59I have earlier identified the provisions of cl 19 of LEP 2000, imposing development standards upon residential development of a kind contemplated in the present application. The Architects submit that the provisions of cl 19 of the LEP have no force or effect for the purpose of determining the present development application as they "would derogate or have the effect of derogating from" the provisions of cl 41(1)(d) of the Regulation: s 108(3) of the EPA Act.
60Clause 41 of the Regulation relevantly provides as follows:
"41 Certain development allowed
(1) An existing use may, subject to this Division:
(a) be enlarged, expanded or intensified, or
(b) be altered or extended, or
(c) be rebuilt, or
(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or
(e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or
(f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act)."
61By cl 45, development consent is required for "any change of an existing use to another use." Clause 46 then provides:
"Nothing in this Part prevents the granting of a development consent referred to in cl 42, 43 or 44 at the same time as the granting of a development consent referred to in cl 45."
Clauses 42, 43 and 44 relate to the requirement for development consent to be obtained for enlargement, expansion and intensification of existing uses, the alteration or extension of buildings used for an existing use and the rebuilding of a building used for an existing use respectively.
62The development standards imposed by subclauses (2) and (3) of cl 19 of LEP 2000 will "derogate from" the provisions of cl 41(1)(d) of the Regulation if they "take away from" or "detract from" the provisions of the latter subclause (Carden v Willoughby Municipal Council (1985) 56 LGRA 366 per Kirby P at 368). Thus, it becomes necessary to focus upon the provisions of the Regulation as they presently stand, recognising that earlier jurisprudence upon provisions authorising an existing use to be changed to another use must yield to the precise terms of the current provisions (Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 at [31] - [35]).
63The power provided by cl 41(1)(d) to change an existing use to another use is a power limited by the words of the paragraph commencing with the phrase "but only if". That phrase emphasises the further constraint upon the exercise of power that the use to which a change can be authorised is one "that may be carried out with or without development consent under the Act."
64The Architects submit that this limitation is one that requires reference only to the land use table of the particular planning instrument applicable to the land in question or to a provision which otherwise identifies generic permissibility. Once the use proposed is identified as falling within either a permitted or permissible (with consent) category of land use by reference to the table or other provision of the instrument, the provisions of cl 41(1)(d) are engaged. I do not accept that submission.
65In order to give effect to subclause (1)(d) of cl 41, it is necessary to consider all of its provisions. A given form of land use can only correctly be described as development that is either permitted or permissible by reference to the land use table of a planning instrument if the particular form of land use proposed has such characteristics as are specified in the planning instrument, that enable that land use to be identified as a use "that may be carried out with or without development consent under the Act". The presence or existence of those characteristics will often be necessary in order to make that determination. The provisions of LEP 2000 may be used to illustrate that proposition.
66By cl 18 of LEP 2000, the only kind of development that may be carried out without development consent is described as "[e]xempt development". Clause 6(3) of the instrument provides that development is exempt development only "if it complies with the development standards and other requirements applied to the development" by a nominated development control plan. It follows that unless a particular activity meets the standards and requirements of the identified development control plan, that activity will not constitute a use for "exempt development" within the meaning of the land use table. The existence of the characteristics identified in the development control plan is therefore necessary to determine whether the use proposed is a use that may be carried out without development consent under the EPA Act.
67In the context of cl 41(1)(d), the characteristics of a particular activity may therefore be seen as definitional. They are definitional in that context if the presence of those characteristics is necessary to determine whether the proposed activity is a use able to be carried out without development consent.
68When the characteristics of a particular form of activity are necessary to be present in order to determine whether, in the example given, the activity is exempt development and therefore a use permitted without development consent, the stipulation of those characteristics by reference to provisions of LEP 2000 does not "derogate" from cl 41(1)(d). On the contrary, their existence is necessary to determine whether the power provided by the subclause is able to be exercised. This illustrates the proposition, contrary to the Architects submission, that the land use table or other provision identifying generic permissibility is not necessarily the sole source of reference for the purpose of determining whether a particular form of land use may be carried out without development consent.
69This reasoning must also be applied to cl 41(1)(d) when determining that a use to which the "existing use" is proposed to be changed is one that may be carried out with development consent. If the land use table is the sole source of reference within a planning instrument in order to determine that a particular activity constitutes permissible development, then the submissions made on behalf of the Architects would be correct. However, that is unlikely to be the position that pertains under most modern planning instruments. It is not the position that pertains under LEP 2000.
70The extent to which the land use table is qualified by other provisions of a planning instrument must be considered when addressing the application of cl 41(1)(d). Relevantly, if another provision of the instrument constrains permissibility of a nominated form of land use to one having particular characteristics, development of that kind which lacks those characteristics cannot be identified as a use that may be carried out with development consent under the Act (cp Woollahra Municipal Council v Carr (1985) 62 LGRA 263 per Priestley JA at 267 and McHugh JA at 269).
71The proposition can again be illustrated by reference to the provisions of cl 18 of LEP 2000. Item (3) of the Table to that clause identifies those forms of development that are "allowed only with development consent". They include a number of development purposes that fall within the definition of "residential development" contained in Sch 3 to the instrument.
72Clause 7(2) of LEP 2000 is in the following terms:
"7(2) Development which is allowed or prohibited in each zone
Except as otherwise provided by the Plan, development of land within a zone that:
(a) may be carried out with or without development consent, or
(b) is prohibited,
is specified in the development control table for the zone."
Clause 19(2) is a provision operating by way of exception to the development control table for the Residential Zone. Relevantly, cl 19(2) provides that "consent must not be granted to the carrying out of residential development" if it will result in a floor space ratio exceeding that in the table to that subclause. Thus, in order to determine whether development for any of the purposes falling within the definition of "residential development" are uses of land that may be carried out with development consent granted under the Act, it is necessary to refer both to the development control table and to the provisions of cl 19(2) that operate by way of exception to the table. Unless the development in contemplation meets the requirements of both, it cannot be said that it is development for a use that may be carried out with the relevant consent under the Act. Permissibility of land use cannot in this case be determined solely by reference to the development control table.
73My conclusion as to the manner in which cl 41(1)(d) is to be interpreted is supported by the history of amendment to the incorporated provisions. Clause 41(1)(d) in its present form was inserted into the Regulation by the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006. Prior to its amendment, cl 41 provided:
"41 Certain development allowed
(1) An existing use may, subject to his Division:
(a) be enlarged, expanded or intensified, or
(b) be altered or extended, or
(c) be rebuilt, or
(d) be changed to another use, including a use that would otherwise be prohibited under the Act.
(2) A use to which an existing use is changed is itself taken to be an existing use for the purposes of the Act and may, subject to this Division, be changed to another use."
74The entitlement under cl 41(1)(d), in that form, to change to a use, including a prohibited use, was, in substance, the form which the incorporated provisions had taken since commencement of the EPA Act in 1980. It will therefore be apparent that the purpose of the 2006 amendment to the Regulation was to effect a significant alteration to the power to change any existing use to another use. As Mr McEwen submitted, the former provision was permissive and broadly expressed, as demonstrated by the power to change a use to a prohibited form of development. Any provision in a planning instrument having the effect of restricting the exercise of power by reference to constraints imposed by development standards would obviously derogate from the provisions of a clause so broadly expressed.
75By contrast, the words of the present cl 41(1)(d) are restrictive and narrow, such that a provision of a planning instrument having the effect of prohibiting development will not derogate from the provisions of the clause. Indeed, the requirement of cl 45 to obtain development consent to a change of use coupled with the limitation expressed in cl 41(1)(d) authorising such a change "but only if" the proposed use is one for which development consent can be granted, are requirements that mandate the consideration of all provisions of the applicable planning instrument in order to determine permissibility.
76The Architects submit I am bound to determine that the development standards imposed by cl 19 of LEP 2000 derogate from cl 41(1)(d) and cl 45 of the Regulation by reason of the decision of the Court of Appeal in Carden v Willoughby Municipal Council. I do not accept that submission. In Carden the Court was concerned to determine whether the provision of a regional environmental plan that prohibited the grant of development consent on land in question "unless there is provided on the site a car parking station", derogated from the incorporated provisions in the form which they then took. The use of the land at the time at which development consent was made to change that use was an "existing use" within the meaning of the EPA Act.
77The Court of Appeal determined that the clause of the regional environmental plan prohibiting consent unless a car parking station was provided "operated to restrict the council's power or duty to give consent" under the regulation then authorising the change of an existing use to another use. As a consequence, the provision of the regional plan would derogate from the terms of the regulation, within the meaning of s 108(3) (per Mahoney JA, McHugh JA agreeing, at 372). However, the incorporated provision from which the provision in the regional plan was held to derogate was in different terms to the current provisions of the Regulation. The incorporated provision then applicable was cl 54 of the Environmental Planning and Assessment Regulation 1980 (now repealed). Clause 54 relevantly provided:
"54(1)For the purposes of section 108(1)(b) of the Act, an existing use may, with consent under the Act being obtained therefor, be changed to another use, including a use which would otherwise be prohibited under the Act."
78It will be seen that, in substance, that provision was to similar effect as cl 41(1)(d) prior to its amendment in 2006. Unsurprisingly, where the provisions of a planning instrument imposed a prohibition upon development, either in conditional or absolute terms, such provisions were seen to derogate from an incorporated provision that allowed a change of use, with consent, whether or not that change of use was prohibited.
79For the reasons earlier indicated, the proper interpretation of the present Regulation leads me to conclude that the determination in Carden no longer has application to the present form of cl 41(1)(d), at least as it is sought to be applied to the application of development standards imposed in a planning instrument. I add this qualification because on one view, the prohibition against consent imposed by the regional plan considered in Carden was not a provision that specified a requirement or fixed a standard in respect of an aspect of development being considered and was therefore not a development standard within the meaning of the EPA Act (cf North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGERA 222). However, it is unnecessary to express any final view as to whether this was the case: it is sufficient for present purposes to distinguish Carden on the basis that the provisions of the incorporated provision there considered (cl 54) differ significantly from the current provision.
80For similar reasons, Mr Tomasetti's reliance upon decisions of this Court in Kremer & Associates v North Sydney Municipal Council (1982) 47 LGRA 209, Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373, Star Property Investments Pty Ltd v Leichhardt Municipal Council and Multistar Pty Ltd v Minister for Urban Affairs and Planning (No 2) [2000] NSWLEC 242; (2000) 111 LGERA 319 are to be distinguished. All dealt with the provisions of cl 41 of the Regulation prior to its amendment in 2006.
81The proposition for which the Architects contend, together with the cases said to support the contention, were considered by Pain J in Iris Diversified Property Ltd v Randwick City Council. Her Honour was there considering, as a separate question, whether provisions of a planning instrument imposing development standards directed to minimum landscaped area, maximum floor space ratios and building heights applicable to the particular form of development being sought, were provisions that derogated from cl 41(1)(d) of the Regulation in its present form. The assumption, for the purpose of argument before her, was that the use sought to be changed was an existing use within the meaning of the EPA Act.
82Having considered a number of the arguments that were advanced by Mr Tomasetti before me, together with authorities cited in support of those arguments, her Honour concluded that the relevant development standards within the planning instrument did not derogate from the provisions of cl 41(1)(d). As a consequence, those provisions of the planning instrument continued to have force and effect but, being development standards, were susceptible to objection made under the provisions of SEPP 1.
83Mr Tomasetti submits that her Honour's decision was wrong. For the reasons that I have indicated, I do not accept that submission and respectfully concur in the conclusion that her Honour reached. Further, I do not accept that such conclusion gives no work for cl 41(1)(d) to do. Section 107(1) authorises the continuance of an existing use and nothing more. Section 108(1)(b) authorises the making of regulations "with respect to ... the change of an existing use to another use". Clause 41(1)(d) gives effect to that power by restricting its exercise in the manner earlier described. It is declaratory of the circumstances in which a change of use can be made. It is hardly surprising that it should do so, given the long history of regulation that allowed a change from one use to another use, unconstrained by uses otherwise prohibited on land proposed to be developed.
84By imposing development standards, the planning instrument does no more than stipulate the manner in which a use "may be carried out with or without development consent under the Act". So understood, the provisions of cl 19 of LEP 2000 do not "destroy or impair the force or effect of ... or lessen the extent of ... or detract from" the provisions of cl 41(1)(d) (Fabcot Pty Ltd v Hawkesbury City Council at 378).
85In reaching the conclusion that I have, I do not overlook the provisions of cl 46 of the Regulation. Although that clause has earlier been quoted, I repeat its provisions:
"Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45."
86While consent may be sought to extend a building used for an existing use (cl 43) or for the rebuilding of the building presently put to that use (cl 44) at the same time as consent is sought to change the use of the building, I do not consider that cl 46 aids the ultimate contention made by the Architects. Clause 45 imposes the requirement to obtain consent for a change of use. However, the power to grant that consent is circumscribed by cl 41(1)(d). Therefore it seems to me that even if a 'combined application' was made, the use of a new building for its existing use could not be changed unless the new use was one that may be carried out with or without development consent under the Act. The limitation applying to such a consent that I have earlier addressed remains applicable.
87If, contrary to the determination earlier made, the provisions of s 108 of the EPA Act and the incorporated provisions of the Regulation are engaged by the present development application, I nonetheless conclude, for the reasons stated, that cl 19 of LEP 2000 is applicable to the determination of the present development application. In that circumstance it remains necessary to consider the objections made under SEPP 1 on behalf of the Architects that the development standards imposed by cl 19 are unreasonable or unnecessary in this case. That determination is to be made before determining whether to grant development consent to their application. It is to those objections and the general merits of the application to which I now turn.