Hill v Blacktown City Council

Colonial State Properties Pty Ltd v Ku-ring-gai Council [2002] NSWLEC 179; Commissioner for Railways v Agalianos (1955) 92 CLR 390; Coulton v Holcombe (1986) 162 CLR 1; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; Dino Seraglio v Fairfield City Council No. 10516 of 1996 [1997] NSWLEC 4 (17 January 1997); Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139 ; Griffith University v Tang (2005) 221 CLR 99; Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95; Hill v Blacktown City Council [2007] NSWLEC 108; CASES CITED: Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 ; Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630; Newbury District Council v Secretary of State for the Environment [1981] AC 578 ; O'Brien v Komesaroff (1982) 150 CLR 310 ; Porfiri v Ku-ring-gai Council (2002) 122 LGERA 98; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; Sofi v Wollondilly Shire Council (1975) 31 LGERA 416; The Council of the City of Parramatta v Pestell (1972) 128 CLR 305; The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178 ; Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86

APPLICANT Mr A Bisits, solicitor SOLICITORS A Bisits Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso SC with Mr P R Clay SOLICITORS Houston Dearn O'Connor

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 On 8 March 2007 a Commissioner of this Court determined an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) by determining to grant development consent to a development application proposing to erect a single storey detached dwelling at 93 Barton Street, Marsden Park (Hill v Blacktown City Council [2007] NSWLEC 108). Under s 56A of the Land and Environment Court Act 1979 (the LEC Act) a party may appeal against the Commissioner's decision on a question of law. The Council exercised this appeal right by notice of motion and the applicant responded by way of a cross-claim. The issues may be summarised as follows: Appeal (1) Given that in the hearing before the Commissioner both parties assumed that the proposed dwelling house was permissible with consent (albeit by different constructions of the relevant environmental planning instrument), should the Council be allowed to raise issue (2) in the appeal?

(2) On the proper construction of cl 14(1)(a) of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Sydney Region Growth Centres SEPP), was the proposed dwelling house permissible with consent? Cross-claim (3) Are conditions 46 and/or 39 of the consent beyond power and invalid? (4) If so, are conditions 46 and/or 39 able to be severed from the balance of the consent?

2 The development application related to 93 Barton Street, Marsden Park. 93 Barton Street contained 4 lots of equal area providing a total area of 1618.8sqm, on which a dwelling had been erected. The development application proposed to demolish the existing dwelling and erect a new dwelling. The Sydney Region Growth Centres SEPP applied to the land on and from 28 July 2006. Although the development application had been lodged in 2004 and refused by the Council in 2005, the Sydney Region Growth Centres SEPP did not contain a savings and transitional provision excluding the operation of the SEPP with respect to development applications lodged but not finally determined before the SEPP commenced.

3 The aims of the Sydney Region Growth Centres SEPP are in cl 2. Clause 6(1) provides: (1) Subject to section 74(1) of the Act, in the event of an inconsistency between this Policy and another environmental planning instrument whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

4 Section 74(1) of the EPA Act concerns amendments to environmental planning instruments by subsequent instruments.

5 Clause 8 of the Sydney Region Growth Centres SEPP is in Pt 3 - Land Use - Environment Conservation and Recreation Zones and is as follows: (1) This Part applies to land within a growth centre precinct that is zoned under this Part. (2) Land that is zoned under this Part is not subject to the provisions of any environmental planning instrument (other than a State environmental planning policy or regional environmental plan) applying to the land concerned, except to the extent that this Policy otherwise provides.

6 The land is within the Environment Conservation zone under the Sydney Region Growth Centres SEPP (cl 9). The table to cl 10 identifies the objectives for the Environment Conservation zone. Clause 12 contains the traditional reference to the threefold classification of development (Div 1 of Pt 4 of the EPA Act) and provides: (1) The land use table set out at the end of this clause specifies the following for each land use zone: (a) development that may be carried out without consent, (b) development that may be carried out only with consent, (c) development that is prohibited. (2) This clause is subject to the other provisions of this Policy.

7 The land use table for the Environment Conservation zone specifies in item (3) that "any other development" (that is, other than development permissible without consent in item (1) and permissible with consent in item (2) of the land use table) is prohibited. Dwellings and dwelling houses are not identified in items (1) and (2) of the zoning table and thus fall within item (3) (prohibited development). However, cl 14(1), also in Pt 3 of the Sydney Region Growth Centres SEPP, provides: (1) Despite anything to the contrary in this Part, the consent authority may grant consent to the carrying out of development on land zoned under this Part that is not otherwise permitted by this Part if: (a) the development is of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the commencement of this Policy, and (b) the relevant public authority referred to in clause 15 that may be required to acquire the land grants concurrence to the proposed development, and (c) the development is consistent with the aims of this Policy.

8 Clause 14(2) concerns concurrence and is as follows: (2) In deciding whether to grant concurrence to proposed development under this clause, the relevant public authority must take the following matters into consideration: (a) the need to carry out development on the land for the purposes for which the land is zoned under this Part, (b) the imminence of acquisition of the land by the public authority, (c) the likely additional cost to the public authority resulting from the carrying out of the proposed development.

9 Before the Sydney Region Growth Centres SEPP commenced, the Blacktown Local Environmental Plan 1988 (the LEP) applied to the land. The LEP contains provisions common to many environmental planning instruments, including cl 2 (containing the aims of the LEP), cl 8 (identifying the relevant zones), cl 9(2) (identifying the development permissible without consent, permissible with consent and prohibited in the associated zoning table, but subject to the traditional "except as otherwise provided by this plan" proviso) and cl 9(3) (the requirement that consent authority shall not grant consent unless the consent authority is of the opinion that the carrying out of the development is generally consistent with one or more objectives of the plan and one or more objectives of the zone within which the development is proposed to be carried out). The LEP zoned the land 1(a) General Rural. Dwellings and dwelling houses are development purposes within item (3) of the LEP zoning table (development which requires consent) because that item refers to any purpose other than a purpose included in items (2) or (4) of the table. Item 2 refers to "Nil". Item (4) refers to numerous development purposes but not dwellings or dwelling houses. The LEP, however, also contained a development standard in cl 12(3). The proposed development did not comply with that development standard because it proposed the erection of a dwelling on land zoned 1(a) and marked cl 12(3) on the map where the relevant parcel of land (93 Barton Street) had an area of less than 10 hectares.

10 State Environmental Planning Policy No 1 - Development Standards (SEPP 1) applied to the land before the Sydney Region Growth Centres SEPP commenced and continued to apply thereafter. Under cl 5, SEPP 1 "prevails over any inconsistency between it and any other environmental planning instrument, whenever made". Clause 6 of SEPP 1 enables a person to make a development application to carry out development that could, but for any development standard, be carried out under the EPA Act, "supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection". Clause 7 provides: Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.

11 In the hearing before the Commissioner the Council submitted that if the Commissioner decided to uphold the objection to cl 12(3) of the LEP accompanying the development application, then cl 14(1)(a) of the Sydney Region Growth Centres SEPP would be satisfied. The applicant presumably provided the SEPP 1 objection because the Sydney Region Growth Centres SEPP had not commenced when the development application was lodged or determined by the Council. The applicant disagreed and submitted to the Commissioner that the only question to which cl 14(1)(a) gave rise was "could" the development be carried out under the relevant instruments (the LEP and SEPP 1), to which the answer was "yes".

12 Despite his conclusion that the applicant's approach to cl 14(1)(a) was correct, the Commissioner adopted what appeared to be the prudent course based on the competing submissions of considering the objection that supported the development application in accordance with SEPP 1 (at [21] of the Commissioner's reasons). The Commissioner concluded that the objection should be upheld (at [51]). The Commissioner concluded that the other requirements of the Sydney Region Growth Centres SEPP were satisfied, or could be satisfied by conditions. Accordingly, he determined to grant development consent to the application, subject to conditions including conditions 46 and 39, which are the subject of the cross-claim.

13 Condition 46 is as follows: The landowner enter into a deed of release with the Department of Planning prohibiting the landowner and their successors in title from claiming compensation for the works associated with this development consent prior to the issue of a construction certificate, to the extent that the works increase the value of the land and its improvements over and above its present value. 14 Condition 39 provides: The lots are to be consolidated into one title, registered with the Lands Title Office, prior to the commencement of the use or occupation of the development. 15 In contrast to its position in the hearing before the Commissioner, the Council argued in this appeal that the Sydney Region Growth Centres SEPP prohibited the erection of the dwelling house as proposed. Specifically, the Council said the development was not "of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the commencement of" the Sydney Region Growth Centres SEPP within the meaning of cl 14(1)(a) of that instrument. Properly construed, the Council submitted, the words "an applicable environmental planning instrument" in cl 14(1)(a) meant a "local environmental plan". The LEP prohibited the erection of a dwelling on the land by cl 12(3).

16 Alternatively, if the words "an applicable environmental planning instrument" included other environmental planning instruments (regional environmental plans and State environmental planning policies), then the Council submitted the development was not of a kind that could be carried out under any such instrument. The facility afforded to applicants by SEPP 1 (which would have been available before the Sydney Region Growth Centres SEPP commenced) was immaterial, as development is not carried out under SEPP 1. Moreover, the submission continued, cl 14(1)(a) does not contemplate the operation of more than one instrument (by analogy to Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95, Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86, Porfiri v Ku-ring-gai Council (2002) 122 LGERA 98 and Colonial State Properties Pty Ltd v Ku-ring-gai Council [2002] NSWLEC 179).

17 The Council made no complaint about the Commissioner's reasoning with respect to any other matter.

18 The applicant had objected to conditions 46 and 39 being imposed in the hearing before the Commissioner and contended through its cross-claim that the conditions were beyond power and could not be imposed. C. The appeal Issue 1: should the Council be permitted to raise issue (2)?

19 In Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139 at [151], Hayne and Callinan JJ at [151] observed: In deciding whether a party may take a point for the first time on appeal, the principles to be applied are well known. Those principles have been discussed, in this court, in several cases. As was said in Coulton v Holcombe [ (1986) 162 CLR 1 at 7; 65 ALR 656 at 660.], "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". But the rule against raising a new point for the first time on appeal is not absolute. As Mason J said in O'Brien v Komesaroff [(1982) 150 CLR 310 at 319; 41 ALR 255 at 260.], "[i]n some cases when a question of law is raised for the first time in an ultimate court of appeal … it is expedient in the interests of justice that the question should be argued and decided" 20 The new point the Council seeks to take on appeal is one of construction where, insofar as relevant, all facts are beyond controversy. The point (if correct) would be determinative of the appeal and cross-claim under s 56A of the LEC Act and, most likely, the principal appeal against the Council's refusal of the application under s 97 of the EPA Act. This is because the development application has to be determined on the law as it stands "at the time of the determination, including when it is determined on appeal to the Court" (The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178 at [20] citing Sofi v Wollondilly Shire Council (1975) 31 LGERA 416; Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630).

21 Accordingly, and despite the applicant's submissions to the contrary, I am satisfied it is expedient in the interests of justice that the Council be permitted to raise the new point in this appeal. Any costs consequences will have to be considered separately.

Issue 2: was the proposed dwelling house permissible with consent?

22 The Council submitted: (1) Clause 14(1)(a) of the Sydney Region Growth Centres SEPP must be construed in context. An important part of the context is cl 8(2). Under cl 8(2), and except to the extent otherwise provided, the land was not subject to the provisions of any environmental planning instrument (other than a State environmental planning policy or regional environmental plan) on the commencement of the Sydney Region Growth Centres SEPP.

(2) When cl 14(1)(a) is construed in the context of cl 8(2), it is apparent that the phrase "an applicable environmental planning instrument immediately before the commencement of this Policy" means an environmental planing instrument that applied to the relevant land before the Sydney Region Growth Centres SEPP commenced, but did not apply thereafter. State environmental planning policies and regional environmental plans continued to apply (cl 8(2)). Accordingly, there was no reason to construe cl 14(1)(a) as applying to those classes of instruments. The only class of instrument relevant to cl 14(1)(a) is local environmental plans. The only local environmental plan that applied to the land was the LEP. The proposed development could not be carried out under the LEP given the terms of cl 12(3). (3) This construction of cl 14(1)(a) was consistent with the aims of the Sydney Region Growth Centres SEPP relevant to land zoned Environment Conservation (cl 2) and the objectives of that zone (cl 10(2) and the table to the zone), as it enabled development permissible under the previously applicable local environmental plan to be carried out. (4) If, contrary to the above, the phrase "an applicable environmental planning instrument immediately before the commencement of this Policy" includes all applicable environmental planning instruments before the Sydney Region Growth Centres SEPP commenced, then the only environmental planning instrument under which any development "could be carried out on the land" was the LEP. No development can be carried out under SEPP 1. The clause distinguishes between the capacity to grant consent to development and the capacity to carry out development under an instrument. SEPP 1 enables an applicant "who is able to satisfy the conditions, to circumvent or overcome the prohibitions appearing" in the LEP ( Vaniga at 90), but does not permit any development to be carried out. This is consistent with the reasoning in Healesville at 102-103. Moreover, the words of cl 14(1)(a) are indistinguishable from the provision considered in Porfiri and Colonial State . Those decisions considered cl 17 of State Environmental Planning Policy No 53 - Metropolitan Residential Development (SEPP 53), which provided that certain development was permissible "if another environmental planning instrument permits a dwelling-house to be erected on that allotment…". In Porfiri , Cowdroy J (at [21] to [23]) held that no instrument existed permitting the development, even though the upholding of an objection in accordance with SEPP 1 would have enabled the development to be carried out. In Colonial State , Talbot J agreed, observing that SEPP 1 "does not, through its terms, permit anything other than the opportunity to make a written objection to the application of a development standard" (at [6]). He concluded that the "facilitative provisions of SEPP 1 do not permit development to be carried out. They merely provide the mechanism for dispensing with the prohibiting effect of the relevant development standard to enable a development application to be considered on its merits. This is a separate and distinct matter to that of permitting development" (at [8]).

(5) Clause 14(1)(a) did not enable the combined operation of more than one environmental planning instrument to be considered. It required identification of a particular environmental planning instrument under which development of a relevant kind could be carried out. See Vaniga at 89-90. 23 The applicant submitted: (1) Clause 14(1)(a) requires consideration of the "kind" of development only, not the particular development. It asks whether the kind of development "could" have been carried out under the previously applicable instrument. The singular "an applicable environmental planning instrument" includes the plural (s 8(b) of the Interpretation Act 1987). Hence, cl 14(1)(a) requires environmental planning instruments to be considered, not merely the LEP. (2) "Could" denotes ability, speculation and possibility. The relevant "kind" of development is dwelling house. That is a kind of development that could be carried out with consent under the LEP. "Under" simply means "in accordance with" or "pursuant to ". Even if a more particular view of the "kind" of development of development is taken (such as, dwelling house on land less than 10 hectares), it could be carried out under the LEP and by an objection under SEPP 1 being upheld or by, for example, the applicant acquiring additional land (given the definition of "parcel" as including adjoining or adjacent land in the same ownership in cl 12(1) of the LEP). (3) Healesville is distinguishable. For cl 14(1)(a) to be equivalent to the facts in Healesville , it would have to say, "the development is of a kind that could be carried out on the land under cl 12(3) of the LEP". Porfiri and Colonial State are also distinguishable or wrong. They concerned concurrently applicable instruments. A criterion for permissibility under the relevant part of SEPP 53 was whether another instrument permitted a dwelling house to be erected, which is different from cl 14(1)(a). Discussion

24 An environmental planning instrument is an "instrument" for the purposes of the Interpretation Act (s 3(1) and see also s 5(6)). Various presumptions about construction thus apply subject to contrary intention, including s 8(b) (the singular includes the plural), s 11 (words in the instrument have the same meaning as the Act under which the instrument was made), as well as s 33 (a construction that would promote the purpose or object underlying the instrument is to be preferred to a construction that would not promote that purpose or object).

25 The Court of Appeal considered the approach to the construction of environmental planning instruments in Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379. (1) "Environmental planning instruments are a species of delegated legislation …and should be interpreted in accordance with the general principles of statutory interpretation" ( Cranbrook School at [36]).

(2) "A construction should be preferred that is consistent with the language and purpose of all the provisions of such instruments: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78], per McHugh J, Gummow J, Kirby J and Hayne J" ( Cranbrook School at [36]).

(3) The "context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed": Commissioner for Railways v Agalianos (1955) 92 CLR 390 at 397, per Dixon CJ ( Cranbrook School at [63]). 26 The decision in Healesville turned on the meaning of cl 17(2)(a) of the Pittwater Local Environmental Plan. This clause required the allotment to have been "created by a subdivision which was not prohibited under clause 12". Clause 12 contained a development standard with which the subdivision did not comply. The applicant argued that, if the objection under SEPP 1 were upheld, then the criterion in cl 17(2)(a) would be satisfied. The Court of Appeal rejected the applicant's argument. Priestley JA (at 101-102), with whom Powell and Stein JJA agreed, characterised the argument as not taking sufficient account of the words "under cl 12". The subdivision was prohibited under cl 12 irrespective of the capacity provided by SEPP 1 allowing the consent authority to grant consent to the application. Priestley JA observed that this approach was consistent with the reasoning of Clarke JA in Vaniga. Stein JA noted that the fact SEPP 1 provides "a means whereby …[a] prohibition may be set aside, does not make it any less a prohibition" (at 103).

27 Vaniga concerned the lapse of a development consent. The relevant provision was s 99 of the EPA Act. Under s 99(1)(a)(ii) the consent would lapse within one year of the coming into force of a provision of an environmental planning instrument "which would…have the effect of prohibiting the development". The provisions in question were development standards with respect to height and floor space with which the development did not comply. Clarke JA (with whom Priestley and Meagher JJA agreed) observed "there was much to be said for the view that s 99(1)(a)(ii) directs attention solely to the provisions of a particular environmental planning instrument" (at 89-90). If SEPP 1 were relevant, then the capacity to circumvent or overcome the prohibitions by the upholding of an objection did not alter the fact that the relevant local environmental plan had the effect of prohibiting the development.

28 I do not consider that the decisions in Vaniga and Healesville dictate any particular outcome in the present case. They concerned different provisions, as do Porfiri and Colonial State. Vaniga and Healesville disclose that care must be taken to identify with precision the relevant question posed by the provision. Where the question concerns whether development is prohibited by a provision of an environmental planning instrument, the facilitative provisions of SEPP 1 must be recognised for what they are - a conditional capacity to circumvent or overcome the provision prohibiting the development enabling a development application to be made (cl 6) and development consent to be granted (cl 7). The prohibition contained within the development standard, however, retains it character as a prohibition.

29 In this case, the relevant question is whether the "development is of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the commencement of this Policy". The focus is not a provision of an instrument or an instrument having a prohibitory or permissive effect. The focus is a hypothetical state of affairs at a nominated time - namely, whether the proposed development is of a kind that could be carried out on the land under an applicable environmental planning instrument before the Sydney Region Growth Centres SEPP commenced.

30 I do not accept that cl 14(1)(a) directs attention to an instrument that applied before the commencement of the Sydney Region Growth Centres SEPP, but did not apply after. Nothing in the language of cl 14(1)(a), cl 8(2) or the other provisions of the SEPP lead to that conclusion. An "environmental planning instrument" is defined in s 4(1) of the EPA Act to mean "a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument ". It has the same meaning in the Sydney Region Growth Centres SEPP. If anything, cl 8(2) of the Sydney Region Growth Centres SEPP shows that where the SEPP was intended to operate differently on the various classes of instrument, the classes were identified consistent with the definitions in the EPA Act. Clause 14(1)(a), for example, could have qualified the words "environmental planning instrument" by the words "(other than a State environmental planning policy or regional environmental plan)" as they appear in cl 8(2). It did not. Instead the clause directs attention to "an applicable environmental planning instrument immediately before the commencement of this Policy". On the plain meaning of those words, whether such an instrument is a local environmental plan, State environmental planning policy, regional environmental plan or deemed environmental planning instrument is not to the point. Nor does it matter whether the instrument continued to apply to the land after the Sydney Region Growth Centres SEPP commenced. Provided the instrument applied to the land immediately before the Sydney Region Growth Centres SEPP commenced, it is potentially relevant to the operation of cl 14(1)(a).

31 In Vaniga Clarke JA's observation that the statutory provision referred to a particular environmental planning instrument is best explained by the matter with which his Honour was dealing - a provision of an instrument that would have the effect of prohibiting a particular development to which consent had been granted. In that context, a focus on any provision of an instrument having the relevant effect appears apt. Clause 14(1)(a) has a different context. It is not concerned with a provision of an instrument having the effect of prohibiting a particular development to which consent had been granted but rather the existence or not of the hypothetical circumstance to which I have referred.

32 The reference to development that could be "carried out" reflects the scheme in Div 1 of Pt 4 of the EPA Act. Under s 76, an instrument may provide that "development may be carried out without the need for development consent". Under s 76A(1) an instrument may provide that "development may not be carried out except with development consent". In both cases the EPA Act authorises the development to be carried out - in accordance with the instrument (s 76) or the consent and the instrument (s 76A(1)). The words "an environmental planning instrument" in ss 76, 76A and 76B (prohibited development) have never been construed as referring to any one instrument, absent consideration of the operation of other instruments. This is because more than one instrument may deal with the same land and subject matter. For this reason, s 36 of the EPA Act regulates inconsistency between instruments and s 74 enables later instruments to amend earlier instruments. Where the relevant task involves identifying the existence or not of the hypothetical state of affairs or circumstance to which I have referred, I can see no reason to look to the applicable local environmental plan exclusively. For example, a local environmental plan may have provided that canal estate development is permissible with consent on certain land. Yet State Environmental Planning Policy No 50 - Canal Estate Development (SEPP 50) applies to the whole State except for certain limited areas. SEPP 50 prevails over inconsistent instruments (cl 4). Under cl 5, canal estate development is prohibited. I do not accept that, in such a case, canal estate development would be a kind of development satisfying the hypothesis in cl 14(1)(a).

33 Accordingly, and consistent with the meaning of "an environmental planning instrument" as it appears in ss 76, 776A and 76B of the EPA Act, I am satisfied that cl 14(1)(a) does not mean "an environmental planning instrument disregarding all other environmental planning instruments that also apply to the land". It means all applicable environmental planning instruments relevant to the hypothesis set out in cl 14(1)(a). This accords with the conventional approach to ss 76, 776A and 76B of the EPA Act and the purpose or object of cl 14(1)(a) construed in context.

34 Clause 14(1) operates despite anything to the contrary in Pt 3 of the Sydney Region Growth Centres SEPP. The contrary provision is cl 12 incorporating the land use table. Clause 14(1)(a) is a form of savings provision. It allows a person to carry out on land development that could have been carried out under applicable environmental planning instruments before the Sydney Region Growth Centres SEPP commenced. This development may have been able to be carried out with or without consent. Under cl 14(1)(a), such development may still be carried out, but only with consent. The objectives of the Sydney Region Growth Centres SEPP are achieved not by prohibiting such development but, rather, by the other requirements of cl 14(1).

35 Once the context and function of cl 14(1)(a) are recognised, the differences from the context and function of the provisions considered in Vaniga and Healesville are apparent. Vaniga concerned the search for a prohibition in an instrument to determine whether a lapsing provision was triggered. Healesville considered whether a development was prohibited by another single nominated provision within the same instrument. Clause 14(1)(a) asks whether kinds of development could be carried out under an applicable environmental planning instrument before the Sydney Region Growth Centres SEPP commenced. In this context, there is no warrant for concluding that the clause excludes the operation of more than one instrument. In addition to the LEP, SEPP 1 applied to the land to which the development application related (cl 4). SEPP 1 prevailed over any inconsistent provision of the LEP (cl 5). SEPP 1 allowed a "development application" to be made at the relevant time (before the Sydney Region Growth Centres SEPP commenced) despite the fact that a development standard in another instrument (cl 12(3) of the LEP) would make the development prohibited from being carried out (cl 6). A "development application" means "an application for consent under Part 4 to carry out development" (s 4(1) of the EPA Act). SEPP 1, conditionally, allowed the consent authority to grant "development consent" to a development application at the relevant time notwithstanding the development standard in cl 12(3). A "development consent" means "consent under Part 4 to carry out development" (s 4(1) of the EPA Act). The Council's alleged distinction between the capacity to grant consent to development and the capacity to carry out development under an instrument dissolves in the face of these considerations and the text of cl 14(1)(a). SEPP 1 and the LEP, accordingly, were sources of power under which development of the relevant kind (dwelling-house) could be carried out on the relevant land at the relevant time, albeit it only with consent and recognising that the grant of consent was constrained by various pre-conditions.

36 Against this background was the development of erecting a dwelling development of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the Sydney Region Growth Centres SEPP commenced? The answer is "yes". (1) The "land" is the land on which the development is to be carried out. Hence, the applicant's speculation about other land is beside the point. (2) "Applicable environmental planning instrument" means the complement of instruments that regulated the carrying out of development on the land at the relevant time (consistent with the scheme in ss 76, 76A and 76B of the EPA Act). There is no warrant for focusing on the LEP in isolation. (3) Nor is there any warrant for assuming that cl 14(1)(a) requires the question to be addressed in sequence as: (i) Could the development be carried out under the LEP? Answer: "No, because of cl 12(3)". (ii) Could the development be carried out under SEPP 1? Answer: "No, because SEPP 1 has nothing to do with development being carried out". This is not how ss 76, 76A and 76B of the EPA Act operate and is not how cl 14(1)(a) operates for the reasons given above. (4) The words "under an applicable environmental planning instrument" in cl 14(1)(a) do not suggest a contrary approach. "Under" most commonly takes the meaning "in pursuance of", "under the authority of", "having the source of", or "drawing legal efficacy from", although context is critical (see, for example, Griffith University v Tang (2005) 221 CLR 99). (5) Whether a broad or narrow view of "under" is taken, development of the kind dwelling or dwelling-house could be carried out on the land under applicable environmental planning instruments (being the LEP and SEPP 1) at the relevant time.

37 What of the fact that SEPP 1 only enabled the consent authority to grant consent to carry out development if certain pre-conditions were satisfied? I do not consider this material given the focus on cl 14(1)(a) on whether the development "could" be carried out. "Could" is consistent with the idea of potential or possibility as distinct from absence of potential or impossibility. The relevant potential or possibility has to have existed under the environmental planning instruments as in force at the relevant time. Hence, potential or possibility because of some supervening event is immaterial. One looks to the instruments immediately before the Sydney Region Growth Centres SEPP commenced to determine the potential or possibility. The LEP itself contains at least one pre-condition to the grant of consent. Under cl 9(3), the consent authority has to form an opinion of consistency before consent may be granted. The existence of that pre-condition does not mean that all kinds of development regulated by the LEP are excluded from cl 14(1)(a). The development nevertheless could be carried out, provided the pre-condition was satisfied. The same reasoning applies to the pre-conditions in SEPP 1. This conclusion is also consistent with the operation of Div 1 of Pt 4 of the EPA Act generally. The development that could be carried out on land included development permissible without and only with consent. The obtaining of consent is itself a condition to the carrying out of certain classes of development. Clause 14(1)(a) extends to both classes.

38 I do not consider that the decisions in Porfiri or Colonial State suggest any different conclusion. They do not concern the same provision and are distinguishable. In particular, the focus of both decisions was whether an instrument permitted certain development on land. It was decided no instrument permitted the development, although consent could be obtained to carry out the development. In the present case, the provision does not focus on the existence of a prohibition or permission but, rather, whether development of a kind could be carried out under an environmental planning instrument (or instruments) at a particular time. The instruments (the LEP and SEPP 1) were a clear source of authority to carry out the relevant kind of development immediately before the Sydney Region Growth Centres SEPP commenced, albeit only with consent.

39 For these reasons, I am satisfied the Commissioner was correct when he accepted the applicant's submission below. The Council's appeal should be dismissed.

Issue 3: are conditions 46 and/or 39 beyond power and invalid?

40 The applicant submitted that neither condition was authorised under the EPA Act (s 80A or s 79B(8)). Specifically, the conditions did not relate to any consideration relevant to the development application under s 79C(1). As to condition 39, the dwelling house would be erected on two of the four lots only. The applicant was willing to consolidate the two lots on which the dwelling was to be erected, but not the balance of the land. The Council had not justified the condition other than through the evidence of Mr Apps, who conceded that the only requirement was to consolidate the land on which the dwelling would be erected (transcript 19/12/06 p 48 lines 45 to 48). As to condition 46, it concerned the "purse strings" of the acquiring authority under cl 15 of the Sydney Region Growth Centres SEPP, which were irrelevant to the application. The submission of 14 December 2006 from the Department of Planning refusing concurrence on grounds including a concern about increased acquisition costs was immaterial, as the Minister administering the EPA Act was the relevant acquiring authority. Nor could s 79B(8) and cl 14(2)(c) authorise condition 46 as the Commissioner had not (and could not) make any findings about cl 14(2)(a) or (b). There was no timetable for acquisition and, hence, no possibility of determining either "need" or "imminence" as referred to in cl 14(2)(a) and (b). Absent the Commissioner making the required findings, cl 14(2)(c) could not make the condition relevant to the application.

41 It is worth emphasising that in an appeal limited to a question of law whether the conditions are perceived to be sound or unsound is immaterial. A condition is authorised if it is for a planning purpose, fairly and reasonably relates to the development and is not so unreasonable that no authority would have imposed it (Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 at [52] citing Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600).

42 The applicant's approach to the question of the validity of both conditions is far too constrained. The Commissioner considered condition 39 appropriate (at [55]). There is some evidence in the transcript explaining why the Commissioner may have diverged from Mr Apps' conclusion in the exchange immediately following that part of Mr Apps' evidence relied on by the applicant (transcript p 48 line 50 to p 49 line 46). In any event, the development application related to all four lots, even though the house may have straddled only two or possibly three lots. The Commissioner was not limited to consideration of the dwelling-house per se, but was able to assess that development in the context of the whole parcel forming the curtilage to the house. The area of the land and the curtilage of the dwelling-house were obvious relevant considerations to a development application proposing to erect a dwelling-house on a parcel of land comprising four lots. In an appeal under s 97 of the EPA Act, regulated by ss 38(2) and 39(2)-(4) of the LEC Act, it was open to the Commissioner to impose the condition under s 80A(1)(a) and the Newbury test.

43 Condition 46 caused the Commissioner real concern, as his remarks at [45] and [52] to [54] disclosed. The Commissioner recognised the condition could have a harsh impact on the applicant. Imposing the condition reflected the balance that the Commissioner considered appropriate in all the circumstances. With the benefit of the submissions made in this appeal, it is apparent that different drafting of the condition may have ameliorated some of this potentially harsh impact and, arguably, satisfied the same planning objectives. For example, drafting the condition to make the required deed conditional on acquisition of the land within a specified period before the lapse of the consent may have achieved this result. While this may be a reason for the applicant to consider applying to modify the consent, it involves matters about which minds could reasonably differ (The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 323) and does not found a question of law.

44 The Commissioner was entitled to take into account cl 14(2)(a) to (c) of the Sydney Region Growth Centres SEPP, even though he was not exercising a concurrence function (s 39(6) of the LEC Act). I do not accept that cl 14(2)(c) became potentially relevant only if the Commissioner had found that there was a need for the land and that it would be acquired within a defined time. Many conditions address contingencies. The fact that a condition is contingent does not deny its relationship to the development, even though (by its nature) the contingency may never eventuate. The subject of the condition satisfies the Newbury test in the particular context set by the Sydney Region Growth Centres SEPP (cll 14(1)(b), 14(2)(c) and 15) and s 80A(1) of the EPA Act.

45 It is true that the condition, if the consent is taken up, will create a circumstance that may affect the compensation payable to the applicant on acquisition of the land. I do not see that as an invalid fetter on the acquisition process provided for in s 9(1) of the EPA Act. Section 63 of the Land Acquisition (Just Terms Compensation) Act 1991 recognises that parties may agree "the amount of compensation to which the owner will be entitled (or on any matter affecting the amount of any such compensation) if the land is acquired by compulsory process within a time (or in the circumstances) specified in the agreement". Such an agreement has effect according to its tenor despite the entitlements to just compensation specified elsewhere in the Act (for example, s 54). In other words, there is no necessary inconsistency between the subject of the condition and s 9(1) of the EPA Act. Moreover, an applicant is not bound to apply for development consent. Nor is it bound to take up the consent if it finds the conditions too onerous. An applicant elects to apply for and take up any consent. In so doing, it accepts the obligation to comply with the conditions (subject, of course, to the capacity to apply to modify the consent and any of its conditions).

46 There are also practical considerations. Clause 14(2)(c) of the Sydney Region Growth Centres SEPP must be assumed to be valid. Clause 14(1)(b) requires the acquiring authority to grant concurrence to the application. Clause 14(2)(c) requires that authority, in so doing, to consider the likely additional cost to it resulting from the carrying out of the development. Although the requirement for concurrence is overcome by s 39(6) of the LEC Act, the matters in cl 14(2) are not irrelevant considerations under s 79C(1) (by reference either to s 79C(1)(a)(i) or (e) or, in this case, (d) having regard to the submission made by the Department, which was clearly on behalf of the acquiring authority). If the likely additional cost is a relevant consideration, then it is a potentially determinative consideration. Absent a capacity to impose a condition addressing the same subject-matter as condition 49 a consent authority, if it thought the consideration of determinative weight, may be left with no option other than to refuse consent, as granting consent absent the condition would be unacceptable. Absent some special circumstance, a consent authority may usually impose a condition relating to any relevant consideration (and see, by analogy, Dino Seraglio v Fairfield City Council No. 10516 of 1996 [1997] NSWLEC 4 (17 January 1997)).

47 For these reasons, I am not persuaded that condition 49 was beyond power and invalid. I consider that it was open to the Commissioner to impose the condition in the circumstances. The fact that the condition could have been drafted differently with a less harsh impact on the applicant, whilst arguably achieving the same planning objective, is insufficient to found a question of law.

48 It follows that issue 4 (severability of the impugned conditions) does not arise. I do not consider it appropriate to address the question whether conditions 39 and 46 would be severable from the consent if they were invalid although, clearly, this question is more difficult with respect to condition 46 than 39. For these reasons, the cross-claim should also be dismissed.

49 I have concluded that the appeal and cross-claim should both be dismissed and so order. All questions of costs may be argued.

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