Casaceli v Bega Valley Shire Council

CASES CITED: Agostino v Penrith City Council [2010] NSWCA 20 Agostino v Penrith City Council [2009] NSWLEC 76

APPLICANT Mr L. Casaceli (litigant in person)

LEGAL REPRESENTATIVES: RESPONDENT Mr M. McMahon (solicitor) SOLICITOR M.E. McMahon & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10035 of 2010 Lucas Casaceli & Robert Casaceli v Bega Valley Shire Council

JUDGMENT 1 The applicant in these proceedings is seeking to subdivide a single parcel of land into 2 allotments. The subject site is located in the small South Coast settlement of Quaama on land known as numbers 15 to 17 Bermaguee Street, being Lot 3 Section 11 DP 758860. 2 The site is regular in shape with frontage to Bermaguee Street of about 40 metres with a depth of some 50 m yielding a site area of 2023 m². Each lot in the proposed subdivision is to have an area of approximately 1011 m². There is an existing residence and garage located on the land. The land is unsewered. 3 A conciliation conference was commenced on site with the parties. No agreement could be reached and the parties consented to the Court adjudicating the matter under section 34(4) of the Land and Environment Court Act. 4 The site is within the Village Zone 2(v) under the Bega Valley Local Environmental Plan 2002. Subdivision is permissible with development consent. 5 The objectives of the Village zone include: a - to recognise the existing village and its and allow for future development of residential nature, in relation to existing levels of services

b - to ensure that development does not create unreasonable or an economic demands for the provision or extension of services or public amenities

c - to ensure future development does not impact on will restrict existing development in the area

d - to ensure the existing village character of the area is maintained

e - to provide for a reasonable range of activities to be carried out

f - to ensure development does not adversely impact on the environment. 6 Clause 26 provides for subdivision in urban zones as follows: (1) Consent must not be granted to subdivision of land within Zone 2(a), 2(b), 2(c), 2(e) or 2(v) to create an allotment which, in the opinion of the consent authority, is intended to be used for the purpose of a dwelling house unless the allotment will have a minimum area (excluding any access handle or right of way) of: a. 550m 2 if a sewered lot, or b. 2,000m 2 if an unsewered lot. (2) However, consent may be granted for such an unsewered lot only where it can be shown by a site study that the proposed allotment will be reasonably capable of disposing of on-site sewage effluent without nuisance or any likely pollution of surface or subsurface water… 7 The respondent provided a statement of contentions as follows: 1. The proposed development is contrary to the provisions of Clause 26 of Bega Valley Local Environmental Plan 2002. 2. Clause 26 regulates the minimum lot size is in urban zones (subclauses (1) and (2) cited)

3. Subclause (1) provides a prohibition on the consent to the creation of an unsewered allotment of land of below the minimum area of 2,000m 2 . 4. Subclause (2) requires the proposed unsewered lot to be justified by an on-site sewage report. 5. The words in subclause (2) place a restriction on the creation of the unsewered allotment in the first place and they do not provide an exception to the minimum area requirement. 6. As the application proposed the subdivision of the land into two allotments of approximately 1011 square metres each the proposal is contrary to the minimum area of 2,000 square metres in Clause 26 and not permissible. 8 At the hearing the solicitor for the respondent, Mr Michael McMahon, handed up the recent judgement in the Court of Appeal, Agostino v Penrith Council [2010] NSWCA 20 (3 March 2010). In his submission the proposed development is prohibited under the Bega Valley Local Environmental Plan 2002 because the proposed development is subdivision of an unsewered lot and subdivision is only permissible, where the 2 essential elements or criteria are met. That is the zone and 2000 square metre allotment size. As such Mr McMahon submits that the proposed subdivision is not permissible as subdivision in the village zone must meet the essential element of 2000 m² where the land is unsewered. Mr McMahon submits the proposed subdivision, with each lot around 1011 square metres, does not satisfy the 2000 m² for unsewered lands and this is an essential ingredient for subdivision and not a development standard that can be varied under State Environmental Policy No 1. 9 By way of comment, I note that there are no merit matters raised to warrant refusal of the development application. The applicant submitted an on-site wastewater treatment disposal geotechnical assessment report. This demonstrates that the proposed lots are suitable for systems which provide a primary treatment of the effluent disposal below ground. 10 I have the benefit of, and I am bound in law by, the authority in the judgement of the Court of Appeal of New South Wales referred to me by the respondent. The majority decision in the judgement Agostino v Penrith City Council [2010] NSWCA 20 (3 March 2010) includes the following: FACTS the appellants… operated a fruit and vegetable stall on land… which is within zone No.1(a) under the Penrith Local Environmental Plan 201. Clause 41(3) provides: "Notwithstanding any other provision of this plan, a person may, with the consent of the Council carry out development on land to which this clause applies to the purposes of a fruit and vegetable stall with a maximum floor area of 1 50 m²". The appellants lodged a class one appeal to the land and environment Court… the primary judge found that the maximum floor area of 150 m² for a fruit and vegetable store permitted by clause 41(3) of the LEP comprised a prohibition upon development for the purpose of such a store having a floor area greater than 150 m².

HELD Per Tobias JA, Giles JA agreeing: As to whether the trial judge was correct in concluding that the provision in clause 41(3) of the LEP of a maximum floor area of 150 sq. m for a fruit and vegetable store permitted by that clause comprised a prohibition upon development for the purposes of a fruit and vegetable store having a floor area greater than 150 sq. m What one is required to do is to identify the proposed development and then to determine whether it falls within the description of that which clause 41(3) makes permissible with consent. In performing this exercise it is necessary to identify which criteria are essential conditions in determining whether the particular development proposed is permissible. Thus, it is necessary to first address the LEP by reference not only to principle but also to its own structure and provisions. In so doing care is also to be taken to ensure that form does not govern substance.

The definition of "development standards" is referable only to provisions of an environmental planning instrument "in relation to the carrying out of development". Thus the development standard must be one which may be carried out; that is one which is permitted or permissible. One can only determine that question by reference to the terms of the planning instrument It does not follow that only those elements that are included in the zoning table of the planning instrument are to be included as the essential elements of the development. There may be other elements in a particular instrument that should properly be treated in the same way as the zoning table. The criteria which are the essential considerations for determining the permissibility of the proposed development is of the appellants are twofold. First the proposed development must be a fruit and vegetable stall. Second, it must have a maximum floor area of 1 50 m². That which is proposed satisfies the first criterion, but not the second. It is therefore prohibited. 11 In the above Court of Appeal judgement a number of relevant principles for determining a development standard are set out at paragraph 25 and following 25 The issue of whether a particular provision of an environmental planning instrument constitutes a development standard or a prohibition has engaged the time of this Court on a number of occasions… 27 As I have indicated, there are a number of decisions of this Court which discuss and state the principles or approaches to the resolution of a dispute such as the present… 28 I do not propose to reiterate in detail the principles that have emerged from the above cases as I discuss them at some length in Lawrence Browning at [35] to [47.. 29 In Poynting Giles JA adopted what he referred to as a two-step approach, namely, whether the relevant provision prohibited a proposed development under any circumstances, in which event that provision was not a development standard, and a second step (which was only relevant if the first step was determined in the negative) as to whether the provision specified a requirement or fixed a standard in relation to an aspect of the (non-prohibited) development. Ipp JA in Lawrence Browning at [15] noted that the first step involved determining whether the provision being considered prohibited the proposed development whereas the second step involved determining whether the provision specified a requirement or a standard in respect of an aspect of the development. At [16] he tended to agree with the observations of Basten JA in the same case which drew attention to the inherent difficulties of that two-step approach: see at [85]. However, it is unnecessary in the present case to elaborate further on that aspect of the debate. 30 Nevertheless, it would seem that Basten JA's preferred approach, as articulated by him in Lawrence Browning at [80] and [81] simply depended upon the terms and structure of the particular planning instrument under consideration. This is not inconsistent with the approach of Giles JA in Lowy : see at [116]. In particular, it could be said in summary that Basten JA's approach required one to first determine what were the essential elements of the permissible development. Thus, at [77], after referring to what McHugh JA (as he then was) had said in Carr (at 269-270), his Honour observed: "Thus a prohibition on a particular kind of development will not be a development standard if the characteristic or criterion engaging its operation is an essential element of the particular development, rather than a standard or requirement in respect of an aspect of the proposed development." 31 Carr was a classic case in this regard and one heavily relied upon by the appellants in the present case. Under the relevant zoning what was permissible with consent was " professional consulting rooms ", an expression relevantly defined in the applicable planning instrument .. 33 It was submitted that the requirement in the definition that there be only three employees was a development standard. This Court rejected that submission. McHugh JA observed (at 269) that the Land and Environment Court Assessor had overlooked "the essential condition that the requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development. A provision is not a specified requirement or fixed standard 'in respect of' an aspect of a development until the development and its aspects are defined." 35 In other words, as McHugh JA observed, the development could not be carried out even if the requirement of three employees was eliminated, as there was no other relevant category in the relevant planning instrument that permitted a dental surgery with more than three employees in the relevant zone. The use of premises as a dental surgery with more than three employees was not the use of a building for " professional consulting rooms " as defined. 36 Carr was referred to by Clarke JA in Mayoh where his Honour (at 237) noted that the point being made by McHugh JA was simply that the relevant provision in the definition of " professional consulting rooms " relating to the number of employees, did not lay down a standard against which the proposed development could be measured as the number of employees formed part of the definition of the permissible development. His Honour continued: "If, for instance, in the present case, residential flat buildings were defined in the table in clause 9 as meaning residential flat buildings with no more than two storeys, no part of that definition could be regarded as a development standard." 43 As has been stated on a number of occasions in the authorities to which I have referred, at the end of the day what is involved in the resolution of the present issue is a question of construction of the particular provisions of the particular planning instrument under consideration. The starting point in the present case, in my view, is the proposition that prior to the insertion of clause 41 into the LEP, a fruit and vegetable store, being a shop (as defined) was a prohibited use. Clause 41 was inserted as an exception to that general prohibition to provide for a particular permissible use on a particular parcel of land. 46 in the present case, what one is required to do is to identify the proposed development, and then to determine whether it falls within the description of that which clause 41(3) makes permissible with consent. In performing this exercise, it is necessary to identify which criteria are essential conditions in determining whether the particular development proposed is permissible…. It is necessary to 1st address the LEP by reference. Not only to principle, but also to its own structure and provisions. In so doing, care is also to be taken to ensure that form does not govern substance… 47 What are those criteria in the present case? As a matter of name, which in my view, the criteria, which are the essential considerations for determining the permissibility of the proposed development will are twofold 1st the proposed development must be a fruit and vegetable stall, as defined. 2nd, it must have a maximum floor area as defined of 150 m². That which is proposed satisfies the 1st criterion, but not the 2nd. It is therefore prohibited. … 50 In my respectful view therefore, the approach referred to in [48] above is to put the cart before the horse. Before one comes to the definition of " development standards " one is required to determine precisely what is the permissible or, as Giles JA described it in Poynting at [97], the " non-prohibited " development. For it is only when one determines what precisely is permissible that one can measure that which is proposed against it in order to determine whether it is permissible or prohibited: if you like, the first step described by Giles JA in Poynting . 51 Furthermore, controlling development by the imposition of development standards as contemplated by s 26(1)(b) in the EP&A Act is only relevant to a development that is otherwise permissible. It is an oxymoron to suggest that a development that is controlled by way of a prohibition (see the definition of " control " at [23] above) can also be controlled (regulated) by a development standard. Accordingly, it is only once one has determined what is permissible that one can then consider whether that which is proposed is permissible and, if it is, whether any other regulatory controls are development standards (as defined) for the purpose of applying SEPP No 1. 55 Finally, as Basten JA observed in Lawrence Browning at [81], it does not follow that only those elements that are included in the zoning table of a planning instrument are to be included as the essential elements of a development. There may be other elements in a particular instrument that should properly be treated in the same way as the zoning table.

Findings 12 Given the above authority in my consideration of the threshold question of permissibility I find that the proposed subdivision creating allotments of 1011 m² is not permissible. 13 Clause 26 (1) requires two essential elements to be met. That is the land must be within certain zones under the LEP, and while this includes the village zone that covers the subject land, the other essential element is the 2000 m² size for an unsewered lot. Therefore while the proposal meets the first requirement of the village zone it does not meet the second essential requirement for subdivision. From the authority of Agostino the zoning table is not the only provision in an LEP that can determine what is permissible, and the instrument must be read as a whole. 14 The 'however' in subclause 2 cannot be taken or constructed to mean notwithstanding subclause 1, and suclause 1 sets out the basic essential elements. It is only after meeting the requirements of subclause 1 that subclause 2 then 'has work to do'. That is only if the requirements in subclause 1 are met can consideration then be given to subdivision if the land is also capable of the disposal of on-site effluent. The first word "however" in subclause 2 must be read to mean in addition to subclause 1 above. That is land of 2000 m² for an unsewered lot in the village zone can only be subdivided if the proposed lot(s) will be capable of on-site disposal. I would err in law if I substituted the word "notwithstanding" at the beginning of subclause 2 for the word "however" that appears in the Bega Valley LEP, and similarly I would err if I ignored the word 'only' in subclause 2. 15 The 2000 m² minimum size is not a development standard when assessed with the benefit of the authority of Agostino , wherein paragraph at 50 it is stated that before one comes to the definition of development standards, one is required to determine precisely what is the permissible or the non-prohibited development. The wording of the relevant provisions in the LEP means the 2000 m² is not a development standard, but rather an essential element or prerequisite for subdivision together with an appropriate urban zoning. Clause 26 is not a development standard, but rather, it clearly states that consent must not be granted to subdivision of land with in the village zone, unless the allotment will have a minimum area of 2000 m² for an unsewered lot. This clearly specifies size as an essential element for subdivision of unsewered land within the village zone and only after meeting these essential elements is on-site disposal a relevant consideration. 16 As in the case of Agostino, I am required to identify the proposed development, and then to determine whether it falls within the description of that which makes it permissible with consent. And when the provisions of the Bega Valley LEP are considered as a whole as including clause 26(1), this provides the description of when subdivision is permissible development. 17 While it is regrettable for the applicant that the proposed subdivision is not permissible, I cannot misconstrue the meaning or construction of the words in clause 26 that are clear on the face of it. I must accept the authority of Agostino that requires one to direct attention to the way the words are drafted in the relevant instruments to determine whether development is permissible or prohibited. In this regard the meaning of the words and the legal construction of the relevant clauses in the LEP does not allow the 2000 m² to be varied under the provisions of State Environmental Planning Policy No.1. 18 Accordingly, based on my findings above, the formal orders of the court are: 1. The appeal in respect of the property known as 15 to 17 Bermaguee Street, Quaama is dismissed 2. The development application submitted to be Bega Valley Shire Council for the subdivision of the above land into 2 lots is determined by the refusal of consent.

      J S Murrell
      Commissioner of the Court
      ljr

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