Christodoulou v Blacktown City Council

Clause 4.1C is a development standard

1. The task of determining whether cl 4.1C is a prohibition or a development standard is one of statutory construction, where the clause must be considered in the context of the instrument as a whole. As Robson J observed in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde at [35] (citing the decision of the Court of Appeal in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189), "whilst environmental planning instruments should be construed in a practical manner, rather than undertaking a meticulous examination of its terms, this does not override the basic principles of statutory construction which require that the Court pay attention to the language of the instrument and its apparent purpose."
2. As such, whether cl 4.1C is a prohibition or a development standard is not within the realm of expert opinion evidence but rather is a matter for legal submission and judicial determination. Neither evidence that the Council has been applying the provision as a prohibition, nor evidence of a council officer that his opinion was that the intention of the provision was to be a prohibition, is persuasive in construing statutory provisions, which must start with the text of the instrument.
3. In the interpretation of a local environmental plan, Pain J considered in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 that (at [43]) "a purposive approach to construction is to be preferred to the extent such an approach can assist". At [44], Her Honour states: "While the principles of statutory construction referred to immediately above apply, the instrument should also be read in a practical manner, as identified in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54] by Leeming JA citing Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183. Importantly, a LEP must be construed as a whole so that the context for the provisions in issue is understood per McColl JA in Cranbrook at [36]."
4. My analysis of cl 4.1C therefore starts with understanding the text of the provision. Consistent with the decision of Giles JA in Strathfield Municipal Council v Poynting, who found that the provision must be "seen as part of the environmental planning instrument as a whole" (at [94]), I then consider how the provision sits within the context of the BLEP 2015. In doing so, I address the two step approach and whether the provision falls within the definition of a 'development standards'.
5. Dealing first with the text of the provision, I note that the language of cl 4.1C(1) and the heading 'prohibition', clearly gives cl 4.1C "the flavour of prohibition" (to use the words of Robson J in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde). However, this is not determinative. As in Strathfield Municipal Council v Poynting, care must be taken that form does not trump substance, as a provision expressed in the negative appears prohibitory but has the same substance if it is expressed in the affirmative, such as "a subdivision may be granted if…".
6. Notwithstanding that the provision is expressed in the negative, I find that the structure and language of cl 4.1C suggest the imposition of standards on or criteria for the subdivision of dual occupancies. The clause clearly establishes that the subdivision can be carried out if the criteria in cl 4.1C(1) or cl 4.1C(2) are met. Consistent with the decision in Strathfield Municipal Council v Poynting, anything less than complete prohibition means that the development can take place. At [98]: "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 the relevant aspect of the development is identified the control will be by imposition of a development standard."
7. This is distinguishable from the provision considered by the Court of Appeal in Agostino v Penrith City Council, which provision characterised the permissible development by reference to a minimum area where that development was otherwise a prohibited use in the zone. The task before the Court of Appeal was concerned with identifying the essential conditions that determined "whether the particular development proposed is permissible" (Tobias JA, at [46]).
8. The second aspect of the text of the provision that favours its interpretation as a development standard is the exception to cl 4.1C(1) that is provided in sub-clause (2). If either cl 4.1C(1)(a) or (b) are not met, sub-clause (2) confirms that sub-clause (1) does not act to restrict the subdivision of detached dual occupancies that meet the minimum lot size development standard. I am therefore of the view that cl 4.1C is facultative in that it provides the criteria in which subdivision can be considered.
9. In discussing the text, I also note that the wording of cl 4.1C is not sufficiently specific to support Mr Haskew's suggested interpretation, that the clause operates to prevent community title, strata title and company title subdivision of dual occupancy developments. The clause refers to subdivision in the collective sense, as something that creates "separate titles", which in my view includes Torrens title.
10. Third, turning to the heading to cl 4.1C, I am of the view that it does not assist in understanding the provision, as it remains unclear how the supposed "prohibition" operates at all. The Council has tried to resolve this by proffering an interpretation that the prohibition applies unless either of the sub-clauses is satisfied. However, that interpretation is not supported by the wording of the clause, especially when you must consider, as I do, that pursuant to s35 of the Interpretation Act the heading is not part of the instrument. In this sense, I do not accept that the heading "is capable of assisting in the ascertainment of the meaning of the provision" pursuant to s34 of the Interpretation Act, as it is an additional source of confusion as to how the clause operates and how it interacts with clauses 2.3 and 4.1, as set out below. What is difficult about the clause is how it interacts with those other clauses within the context of the instrument, and that is not resolved by reference to the heading.
11. Fourth, in considering the clause in the context of the instrument as a whole, cl 4.1C is facultative in operating together with cl 2.6, which makes subdivision permissible with consent, and cl 4.1, which sets a minimum lot size for subdivision. There is nothing in cl 4.1C(1) or within the clause generally that suggests it operates despite the provisions of cl 2.6 and cl 4.1. Similarly, unlike other specified subdivisions, there is nothing in cl 2.6 or cl 4.1 that excludes their application to dual occupancies. Whereas cl 2.6(2) makes it clear that there is a qualification on the permissibility of subdivision such that development consent cannot be given for the subdivision of a secondary dwelling unless it meets the minimum lot size, there is no such provision in cl 2.6 for dual occupancies. Similarly, in cl 4.1(4) there is a specific reference that "[t]his clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme". Again, there is no such provision that excludes the application of cl 4.1 to dual occupancies.
12. This is clearly distinguishable from the circumstances before the Court of Appeal in Agostino v Penrith City Council, where the Court was considering a development that was prohibited in the zone and only permissible if the specified criteria were met. Instead, in the present circumstances, cl 2.6(1) makes it clear that the subdivision is permissible with development consent, and clauses 4.1 and 4.1C set out how that development is to be controlled.
13. In constructing this clause in the context of the instrument as a whole, I find that cl 4.1C(1) is facultative in that it provides criteria in which subdivision can be considered. This is because, but for cl 4.1C(1), the only standard that regulates the subdivision is the minimum lot size, which for many zones is larger than the 300m2 required by cl 4.1C(1)(b). However, cl 4.1C(1) provides additional criteria in which a subdivision of a dual occupancy can be granted. Clause 4.1C(2) then confirms that, in relation to detached dual occupancies, the minimum lot size development standard applies even if the criteria of cl 4.1C(1) are not met.
14. This interpretation is supported by the placement of cl 4.1C in the "Principal development standards" part of the BLEP 2015, and by its omission from cl 4.6(8). Clause 4.6 applies only to development standards, and cl 4.6(8) sets out the list of provisions to which cl 4.6 does not apply. The omission of cl 4.1C from this list in cl 4.6(8) is therefore indicative that cl 4.6 does apply and cl 4.1C is not a prohibition. Although these factors alone are not determinative, they support the conclusions that I make above.
15. Therefore, in considering the clause "as a part of the environmental planning instrument as a whole" (Strathfield Municipal Council v Poynting at [94]) and in its wider context by reference "to its own structure and provisions" (Laurence Browning v Blue Mountains City Council [2006] NSWLEC 74 at [26]), I am of the view that despite the heading and the language of cl 4.1C(1), cl 4.1C does not act to prohibit subdivision, but rather permits the subdivision of dual occupancies when either the criteria of cl 4.1C(1) or (2) are met.
16. Fifth, it remains essential that I consider whether the clause falls within the definition of 'development standards'. A development standard is defined in section 4 of the EPA Act as follows (insofar as relevant): "development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, … (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, ..."
17. I consider that cl 4.1C is clearly in relation to the carrying out of development, specifically the carrying out of the subdivision of dual occupancies. Sub-clause (1) sets requirements or fixes standards for that subdivision, and sub-clause (2) operates such that even if the requirements of (1) are not met, detached dual occupancies may be subdivided if they meet the minimum lot size development standard. The provision falls within sub-paragraphs (a) and (c) of the definition, which is not determinative, but demonstrates that it is fixing requirements or standards in respect of an aspect of the development (Strathfield Municipal Council v Poynting at [58]).
18. I am therefore of the view that cl 4.1C meets the definition of "development standards". The question then to consider is whether, the proposed subdivision not meeting cl 4.1C(1) or the minimum lot size referred to in cl 4.1C(2), a variation to the development standard should be granted pursuant to cl 4.6.

Clause 4.6 request

1. Clause 4.6 is a standard clause included in local environmental plans. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston J, Chief Judge, held that the power to allow an exception to a development standard pursuant to cl 4.6 can be exercised where the Commissioner is satisfied that: 1. the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)) (at [7]), 2. the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)) (at [7]), 3. the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) (at [38]), and 4. the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) (at [38]). In outlining (3) and (4) above, His Honour stated that the Court need not be directly satisfied that compliance is unreasonable or unnecessary and sufficient environmental planning grounds exist, but rather "only indirectly by being satisfied that the applicant's written request has adequately addressed" those matters.

The applicant's clause 4.6 request

1. Mr Christodoulou's amended written request is dated August 2017 and was provided to the Court at the hearing. It outlines five reasons why compliance with the standard is unreasonable or unnecessary, which can be summarised as follows:

• The proposed subdivision does not derogate from the provision of housing needs of the community (the objective of the zone) because the subdivision will not change the number of dwellings on the site. Rather, it affects the possible housing tenure outcomes, as both dwellings could be owned. This is consistent with the housing needs of the community as, based on census data, ownership in Plumpton is favoured over rental accommodation. In particular, Mr Haskew points to the census data showing that owner occupier dwellings represent 76.5% of Plumpton's housing supply, compared with 65.2% in the Blacktown local government area.
• The departure is very minor, being 15m2 or 3.33%. There will be no practical difference in terms of amenity and no streetscape issues.
• The subdivision will not have any effect on the character of the surrounding residential area (the objective of cl 4.1). Whereas most dual occupancy developments are carried out at the same time, which produces a need to maintain common ownership for the commonality in maintenance and management, the subject site has dwellings that are starkly different in age, size and visual appearance.
• Approval would not derogate from the intended outcomes of cl 4.1C - the implied purpose being to prevent dual occupancies from being subdivided into lots of less than 450m2 under title systems other than Torrens title.
• The proposal will not introduce any incongruity with the prevailing subdivision pattern.

1. In the cl 4.6 request Mr Haskew considers that the following three "environmental planning grounds" justify contravening the standards:

• The site already contains two disparate dwellings, therefore there is no opportunity to retain common ownership in order to retain consistency in maintenance and streetscape appearance. This is a particular characteristic of this site that may not be present for other subdivision proposals.
• The proposal is consistent with the community's demand for owner-occupier tenure compared with Blacktown LGA as a whole.
• The proposed subdivision will not result in any impacts under s 79C(1)(b) when compared with the existing situation.

1. Clause 4.1C(2) is the standard that is sought to be varied by the request. Given that this sub-clause relates to the minimum lot size, the appropriate objectives to consider are those of the minimum lot size established by cl 4.1. They are: "(a) to establish minimum lot sizes for residential development, (b) to ensure that new residential development is compatible with the existing character of the surrounding residential area."

The Council's response to the cl 4.6 request

1. The Council submits that it has not been satisfactorily demonstrated that the objectives of the development standard are achieved notwithstanding non-compliance. The Council submits that it has always applied the minimum lot size of 450m2 under the now repealed Blacktown Local Environmental Plan 1988 and that it has carried this minimum lot size into the BLEP 2015 for residential land in older established areas of the Blacktown Local Government Area. It relies on the evidence of Mr Galea that the Council has maintained the minimum lot size development standard and has not abandoned the control by granting consent to subdivisions that depart from the standard, and that the minimum lot size acts as a density control and variations to the minimum lot sizes results in an increase in density in the area. The Council also submits that it has not been demonstrated that the subdivision will not have adverse impacts on the environment, built form and public as increased density has the potential to have negative impacts on matters such as privacy, solar access aesthetics, acoustics and streetscape.
2. In relation to the environmental planning grounds identified in the cl 4.6 request, the Council submits that:

• The fact that the site already contains two dwellings provides no basis for the submission that there is no opportunity to retain common ownership in order to retain consistency in maintenance of streetscape appearance,
• There is a demand for rental housing, which is consistent with the zone objectives to provide a variety of housing, and
• There are impacts associated with an increase in density which will occur if the subdivision is approved.

1. In support of these submissions, the Council relies on the evidence of Mr Galea in relation to potential impacts on the environment, built form and public interest as a result of increased density. Mr Galea's evidence is also that the provision of rental housing is consistent with the zone objectives.

The clause 4.6 request should be allowed

1. Firstly, I am satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The subdivision provides for the housing needs of the community by providing separate titles to two dwellings that are disparate in age and design, in an area where there is a higher than average demand for owner-occupier tenure. The fact that the size of the lots is 15m2 smaller than the minimum lot size does not affect the amenity of the neighbourhood, as the dwellings are already erected, and I accept the evidence that the difference between the proposed lot size and the minimum lot size is not discernible. Further, any future dwellings will either have to comply with the relevant planning instrument (for complying development) or be considered as a development application. Mr Galea accepted that there were no privacy or amenity impacts identified as resulting from the proposal.
2. Secondly, I accept that the proposed development is consistent with the objectives of the standard (cl 4.6(4)(a)(ii)). I accept Mr Haskew's evidence that it is compatible with the existing character of the surrounding residential area as the dwellings already form part of the existing character, the existing character has a large variety in lot sizes, and the difference between the density resulting from the proposed lot size and the minimum lot size is not discernible.
3. Thirdly, the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The only way that compliance can be achieved is by not allowing the subdivision, because it is physically impossible to subdivide the land in a way that achieves the standard. I accept that the request adequately establishes that to retain common ownership is unreasonable or unnecessary because it will not change the number of dwellings on the land, the housing needs of Plumpton support ownership rather than rental housing, the subdivision will not introduce incongruity in the subdivision pattern, the departure is very minor, and the dwellings are different in age, size and appearance.
4. Finally, I accept that the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). In particular, the written request shows a demand for owner occupied dwellings and demonstrates that because of the disparate age and appearance of the dwellings, there is no need to maintain common ownership.
5. I am therefore satisfied that, in the circumstances of the present application, it is appropriate to grant the request to vary the development standard. However, the Council maintains that the proposal is not in the public interest.

Public interest

1. The Council submits that the proposal is not in the public interest and should be refused as it would set an undesirable precedent in the locality. The Council submits that the precedential impact of development consent is a relevant consideration in determining whether consent should be granted. In support, the Council directs the Court to the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. In this decision, Lloyd J, in considering appeals made under section 56A of the Court Act, considered whether the then Senior Commissioner erred in law by taking into account an irrelevant consideration, namely whether the approval of the applications would be a precedent leading inexorably to further applications over time in an otherwise undeveloped area. Lloyd J found that there was no error and said (at [34]): "It was a relevant consideration on the facts and circumstances of the case as found by the Senior Commissioner, namely: that the proposed developments were not themselves unobjectionable, having, as the Senior Commissioner found, an undesirable visual impact on a largely undeveloped shoreline; and that there was more than a mere chance or possibility that there may be later undistinguishable development applications of the same class - or, as the Senior Commissioner found, "would lead inexorably to a further three over time" and "pressure to achieve a further 13 shoreline facilities" - also described by the Senior Commissioner as "likely to be an inevitable consequence"."
2. There are two elements to the Council's submission that the subdivision would set an undesirable precedent. The first is that the Council is concerned about the precedential effect that a smaller lot subdivision will have on the density of the surrounding area. The second is that the Council does not want the sanctity of the control to be undermined.
3. In support of this submission, the Council relies on the evidence of Mr Galea that the control has been consistently applied since the BLEP 2015 commenced. Mr Galea's opinion is that allowing lot sizes that are less than the minimum lot size will result in increased density, such as that seen in areas where a smaller minimum lot size applies. This is supported by the fact that there is no floor space ratio control.
4. The other submission made by the Council in relation to public interest is that there is a public interest in maintaining the prohibition on the subdivision of dual occupancies. This is supported by Mr Galea's evidence that the prohibition was carefully considered, and that there were very few submissions when the LEP was exhibited, indicating public acceptance of the provision. Given my earlier finding that the proposed subdivision is not prohibited, I do not accept and need not deal with this submission.
5. Mr Christodoulou submits that the proposed development is in the public interest and is consistent with s 79C(1)(e) of the EPA Act as there is no public benefit in maintaining the minimum lot size standard (and no environmental impact as a result of varying the standard) because there is an existing dual occupancy development, and the proposed subdivision will not manifest any physical differences compared with the existing situation. Mr Christodoulou relies on Mr Haskew's evidence that the subdivision will have no discernible impact on residential densities. The evidence of Mr Haskew is that the current density is lower than the planned density, and there is no discernible difference between a density with lot sizes of 450m2 and those with lot sizes of 435m2.
6. Mr Haskew's evidence is also that although there are five other sites in the area and on Plumpton Road that are of a size that may result in smaller lots than the minimum lot size if subdivided, those sites would have to first undergo dual occupancy development. Mr Haskew is of the opinion that if they did so, there would be a benefit in maintaining single ownership over the dual occupancy to facilitate common management and a common maintenance schedule. However, such benefit does not arise in the circumstances of the present application. As a result, Mr Haskew opines that there is no likelihood that the proposed development will set an undesirable precedent that could be widely applied.

The subdivision will not create an undesirable precedent

1. I find that the approval of the subdivision the subject of the present application will not establish an undesirable precedent for the following three reasons.
2. Firstly, the precedent for smaller lot sizes has been created by past approvals. There are already two lots on Plumpton Road that are less than 450m2 in size. Although the subdivision that created those lots was approved under a former instrument, they nonetheless form part of the character of the area. In this respect the circumstances of this case, where the Court is considering an established and developed area, are clearly distinguishable from those in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995, in which the Court was considering a proposal in an undeveloped shoreline.
3. Secondly, I do not accept that allowing the subdivision will cause an increased density that is not consistent with the zone. The increased density that the Council is concerned about is consistent with the planning density reflected in the minimum lot size of 450m2. The lot sizes on Plumpton Road vary from 435m2 to 2078m2, with many of those on the northern side greater than 900m2 and able to be subdivided whilst also complying with the minimum lot size. The increased density is therefore consistent with the planned density reflected in the minimum lot size. In that respect, I prefer the evidence of Mr Haskew that the difference between a compliant subdivision and the present subdivision will have no discernible impact on density.
4. Similarly, I accept Mr Haskew's evidence that the subdivision will have no discernible impact on the existing residential density, as there are a variety of lot sizes and the dwellings that comprise the dual occupancy are already part of that density.
5. Thirdly, as to maintaining the sanctity of the control, there is no basis upon which there should be blind adherence to a control. Clause 4.6 has a clear objective to allow a variation in the application of a control if it is warranted in the circumstances. The unique circumstances of this proposal are that there are already existing two dwellings on the lot, the dwellings to be located on the two resulting lots are disparate in age and design, and the difference in the proposed lot size and the minimum lot size is only 15m2. I accept the evidence of Mr Haskew that these characteristics distinguish the site from almost all other sites within the locality, which will mean that only sites with those same unique characteristics will benefit from the precedent of the subdivision of this site. I accept the evidence of Mr Haskew that such an outcome would be a desirable precedent for those sites that share all those characteristics.
6. There being no other basis to refuse the development application, it is appropriate that consent be given subject to the conditions of consent proposed by the Council.
7. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application DA-16-04297 for the subdivision of Lot 74 DP5027, known as 24 Plumpton Road, Plumpton into two Torrens title lots of 435 square metres, subject to the conditions in Annexure A. 3. Exhibit 1 is returned. ……………………………………… Commissioner Gray Annexure A (152 KB, pdf)

Amendments 04 October 2017 - Correction made in paragraph 5; 'Punchbowl' replaced with 'Plumpton' 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. Decision last updated: 04 October 2017