Hones v Ku-ring-gai Council

Land and Environment Court (NSW)|2004-04-16|Before: Bignold J, Mr P

The Applicant, in pending class 1 proceedings (being an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (EP&A Act) against the deemed refusal of the Council to his application for an attached dual-occupancy development to be developed on land known as No 39 Baldwin Street, Gordon (the subject property) has raised preliminary questions of law to be determined in advance of any hearing on the planning merits.

The questions have arisen because of a dispute between the parties concerning the effect on the Applicant's appeal of the coming into force on 19 December 2003 (while the Applicant's development appeal was pending) of State Environmental Planning Policy No 53 - Metropolitan Residential Development (Amendment No 10) ("Amendment No 10"). Amendment No 10 amended the Principal Policy by including a certain matter in Schedule 3 which is headed "Areas Excepted from Part 3 (Dual Occupancy)".

As your Development Application proposes dual-occupancy development on land to which Amendment 10 applies, Council has no alternative but to refuse development consent.

The Council's letter included Notice pursuant to the EP&A Act, s 81(1)(a) notifying the Applicant that the Council had determined his development application by refusing consent for the following reason:

Amendment No 10 to State Environmental Planning Policy No 53 (19 December 2003) prohibits dual occupancy development on land identified as Bush fire prone land - vegetation category 1 and land identified as SEPP 5 exclusion areas within the municipality of Ku-ring-gai.

As will presently appear, the dispute between the parties as to the effect of Amendment No 10 centres on the fact that part only of the subject property (approximately the rear two thirds of Lot 13 in Section B of Deposited Plan 7306 which contains an area of some 1890 m2 with a frontage of some 24 m to Baldwin Street) has been relevantly identified as "Bushfire prone land - vegetation category 1".

The questions of law raised by the Applicant's Notice of Motion filed 28 January 2004 are as follows:

Does amendment 10 to State Environmental Planning Policy No. 53 ( SEPP 53 ) operate such as to preclude the granting of development consent to the development the subject of this appeal?

Does amendment 10 to SEPP 53 apply to the whole of a lot which contains land that is identified on a bush fire prone land map certified under s.146 of the Act as both Bush fire prone land - vegetation category 1 and Bush fire prone - vegetation buffer?

If the answer to Question 2 is in the negative, does amendment 10 to SEPP 53 not apply to the land identified as Bush fire prone - vegetation buffer?

If the answer to Question 3 is in the affirmative, what are the dimensions when measured from the street frontage of the lot the subject of this appeal over which amendment 10 to SEPP 53 does not apply?

On the hearing of the Applicant's Motion, the Applicant did not press Questions 1 and 4 (properly conceding that Question 4 was a question of fact) and Questions 2 and 3 were bracketed as essentially raising the same issue namely the manner in which Amendment No 10 affects the subject property. B. THE RELEVANT FACTS

The relevant facts are principally found in the Statement of Agreed Facts (Exhibit 2) which states the following:

On about 14 March 2003 the Applicant lodged the development application ("DA") the subject of this appeal with the Respondent.

The DA seeks development consent for the erection of an attached dual occupancy upon land known as 39 Baldwin Street, Gordon, being Lot 13, Section B in Deposited Plan 7306 (the "Property") pursuant to State Environmental Planning Policy No. 53 ("SEPP 53").

The Property is residentially zoned under the Ku Ring Gai Planning Scheme Ordinance (the KPSO) as Residential 2A(c), and the DA was at the time of lodgement permissible with consent by virtue of SEPP 53.

3.1 Part 3 of SEPP 53 applies to all land to which the policy applies that is within a residential zone under another EPI [C116(1)] unless the land is within an area described in Schedule 3 [C116(2)]. Specifically clause 16 provides:

(1) This Part applies to all land to which this Policy applies that is within a residential zone under another environmental planning instrument.

(2) However, this Part does not apply to land within an area described in Schedule 3 (Areas excepted from Part 3 (Dual occupancy))

On 19 December 2003 Amendment 10 to SEPP 53 was gazetted (the Amendment ).

Until the Amendment was made there was no land specified in Schedule 3 of SEPP 53.

The Property contains land that is within an area described in Schedule 3 as being identified on a bush fire prone land map certified under s.146 of the Act as both Bush fire prone land -vegetation category 1 and Bush fire prone - vegetation buffer (the Bush Fire Map).

The Amendment purports to exclude from the operation of SEPP 53, inter alia, land that is within an area described in Schedule 3 that is identified on the Bush Fire Map as Bush fire prone land-vegetation category 1.

The Amendment does not contain any reference to land that is within an area described in Schedule 3 that is identified on the Bush Fire Map as Bush fire prone - vegetation buffer.
As at the date immediately preceding the Amendment being gazetted Council officers were prepared to recommend approval of the application on merit grounds.
Portions of the current proposed dwellings protrude within the area identified on the Bush Fire Map as Bush fire prone land -vegetation category 1. The majority of the proposed dwellings are within the area identified on the Bush Fire Map as Bush fire prone - vegetation buffer.
For the purposes of this preliminary argument it is accepted that the location of the proposed dwellings could be modified so that the footprint of those dwellings would be wholly contained within the area identified on the Bush Fire Map as Bush fire prone - vegetation buffer.

11.1 In this regard it is accepted that the Applicant would be able, in the event the preliminary questions are answered favourably, to amend the application, incorporating modifications to the proposal so that the footprint of the proposed dwellings would be wholly contained within the area identified on the Bush Fire Map as Bush fire prone - vegetation buffer .

(Note: no concession is made that the modified footprint could be the subject of an amendment to the existing development application rather than a fresh development application).

These facts are further explained by the Extract of the Bush Fire Prone Land Map that includes the subject property and neighbouring lands (Exhibit 1), a copy of which is annexed hereto and marked "A". (Because the Extract is a coloured map and the copy is not coloured it should be noted that the dark shade represents "Bushfire prone land - vegetation category 1" and that the lighter shade represents "Bush fire prone vegetation buffer" and that the map does not show any "Bush fire prone land-vegetation category 2".

In further elaboration of the contents of Exhibit 1, the scale measurement indicates that of the total area of some 1890 m2 comprising the subject property, approximately 1200 m2 is relevantly identified "Bush fire prone land - vegetation category 1" leaving approximately 600 m2 at the street front portion of the property identified as "Bush fire prone vegetation buffer" (being a verbal description that was not explained in the evidence other than to be differentiated from land identified as "Bush fire prone land - vegetation category 1"). C. THE RELEVANT PROVISIONS OF STATE POLICY NO. 53, AS AMENDED BY AMENDMENT NO. 10

The State Policy came into force on 26 September 1997 (cl 2). Its express aims are stated in cl 3 as follows:

3 (1) This policy aims to encourage the provision of housing in metropolitan areas that will:

(a) broaden the choice of building types and locations available in the housing market; and (b) make more efficient use of existing infrastructure and services; and (c) reduce the consumption of land for housing and associated urban development on the urban fringe; and (d) be of good design.

(a) by establishing planning controls that will provide opportunities for a variety of housing types, such as multi unit housing or multi unit housing combined with development for any other purpose to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister; and

(b) by setting out design principles that, if followed, will achieve built form that responds to the characteristics of its site and location; and

(c) by encouraging councils to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims, and by allowing local government areas to be exempted from the whole or parts of this policy when those strategies and plans are in place.

(3) In addition, this Policy aims to simplify and streamline certain aspects of the planning system relating to residential development:

(a) by revising the provisions in a number of State environmental planning instruments to improve their operation; and

(b) by restating the revised provisions of those environmental planning instruments in a single policy written in a manner that is easy to understand.

Clause 4 states that the Policy "applies to the part of the State consisting of the local government areas described in Schedule 1, except as otherwise provided by this Policy". The only local government area currently described in Schedule 1 is Ku-ring-gai.

Part 2 of the State Policy contains provisions dealing with "Integrated Housing Development" including cl 11 which states:

11 (1) This Part applies to land that is specified or described in Part A of Schedule 2.

(2) However, this Part does not apply to land that is described in Part B of Schedule 2 (Environmentally sensitive land excepted from Part 2).

There is currently no land specified or described in Part A of Schedule 2. (It is not clear whether this fact means that Part 2 applies to no land or whether it applies to the Ku-ring-gai local government area by dint of cl 4).

PART B - ENVIRONMENTALLY SENSITIVE LAND EXCEPTED FROM PART 2

Land identified in an environmental planning instrument by the following descriptions or by like descriptions:

. coastal protection, . conservation (but not heritage conservation areas identified in that or another environmental planning instrument), . critical habitat, . environmental protection, . rural environmental protection, . escarpment, . floodway, . natural hazard, . scenic, . water catchment, . natural wetland, . rural residential.

Part 3 of the State Policy contains provisions dealing with "dual occupancy" including the following provisions -

(a) to create opportunities for two dwellings to be developed on a single allotment of land; and (b) through the other provisions of this policy, to ensure that dual occupancy development is: (i) designed and assessed with a full understanding of the opportunities and constraints of each site; and (ii) designed and assessed having adequate regard for the design principles contained in Part5.

16 (1) This Part applies to all land to which this Policy applies that is within a residential zone under another environmental planning instrument.

(2) However, this Part does not apply to land within an area described in Schedule 3 (Areas excepted from Part 3 (Dual occupancy)).

17 This Part allows development that results in two dwellings being located on the one allotment of land if the land is within a zone which, under another environmental planning instrument, permits the erection of dwelling houses and the development is carried out in accordance with this Part and Part 5.

Schedule 3 which is relevant to cl 16(2) contains the following matter:

SCHEDULE 3 -- AREAS EXCEPTED FROM PART 3 (DUAL OCCUPANCY)

(a) identified on a bush fire prone land map certified under section 146 of the Act as "Bush fire prone land - vegetation category 1", or

(b) shown cross-hatched on the map marked "State Environmental Planning Policy No 5 - Housing for Older People with a Disability (Amendment No 5) Bush Fire Evacuation Risk Map" deposited within the Department of Infrastructure, Planning and Natural Resources.

Clause 18 requires development consent to be obtained for the carrying out of development "allowed by this Part".

Clause 19 imposes development standards in respect of development allowed by the Part concerning (i) allotment size; and (i) floor space ratio.

Clause 20 limits the power of a consent authority to require more than the specified number of carparking spaces.

Clause 21 forbids the subdivision of "an allotment on which there are two dwellings as a result of development allowed by the Part".

Part 4 of the State Policy contains provisions dealing with "targeted sites for multi unit housing" including cl 23 which provides:

23 This Part does not apply to land to which this Policy applies unless the land is described in Schedule 4.

Schedule 4 describes 6 specified sites in the Ku-ring-gai local government area where each site is described by reference to (i) a street address; and (ii) "land shown edged heavy black" on a specified sheet of the "Ku-ring-gai Reference Plan" which is defined in the Schedule as "the map" that comprises a specified number of sheets and that is marked specifically being the map prepared by the Department of Planning and deposited in the Sydney office of the Department.

Part 5 of the State Policy contains provisions establishing the process and criteria that encourage good design in residential development including cl 31 which imposes requirements for the preparation of a site analysis containing appropriate information "concerning the site and its surrounds as described in Schedule 5". D. THE COMPETING ARGUMENTS ON THE MANNER IN WHICH AMENDMENT NO. 10 AFFECTS THE SUBJECT PROPERTY.

The competing arguments proffer different interpretations of cl 16(2) of the State Policy read in conjunction with Schedule 3.

Simply and starkly sated, the Applicant contends that the expression "land within an area described in Schedule 3" means the land that is "identified on a bush prone land map certified under section 146 of the Act as Bushfire prone land - vegetation category 1". The result is that since part only of the subject property is so identified, it is only that part of the subject property that is relevantly land to which Part 3 of the State Policy does not apply. The competing contention advanced by the Council is that the relevant expression "land within an area described in Schedule 3" means the whole of the land unit (be it a lot, an allotment or other definite parcel of land) any part of which is within an area so described.

Of the competing constructions that proffered by the Applicant reflects the literal meaning of the relevant expression "land described in Schedule 3" whereas that proffered by the Council is claimed to reflect, and be justified by, a purposive construction of the relevant expression.

In my judgment, the relevant expression means the land that is relevantly identified as "Bush fire prone land - vegetation category 1", irrespective of whether that land comprises an entire existing land unit (eg a lot, allotment or parcel) or only part of an existing land unit.

A perusal of the Extract of the Bush fire Prone Land Map indicates that many existing lots fronting Baldwin Street (including the subject property) are only partly identified as "Bushfire prone land - vegetation category 1". It also reveals that such identification of all of the lands does not correspond to existing lot boundaries. This is an entirely unexceptional fact because the relevant identification of the lands reflects the presence thereon of "vegetation category 1" and of course the growth and spread of vegetation is not constrained or dictated by existing lot boundaries.

It is also apparent from the Map Extract that there is considerable variation in the extent to which parts of existing lots are so identified - ranging from No 5 Koala Close (situate due north of the subject property), having the slightest part along its rear boundary so identified to No 77 Rosedale Road (adjoining the subject property to the west) having almost the whole of its area so identified.

During the course of argument, much attention was focussed by both parties upon the contrasting references contained in Part 3 of the State Policy to "allotments of land" and to "land", as if this contrast in some fashion provided the key to the proper interpretation of cl 16(2). With great respect, I do not agree that this is the case.

As I have shown, in the recited passages, the State Policy contains a number of clauses (cll 4, 11, 16 and 23) describing the lands to which either the State Policy or Part 2, 3 or 4 of the State Policy applies, and none of these several descriptions employs the term "lot", "allotment" or "parcel of land". Rather, the descriptions so employed cover far less precise phenomena eg local government area (cl 4) or lands identified in any environmental planning instrument by descriptions such as "coastal protection", and "environmental protection" ( cl 11(2)) or lands within a residential zone (cl 16(1)). Accordingly, when cl 16(2) employs the expression "land within an area described in Schedule 3" and the description employed by that Schedule is "lands identified on a bush fire prone land map as Bush fire prone land - vegetation category 1", it is employing a description (in common with the other provisions of the State Policy describing lands to which it or Parts of it apply) that is far removed from the precision of describing existing lots or allotments or parcels of land.

In the light of this uniform trend in the manner in which the State Policy describes lands to which it (or any of its several Parts) applies, there is no interpretive light cast by the fact that other clauses in Part 3 refer to an "allotment of land" (which is integral to the concept of "dual occupancy" development).

It needs to be appreciated that the Council's proffered interpretation goes considerably further than what is yielded by the literal meaning of the relevant expression contained in cl 16(2) read with the relevant land description contained in Schedule 3.

As I have earlier noted, the Council's interpretation of the relevant expression in cl 16(2) "land within an area described in Schedule 3" is that it means the whole of an existing land unit (ie a lot, allotment or parcel of land) where any part of it is relevantly identified as "Bush fire prone land - vegetation category 1".

As I have earlier noted, by reference to the content of the Extract of the Bush Fire Prone Land Map (Exhibit 1), the Council's proffered interpretation would mean that even the most marginally affected lot (eg No 5 Koala Close) would be excluded from the operation of Part 3 of the State Policy (unless spared by the application of the de minimis principle).

In support of its proffered interpretation, the Council claimed the justification of a "purposive" approach to interpretation inasmuch as it was submitted that the purpose of the excluding the application of Part 3 of the Policy to bush fire prone lands was to promote the maximum protection from such fire risk by ruling out the opportunity for dual occupancy development of relevantly identified lands.

However, the submission overlooks the fact that the stated aim of Amendment No 10 was "to exclude certain bush fire prone land….from the operation of Part 3" (my emphasis). This implies that there are various gradations of bushfire prone lands and that the intended exclusion was limited to certain (not all) bushfire prone land. The full range or gradation of "bush fire prone land", was not explored during the hearing, but the very content of the Extract of the Bushfire Prone Land Map indicates the existence of at least 3 categories, namely -

(i) Vegetation Category 1; (ii) Vegetation Category 2; and (ii) Vegetation buffer.

It is tolerably clear therefore, that the only bushfire prone land that is excluded from the operation of Part 3 of the State Policy by virtue of cl 16(2) is that which is relevantly identified as "bush fire prone land - vegetation category 1". This necessarily means that other gradations or categories of "bush fire prone land" are not excluded from the operation of Part 3 of the State Policy.

This same result is evidenced (albeit in greater detail) in the amendments made to State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP No 5) by Amendment No 5 to that Policy published in Government Gazette No 262 of 18 December 2002. The express aims of Amendment No 5 were stated in cl 3 as follows:

(a) to exempt certain bush fire prone land, and land where there is an evacuation risk in the event of bush fire, from the application of the Principal Policy, and

(b) to require consent authorities to be satisfied that development on certain bush fire prone land complies with the publication Planning for Bushfire Protection, and

(c) to require consent authorities to take certain criteria into consideration in determining application s for consent to carry out development to which the Principal Policy applies on land in the vicinity of bush fire prone land.

So far as concerns stated aim (a), the Principal Policy was amended by including in Schedule 1 (environmentally sensitive land), being land to which the Principal Policy does not apply (cl 4(2) the following descriptions of land:

Land identified on a bush fire prone land map certified under section 146 of the Act as " Bush-fire prone land-vegetation category 1 ".

Land shown cross-hatched on the bushfire evacuation risk map.

So far as concerns stated aims (b) and (c) of Amendment No. 5, the Principal Policy was amended to include the following provisions in cl 12 ("Matters for consideration"):

(2B) The consent authority must not consent to a development application made pursuant to this Part to carry out development on land identified on a bush fire prone land map certified under section 146 of the Act as Bush fire prone land -- vegetation category 2 or Bush fire prone land -- vegetation buffer unless the consent authority is satisfied that the development complies with the requirements of the document titled Planning for Bushfire Protection , ISBN 0 9585987 8 9, published by Planning & Environment Services, NSW Rural Fire Service in co-operation with the Department of Planning, dated December 2001.

(2C) The consent authority, in determining a development application made pursuant to this Part to carry out development on land in the vicinity of land identified on a bush fire prone land map certified under section 146 of the Act as Bush fire prone land -- vegetation category 1, Bush fire prone land -- vegetation category 2 or `Bush fire prone land -- vegetation buffer, must take into consideration the general location of the proposed development, the means of access to and egress from the general location and other relevant matters, including the following:

(a) the size of the existing population within the locality,

(b) age groups within that population and the number of persons within those age groups,

(c) the number of hospitals and other facilities providing care to the residents of the facilities within the locality, and the number of beds within those hospitals and facilities,

(d) the number of schools within the locality and the number of students at those schools,

(e) existing development within the locality that has been carried out under this Policy,

(f) the road network within the locality and the capacity of the road network to cater for traffic to and from existing development if there were a need to evacuate persons from the locality in the event of a bush fire,

(g) the adequacy of access to and from the site of the proposed development for emergency response vehicles,

(h) the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site,

(i) the requirements of New South Wales Fire Brigades.

(2D) In exercising its functions under subclause (2C), the consent authority must consult with the NSW Rural Fire Service and have regard to its comments.

Reference to the relevant amendments made to SEPP No 5 in respect of bush fire prone lands is instructive. Firstly, it confirms the fact that the concept of "bush fire prone land" knows and recognises gradations of that character or status of relevant lands.

Secondly, it demonstrates that even in the case of housing development for older or disabled persons, that such development may be undertaken subject to appropriate safeguards on lands identified as "bush fire prone land - vegetation category 2" and "Bush fire prone land - vegetation buffer".

Thirdly, it exposes as mere theory or myth the foundation for the Council's proffered purposive construction of the relevant expression in the present case.

In my opinion, the creation and recognition of varying gradations of bushfire prone lands in the bush fire prone map certified under the EP&A Act, s 146 is a decisive factor and indicator, in the proper understanding and interpretation of cl 16(2) read together with Schedule 3 of the State Policy. This is more emphatically the case once it is appreciated that such gradations are not found in the several provisions concerning bushfire prone land contained in the EP&A Act (namely (i) the definitions of "bush fire prone land" and "bush fire prone land map" contained in s 4; (ii) the consultation requirements in respect of bushfire prone land contained in s 79BA; and (iii) the provisions of s 146 concerning the designation of bushfire prone land) which provisions were introduced into the EP&A Act, by the Rural Fires and Environmental Assessment Legislation Amendment Act 2002 (Act No 67).

These considerations mean that whether a literal or purposive interpretive approach be adopted in respect of the relevant phrase in cl 16(2) of the State Policy, the yielded meaning is in both cases the same and clear. It is that the land to which Part 3 does not apply is the land that is relevantly identified on the bushfire prone map certified under s 146 of the Act as "Bushfire prone land - vegetation category 1".

Applying that construction of the relevant expression to the subject property means that it is only that part of the subject property that is so identified that is excluded from the operation of Part 3 of the State Policy.

It further follows that the remainder of the subject land that is not so identified is relevantly "land to which Part 3 applies" (vide cl 16(1)).

The fact that for planning purposes different parts of an existing land unit (such as the subject property) are subject to different planning controls is an unexceptional planning phenomenon. That differentiation of separate parts of the subject property does not, however, mean that the whole of the subject property ceases to be "an allotment" because those planning differentiations do not alter (either actually or notionally) the existing fact that the subject property is an allotment.

For the foregoing reasons, Question 2 should be answered in the negative and Question 3 should be answered in the affirmative, reflecting the adopted interpretation of cl 16(2) of the State Policy read with Schedule 3. E. CONCLUSIONS

For all of the foregoing reasons, I determine the Applicant's questions of law that were pressed at the hearing as follows:

Question 2: Does amendment 10 to SEPP 53 apply to the whole of a lot which contains land that is identified on a bush fire prone land map certified under s.146 of the Act as both Bush fire prone land - vegetation category 1 and Bush fire prone - vegetation buffer? Answer: No

Question 3: If the answer to Question 2 above is in the negative, does amendment 10 to SEPP 53 not apply to the land identified as Bush fire prone - vegetation buffer? Answer: Yes

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.

CITATION : Hones v Ku-ring-gai Council [2004] NSWLEC 168 APPLICANT: Hones PARTIES : RESPONDENT: Ku-ring-gai Council FILE NUMBER(S) : 11601 of 2003 CORAM: Bignold J KEY ISSUES: Question of Law :- preliminary question-whether land that is partly identified as "bushfire prone land-vegetation category 1" is wholly excluded from dual occupancy provisions of SEPP 53 LEGISLATION CITED: State Environmental Planning Policy No 53-Metropolitan Residential Development CASES CITED: DATES OF HEARING: 08/04/2004 DATE OF JUDGMENT: 04/16/2004

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