The development of the law in relation to "development standards"
19 The question of whether or not a provision in an environmental planning instrument contains a development standard has been the subject of considerable litigation.
20 In Woollahra Municipal Council v Carr (1985) 62 LGRA 263, the Court of Appeal considered whether the definition of "professional consulting rooms" in the Woollahra Planning Scheme Ordinance, which limited the number of dentists to three, contained a development standard. Because the use was only permissible if it met the definition, and the definition limited the number of professionals to three, the court held that SEPP 1 could not be utilised to permit the development.
21 McHugh JA drew attention to the fact that development standards are matters that "ex hypothesi, are external to aspects of that development." As his Honour points out if all that is permissible is a duplex SEPP 1 could not be utilised to approve a three storey building. If all that is permissible is a "dwelling house", defined as a single dwelling on a parcel of land, SEPP 1 could not be utilised to approve a multi dwelling development on the site.
22 The analysis necessary to resolve the problem in Carr's case does not give rise to many difficulties but does not greatly assist in resolving many of the other problems which have arisen.
23 In North Sydney Municipal Council v Mayoh [No 2] (1990) 71 LGRA 222, cl 14A(1)(A) of the North Sydney Local Environmental Plan 1989 provided that a residential flat building could not be erected on the relevant land if "any principle building on adjoining land is less than three storeys." The Court of Appeal held this was not a development standard. The essential proposition was that the clause laid down requirements in relation to the land on which the development was proposed, rather than requirements relating to the development itself.
24 Mahoney JA expressed the matter in the following terms (at LGRA 234):
"I do not think that cl 14A(a) is a provision 'in relation to the carrying out of development …'. There is, in my opinion, a distinction in the provisions between a provision which in form provides: 'On land of characteristic X no development may be carried out' and a provision which in form provides: 'On such land development may be carried out in a particular way or to a particular extent.' The provision in cl 14A(2) is, I think, of the latter kind. If cl 14A(1)(a) provided merely that 'no building shall be erected on land in Zone No 2(c) if …' the position would, in my opinion, be clear. In fact cl 14A(1)(a) prohibits erection on the land described in par (a) not of all buildings but only of 'a residential flat building'. But it remains correct, I think, to say that, in respect of the land referred to in par (a) what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to 'the carrying out of' development of that or any other kind. If regard be had to purpose, the purpose of the provision was, I think, to proscribe development by buildings which would overshadow smaller buildings at the particular place. This is not a matter relating to 'development standards' but to the carrying out of development at all."
25 Clarke JA came to the same conclusion and said (at LGRA 236):
"The point is reinforced by the fact that cl 14A(1)(a) lays down an absolute prohibition on the use of certain land for a particular purpose whereas development standards lay down requirements or standards against which the proposed development is to be measured: see Warringah Shire Council v K V M Investments Pty Ltd (1981) 45 LGRA 425 at 432, 440. There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development."
26 Clarke JA went on to consider the judgment of McHugh JA in Carr. His Honour said this at (LGRA 237):
"In Carr the proposed development in question was that of professional consulting rooms which was defined in the relevant instrument to mean a number of rooms, inter alia, 'used or intended for use … by not more than three dentists … and who employ not more than three employees'. The submission was that the condition restricting the number of employees was a development standard as it specified a requirement in respect of an aspect of that development. The argument was rejected upon the ground that the restriction appeared in the definition of the development which was under consideration. The point being made by his Honour was simply that the provision did not lay down a standard against which the proposed development could be measured but itself formed part of the definition of the development. If, for instance, in the present case, residential flat buildings were defined in the table in cl 9 as meaning residential flat buildings with no more than two storeys no part of that definition could be regarded as a development standard. In this case the Court is not concerned with the definition of residential flat buildings and with the greatest respect to Bignold J the passage in McHugh JA's judgment does not assist in the resolution of the question whether cl 14A(1)(a) lays down a development standard."
27 Since the decision in Mayoh, the problem of whether a provision in a Local Environment Plan contains a development standard has been debated many times. In most cases it has been held that the provision under consideration contains a development standard. However, the many cases confirm that the question has caused considerable difficulty.
28 The Court of Appeal looked at the matter in a comprehensive manner in two recent cases: Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 and Lowy v Land and Environment Court of New South Wales & Ors (2002) 123 LGERA 179.
29 In Poynting, Young CJ in Eq agreed with the analysis of the problem undertaken by Giles JA. Acknowledging that the task is not necessarily easy, Young CJ in Eq identified the fact that a lack of consistency in the drafting of planning instruments has multiplied the occasions on which it has been necessary for the court to resolve the problem. I respectfully agree with his Honour's observations. The difficulty in the application of SEPP 1 is but one reason, and there are many others, why there should be a return to consistency of wording across planning instruments.
30 With respect to the method by which the problem can be resolved, Young CJ in Eq embraced the familiar analysis by Mahoney and Clarke JJA in Mayoh. Acknowledging that the task was not an easy one, his Honour said (at LGERA 347):
"The dichotomy between a development standard and an absolute prohibition provides a valuable guideline as long as it is remembered that a development standard may contain expressly or impliedly some sort of prohibition. However the sort of prohibition involved is a prohibition on the extent of development, not a prohibition as to whether development is possible at all."
31 Giles JA traced the history of consideration of relevant clauses to determine whether they were developments standards. After referring to the familiar passages in Mayoh his Honour acknowledged the role which the "prohibition v regulation" dichotomy had played in the resolution of many disputes.
32 His Honour concluded that "a process of construction to find regulation on the one hand or prohibition on the other hand" will bring finely divided decisions. His Honour said (at LGERA 342):
"I do not think it profitable to go to further decided cases, which will only reveal how a provision has been categorised in the interpretation of the particular environmental planning instrument. It is evident that a process of construction to find regulation on the one hand or prohibition on the other hand will bring finely divided decisions. Care must be taken lest form govern rather than substance. A provision in the form, 'A building may be erected on land in a particular zone if the land has an area greater than a particular area' appears regulatory, whereas a provision in the form, 'A building must not be erected on land if the land has an area less than a particular area' appears prohibitory, but the substance is the same.
As was done in, for example, Fencott Drive Pty Ltd v Lake Macquarie City Council, the provision must be seen as part of the environmental planning instrument as a whole. Regulation or prohibition may depend on the governing characteristic perceived in the provision. In the second form of provision just set out, if the characteristic is land in the particular zone the area requirement may be seen as stating a permissible way or extent of development, but if the characteristic is land with the particular area no development may be carried out. I do not find the so-called dichotomy, or its expression in the two different kinds of provision, either clear or providing ready answers.
There must be found a distinction between a provision which is a development standard and a provision which controls development in some other way, and the guidance of the dichotomy in providing a conceptual basis for the distinction must be acknowledged. But neither the dichotomy itself nor its expression in the two different kinds of provision can replace the definition in the Act."
33 Giles JA reasoned that there are two steps in the process of identifying whether a particular provision provides a development standard. A provision which provides a prohibition on the development under any circumstances will not be a development standard. His Honour said that the argument that the relevant clause was a development standard in Mayoh and Carr failed at this first step. If the clause does not provide an absolute prohibition, the debate is "whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development." (at LGERA 343)
34 His Honour explained the correct approach to the analysis in the following manner (at LGERA 343):
"If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. 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 a relevant aspect of the development is identified the control will be by imposition of a development standard.
In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in pars (a)-(n) of the definition of 'development standards' in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr ) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances. Healesville Holding Pty Ltd v Pittwater Council must be explained in a similar way. The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed - sitting of the building ( Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council ), number of storeys of the building ( Scott Revay & Unn v Warringah Council ), minimum subdivisible area ( Bell v Shellharbour Municipal Council )."
35 Giles JA then considered cl 41(2) of the relevant Local Environmental Plan which was in the following terms:
"A single dwelling … must not be erected on an allotment of land within Zone No 2(a) or 2(b) which has an area of less than 560 square metres … ."
36 Acknowledging that on one view "the area of the land to be developed is not an aspect of the development" his Honour preferred a "wider view" saying that "the aspects of the development include the size of the parcel on which the building is to be erected, and both independently and because par (a) of the definition of "development standards" includes area and dimensions of land I consider that to be correct." (LGERA 346)
37 In Lowy, Giles JA confirmed the approach he adopted in Poynting. Mason P agreed with Giles JA.
38 Notwithstanding that the relevant clause in Poynting defined, albeit by reference to specified dimensions of the allotment, whether the particular development is permissible on the land, the court, taking "the wider view", held that it was a development standard. In Mayoh, permissibility was defined by reference to the attributes of adjoining land. In Poynting, permissibility was defined by attributes of the land itself. It would seem that the difference is significant when determining whether the provision contains a development standard.
39 It was submitted by the council in the present case that the reasoning in Mayoh remains the guiding principle when resolving whether a particular provision contains a development standard. Of this proposition Giles JA said in his detailed reasons in Lowy that "it may not be entirely correct." If his Honour had in mind the "wider view" adopted in Poynting, with respect, I doubt that the approach in Mayoh now completely reflects the law.