Ferral-Smith v Villanueva

EX TEMPORE Judgment 1In these judicial review proceedings the applicant claims the following declarations: (1)A declaration that the grant of development consent by the third respondent, Hornsby Shire Council, to DA/479/2011 in respect of land at No 6 Talbot Way, Berowa NSW, being Lot 35 in DP 270489, owned by the first and second respondents, was granted in breach of cl 15 of the Hornsby Local Environmental Plan 1994. (2)A declaration that the development consent granted by the third respondent to DA/479/2011 is invalid and of no effect. 2The council, consents to that relief being granted. The other respondents, who lodged the development application, have filed submitting appearances save as to costs. They appear today only in relation to costs. 3The land is Lot 35 in a community title subdivision DP 270489 known as the Illoura Estate. The land was previously part of La Mancha Caravan Park. Development applications in respect of the La Mancha land have been the subject of earlier proceedings in this Court: Masterbuilt v Hornsby Shire Council [2005] NSWLEC 212 (Pain J). 4The land enjoyed existing use rights due to the previous caravan park use. On 19 October 2005 the council gave development consent to DA 957/2005 under s 108 of the Environmental Planning and Assessment Act 1979 affecting a change to a conforming use, being residential subdivision under community title legislation. 5The applicant makes the following submissions, with which the council concurs: (a)The development consent to DA 479/2011 was unlawfully granted in the absence of an objection under State Environmental Planning Policy No 1 ( SEPP 1 ) to the breach of the floor space ratio ( FSR ) development standard in cl 15 of the Hornsby Local Environmental Plan 1994 ( LEP ): see cl 4(5). (b)The land is zoned Residential AS (Low Density - Sensitive Lands). Dwelling-houses are permitted with consent in that zone and the nominated FSR is 0.4:1. The development the subject of the development consent would result in a building that exceeds the FSR standard. The assessment of that building is that it will have an FSR of 0.65:1. In the absence of a SEPP1 objection the council is not empowered to grant consent to a development application that would result in a breach of a development standard stipulated in an environmental planning instrument because to do so would result in a breach of the EPA Act ss 76A(1)(a) and (b) and 122(b)(ii). (c)The council officer assessing the development application relied on existing use rights under Pt 4 Div 10 (ss 106 - 109B) of the EPA Act to dispense with the strict application of the requirements of the LEP. This is apparent from the council officer's assessment report. However, the provisions of the EPA Regulation 2000, which are referred to in s 108(3) of the EPA Act as the "incorporated provisions", were substantially amended in 2006 such that the council officer's reliance on existing use rights was erroneous. In Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58, 173 LGERA 240 Pain J held that on the proper construction of s 108(3) and cl 41(1)(d) the provisions of an environmental planning instrument that impose a development standard necessary to be complied with before granting consent to a particular form of permissible development are not provisions that derogate from the incorporated provisions: at [50]. Her Honour observed that the provisions that imposed the development standard that must be complied with are amenable to an objection under SEPP1 but that a development application cannot be determined by a council in the absence of a SEPP1 objection: at [53]. 6I accept the submission and propose to make the declarations referred to at the commencement of this judgment.