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[2025] NSWLEC 41
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-08
Preston CJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41
Hearing dates: 1 May 2025
Date of orders: 8 May 2025
Decision date: 08 May 2025
Jurisdiction: Class 1
Before: Preston CJ
Decision: The Court orders:
(1) The appeal is upheld.
(2) The decision and order of Commissioner Espinosa of 20 November 2024 are set aside.
(3) The matter is remitted to be redetermined according to law.
(4) The respondent is to pay the appellant’s costs of this appeal.
Catchwords: APPEAL – appeal against Commissioner’s decision – residential subdivision – plan of subdivision marks a lot as “public reserve” – development consent not granted to dedication of lot as public reserve – later dedication on registration of plan – no error on question of law in granting consent to subdivision – two minimum lot size development standards – one for community title subdivision – another for dual occupancy subdivision – whether inconsistent – whether principle that specific provision prevails over general provision applies – misconstruction of provisions – floor space ratio development standard – application on facts – no error on question of law
Legislation Cited: Community Land Development Act 2021 (NSW)
Environmental Planning and Assessment Act 1979 (NSW), ss 1.5(1), 4.16(1), 4.19, 7.4, 7.11
Land and Environment Act 1979 (NSW), s 56A
Local Government Act 1993 (NSW), s 49
Roads Act 1993 (NSW), s 9(2)
Strata Schemes Development Act 2015 (NSW)
Canterbury-Bankstown Local Environmental Plan 2023, cls 4.1A, 4.1AA, 4.1, 4.4, 4.5
Cases Cited: Australian Gas Ltd Co v Valuer General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61
Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256
Fairfield City Council v N & S Oliveri Pty Ltd [2003] NSWCA 41
Fitch v Shoalhaven City Council (1987) 67 LGRA 165
Hamptons Property Services Pty Ltd v Canterbury Bankstown Council [2024] NSWLEC 1742
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147
Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225; [2003] NSWCA 313
L & G Management Pty Ltd v Council of the City of Sydney (2021) 252 LGERA 31; [2021] NSWLEC 149
Maitland City Council v Anambah Homes Pty Limited (2005) 64 NSWLR 695; [2005] NSWCA 455
Purcell v Electricity Commission of NSW (1985) 60 ALR 652; [1985] HCA 54
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330
Category: Principal judgment
Parties: Canterbury-Bankstown Council (Appellant)
Hamptons Property Services Pty Ltd (Respondent)
Representation: Counsel:
P Bambagiotti and T Poisel (Applicant)
P Tomasetti SC and H Grace (Respondent)
Solicitors:
Mark Francis Bonanno (Appellant)
Corrs Chambers Westgarth (Respondent)
File Number(s): 2024/468248
Publication restriction: NIL
Canterbury-Bankstown Council (the Council) appealed under s 56A(1) of the Land and Environment Act 1979 (NSW) (Court Act) against the decision and order of Commissioner Espinosa to grant development consent to a development application lodged by Hamptons Property Services Pty Ltd (Hamptons) to carry out different developments on land at 30 Trevenar Street, Ashbury: Hamptons Property Services Pty Ltd v Canterbury Bankstown Council [2024] NSWLEC 1742.
The different developments were proposed to be carried out in four stages. The first stage involved the developments of demolition of existing structures, clearing of trees, remediation works and construction of a private road and stormwater works. The second stage involved subdivision under the Community Land Development Act 2021 (NSW) (CLD Act) of the land into nine lots, being Lot 1 as community property containing the private road and stormwater works; Lots 2 to 8 as residential lots; and Lot 9 as a public reserve. The third stage involved the erection of a dwelling house on Lot 3, and six dual occupancies on Lots 2 and 4-8. The fourth stage involved subdivision under the CLD Act of the dual occupancies on Lots 2 and 4-8 to create one dwelling on each of the 12 lots. As a result of this subdivision, there would be 14 lots: the community property lot containing the private road and stormwater works (Lot 1); the lot marked with the words “public reserve” (Lot 9); the lot with the single dwelling house (Lot 3); and 12 lots resulting from the subdivision of the dual occupancies (on Lots 2 and 4-8) with one dwelling on each of the resulting lots.
“This is not merely a formality, it is jurisdictional. Identification of a decision on a question of law by the Commissioner is not merely a precondition to the right of appeal under s 56A of the Court Act, it identifies the subject matter of the appeal: Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [195]; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1; [2009] NSWCA 178 at [20]; Dial A Dump Industries Pty Ltd v Roads and Maritime Service (2017) 94 NSWLR 554; [2017] NSWCA 73 at [165]. It is the decision of the Commissioner, not the appeal against the decision, that must be on a question of law: Roads and Traffic Authority of NSW v Peak [2007] NSWCA 66 at [139] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [70]. The essential first task in an appeal under s 56A of the Court Act is to identify the express or implied decision on a question of law. Without the existence and identification of such a decision, the Court will have no jurisdiction to review the decision of the Commissioner: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [33], [35]. The Court’s jurisdiction on an appeal under s 56A of the Court Act is confined to addressing the grounds of appeal challenging the Commissioner’s decision on questions of law; it does not extend to addressing errors on questions of law not raised in the grounds of appeal.”
In response to my raising at the hearing of the appeal this problem of the grounds of appeal not clearly raising a question of law, the Council sought leave to amend grounds 1 and 4. Hamptons did not object and I granted leave to amend the summons as sought.
The four grounds concerned three topics:
(a) the power of the Court to compel the Council to accept the dedication of land as a public reserve (Ground 1); (b) the operation of two clauses of Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP), cl 4.1AA and cl 4.1A, fixing minimum lot size development standards for the subdivision of land (Grounds 2 and 3); and (c) the operation of two clauses of CBLEP, cl 4.4 and cl 4.5, fixing development standards for floor space ratio (Ground 4).
Ground 1 concerned the Commissioner’s findings in [22]-[34] of the judgment, under the heading “Proposed dedication of land to Council: lot 9 panhandle.” The Council contended that the Commissioner erred in finding that the Court had power to compel the Council to accept the dedication of Lot 9 as a public reserve.
As I have noted, one of the developments for which development consent was sought in the development application was the subdivision under the CLD Act of the land into nine lots. The plan of subdivision for which development consent was sought, marked one of the lots, Lot 9, as “public reserve.” The plan of subdivision contained the notation: “It is intended to dedicate Lot 9 to the public as public reserve in accordance with s 49 of the Local Government Act 1993."
The development application did not seek development consent for the dedication of Lot 9 as a public reserve or to vest Lot 9 in the Council for an estate in fee simple. Rather, development consent was sought for the subdivision of the land into nine lots, one of which was identified on the plan of subdivision as being intended to be dedicated as a public reserve by operation of s 49 of the Local Government Act 1993 (NSW). The grant of development consent would not itself require the dedication as a public reserve or the vesting in the Council for an estate in fee simple of Lot 9. That could only occur after subdivision is carried out in accordance with the development consent and upon registration by the Registrar General of the approved plan of subdivision, by operation of s 49 of the Local Government Act. Section 49(1) and (2) provide:
“(1) On the registration by the Registrar-General of a plan on which land is marked with the words ‘public reserve’, or of a transfer or conveyance to a council of land identified in the transfer or conveyance as being for use as a public reserve, the land is dedicated as a public reserve and vests in the council for an estate in fee simple.
(2) If the land so dedicated is under the Real Property Act 1900, the Registrar-General, on registration of the plan or transfer, must create a folio of the Register under that Act for the estate of the council in the land and record in the folio, by reference to this section or otherwise, that the land is dedicated as a public reserve.”
“The Respondent has given no compelling or credible reason for not accepting the dedication of Lot 9 and I agree with the Respondent that it would not be in the public interest for Lot 9 to be retained in the private ownership of the Applicant. I agree with the Applicant that it is practical and logical that that strip be added to the park.”
“1 The Court Below erred in its finding at J[22-34] and at J[138(2)] to the extent of granting development consent to the Plan of Subdivision of lot 1 DP 566982 (lot 9) to the extent of ‘the dedication of land to the Council for public open space’, with respect to the question whether the Court has the jurisdiction, under Local Government Act 1993 sec 49 or otherwise to compel the Council to accept the dedication with the filing of the relevant plans.
The evident flaw in this ground is that the Commissioner neither made a finding that the Court has the power under s 49 of the Local Government Act to compel the Council to accept the dedication of Lot 9 nor sought to exercise any power, under s 49 or otherwise, to compel the Council to accept the dedication of Lot 9. The Commissioner recognised that it is not the grant of development consent to the plan of subdivision but rather the operation of s 49 of the Local Government Act on the registration of the approved plan of subdivision on which land is marked with the words “public reserve”, which effects the dedication of the land and vesting in the Council for an estate in fee simple (see [29]).
In these circumstances, the Commissioner did not make a decision on the question of law raised by ground 1. The Council’s argument that the Commissioner did not have power under s 49 of the Local Government Act to compel the Council to accept the dedication of Lot 9 as a public reserve is not to the point. The Commissioner never sought to exercise the power under s 49 of the Local Government Act.
Likewise, the Council’s argument that the exclusive power of a consent authority to impose a condition of consent requiring the dedication of land free of cost is s 7.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) is not to the point. The Council relied for this proposition on Fitch v Shoalhaven City Council (1987) 67 LGRA 165; Fairfield City Council v N & S Oliveri Pty Ltd [2003] NSWCA 41; Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225; [2003] NSWCA 313; and Maitland City Council v Anambah Homes Pty L**imited (2005) 64 NSWLR 695; [2005] NSWCA 455.
The Commissioner did not grant development consent to the subdivision on a condition that Hamptons dedicate Lot 9 to the Council free of cost. The Commissioner did not, therefore, seek to circumvent the exclusive power in s 7.11 of the EPA Act to impose a condition requiring the dedication of land free of cost. The Commissioner simply exercised the power under s 4.16(1) of the EPA Act to grant development consent to the development application for the subdivision of the land in accordance with the plan of subdivision that marked Lot 9 as “public reserve”.
On this fact being pointed out at the hearing of the appeal, the Council submitted that the Commissioner could not exercise the power under s 4.16(1) of the EPA Act to grant development consent to a plan of subdivision on which one of the lots is marked with the words “public reserve” unless the Council consented to the dedication and vesting of that lot that would occur upon registration of the plan of subdivision, under s 49 of the Local Government Act. That is to say, the Council submitted that the power in s 4.16(1) of the EPA Act is qualified: development consent cannot be granted to the subdivision of land in accordance with a plan of subdivision that marks one of the lots with the words “public reserve” because that would enable, on the registration of the plan, the dedication and vesting in the Council of that lot under s 49 of the Local Government Act. The Council cited (2021) 252 LGERA 31; [2021] NSWLEC 149 at [40] and [41] as authority for this submission.
“(1) General A consent authority is to determine a development application by—
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.”
This power is to determine the development application that has been made. A person may make a development application seeking consent to carry out development: s 4.12(1). Development is any of the acts, matters or things referred to in paragraphs (a) to (f) in the definition of “development” in s 1.5(1) of the EPA Act. A development application can be made in respect of one or more of the types of development referred to in paragraphs (a) to (f) of the definition of development in s 1.5(1).
There is, therefore, an integral relationship between the development application and the development consent. As I observed in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [296] and [297]:
“[296] A development application seeks consent to carry out the particular development described in the application. A development application is determined by the granting or refusing of consent to that application. A development consent is therefore the determination of a development application by the grant of consent to the development for which consent was sought in that development application. A purported exercise of the power to grant development consent will not be valid unless it constitutes ‘the granting of consent to that application’ (the words of the former s 91(1)(a)) or ‘granting consent to the application’ (the words of the current s 4.16(1)(a)): see Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [13] and Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737. As Basten JA framed the proposition, ‘that to which the consent is given must accord with that for which application had been made’: GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at [44].
[297] The High Court held in Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 at [14]:
‘A development consent thus hinged about the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought.’”
A development application cannot, however, seek consent to do any act, matter or thing that is not development as defined in s 1.5(1) of the EPA Act and development consent cannot be granted under s 4.16(1) of the EPA Act to do any act, matter or thing that is not development.
This explains the observation in L & G Management Pty Ltd v Council of the City of Sydney at [41] that “a consent cannot be granted to development proposed if there is no power to permit the consent to be granted…. The grant of the approval can only be made if the development it contains is development capable of being approved.” In that case, the applicant sought consent for the construction of multi-storey buildings for commercial and retail uses and proposed the dedication of a parcel of land to obtain a bonus floor space ratio. The dedication of land free of cost proposed in the development application was not development as defined in s 1.5(1) of the EPA Act. Development consent could not therefore be granted to authorise the doing of that act. The only means by which the dedication of land free of cost could be effected was by the grant of development consent to the development of the construction of the multi-storey buildings subject to a condition under s 7.11 of the EPA Act or by a voluntary planning agreement under s 7.4 of the EPA Act requiring the dedication of land free of cost. Such a development consent would be within power as it would approve the carrying out of development as defined but on the condition requiring the dedication of land free of cost. It would not approve the dedication of land free of cost as such, as that act is not development capable of being approved.
Development consent can, however, be granted to the subdivision of land in accordance with a plan of subdivision that identifies a resulting lot as being intended to be dedicated for a public purpose, such as a public reserve or a public road. The grant of development consent for such a subdivision does not itself authorise or require the dedication of the lot for the specified public purpose. That dedication can only occur by the operation of some other statutory provision. For a public reserve, s 49(1) of the Local Government Act operates to dedicate the land as a public reserve on registration of the plan of subdivision. For a public road, s 9(2) of the Roads Act 1993 (NSW) operates to dedicate the land as a public road on registration of the plan of subdivision.
This mechanism for subsequent dedication does not offend against the scheme of the EPA Act. Development consent is granted to development as defined in s 1.5(1) of the EPA Act. The statement on the plan of subdivision of an intention to dedicate specified land for a public purpose, such as a public reserve or public road, does not cause the subdivision of land not to be development as defined. To be clear, the statement of intention to dedicate specified land is not an application for development consent to dedicate the specified land. It is, no more and no less, a statement of intention. The act of dedication of the specified land must await the subsequent operation of other statutory provisions that effect the dedication of the specified land on registration of the approved plan of subdivision.
Grounds 2 and 3 concerned the applicable minimum lot size for the second subdivision. As I have noted, the development application sought development consent for two subdivisions, both under the CLD Act.
The first subdivision was of the land into nine lots. This was proposed to occur after the first stage of development had been carried out, namely the demolition of existing structures, tree removal, remediation works and construction of the private road and stormwater works.
The applicable minimum lot size for the first subdivision was fixed by cl 4.1AA of CBLEP. That clause applies to a subdivision of land under the CLD Act in Zone R2 Low Density Residential, the relevant zone in this case: cl 4.1AA(2). Clause 4.1AA applies to a subdivision of land under the CLD Act despite cl 4.1 of CBLEP: cl 4.1AA(4) and see cl 4.1(4)(b) of CBLEP. Clause 4.1AA(3) fixes the minimum subdivision lot size for a subdivision of land under the CLD Act:
“The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 2021) is not to be less than the minimum size shown on the Lot Size Map in relation to that land.”
The Lot Size Map in relation to the land in this case shows a minimum lot size of 460m2. The size of all of the nine resulting lots of the first subdivision exceeded 460m2: Lot 1 being 1390.8m2, Lots 2 to 8 each having an area greater than 600m2, and Lot 9 being 831.5m2.
The second subdivision was of the six lots on which dual occupancies had been erected as part of the third stage of development. These were Lots 2 and 4-8. The second subdivision was also under the CLD Act. Hence, cl 4.1AA applied to the subdivision: cl 4.1AA(2). As noted, the size of any resulting lot of a subdivision to which cl 4.1AA applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land: cl 4.1AA(3). This is 460m2.
The second subdivision also involved the subdivision of the dual occupancies that would have been erected pursuant to the development consent granted for the single dwelling house on Lot 3 and the six dual occupancies on Lots 2 and 4-8. As the second subdivision involved the subdivision of these dual occupancies, cl 4.1A of CBLEP also applied. Clause 4.1A(5) provides:
“(5) Development consent must not be granted to the subdivision of a dual occupancy on a lot on land identified as ‘Area 2’ on the Clause Application Map unless—
(a) each resulting lot will be at least 300m2, and
(b) there will be 1 dwelling on each lot created.”
The minimum lot size of 300m2 fixed by cl 4.1A(5) is less than the minimum lot size of 460m2 fixed by cl 4.1AA(3). The second subdivision of the six lots on which dual occupancies would be erected would result in lots of 300m2, which would satisfy cl 4.1A(5) but not cl 4.1AA(3).
This gave rise to the issue decided by the Commissioner. Hamptons argued, and the Commissioner accepted, that cl 4.1A(5) was a specific clause regulating the subdivision of a dual occupancy that overrides the general clause of cl 4.1AA(2) regulating the subdivision of land under the CLD Act. The consequence was that the second subdivision only needed to comply with cl 4.1A(5) and not cl 4.1AA(3) of CBLEP, which it did.
The Council contended that the Commissioner erred on a question of law in so finding. Grounds 2 and 3 state:
“2 By reference to
a. the 4 steps involved with the proposed development, per J[2], and
b. where steps 2 and 4 involved a development in the nature of a community title development, per the Community Land Development Act 2021 (CLDA), and where
c. the development at stage 4 involved the subdivision of dwellings for the creation of dual occupancies, and
d. the Canterbury Bankstown Council Local Environmental Plan 2023 (CLEP) Part 4 Principal Development Standards relating to minimum lot sizes at cl 4.1AA and at cl 4.1A(5):
the Court Below erred in its related findings at J[45], [52], [59], [62], [63, [67] & [68]] with respect to the question: whether the community title development that included proposals for dual occupancies, required such a development to satisfy both the standards for minimum lot sizes in CLEP cl 4.1AA and cl 4.1A(5) rather than cl 4.1A(5) alone?
3 And in the alternative to ground 2, whether the Court erred in
a. its construction of CLEP cl 4.1AA and cl 4.1A(5) at [59-63]? and
b. its finding at J[61 and 62] that those clauses were inconsistent and incapable of being reconciled as a matter of ordinary interpretation for the purposes of the maxim of statutory construction*:* generalia specialibus non derogant leading to the conclusion that CLEP cl 4.1A(5) overrides cl 4.1AA?”
These grounds raise as questions of law the construction of cl 4.1AA(3) and cl 4.1A(5), and the operation and interaction of those subclauses. Ground 2 contended that, on a proper construction of the subclauses, the second subdivision needed to comply with the development standards in both subclauses. Ground 3 challenged the Commissioner’s construction of the subclauses applying the maxim generalia specialibus non derogant.
In the paragraphs referenced in grounds 2 and 3, the Commissioner found that the resolution of the apparently conflicting minimum lot size development standards for the subdivision under the CLD Act of a dual occupancy in cl 4.1AA(3) and cl 4.1A(5) is to be resolved by “the application of the maxim that the specific overrides the general when there are clauses that are unable to be reconciled within the one instrument”: [59]. The Commissioner noted, citing Purcell v Electricity Commission of New South Wales (1985) 85 ALR 652 at 657; [1985] HCA 54, that this maxim “applies only where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation”: [61]. The Commissioner found this was the case here:
“I find that subcl 4.1A(5) is a specific clause applying only to the subdivision of a dual occupancy that cannot be reconciled with the earlier cl 4.1AA regarding community title schemes and therefore conclude that the later clause overrides the earlier clause, to read it otherwise would result in importing into cl 4.1A(5) a limitation that it could never to be applied to a subdivision of a dual occupancy within a community title scheme without those words being present at all within cl 4.1A of the CBLEP.”: at [62].
“the second subdivision is a subdivision of a constructed dual occupancy within an [sic] community title scheme, already assessed and determined, and that dual occupancy subdivision is assessed pursuant to the specific provision of cl 4.1A(5) of the CBLEP.”: at [63].
The Council submitted that the Commissioner misconstrued the subclauses in so finding. In order for development consent to be granted to the second subdivision, it needed to comply with both of the development standards in cl 4.1AA(3) and cl 4.1A(5). Compliance with the development standard in cl 4.1A(5) for the subdivision of a dual occupancy does not excuse compliance with the development standard in cl 4.1AA(3) for the subdivision of land under the CLD Act. There is no inconsistency between the two development standards. They both set a minimum lot size, so that it is possible for a subdivision to comply with both by meeting the greater of the minimum lot sizes. As there is no conflict between the two development standards, the maxim of the specific provision overriding the general provision does not apply.
Hamptons submitted that the Commissioner was correct to apply the maxim as cl 4.1A(5) specifically deals with subdivision of a dual occupancy, which is the second subdivision proposed, instead of cl 4.1AA(5) which deals generally with the subdivision of land under the CLD Act.
I find the Commissioner has misconstrued cl 4.1AA(3) and cl 4.1A(5) of CBLEP and erroneously applied the principle of statutory interpretation that the specific provision prevails over the general provision. The second subdivision was required to comply with both subclauses.
The principle that provisions of a general nature should give way to specific provisions in the same statutory instrument dealing with the same subject matter applies only where there is conflict between the general and specific provisions. The starting point for the application of the principle to cl 4.1AA and cl 4.14, therefore, is to determine whether there is a conflict between these two provisions. This requires an understanding of the application and the operation of the provisions.
The principle that a specific provision prevails over a general provision dealing with the same subject matter should only be called in aid, “where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation”: Purcell v Electricity Commission of N**ew S**outh W**ales at 657; and see Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256 at [219]-[221]. In the case of cl 4.1AA and cl 4.1A, their application and operation can be reconciled as a matter of ordinary statutory interpretation.
Clauses 4.1AA and 4.1A both deal with subdivision, but on different bases: cl 4.1AA on the basis of the title of the subdivision and cl 4.1A on the basis of the type of development on the land to be subdivided.
Starting with the title of the subdivision, cl 4.1 and cl 4.1AA of CBLEP separately regulate subdivisions according to the title of the subdivisions. Clause 4.1 applies to all subdivisions of land that require development consent, except for a subdivision of land by the registration of a strata plan or strata plan of subdivision under the or any kind of subdivision under the CLD Act: cl 4.1(4). Torrens title subdivisions are therefore regulated under cl 4.1. The subdivision of land under the CLD Act for community title schemes is separately dealt with under cl 4.1AA. Clause 4.1AA(2) provides that:
“(2) This clause applies to a subdivision (being a subdivision that requires development consent) under the Community Land Development Act 2021 of land in any of the following zones—
(a) Zone R1 General Residential,
(b) Zone R2 Low Density Residential.”
The application and operation of cl 4.1 and cl 4.1AA are therefore mutually exclusive, depending on the title of the subdivision: Torrens title subdivisions under cl 4.1 and community title subdivisions under cl 4.1AA.
Clause 4.1AA exclusively regulates any subdivision under the CLD Act of land in Zone R1 General Residential or Zone R2 Low Density Residential. The consequence is that the size of any lot resulting from a subdivision of land under the CLD Act, is to comply with the development standard fixed by that clause, which is that the resulting lots are not to be less than the minimum size shown on the Lot Size Map in relation to that land: cl 4.1AA(3).
It is in this context of the mutually exclusive domains of operation of cl 4.1 and cl 4.1AA based on the title of the subdivision that cl 4.1A of CBLEP needs to be read. Clause 4.1A has a different domain of operation, based not on the title of the subdivision but rather on the type of development on the land to be subdivided. Clause 4.1A adds further development standards for dual occupancies on land identified as either Area 1 or Area 2 in the Clause Application Map. For development for the purposes of dual occupancies, minimum lot size, width and frontage development standards are specified in cl 4.1A(2) and (4). For the subdivision of a dual occupancy, minimum lot size development standards are specified by cl 4.1A(3) and (5).
Here, the land to be subdivided is land identified as being in Area 2 on the Clause Application Map, so the applicable development standard is specified in cl 4.1A(5). Clause 4.1A(5) provides:
“(5) Development consent must not be granted to the subdivision of a dual occupancy on a lot on land identified as ‘Area 2’ on the Clause Application Map unless—
(a) each resulting lot will be at least 300m2, and
(b) there will be 1 dwelling on each lot created.”
This specification of the development standard as a prohibition on the grant of development consent to the subdivision of a dual occupancy that does not meet the minimum lot size is important in understanding the operation of cl 4.1A(5) and its interaction with cl 4.1AA(3). The development standards in cl 4.1A(5) and cl 4.1AA(3) have different but not inconsistent domains of operation, for four reasons.
First, cl 4.1A(5) fixes a development standard for the subdivision of a type of development on land, dual occupancies, regardless of the title of the subdivision. In so doing it does not displace the application and operation of cl 4.1 or cl 4.1AA that regulate the subdivision of land under different titles. These provisions continue to apply to the subdivision of land with the title that the provision regulates: cl 4.1 for Torrens title subdivisions and cl 4.1AA for community title subdivisions. Development for the purpose of dual occupancy may be carried out on lots resulting from either a Torrens title subdivision or a community title subdivision. The later subdivision of the dual occupancy under either Torrens title or community title does not displace the continued application and operation of cl 4.1, for a Torrens title subdivision, or cl 4.1AA, for a community title subdivision. The development standards fixed by those clauses for subdivision of land to which the clause applies continue to apply to the subdivision.
Clause 4.1A(5) of CBLEP merely adds another development standard for a subdivision of land on which a particular type of development is constructed, dual occupancy. As the criterion for application of cl 4.1A is the type of development on the land, which is different to the criterion for application of cl 4.1 or cl 4.1AA of the title of subdivision, the fixing of a development standard for subdivision of the type of development, dual occupancy, cannot displace the development standards fixed by cl 4.1 and cl 4.1AA for subdivision by reference to title.
Secondly, following on from the first point, neither cl 4.1AA nor cl 4.1A is properly described as a general provision or a specific provision dealing with the same subject matter. Each has its own domain of operation, cl 4.1AA based on the title of the subdivision (community title) and cl 4.1A based on the type of development on the land to be subdivided (dual occupancy).
Thirdly, cl 4.1A(5) expresses the development standard in negative terms as a prohibition on the grant of development consent to the subdivision of a dual occupancy. The specification of a prohibition on the grant of development consent to the subdivision of a dual occupancy cannot operate to relieve a subdivision under the CLD Act from compliance with the development standard fixed in cl 4.1AA(3) for a subdivision under the CLD Act. It simply adds an additional prohibition in the form of a development standard with which a subdivision to which cl 4.1A applies must comply. Subclause 4.1A(5) could only operate to relieve a subdivision under the CLD Act from compliance with the development standard in cl 4.1AA(3) if it expressly stated that, despite cl 4.1AA, development consent can be granted to a subdivision under the CLD Act of a dual occupancy if the subdivision complies with the development standard in cl 4.1A(5). That is to say, cl 4.1A(5) would need to be expressed in positive, facultative terms, rather than the negative terms in which it is expressed.
“The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.”
“The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.”
“Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be—
(a) if the proposed development is to be carried out on only one lot, the area of that lot, or
(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.”
“Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.”
As these provisions make clear, the floor space ratio development standard applies to development for the erection or use of a building. It has no operation to development for the subdivision of land that does not also involve the erection or use of a building.
As a consequence, the floor space ratio development standard in cl 4.4 of CBLEP did not apply to the developments proposed at three of the stages: the first stage of the demolition of existing structures, tree removal, remediation works and construction of the private road and stormwater works; the second stage of the subdivision of the land under the CLD Act into nine lots; and the fourth stage of the subdivision under the CLD Act of the six lots on which the dual occupancies would be erected. None of the developments at these stages involved the erection or use of a building. The only developments to which cl 4.4 applied were those at the third stage of the erection of the single dwelling house on Lot 3 and the dual occupancies on six lots (Lots 2 and 4-8). Under s 4.19 of the EPA Act, the grant of development consent to erect these buildings authorises the use of the buildings for the purpose for which they are erected, being dwelling house for the building on Lot 3 and dual occupancy for the buildings on Lots 2 and 4-8.
Regrettably, this application of the floor space ratio development standard only to the proposed development of the erection or use of the buildings, and not the preparatory site works or the subdivisions, seems not to have been appreciated by the Council. The Council seems to have proceeded on the assumption that the floor space ratio development standard applied to all of the developments proposed at each of the four stages. The Council lumped together the different developments into one undifferentiated category of the “proposal” or “proposed development”. That is evident in the Council’s Amended Statement of Facts and Contentions filed 28 May 2024. In paragraph 1, the Council aggregates the different developments for which consent was sought in the development application as “the Proposal”. Later in the contentions, the Council refers to this aggregated proposal as “the proposed development”.
Contention 2 was that: “The Development Application should be refused as the Applicant has not correctly characterised the proposed development or considered the applicable standards and controls”. The particulars to contention 2 sought to characterise this aggregated “proposed development”, instead of characterising each development separately, insofar as a particular development can be characterised as being for a purpose. The two proposed subdivisions, of course, are purposeless: the subdivision of land is not for any purpose, so that the grant of development consent for the subdivision of land does not authorise the use of the resulting lots for any purpose. In these respects, contention 2 misdirected the Commissioner’s evaluation of the development application.
“The proposed development does not meet the Floor Space Ratio (FSR) standard in clause 4.4 in the LED and is not accompanied by a written request to vary the standard pursuant to clause 4.6 of the LEP.”
The particulars to contention 4 asserted that: “The provisions of clause 4.4. of the LEP and the applicable floor space ratio are dependent upon the characterisation of the proposed development and the size of the lot to which the development relates” (particular (a)). That might be true for the proposed development of the erection of the dwelling house and the dual occupancies, but it was not true for the proposed subdivisions which did not involve the erection or use of any building.
The subsequent particulars to contention 4 addressed the development of the erection of the buildings for the purposes of dwelling house and dual occupancies. Particular (d) challenged the applicant’s calculation of gross floor area, stating:
“This calculation does not acknowledge the proposed subdivision of land, or the appropriate characterisation of the development and under this approach, the development of 13 dwellings on one lot of land (excluding the proposed subdivision) would be characterised as multi-dwelling housing, which is prohibited within the R2 Low Density Zone.”
This particular erroneously aggregates the different developments for which consent was sought in order to characterise the aggregated proposed development and apply the floor space ratio development standard.
The Commissioner addressed the contentions raised by the Council but, in so doing, also aggregated the different developments for which consent was sought into one “Proposed Development”: at [1] and [2]. The Commissioner framed the decision to be made in terms of this aggregated proposed development: “This case is about whether the departures from applicable controls by the Proposed Development are significant and result in a gross overdevelopment of the Site.” The Commissioner continued:
“The Respondent [the Council] explains that the challenge for the court is the four step proposal for the development including a two-step subdivision which raises the question as to which of the provisions of the Canterbury Bankstown Local Environmental Plan 2023 (CBLEP) apply to the evaluation and assessment of the Proposed Development.”: at [8].
“The other development standard informed by the characterisation of the Proposed Development is set out in cl 4.4 of the CBLEP which sets a maximum FSR for the buildings proposed to be constructed on the Site.
The Respondent contends that the Proposed Development does not meet the FSR standard in cl 4.4 in the CBLEP and is not accompanied by a written request to vary the standard. At particular (d) of Contention 4 in the ASOFAC the Respondent identifies the crux of the dispute between the parties, namely that the Applicant’s calculation of FSR ‘does not acknowledge the proposed subdivision of land, or the appropriate characterisation of the development’.”: at [79] and [80].
The Commissioner then moved to what she identified was the issue on which the parties disagreed of the site area that should be used to calculate the floor space ratio: at [83]. The disagreement hinged on the terms of cl 4.5(3) and (6) of CBLEP: at [84]. Hamptons argued that the area of Lot 1 on which the private road would be constructed in the first stage should be included in the site area, while the Council argued the area of Lot 1 should be excluded: at [88]-[90] (for Hamptons) and [92]-[96] (for the Council).
The Commissioner accepted Hamptons’ approach: at [91] and [102]. The Commissioner found that the area of Lot 1 should be included in the site area (at [102], [103], [106]) and, if this is done, “the FSR development standard is not contravened by the Proposed Development.” (at [112] and see also [110]). Critical to the Commissioner’s findings was her “finding as to characterisation of the Proposed Development” (at [107], [109]). This is evident in the Commissioner’s finding at [111]:
“I prefer the evidence of Ms Hodgkinson because it is consistent with previous decisions of the Court and I find that the site area for the purpose of calculating the FSR is the Site less proposed Lot 9 because lots 1 to 8 will be the site of the development for the dwelling house and six dual occupancies, including the area of lot 1 on which significant development will be carried out.”
“4 By reference to
a. the 4 steps involved with the proposed development, per J[2], and
b. where steps 2 and 4 involved a development in the nature of a community title development, per the *Community Land Development Act 2021 (*CLDA), and where, and
c. the CLEP Principal Development Standards relating to Floor Space Ratio (FSR) at cl 4.4 to be read with cl 4.5, especially sub-clauses (1), (3)(b), (4), and (6):
the Court Below erred in its findings at J[94], [102], [103], [106], [107], [110], and [112] as to the FSR involved with the steps 2 and 4 of the proposed development with respect to the question: whether the site area calculated by reference to CLEP cl 4.5(3)(b) should be construed so as to include the community property lot for a private driveway?”
Steps 2 and 4 referred to in the originally pleaded ground 4 are the two subdivisions under the CLD Act. Ground 4 challenged the Commissioner’s findings as to the floor space ratio “involved with the steps 2 and 4 of the proposed development.” The paragraphs referred to as containing the Commissioner’s findings do not separately address the two subdivisions at steps 2 and 4, but rather deal with the aggregated proposed development. The Commissioner finds that the site area should be “based on the ‘global’ or overall site area of the proposed development” (at [103]) and include the area of Lot 1 “because the Proposed Development includes significant development on lot 1.” (at [106]).
Ground 4 therefore raised a question of law that the Commissioner did not address. The Commissioner did not apply the floor space ratio development standard in cl 4.4 of CBLEP separately to the subdivisions under the CLD Act at steps 2 and 4, but instead globally to the aggregate proposed delveopment. The Commissioner did not, therefore, commit an error on the question of law raised in ground 4.
When this was pointed out at the hearing of the appeal, the Council sought and was granted leave to amend ground 4 to focus instead on the development proposed at step 3 of the erection of the dwelling house on Lot 3 and the dual occupancies on Lots 3 and 4-8. The amended ground 4 stated:
“4 By reference to
a. the 4 steps involved with the proposed development, per J[2], and
a1. Where step 1 involved the construction critical infrastructure private road and stormwater work per J[2(1)]
b. where step 3 involved the construction of dual buildings and a single dwelling, per J[2(3)]
c. the CLEP Principal Development Standards relating to Floor Space Ratio (FSR) at cl 4.4 to be read with cl 4.5, especially sub-clauses (1), (3)(b), (4), and (6):
the Court Below erred in its findings at J[94], [102], [103], [106], [107], [110], and [112] as to the FSR involved with the step 3 of the proposed development with respect to the question: whether the site area calculated by reference to CLEP cl 4.5(3)(b) should be construed so as to include the community property lot for a private driveway?”
As framed, this amended ground still did not raise an error on a question of law. The Commissioner’s findings in the paragraphs referred to were findings of fact that the site area to be determined under cl 4.5(3)(b) for the purpose of applying the floor space ratio included the area of Lot 1. That was a finding of fact open to the Commissioner on the evidence. But even if it were to be wrong, it did not involve error on a question of law.
The question was whether, on the facts found by the Commissioner regarding the proposed development at step 3, Lot 1 was a lot on which the development was proposed to be carried out. The Commissioner unsurprisingly found that it was. The private road constructed on Lot 1 was the only means of access to the dwelling house erected on Lot 3 and the dual occupancies erected on Lots 2 and 4-8. As earlier noted, the grant of development consent to the erection of the dwelling house and the dual occupancies would authorise the use of those buildings for those purposes: s 4.19 of the EPA Act. But it would also impliedly authorise the use of the private road on Lot 1 to access the dwelling house and the dual occupancies. Put simply, there could be no use of the dwelling house or the dual occupancies without use of the private road to access those buildings.
The Commissioner’s finding that the development was proposed to be carried out on Lot 1 was a finding that the facts fell within the statutory phrase “any lot on which the development is proposed to be carried out”. This was a finding of fact, not of law. If facts inferred from evidence before the court are capable of being regarded as either within or without the description of a word or phrase in a statutory provision, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed on an appeal limited to error on questions of law: Australian Gas Ltd Co v Valuer General (1940) 40 SR (NSW) 126 at 138. There would only be error on a question of law if the facts found were necessarily within or without the statutory description and a contrary decision has been made: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333. That is not the case here.
Although amended ground 4 only refers to cl 4.5(3)(b) of CBLEP, the same conclusion should be reached with respect to cl 4.5(6). The Commissioner found that the proposed development included significant development on Lot 1 “in accordance with the terms of cl 4.5(6) of CBLEP”: at [102] and [111]. Again, that finding is unsurprising given that use of the private road on Lot 1 is the only means of accessing the dwelling house on Lot 3 and the dual occupancies on Lots 2 and 4-8. The finding that the facts fell within the statutory description of “significant development” is one of fact, not law. It cannot be said that the facts found by the Commissioner were incapable of falling within that statutory description, so as to involve error on a question of law.
The Council has established grounds 2 and 3, but not grounds 1 and 4. The appeal should be upheld, the decision and order of the Commissioner set aside and the matter remitted to the Commissioner to be redetermined according to law. On the hearing of the remitted matter, Hamptons may wish to make a written request under cl 4.6 of CBLEP seeking to demonstrate that compliance with the development standard in cl 4.1AA(3) of CBLEP is unreasonable or unnecessary in the circumstances. Such a request was not necessary on the Commissioner’s construction that cl 4.1A overrode cl 4.1AA, but as that construction was erroneous and has been overturned, Hamptons should be given the opportunity to seek a variation of the development standard in cl 4.1AA(3) on the remitter.
The Court orders:
The appeal is upheld.
The decision and order of Commissioner Espinosa of 20 November 2024 are set aside.
The matter is remitted to be redetermined according to law.
The respondent is to pay the appellant’s costs of this appeal.
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Canterbury-Bankstown Council
Hamptons Property Services Pty Ltd [2025] NSWLEC 41
(1985) 4 NSWLR 139
(2019) 243 LGERA 338
(2019) 101 NSWLR 1
(2003) 132 LGERA 225
(2021) 252 LGERA 31
(2005) 64 NSWLR 695
(1985) 60 ALR 652
(2009) 166 LGERA 379
(2009) 168 LGERA 1
(2017) 94 NSWLR 554
(2008) 74 NSWLR 481
(2001) 130 LGERA 508
(1991) 23 NSWLR 734
(2008) 72 NSWLR 647
(2007) 82 ALJR 74
(1985) 85 ALR 652
I reject this submission. The power in s 4.16(1) of the EPA Act to determine a development application is limited only by its terms. Section 4.16(1) states:
In the present case, the Commissioner had power under s 4.16(1) of the EPA Act to determine the development application by granting development consent to the subdivision of land in accordance with the plan of subdivision that bears a statement of intention to dedicate specified land (Lot 9) as a public reserve. The grant of development consent to that subdivision did not authorise or require the dedication of that specified land. This cannot occur until subdivision in accordance with the approved plan of subdivision is carried out and the plan of subdivision is registered. The dedication of the land is the result of the action of registration of the plan of subdivision, not the grant of development consent.
For these reasons, I reject ground 1.
Fourthly, both of the development standards in cl 4.1AA(3) and cl 4.1A(5) fix minimum lot sizes, so that a subdivision of land under the CLD Act of a dual occupancy can comply with both development standards by meeting the greater of the minimum lot sizes, which is fixed by cl 4.1AA(3).
Once the proper construction of cl 4.1AA(3) and cl 4.1A(5) is understood, there is no internal conflict between cl 4.1AA(3) and cl 4.1A(5), which would trigger application of the principle that a specific provision prevails over a general provision that deals with the same subject matter. Clause 4.1A(5) does not override cl 4.1AA(3). Both provisions apply to a subdivision under the CLD Act of land on which a dual occupancy is erected.
In the present case, this means that the subdivision under the CLD Act of the six lots on which dual occupancies would be erected needs to comply with both the minimum lot size of 460m2 in cl 4.1AA(3) and the minimum lot size of 300m2 in cl 4.1A(5). The proposed subdivision would not comply with both development standards. As the size of the resulting lots would be 300m2, the subdivision would comply with the development standard in cl 4.1A(5), but not the development standard in cl 4.1AA(3). This non-compliance with cl 4.1AA(3) could only be overcome by making an application for variation of the development standard under cl 4.6 of CBLEP. That was not done but could be done on a remitter of the matter.
The Commissioner erred on a question of law in construing cl 4.1A(5) as overriding cl 4.1AA(3). Grounds 2 and 3 are upheld.
Contention 4 raised the issue of floor space ratio with respect to the aggregated “proposed development”. It provided:
For these reasons, the Commissioner did not err on a question of law in making findings that the site area under s 4.5(3) of CBLEP included the area of Lot 1 and that the proposed development included significant development on that lot under s 4.5(6) of CBLEP, so as not to be excluded from the site area. I reject ground 4.