Groffen v Lake Macquarie City Council

Clause 8 of LEP 84 adopts the Environmental Planning and Assessment Model Provisions 1980 ("the Model Provisions"). Clause 7 of the Model Provisions provides:-

(i) The Council may, by resolution, fix a line (in this clause called a "foreshore building line") in respect of any land fronting any bay, river, creek, lake, lagoon, harbour or ocean. (ii) A foreshore building line shall, when fixed in accordance with subclause (i) be marked on a plan or clearly described in the resolution and the plan or resolution shall be available for inspection by the public during the office hours of the council. (iii) The council may alter or abolish any foreshore building line, where the levels, depth or other exceptional features of the site make it necessary or expedient to do so. (iv) A building shall not be erected between a foreshore building line and a bay, river, creek, lake or lagoon in respect of which the line is fixed. 6. Prior to 12 November 1984 no foreshore building line applied in respect of the subject land. On 12 November 1984 the council resolved to fix the foreshore building line at 36 m from the high water mark of Lake Macquarie "(the 1984 Resolution").

On 18 July 1988 the council resolved to repeal the 1984 Resolution and to fix a foreshore building line in respect of land, including the subject land, at 36 metres from the high water mark of Lake Macquarie ("the 1988 Resolution") in the following terms:-

LAKE MACQUARIE FORESHORE BUILDING LINE RESOLUTION, 1988

Citation This resolution may be cited as Lake Macquarie Foreshore Building Line Resolution, 1988.

Aims, objectives etc. This resolution aims - -to protect the visual character and natural landscape of Lake Macquarie, by restricting the erection of buildings and structures immediately adjacent to the foreshore and in other prominent or conspicuous locations such as headlands, ridgelines, cliffs and embankments;

-to encourage the preservation of nature foreshore vegetation in order to retain the visual character of the foreshore, to protect remnants of plant communities which were once characteristic of land now within an urban area, to maintain the stability of shorelines, and to protect against increased erosion and siltation; and

-to permit private development of foreshore land without prejudice to possible future acquisition of foreshore public reserves and access ways.

Land to which resolution applies This resolution applies to all land abutting the mean high water mark of Lake Macquarie.

Relationship to other environmental planning instruments (1) This resolution is made pursuant to Clause 7(1) of the Environmental Planning & Assessment Model Provisions, 1980, as adopted by Clause 8 of the Lake Macquarie Local Environmental Plan, 1984. (2) State Environmental Planning Policy No. 1 applies in respect of any development which could, but for any development standard created by virtue of this resolution, be carried out either with or without the necessity for consent under the Act being obtained.

Relationship to other resolutions of Council This resolution repeals resolution number 84.CS.452 of 12th November 1984.

Foreshore building lines (1) A foreshore building line, fixed in relation to the deed high water mark, shall apply to all land to which this resolution applies. (2) Where the map indicates, in relation to any allotment, a dimension inscribed adjacent to a bracket, the foreshore building line is the loci of points generated by measuring the indicated dimension at right angles from the deed high water mark. (3) Where the map indicates, in relation to any allotment, two dimensions inscribed adjacent to separate arrows, the foreshore building line is the straight line generated between the two points obtained by measuring from the deed high water mark the indicated dimensions along the respective side boundaries. (4) A foreshore building line described in Subclause (3) may be referred to as a variable foreshore building line.

The dwelling is located wholly within the foreshore building line reservation and therefore the applicant submits that no development can be undertaken to the dwelling even in the nature of renovations since such work would constitute 'development' as defined in s 4(1) of the EP&A Act and would be prohibited. The dwelling was lawfully erected prior to 12 November 1984 and has been used as dwelling house since its erection. It is submitted that because such development is prohibited and existing use rights have been created, the proposed alterations to the dwelling are to be assessed by council in accordance with Pt 5 of the Environmental Planning and Assessment Regulation 2000.

The council submits that the foreshore building line constitutes a development standard and is not a prohibition on development. The council submits that the foreshore building line operates to control such development by imposing a requirement that development take place no closer to the foreshore of Lake Macquarie than as stipulated by such foreshore building line. Accordingly the council submits that the foreshore building line cannot be construed as a prohibition on development upon the subject land. As such, the council submits that the provisions of State Environmental Planning Policy 1 ("SEPP 1") can be invoked by the applicant.

Section 4 of the EP&A Act defines 'development standard' as follows:- 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 [an itemised list of requirements] .

In North Sydney Municipal Council v P.D. Mayoh Pty Ltd (No 2) (1970) 71 LGRA 222 at 222 Mahoney JA at 232-233 identified three matters as guides to the interpretation of such definitions, as follows:- First, the definition applies, in the first instance, only to provisions which are "provisions…in relation to the carrying out of development". Therefore that with which the definition deals is provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards to be observed.

Secondly, Mahoney JA considered that the 'requirements' or 'standards' referred to in the definition of 'development standard' contained in s 4 of the EP&A Act are directed to the manner in which the development is to be carried out, and are not to be interpreted as a prohibition upon development. Thirdly, matters the subject of the itemised list enumerated in the definition were indicative of development standards, rather than a prohibition. Mahoney JA (at 233) emphasised that it is the intention of the instrument that must be ascertained, ' derived from the words which have been used and the meaning of them in the context' . 12. Numerous authorities were referred to in argument which dealt with the interpretation of clauses in planning instruments such as Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114; Kruf v Warringah Shire Council (Holland AJ, NSWLEC, 15 September 1988, unreported); Napper v Shoalhaven City Council [1988] NSWLEC 6 (26 February 1988); Bowen v Willoughby City Council (2000) 108 LGERA 149; McKay v North Sydney Council [2000] NSWLEC 62.

13. There is a distinction to be made between all of the authorities referred to and the present circumstances. The 1988 Resolution specifically provides for the operation of SEPP 1, and thereby acknowledges that the foreshore building line may be varied in appropriate circumstances. Since SEPP 1 is only applicable to development standards, it may readily be inferred that the intention of the council, as expressed in the 1988 Resolution, was to adopt a development standard in respect of the foreshore building line.

14. Even if no reference had been made to SEPP 1 the Court adopts the reasoning of Bignold J in Bowen wherein His Honour determined that a foreshore building line constituted a development standard. His Honour's reasoning is consistent with that of Cripps J in Quinn O'Hanlon. In this decision Cripps J said at 118:- In the present case, as I have said, the erection of a dwelling-house is permissible in the zoning tables over the whole of the land except that that which is permitted (that is a dwelling house) may not, subject to certain exceptions, be erected over part of the land. It would seem to me, in the absence of any authority to the contrary, that the fixing of a building line as a special provision in a planning ordinance would be relevantly a development standard and one being " in respect of an aspect of the development" viz the siting of a permissible building on the land.
15. In McKay the relevant clause of the North Sydney Local Environmental Plan 1989 fixed a foreshore building line and provided that development on the affected land was prohibited pursuant to such clause. Sheahan J determined that the word 'prohibited' was not one related to regulation but constituted a prohibition on development. Such decision confirms that it is the intention of the clause that is to be ascertained (see Mahoney JA in Mayoh at 233) and that in each case the terms of the clause are to be examined for this purpose.
16. The foreshore building line created by the 1988 Resolution comprises part of LEP 84 and is to be interpreted with the remaining provisions of such plan. So construed, the erection of a dwelling house upon the land is not prohibited. Further the reference to SEPP 1 in the 1988 Resolution demonstrates the intention, consistent with the objectives of the 1988 Resolution, that the instrument is to operate as a development standard and not as a prohibition.

17. The Court determines the preliminary question of law as follows:- The foreshore building line created by the Lake Macquarie Foreshore Building Line Resolution 1988 constitutes a development standard within the meaning of s 4 of the Environmental Planning and Assessment Act 1979.

1. The proceedings be listed before the registrar on 26 July 2001 for further directions.
2. The exhibits remain with the Court file.
3. Costs be reserved.

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.