsider its decision on the placement of Council's proposed line on Willoughby Foreshore, particularly for some properties along Einburgh Road and Sugarloaf Crescent. Under the circumstances, the line suggested by Council staff in their report to Council of October 1998, could provide a reasonable compromise.

In a subsequent letter, the Minister made available to the Council the Director-General's Report on the draft LEP Amendment No 3 pursuant to the EP&A Act, s 69 which was in the following terms: Background In the past, Willoughby Council established a number of foreshore building lines around the foreshores of Willoughby LGA as a means of development control. The general intent of the FBL is to preserve the natural features and vegetation of waterfront land and encourage the protection and regeneration of the land by controlling new development between that line and the water's edge (refer to folio 197-198). Current Situation The draft plan has now been submitted by Council under section 68 of the Act. The Department considers the foreshore building line as an important planning tool for achieving a consistent approach to development around the Willoughby foreshore area and a means of protecting the visual amenity of the Harbour, of regional significance. The proposed FBL as submitted by Council is appropriate along most properties in Willoughby, however there is concern about the resultant impact of development that would possibly occur if council's final recommendation on certain parts of Willoughby's foreshore proceeds. The Director-General has expressed concerns over the impact of the FBL as submitted by Council particularly for some properties located in Edinburgh Rd and in Sugarloaf Crescent (see folio 173-174) as this could have the potential to seriously undermine the aims and objectives of State Environmental Planning Policy (SEPP) No. 56 and Sydney Regional Environmental Plan (SREP) No. 23. Further, the changes recommended by the Council, are a significant departure from the report prepared by Council's staff but without justification. If implemented it could have major detrimental effects in the long term on the environmental and visual catchment of the Harbour. Under section 70(1)(c), the Minister may decide not to proceed with the a draft local environment plan due to issues of State or regional importance. The three most important regionally significantly issues which allows the Minister to not make the plan are as follows: · The future negative impacts from development and the potential for damage to water quality in the area and the total catchment. · Importance of retaining the bushland to preserve the natural ecosystems and visual amenity of Middle Harbour which are of regional significance. · The precedence that this LEP will have for other councils in the area to follow by permitting land owners to develop their land closer to the foreshore. Therefore Council should be advised to reconsider the position of the FBL in certain areas of Willoughby foreshore and that the suggested FBL by Council staff in their report to Council of October 1998, could provide a reasonable compromise under the circumstances. Recommendation It is RECOMMENDED that the Minister: a) under section 70(1)(c) of the Environmental Planning and Assessment Act 1979, decide not to proceed with the draft Local Environmental Plan tagged A; b) give no direction to the Council under section 70(7) of the Act as to the procedure to be followed in connection with making his decision known to the public; c) authorise the advice tagged E to be forwarded to Council in accordance with section 70(7) of the Act.

Following a delegation by the Council to the Minister on 8 May 2000, the Council resolved as follows: THAT: 1. The General Manager write to DUAP requesting confirmation of the Council's proposed course of action in respect of the Foreshore Building Line LEP, being a) Council is to resolve to prepare a new draft LEP; b) A new Local Environmental study is not required; c) The Council is to review the location of the FBL on specific locations having regard to the Minister's position on the State Government's policy for protecting foreshore areas - the specific locations are to include: i) properties generally between Nos. 64 to 108 Sugarloaf Crescent, Castlecrag; and ii) properties in Edinburgh Road, Castlecrag between the Citadel and Linden Way (where the draft line had extended further into the open space areas) a) the draft LEP may, except for the locations to be reviewed, incorporate the line as previously shown on draft LEP (Amendment No. 3); b) the draft LEP will follow the normal statutory procedure set down in the Act. 2. Upon receipt of advice from DUAP, in respect to 1. above, a Councillor's Workshop be convened to consider the draft LEP.

By letter dated 30 May 2000, the Council sought the Director-General's confirmation of the course of action proposed by the Council in respect of foreshore building lines and by letter dated 6 June 2000, the Department informed the Council that it was in agreement with the Council's proposed course of action in relation to the foreshore building line.

There was no evidence adduced concerning what, if any, progress has been made in relation to the Council's proposed action in respect of the contemplated new draft LEP except for subsequent correspondence (dated between July and September 2000) passing between the Applicants and the Council and the Department of Urban Affairs and Planning and the Minister, which correspondence indicates that the Applicants furnished the Council with written information providing justification for the relaxation of the foreshore building line, which the Council thereafter submitted to the Department and to the Minister for consideration as to whether it supported a review of the Department's and the Minister's earlier decisions not to support, or to proceed with, the draft LEP Amendment No 3.

The final outcome of this exchange of correspondence appears, at least at this stage to have been inconclusive. In this respect it is possible that history is repeating itself insofar as just as the Council had stayed action on the review of the foreshore building lines during 1996 awaiting the outcome of the litigation brought by the Applicants and other property owners challenging the validity of the foreshore building lines created by cl 16(2) of the LEP, so again, now that the Applicants are pursuing their current development appeal, the Council has stayed action implementing the proposed draft LEP Amendment in respect of the foreshore building lines that it resolved upon in May 2000.

It should be noted that in 1978 the Applicants acquired two of the five lots comprising the development site and in 1993 they acquired the other three lots. Their 1978 acquisition was for the purpose of residing in the dwelling erected on those two lots (No 70 Sugarloaf Crescent) where they have since continuously so resided except for a short time in 1993 when they lived in the house erected on the other three lots (No 72 Sugarloaf Crescent).

Their 1993 acquisition was for the purpose of providing a reasonable investment opportunity, because of its residential zoning and because it was already subdivided into three lots each having a 6 m street frontage to Sugarloaf Crescent.

Having regard to all of the foregoing evidence, has the Applicants' objection pursuant to SEPP No 1 been shown to be well founded? In answering this question I must assume, contrary to what I have already held, that each of the three rear lots is legally capable of being granted development consent for the erection of a dwelling-house on each lot by virtue of the application of the dispensing power conferred by SEPP No 1, because unless such an assumption be made, my determination that such development is absolutely prohibited by cl 16(3) of the LEP, would necessarily require, of its own force, the conclusion that the objection supporting the Applicants' re-subdivision application must fail, as indeed must the development appeal itself.

In my judgment, the Applicants' objection pursuant to SEP No 1 is not well founded. I reach to this conclusion for the following reasons: (i) The proposed development is repugnant to the stated objectives of the foreshore building line (vide cl 16(1)) inasmuch as the carrying out of the development (including the future dwelling-house development on each of the three rear lots) will not "preserve and enhance the natural features and vegetation of the areas where the land is in close proximity to the water" (cl 16(1)(a)) and will not "encourage the protection and re-generation of land which forms an integral part of the foreshore setting by controlling new development" (cl 16(1)(b)). Significantly those objectives are entirely confirmed and reinforced by the other planning controls applying to this area of Castlecrag in the vicinity of Sugarloaf Bay, the operative effect of which has been earlier recited. (ii) The portion of the development site that is affected by the foreshore building line is relevantly (i) "land in close proximity to the water" and (ii) "an integral part of the foreshore setting" within the meaning of cl 16(1)(a) and (b) respectively, and I would so find on the evidence, just as each of the members of the Court of Appeal so found in Willoughby City Council v Bowen (1996) 92 LGERA 410 at 413 per Meagher JA, at 417 per Sheller JA and at 417 per Abadee AJA. (iii) The Applicants' attack on the unfairness or unreasonableness or disproportionality of the effect on their land of the foreshore building line is misconceived in law, and in any event, the same grievance was decisively rejected by the Court of Appeal in Bowen - see at 413/414 per Meagher JA at 417 per Sheller JA and 418 per Abadee AJA; (iv) The Applicants' attack on the Council's lack of action in amending the LEP by relaxing the severe restrictions on development that are imposed by the foreshore building line, is contrary to the evidence, which amply demonstrates that the Council did so specifically seek to amend the LEP but that both the Department of Urban Affairs and Planning and the Minister had refused to adopt the Council's draft LEP Amendment. (v) Similarly, the Applicants' claim that the Council, by maintaining the foreshore building line as it affects the development site, was thereby deliberately "sterilising the residential development potential of the development site" or was creating a "de facto reservation for public open space" of the Applicants' land so affected by the foreshore building line, is totally unsupported by the evidence, and in any event, a similar claim was decisively rejected by the Court of Appeal in Bowen see at 414 per Meagher JA at 417, per Sheller JA and at 417 per Abadee AJA. (vi) The existence of the buildings on neighbouring properties (the dwelling-house at No 66 Sugarloaf Crescent and the tennis court at No 80 Sugarloaf Crescent) wholly located on the foreshore side of the foreshore building line does not provide any justification for the proposal's total breach of the foreshore building line because those buildings had come into existence many years before the foreshore building line first came into force in 1986. (vii) The extent of encroachment by the proposed development upon the foreshore side of the foreshore building line is both substantial and significant - the internal access road extends up to 20 metres into the foreshore land and the three indicative dwelling sites likewise extend up to between 35 to 50 metres - and in truth, the proposal involved the wholesale abandonment of the existing foreshore building line as it affected the development site and its replacement by a de facto line up to 50 m distant from, and below, the existing line. (viii) The sheer magnitude of the proposal's deviation from the foreshore building line (involving much more than an encroachment on that line) was such that recourse to the dispensing power conferred by SEPP No 1 must be regarded as a far less appropriate means of avoiding the legal consequences of the foreshore building line, than the means of changing the foreshore building line by way of an amending LEP, which was the very means so recently employed by the Council to secure such change, albeit without success when rejected by the Minister, as lacking sufficient justification. (ix) A related disadvantage of seeking to change the foreshore building line by exercising the dispensing power conferred by SEPP No 1 (compared with change via an amendment to the LEP) is that the ad hoc wholesale deviation from the foreshore building line in the present case would inevitably create an adverse planning precedent for similar action being taken in respect of other lots in Sugarloaf Crescent similarly affected by the foreshore building line (there being a number of other nearby properties comprising two or more lots which are straddled by an existing dwelling-house which are capable of re-subdivision in similar fashion to the Applicants' proposal).

It will be noted that many of the aforesaid reasons reflect and apply the decision and reasoning of the Court of Appeal in Bowen rejecting the attack on the validity of the foreshore building lines affecting lands located in the vicinity of Sugarloaf Bay. To the extent that Mr Ingham's arguments were intended to re-agitate the matters that had been decided by the Court of Appeal, they were of course doomed to failure. In fairness to the arguments, I have taken them as seeking to raise questions of fairness and reasonableness not in a legal sense, but as a matter of environmental planning practice and discretion. In rejecting the arguments floated on this basis, I have been entirely unpersuaded by them. To the extent that they have any planning merit, I am of the firm opinion that they are matters that should be considered in the process of reviewing the foreshore building line in its entirely and not only insofar as it affects the development site. This is only to emphasise that the ad hoc approach necessarily inherent in the application of SEPP No 1 is singularly inappropriate when the real planning issue concerns the integrity of the whole of a planning policy that affects many more properties than one development site, such as is the case here with the foreshore building lines affecting properties in the vicinity of Sugarloaf Bay and reflecting planning policies significantly reinforced by the many other applicable planning controls. It has long been established by decisions of this Court that the dispensing power conferred by SEPP No 1 is not to be used as a substitute for the planning processes available under the EP&A Act, Part 3 (to make or to amend an environmental planning instrument) in order to achieve changes to existing planning provisions generally applying to lands governed by the planning instrument.

For all of the foregoing reasons, I find that the Applicants' objection pursuant to SEPP No 1 is not well founded with the consequence that there is no available power to grant development consent to the Applicants' proposed development. G. THE PLANING MERITS OF THE PROPOSAL

My earlier stated conclusions - (i) that the development by the erection of a dwelling-house on each of the three rear lots is absolutely prohibited by cl 16(3) of the LEP and (ii) that the Applicants' objection pursuant to SEPP No 1 in support of its development application to re-subdivide the existing five lots comprising the development site is not well founded - means that any adjudication upon the planning merits of the proposal would be stricken, if not distorted by the sheer artificiality of having to assume, contrary to those findings, that dwelling-house development of each of the three rear lots was legally permissible and that the objection pursuant to SEPP No 1 was well founded (thereby enlivening the power conferred by cl 7 of SEP No 1 to grant development consent "notwithstanding the development standards").

The required assumptions in effect would create the totally unreal scenario of evaluating the planning merits of the Applicants' development proposal as if the development site were not affected by the foreshore building line, and indeed, that none of the neighbouring properties in Sugarloaf Crescent was affected by the foreshore building line.

Notwithstanding my earlier expressed resolve to provide the Applicants with the benefit of my planning evaluation of their proposed development on the merits, upon reflection, I do not think, in the light of my earlier decisions on the effect of cl 16(3) and the Applicants' objection pursuant to SEPP No 1, that a planning appraisal on the aforesaid assumptions would be in any way meaningful or helpful to the Applicants or to the Council.

However, what I think I can fairly and safely say is that my appraisal of the planning merits of the proposed development (including the proposed future development of each of the three rear lots by a dwelling-house) on the assumption that although the foreshore building line exists, it does not have an absolutely prohibitory effect on the proposed development, would lead me to conclude that development consent should not be granted in the exercise of planning discretion. This conclusion essentially derives from my evaluation of the mass of expert evidence (which was both comprehensive and helpful in appreciating the environmental impacts of the proposed development, both on the development site itself and externally thereto) that the proposed development would involve significant and substantial changes to the development site which overall would be unacceptably adverse to the prevailing environmentally significant vegetative character of the foreshore precincts to Sugarloaf Bay, where those adverse impacts would be experienced environmentally (but chiefly visually) both on and off the development site and thereby seriously detract from the prevailing scenic beauty and character of the foreshore precincts to Sugarloaf Bay. That character is essentially created by housing development on the sloping foreshore lands being confined to the ridgetops with the slopes being preserved in their highly vegetated and scenic state.

These adverse impacts relate to those significant features of the overall development which are located on the foreshore side of the foreshore building line, ie the snaking internal access road requiring a considerable engineering feat, and the development by a dwelling-house on each of the three rear lots, together with the necessary vegetation clearance including the additional clearing requirement to provide a bushfire safety environment for those dwellings. In addition to those adverse impacts arising from the proposed development per se, there is the adverse precedental effect of that development inviting further breaches of the integrity of the foreshore building line. The cumulative adverse impacts are plainly unacceptable.

The same sources of these adverse impacts would also create adverse impacts for the residential amenity of neighbouring properties (ie the residences at Nos 64, 66 and 80 Sugarloaf Crescent) by virtue of the physical intrusion of the new development together with the regular vehicular use of the steeply sloping and curved internal access road etc. These adverse impacts are of a different type and rank from the earlier mentioned adverse impacts (visual and precedental) which extend well beyond the development site and its immediate neighbouring properties.

A differently sourced adverse environmental impact is encountered with those features of the proposed development affecting the two existing dwellings on the development site located very close to the Sugarloaf Crescent frontage.

The presence at the street frontage of the commencement of the rapidly elevating internal access road structure together with the elevated parking platforms to be located adjacent to the existing dwellings, and the course of the elevated access road as it passes between the two existing dwellings in close proximity thereto, is undoubtedly an unattractive and dominating physical element which would be readily appreciated from Sugarloaf Crescent and from the neighbouring properties, especially the residence at No 64.

Whereas these disagreeable physical manifestations of the proposed development at the streetscape are undoubtedly the result of the combination of (i) the narrow street frontage of the development site and (ii) the retention of the existing two dwellings on the development site, their unaesthetic impact is hardly acceptable in terms of streetscape and amenity considerations.

All in all, I am left in no doubt that the development proposal is an unacceptable form of residential development of the development site, which obviously is severely afflicted with many development constraints, both physical (shape, size and slope of the development site, its aesthetic and ecological values and its bushfire risk) and planning control wise (especially by virtue of the foreshore building line).

The foregoing findings represent my planning evaluation of the proposed development, which the Applicants have conscientiously promoted assisted by a considerable body of expert evidence covering all of the many faceted aspects raised by the proposal in its physical and planning contexts. Notwithstanding the Applicants' earnest efforts to present a development proposal seeking to justify a dwelling-house development on each of the re-configured five lots, I do not think, with respect, that their development proposal is ultimately acceptable on my evaluation of its planning merits.

Whether the Applicants are able to re-deploy the massive amount of expert material that they advanced in support of their development (eg in their continuing cause to seek the Council's and the Department's and the Minister's re-consideration of their respective decisions so recently made in respect of the existing foreshore building lines), is not for me to say. But what I can say, is that the pursuit of the cause of amendment of the LEP to change the foreshore building line involves, in my judgment, a quite different process and quite different considerations from those involved in the determination of the Applicants' development appeal. However, on the evidence adduced in this case, it at least seems clear to me that that avenue remains truly available where each of the planning authorities (the Council, the Department and the Minister) has intimated a preparedness to continue that process of review, which process appears to have been temporarily suspended pending the outcome of this litigation. There is nothing in the outcome of this litigation that precludes resumption of any action by the planning authorities, if they so decide on that review H. CONCLUSIONS AND ORDERS

For all the foregoing reasons, I make the following orders: 1. Appeal dismissed. 2. Development consent refused. 3. Exhibits be returned. 4. No order as to costs.

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.