Hornsby Shire Council v Trives

Hornsby Shire Council v Trives - [2015] NSWLEC 190 - NSWLEC 2015 case summary — Zoe

[8]

THE APPEAL

Notwithstanding the Certifier's agreement before Craig J that the issue was one of objective jurisdictional fact, the Certifier appealed against his Honour's decision on the sole ground that it was not.
In June 2015 the Court of Appeal upheld the Certifier's appeal on that ground: Trives v Hornsby Shire Council [2015] NSWCA 158, 208 LGERA 361. Having regard to the terms of s 85A(3) of the Environmental Planning and Assessment Act 1979 (EPA Act), the Court of Appeal held that this Court on judicial review could not decide whether the proposed development was complying development as an objective jurisdictional fact, but could decide whether the Certifier could reasonably have held the opinion that the proposed studios were complying development on the correct construction of the SEPP and the LEP specifying what was complying development: at [14], [26], [27]-[31], [34]. The three proceedings were remitted to this Court to be determined according to law: at [62]. The Court of Appeal remitted the proceedings because it considered that this Court might come to a similar result (invalidity) on a different basis of challenge by identifying the proper construction of the SEPP: at [57].
In the leading judgment of Basten JA (with whom Macfarlan and Meagher JJA agreed) it was also held that: 1. Craig J identified an error of law when his Honour noted that Council's challenge was that, properly characterised, the proposed development could not be described as "complying development" or as a "detached studio". If on the basic facts, which were agreed, the proposed development did not, in law, fall within the language of the SEPP, it could not be a complying development, and thus any CDC was invalid: at [7]; 2. that was not, however, the way in which the issue was addressed by the parties before Craig J. The parties agreed and Craig J proceeded on the basis that characterisation of the proposed development for the purpose of determining whether the CDCs were lawful is an issue of (objective) jurisdictional fact, to be determined by the Court on the evidence: at [8]; 3. the term "jurisdictional fact" is a potentially confusing label for what is better described as a precondition to the exercise of power. For a person to seek to exercise power about such a fact is to act without legal authority: at [9]; 4. as a matter of statutory interpretation, the power to issue a CDC was conditioned on the satisfaction of the Certifier that the proposed development was properly characterised as complying development and as a detached studio. Therefore the contrary assumption of the parties before Craig J on which his Honour was invited to and did act - namely that the proper characterisation was a matter for the Court - was erroneous: at [31], [34], [51]; 5. where the exercise of a power has been conditioned on the state of satisfaction or opinion of the decision-maker, more recent developments in the law have expanded grounds of review of that state of satisfaction or opinion. For example, they have been expanded by reference to constructive failure to exercise the power, which may extend beyond caprice, arbitrariness and gross unreasonableness, at least (as here) where the primary facts are not in dispute. That is particularly so where the real issue, as revealed by the reasons of Craig J, turned upon the correct construction of the relevant environmental planning instruments: at [53]; 6. the grounds of judicial review of the decision-maker's state of satisfaction or opinion have also been expanded by the principle that, in many circumstances, the construction of statutory language will usually give rise to a question of law; 7. these factors, in combination, make it unlikely that an application for judicial review will need to rely upon the somewhat confusing concept of jurisdictional fact in order to establish a ground of review where there is an arguable issue as to validity of the exercise of power.
Basten JA concluded: 56 It follows that the appeal must be upheld on the only ground upon which the case was argued. At one stage the applicant contended that success on that point would entitle him to a judgment, presumably dismissing the Council's proceedings in the Land and Environment Court. 57 That position was not easily supportable. It is true that, in its summons commencing proceedings in the Land and Environment Court, the Council sought a declaration that the certificates were invalid. However, it did so on the basis that the proposed developments could not properly be characterised as detached studios, as they were in the relevant certificates. That suggested a limited question of law. The convenience of separating that question from issues relating to relief is far from clear. Had the relatively confined issues raised by the proceedings in the Land and Environment Court been determined as whole, much time and energy would have been saved and the matter could have been finally disposed of by this Court on appeal. In the circumstances, that is not possible. Although the primary judge sought to dispose of the question of "characterisation" as a jurisdictional fact, it might well be open to the Court to reach a similar result (namely that the certificates were invalid) by identifying the proper construction of the relevant environmental planning instruments. However, whether the judge's reasoning in this regard was correct or erroneous was not an issue litigated in this Court and no finding (nor further comment) is appropriate. The Council put on no notice of contention seeking to support the decision raised by the primary judge on other grounds. The matters must be remitted to the Land and Environment Court.
The separate question is now before me for re-determination in each proceeding.

[9]

IMPLIED REQUIREMENT OF REASONABLENESS OF OPINION

A prerequisite to the exercise of the Certifier's power to issue the CDCs was that he be satisfied that the proposed structures were complying development: s 85A(3) EPA Act.
Where the existence of a particular state of satisfaction or opinion is made a prerequisite to the exercise of power, the legislation conferring the power is treated as impliedly referring to a state of satisfaction or opinion that can be formed by a reasonable person who correctly understands the meaning of the law under which he operates. The question for a court of judicial review is not whether the court would have formed the opinion but whether the repository of the power could have formed the opinion reasonably: R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42, 69 CLR 407 at 430-432 (Latham CJ); Foley v Padley [1984] HCA 50, 154 CLR 349 at 370 (Brennan J).
The implication of reasonableness as a condition of a state of satisfaction or opinion required by statute as a prerequisite to the exercise of a statutory power is no different to the implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute. Each is a manifestation of the common law principle of construction that such decision-making authority conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purpose of the statute: Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [90]-[91] (Gageler J).
The legal standard of unreasonableness is not limited to an irrational if not bizarre decision - that is to say one that is so unreasonable that no reasonable person could have arrived at it. Unreasonableness encompasses, for example, a decision-maker misunderstanding his or her statutory obligation. What must be evident is that some error has been made in forming the opinion or state of satisfaction. A court of judicial review may infer that in some way there has been a failure to properly arrive at the state of satisfaction or opinion if upon the facts the result is unreasonable. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li at [68]-[72], [75], [76] (Hayne, Kiefel and Bell JJ).
"Unreasonable" encompasses, among other things, failure by a decision-maker to obey rules requiring proper application of the law: Minister for Immigration and Citizenship v Li at [27] (French CJ).
The fact that the repository of the power has not made known his reasons why he was satisfied will not prevent judicial review of his decision. His decision may, on consideration of the material that was before him, be found to be capable of explanation only on the ground of misconception such as some mistake of law: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26, 78 CLR 353 at 360 (Dixon J). In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, 231 FCR 437 at [45], the Full Federal Court (Allsop CJ, Robertson and Mortimer JJ) said: In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.
In the present case, if upon the application of the SEPP and the LEP, correctly construed, to the clear facts the decision is plainly unreasonable, the Court should infer that the decision-maker misinterpreted, failed to address or overlooked the requirements of those instruments or that in some other way there has been a failure to properly form the prerequisite state of satisfaction.
Such environmental planning instruments may be construed in the light of practical considerations rather than by a meticulous process such as might be appropriate in construing an Act of Parliament: Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54].

[10]

THE PROPOSED STRUCTURES

The structures proposed under the CDCs contain in the case of Hornsby two attached units and in the case of Epping and Carlingford one unit. Each unit comprises a suite of rooms that is capable of being used as a separate domicile. Each CDC annexed a BASIX certificate describing the project type as "separate dwelling house".
The plans annexed to the CDCs show that each of the proposed structures was to be separated from and behind the existing dwelling house on each lot and located within the boundaries of the lot on which the existing dwelling house was located.
The plans for the Epping property show a building of irregular shape described as a "studio". It contains three bedrooms, a bathroom with shower, basin and toilet, a laundry; an entry foyer; a living and dining area; a kitchen with kitchen benches, designated space for a refrigerator, hot plates and sink; a garage with internal access through the laundry into the entry foyer; and a covered patio leading to the entry door.
The plans for the Carlingford property show a rectangular building described as "proposed studio". It contains three bedrooms, a combined laundry and bathroom with shower, basin and toilet; a large rectangular living/dining area; a kitchen with kitchen benches, a designated space for a refrigerator, hot plates and a kitchen sink; and a covered patio leading to the entry door.
The plans for the Hornsby property show a rectangular building divided internally by a fire rated wall. West of that wall is an area described as "studio 2" with one bedroom, a bathroom/laundry with shower, toilet and wash basin; a living/dining area; and a kitchen with kitchen bench, designated space for a refrigerator, hot plates and a sink. There is no internal access between that area and the area of the building to the east of the dividing fire rated wall. East of the fire rated wall, is an area described as "studio 1" containing two bedrooms one of which is has an ensuite bathroom with shower and toilet; a second bathroom with a bath, sink and toilet; a separate laundry cupboard, a living/dining area; and a kitchen with the features I have earlier described for the other buildings.

[11]

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

If an environmental planning instrument provides that specified development may not be carried out except with development consent, development consent may be obtained either by the making of a determination by a consent authority to grant development consent or in the case of complying development by the issue of a CDC: s 76A(1), (2) EPA Act. An environmental planning instrument may provide that development or a class of development, that can be addressed by specified predetermined development standards is complying development: s 76A(5). The SEPP is an environmental planning instrument (s 4 EPA Act) and so provides.
The CDC process is non-discretionary and is streamlined compared with the alternative of a council's discretionary determination of a development application.
A "complying development certificate" means a complying development certificate referred to in s 85 of the EPA Act: s 4. Section 85(1) states: 85 What is a "complying development certificate"? (1) Terms of complying development certificate A complying development certificate is a certificate: (a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and (b) In the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.
Section 85A(3)(a) of the EPA Act is of central importance in the present case. It should be read in context: 85A Process for obtaining complying development certificates (1) Application An applicant may, in accordance with the regulations, apply to: (a) the council, or (b) an accredited certifier, for a complying development certificate. … (3) Evaluation The council or accredited certifier must consider the application and determine: (a) whether or not the proposed development is complying development, and (b) whether or not the proposed development complies with the relevant development standards, and (c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions. … (6) Determination The council or an accredited certifier may determine an application: (a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or (b) by refusing to issue a complying development certificate. (7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate. …

[12]

STATE ENVIRONMENTAL PLANNING POLICY (EXEMPT AND COMPLYING DEVELOPMENT CODES) 2008

As authorised by s 76A(5) of the EPA Act, the SEPP provides for complying development, meaning development that can be addressed by specified pre-determined development standards. The SEPP specifies such standards for the classes of complying development for which the SEPP provides.
The aims of the SEPP are stated in cl 1.3 and include the following: 1.3 Aims of Policy This Policy aims to provide streamlined assessment processes for development that complies with specified development standards by: (a) providing exempt and complying development codes that have State-wide application, and (b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and (c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and (d) enabling the progressive extension of the types of development in this Policy …
"Complying development" is defined in cl 1.17, which is within Part 1 Division 2 of the SEPP: What development is complying development? 1.17 What development is complying development? (1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
Clause 1.17 has two limbs. First, the development must be specified in a complying development code that meets the standards specified for the development. Secondly, the development must comply with the requirements of Part 1 Division 2 of the SEPP, that is, cll 1.15-1.19.
As regards the first limb of cl 1.17, cl 1.5 relevantly defines "complying development code" to include "the General Housing Code" which is set out in Part 3 of the SEPP. Clause 3.5(1) of the General Housing Code provides: 3.5(1) The erection of new ancillary development…is development specified for this Code if the ancillary development is ancillary to a dwelling house.
"Ancillary development" is defined in cl 1.5 of the SEPP and includes in subclause (d1) a "detached studio": ancillary development means any of the following that are not exempt development under this Policy: (a) access ramp, (b) awning, blind or canopy, (c) balcony, deck, patio, pergola, terrace or verandah that is attached to a dwelling house, (c1) basement, (d) carport that is attached to a dwelling house, (d1) detached studio, (e) driveway, hard stand space, pathway or paving, (f) fence or screen, (g) garage that is attached to a dwelling house, (h) outbuilding, (i) rainwater tank that is attached to a dwelling house, (j) retaining wall, (k) swimming pool or spa pool and child-resistant barrier.
"Detached studio" is defined in cl 1.5 of the SEPP: detached studio means ancillary development that is habitable and is: (a) established in conjunction with a dwelling house, and (b) on the same lot of land as the dwelling house, and (c) separate from the dwelling house.
"Detached" is defined in cl 1.5: detached, in relation to a building or structure that is complying development, means more than 900mm from another building or structure.
"Dwelling house" is defined in cl 1.5: dwelling house means a building containing one dwelling, an attached dwelling or a semi-detached dwelling, but does not include any part of the building that is ancillary development or exempt development under this Policy.
"Habitable room" is defined in cl 1.5: habitable room has the same meaning as in the Building Code of Australia. Note. The term is defined [in the Building Code of Australia] as a room used for normal domestic activities, other than a bathroom, laundry, toilet, pantry, walk in wardrobe, hallway, lobby, clothes drying room or other space of a specialised nature that is not occupied frequently or for extended periods.
The precise definition of "habitable room" in the National Construction Code Series - Building Code of Australia 2015 (BCA) (referred to in the above note) is as follows and (as discussed below) may cast light on the meaning of both "studio" and "habitable" in the SEPP definition of "detached studio": Habitable room means a room used for normal domestic activities, and- (a) includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room, home theatre and sunroom; but (b) excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods.
By dint of cl 1.5(2) of the SEPP, the word "dwelling" has the same meaning as it has in the Standard Instrument (ie the local environmental planning instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006), which defines it in this way: dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
A relevant standard to which the first limb of cl 1.17 refers is in cl 3.8(1)(a): 3.8 Lot requirements (1) Development specified for this code may only be carried out on a lot that: (a) at the completion of the development will have only one dwelling house…
As regards the second limb of cl 1.17 of the SEPP, cl 1.18(1)(b) requires that to be complying development, the development must: be permissible with consent in the land use zone in which it is carried out.
Thus under the LEP the proposed structures must be permissible with consent in in the R2 zone.

[13]

HORNSBY LOCAL ENVIRONMENTAL PLAN 2013

Consistently with ss 76-76B of the EPA Act, the LEP divides development into three classes: development that does not need consent, development that needs consent and development that is prohibited. In the R2 Low Density Residential zone, in which the subject properties are located, "dwelling-houses" are expressly permitted with consent. Council submits, and the Certifier disputes, that "dual occupancy", "secondary dwelling" and "multi dwelling housing" are prohibited in the R2 zone, that the proposed structures at Epping and Carlingford are "dual occupancy" or "secondary dwelling", that the proposed structure at Hornsby (because it comprises two new "studios") is "multi dwelling housing", and that all are prohibited in that zone.
The LEP Land Use Table for Zone R2 states: Zone R2 Low Density Residential 1 Objectives of zone To provide for the housing needs of the community within a low density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 2 Permitted without consent Environmental protection works; Home occupations 3 Permitted with consent Boarding houses; Building identification signs; Business identification signs; Child care centres; Community facilities; Dwelling houses; Educational establishments; Emergency services facilities; Exhibition homes; Flood mitigation works; Group homes; Home-based child care; Home businesses; Information and education facilities; Places of public worship; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Respite day care centres; Roads; Tourist and visitor accommodation; Veterinary hospitals; Water reticulation systems 4 Prohibited Backpackers' accommodation; Farm stay accommodation; Hotel or motel accommodation; Serviced apartments; Any other development not specified in item 2 or 3
The Dictionary to the LEP includes the following definitions: dual occupancy means a dual occupancy (attached) or a dual occupancy (detached). Note. Dual occupancies are a type of residential accommodation - see the definition of that term in this Dictionary. dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling. Note. Dual occupancies (detached) are a type of dual occupancy - see the definition of that term in this Dictionary. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. dwelling house means a building containing only one dwelling. Note. Dwelling houses are a type of residential accommodation - see the definition of that term in this Dictionary. multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building. Note. Multi dwelling housing is a type of residential accommodation - see the definition of that term in this Dictionary. secondary dwelling means a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. Note. See clause 5.4 for controls relating to the total floor area of secondary dwellings. Secondary dwellings are a type of residential accommodation - see the definition of that term in this Dictionary.
Dual occupancies, dwelling houses, multi dwelling houses and secondary dwellings are among the numerous species of the genus "residential accommodation" defined in the Dictionary to the LEP as follows: residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers' dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, but does not include tourist and visitor accommodation or caravan parks. Note. Residential care facilities are a type of seniors housing - see the definition of that term in this Dictionary.

[14]

A "STUDIO"?

Despite the fact that cl 1.5 of the SEPP seeks to define "detached studio", including by requiring it to be "habitable", the definition does not assist in assigning a meaning to the words "studio" and "habitable", neither of which are defined in the SEPP.
The parties' submissions do not directly confront the question whether the proposed structures are studios (as distinct from the question whether they are "detached studios" as defined in the SEPP, which the submissions do address). Therefore I will not express a concluded view. However, I will offer the following observations.
Since cl 1.18(b) of the SEPP requires complying development to meet the relevant provisions of the BCA and the BCA specifies minimum ceiling heights and light and ventilation for a "habitable" room (BCA Part F3 and F4), arguably a habitable studio has the same meaning as a "habitable room" (or perhaps habitable rooms) as defined in the BCA viz: Habitable room means a room used for normal domestic activities, and- (a) includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room, home theatre and sunroom; but (b) excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods.
If so, then the proposed structures are not habitable studios for present purposes since they include rooms excluded from the BCA definition of "habitable room".
If an analogy with a studio apartment as commonly understood is sound, then a habitable studio under the SEPP also includes a single room used for living/dining/sleeping plus bathroom, kitchen and laundry facilities. That also does not describe the proposed structures. However, a "studio" so understood would be capable of being occupied or used as a "separate domicile" - as are the proposed structures - which is not an element of the definition of "detached studio", in contrast to the definition of "dwelling" in the SEPP where it is an element. "Domicile" in such a context includes the idea of a permanent home or a significant degree of permanent occupancy, and its essential requirements are accommodation for sleeping and living, a kitchen, bathroom including a lavatory, and laundry facilities: Wollongong City Council v Vic Vellar Nominees [2010] NSWLEC 266, 178 LGERA 445 at [31]-[32] (Biscoe J). This suggests that under the SEPP a studio is not a "dwelling" as defined nor a dwelling house as commonly understood nor does it include the proposed structures.

[15]

CONCLUSION

In each CDC the Certifier certified that the proposed development is complying development. This suggests that he was satisfied that the proposed development is complying development. Council submits that on the correct interpretation of the SEPP and the LEP, as applied to the agreed facts, it should be inferred that the Certifier was not satisfied or that his state of satisfaction was unreasonable.
A prerequisite to the exercise of the Certifier's power to issue the CDCs was that he was satisfied that the proposed structures are complying development under the SEPP: s 85A(3)(a) of the EPA Act. That state of satisfaction had to be one that could be formed by a reasonable person who correctly understood the meaning of the SEPP and the LEP. Unreasonableness includes not only a decision that, on the correct construction of the SEPP and the LEP, is irrational but one which lacks any evidential and intelligible justification: above at [16]-[22].
In summary, in my opinion on the correct construction of the SEPP and the LEP as applied to the clear facts, each of the proposed structures cannot reasonably be characterised as complying development or as a detached studio because it does not comply with the following requirements of the SEPP, and any contrary opinion by the Certifier was unreasonable: 1. it is not "ancillary to a dwelling house" on the lot, as required by cl 3.5 of the SEPP; 2. it is not established "in conjunction with a dwelling house" and therefore is not within the definition of "detached studio" in cl 1.5 of the SEPP; 3. it results in there being "more than one dwelling house" on the lot, contrary to the requirement in cll 3.8(1)(a) of the SEPP; and 4. it is not "permissible with consent" in the R2 zone as required by cl 1.18(1)(b) of the SEPP. That is because under the LEP the Epping and Carlingford structures are dual-occupancy or secondary dwellings and the Hornsby structure is multi dwelling housing, all of which are prohibited under the LEP in the R2 zone.

[16]

First requirement: not ancillary to a dwelling-house

In my opinion, on the correct construction of the SEPP as applied to the clear facts, each of the proposed new structures is not complying development because it is not ancillary to the existing dwelling house on the lot as required by cl 3.5 of the General Housing Code in the SEPP, and any contrary opinion of the Certifier was not reasonable.
The following general principles provide guidance. In planning law a use must be for a purpose, the nature of the use must be distinguished from the purpose of the use, characterisation of the purpose should be at a level sufficient to cover the individual activities, and characterisation should be undertaken in a common sense and practical way: Chamwell v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 at [27], [34], [36], [45].
It is convenient to repeat cl 3.5: 3.5 Ancillary development (1) The erection of new ancillary development… is development specified for this code if the development is ancillary to a dwelling house.
Clause 3.5 limits both the purpose of a proposed development to a purpose ancillary to a dwelling house and the types of things that it may comprise, being those listed in the definition of "ancillary development" (set out above at [38].
The Certifier submits that the proposed structures are "ancillary to a dwelling house" because: (a) the "subordinate" or "subservient" meaning of "ancillary" decided in different statutory contexts is inapplicable; (b) "ancillary" here has its Macquarie Dictionary meaning of "accessory, auxiliary" and does not necessarily require a subordinate or subservient relationship: Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 at 223; and (c) structures listed as "ancillary development" in cl 1.5(1) of the SEPP are also "ancillary to a dwelling house" and no additional "ancillary" relationship is required. Alternatively, if "ancillary" does mean subordinate or subservient, the Certifier submits that this is an evaluative task which depends upon the size of the "dwelling house" relative to the "detached studio" in question, and the fact that they are on the same lot and share the same private open space and access point from the street; that Council bears an extremely heavy burden in demonstrating that the Certifier's conclusion that the "detached studios" were ancillary to the existing dwelling houses was not reasonably open to the Certifier: Frances v Crime and Corruption Commission [2015] QCA 218 at [33]; and that Council has not discharged this burden.
I do not accept the Certifier's submissions.
The Certifier's submission that a structure listed in the SEPP definition of "ancillary development" is necessarily "ancillary to a dwelling house", conflates the two cl 3.5 requirements of "ancillary development" and "ancillary to a dwelling house" and reduces the latter to surplusage. The Certifier's reliance on a Macquarie Dictionary meaning of "ancillary" as "accessory; auxiliary" is not dispositive since the same dictionary also defines "ancillary" as including a "subsidiary" thing, "accessory" as including a "subordinate part", and "ancillary" as including "subsidiary".
The Latin root of "ancillary" is "ancilla", a person regarded as subservient to her mistress or master: Butterworths Australian Encyclopaedic Legal Dictionary. In my opinion, "ancillary" to a dwelling house in this context means subservient to the dominant purpose of a dwelling house. In planning law, where one use of premises subserves another it is ancillary and will be characterised as being for the same purpose as the dominant purpose. "Where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used": Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157 at 161 (CA/NSW).
By reference to the list of things in the definition of "ancillary development" the meaning becomes clear. Those things are not expressed to be limited by any particular purpose. Some are required to be "attached" to a dwelling house (carport, garage, rainwater tank), the others are not. They are merely descriptions of various built forms which serve the dominant purpose, in this case an existing dwelling house. A fundamental requirement is that anything in that list be ancillary to dwelling house. Hence, the use of a "detached studio" must be subservient to the purpose of the use of, in this case, the existing dwelling house.
Each of the proposed "studios" comprises a number of self-contained rooms capable of being used as a separate domicile. Its use is not subservient to the dominant purpose of the existing dwelling house. In nature, it is no different from the existing dwelling house. But its use can only be characterised as independent of the use of the existing dwelling house. Its form does not dictate an ancillary result. Rather, it authorises an independent form, and hence use. As Craig J said in the first judgment at [25], the SEPP does not accommodate under the rubric of "detached studio", something that is both separate from and can be used independently of the existing dwelling house on the same lot, and comparison of areas of use where two purposes of use are intended is of little relevance when determining whether one of the purposes is ancillary to or subserves the other (Foodbarn at 161).

[18]

Third requirement: not result in more than one dwelling house on the lot

In my opinion, each of the proposed developments is not compliant because it will result in there being more than one dwelling house on the lot contrary to the requirement in cl 3.8(1)(a) of the SEPP, and any contrary opinion held by the Certifier was unreasonable.
It is convenient to repeat the SEPP definition of "dwelling house" and "dwelling": dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. dwelling house means a building containing one dwelling, an attached dwelling or a semi-detached dwelling, but does not include any part of the building that is ancillary development or exempt development under this Policy.
Council submits that the proposed structures are "dwelling houses" as defined in the SEPP. There was and is an existing dwelling house on each lot. Therefore, Council submits, this requirement is not satisfied. In the first judgment, Craig J so held at [29].
The Certifier submits that: 1. the Council "rightly" does not contend that the proposed structures are "detached studios" within the SEPP definition, and it follows that the proposed developments are "ancillary development" under para (d1) of that definition; 2. the definition of "dwelling house" in cl 1.5 of the SEPP excludes "ancillary development", including a "detached studio", and as the proposed structures are detached studios they cannot be "dwelling houses" for the purposes of the SEPP; 3. accordingly, the erection of a "detached studio" on a lot on which there is an existing "dwelling house" does not result in more than one dwelling house on the lot;
I do not accept the Certifier's submission. The premise in step (a) of the submission that the proposed structures are "detached studios" (as defined) is incorrect. In my opinion, they are not detached studios as defined because, as Council submits, they do not satisfy the requirement of the definition of "detached studio" that they be "established in conjunction with a dwelling house", as discussed above at [70]-[73]. As they are not detached studios, the exclusion of ancillary development from the definition of "dwelling house" is irrelevant. Accordingly, each of the proposed structures is a dwelling house for the purpose of cl 3.8(1)(a) of the SEPP and will result in there being more than one dwelling house on the lot, and any contrary opinion held by the Certifier was unreasonable.

[19]

Fourth requirement: not permissible with consent in R2 zone

Clause 1.18 of the SEPP requires that to be complying the development must be permissible with consent in the land use zone in which it is carried out. All three properties are within the R2 Low Density Residential zone under the LEP.
In my opinion, on the correct construction of the SEPP and the LEP as applied to the clear facts, the proposed structures are not permissible with consent in the R2 zone in which they are to be erected, and any state of satisfaction by the Certifier that they are permissible in that zone was unreasonable.
The LEP land use table for the R2 zone has been set out above at [49]. Under item 3 of that land use table, "dwelling houses" are expressly permissible with consent. The use of the plural "dwelling houses" does not permit development by the erection of more than one dwelling house on a lot; it describes a purpose for which land in the zone may be used and is not directed at all to the question of quantity: Daly v Manly Municipal Council (1988) 67 LGRA 1 at 9 (Holland J).
In my opinion, under the LEP "dual occupancy (detached)", "secondary dwelling" and "multi dwelling house" are all prohibited, by the sweeper provision at the tail of item 4 of the land use table, "any other development not specified in item 2 or 3".
It is convenient to repeat the following LEP definitions- dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling. secondary dwelling means a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building. dwelling house means a building containing only one dwelling. Note. Dwelling houses are a type of residential accommodation - see the definition of that term in this Dictionary. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers' dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, but does not include tourist and visitor accommodation or caravan parks.
Item 4, headed "Prohibited", in the land use table for the R2 zone concludes with the sweeper provision: "any other development not specified in item 2 or 3". This sweeper provision covers innominate prohibited development, in the sense of developments not expressly nominated in item 4 (although they may be defined in the LEP).
Council submits that the proposed structures are "dual occupancy (detached)" or "secondary dwelling" in the case of Epping and Carlingford and "multi dwelling housing" in the case of Hornsby, and that such innominate prohibited developments are prohibited in the R2 zone by the sweeper provision in item 4 of the land use table.
The Certifier submits to the contrary that each of the proposed structures is a "dwelling-house" as defined in the LEP and is therefore permissible with consent under item 3 of the land use table, and that it is irrelevant that they also answer to the description for which Council contends. The Certifier notes that the LEP definition of "dwelling house" differs from the SEPP definition of "dwelling house", which expressly excludes ancillary development. The Certifier does not dispute that the proposed developments can also be variously characterized as "dual occupancy (detached)" or "secondary dwelling" or "multi dwelling housing" as defined in the LEP. However, the Certifier submits that they are also "dwelling houses" and that as dwelling houses are specified in item 3, the sweeper provision for prohibited development in item 4 does not include the proposed structures: Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147, 201 LGERA 116 at [49]-[50].
Council replies that: 1. although dwelling houses are permissible under the LEP, more than one dwelling on an allotment, no matter by what description, is prohibited; 2. even if there was this duality, the development would nonetheless be prohibited: Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 328 (Mahoney JA), 333 (Cripps JA); Hawkesbury City Council v Sammut [2002] NSWCA 18, 119 LGERA 171 at [20]-[24] (Mason P); 3. the phrase "any other development not specified in item 2 or 3" in the LEP sweeper provision sufficiently describes the result after the issue of the CDCs and is sufficient as a matter of the proper construction of the LEP to identify a prohibition upon the uses. This is not a case of an innominate use (in the sense that the subject uses are nominated and defined elsewhere in the LEP), and nothing in Botany Bay Council v Pet Carriers International alters the position.
In Botany Bay Council v Pet Carriers International a local environmental plan land use table nominated in item 3 development for "commercial premises" as development permissible with consent. Item 4 described prohibited development as development other than development included in item 2 or 3. The question was whether proposed development for "airport-related land use" and/or "air freight forwarder", both of which were defined in the local environmental plan, were permissible as commercial premises or were prohibited by the sweeper provision in item 4. Preston CJ decided that they were species of the genus "commercial premises" and were therefore permissible: at [66]. That decision is distinguishable. In the present case the genus is "residential accommodation" and is not listed as permissible development in the land use table. Some defined species, including dwelling houses, of that genus are listed as permissible but they do not include secondary dwellings, dual-occupancies or multi dwelling housing, which describe the proposed structures.
In my opinion, dual occupancy, secondary dwellings and multi dwelling housing are prohibited in the R2 zone having regard to the following considerations. First, they, together with dwelling houses, are species of the genus "residential accommodation", which is not expressed to be permitted with consent in that zone. Secondly, they are not included in the species of residential accommodation, including "dwelling houses", expressed to be permitted with consent in that zone. Thirdly, the LEP land use tables for other zones expressly permit with consent or expressly prohibit the genus "residential accommodation" or species of the genus including "secondary dwellings", "multi dwelling housing" and "residential flat buildings". In particular, "secondary dwellings" and "dwelling houses" are each expressly permissible with consent in zones RU1, RU2, RU4 and RU5. "Multi dwelling housing" is expressly permissible with consent in zones R3 (as are "dwelling houses") and B1, and is expressly prohibited in zones E2, E3, W1 and W2. "Residential flat buildings" (a defined exception to "multi dwelling housing") are expressly permissible in zones R3, R4 and B1 and are expressly prohibited in zones E2, E3 and W2. "Residential accommodation" is expressly prohibited in zones B1, B2, B3, B4, B5, B6, INI 1, INI 2 and INI 4.
It can be seen that the various land use tables distinguish between and pick and choose among the various species of the genus "residential accommodation" as to which are permissible with consent, or pick the genus. In the R2 zone the LEP picks for permission with consent some species of that genus including "dwelling houses" but not the species "secondary dwellings", "dual-occupancies (detached)" and "multi dwelling housing". Those species are prohibited by the sweeper provision in item 4 of the land use table.
Further, in my opinion the proposed Hornsby structure cannot be a permissible "dwelling house" referred to in the R2 zone land use table for the additional reason that it comprises a building containing two dwellings (in contrast to Epping and Carlingford where the proposed structures contain only one dwelling), whereas the LEP defines "dwelling house" to mean "a building containing one dwelling".
The Certifier's contrary submission on this point is that: 1. under the Dictionary to the LEP, "building" has the same meaning as under the EPA Act, which provides in s 4 that "building" includes a part of a building and also includes any structure or part of a structure; 2. it follows that even if the proposed Hornsby structure comprises a single "building", a part of the building that contains only one dwelling would be a dwelling house under the LEP. Accordingly, each part of the proposed Hornsby structure (each part containing only one "dwelling") is a "dwelling house" for the purposes of the LEP land use table.
I do not accept the Certifier's submission. The same submission was rejected by the Court of Appeal in Calleja v Botany Bay Council [2005] NSWCA 337, 142 LGERA 104 at [26]-[27] in the leading judgment of Tobias JA (Basten JA and Young CJ in Eq agreeing) in words that apply in the present case: [26] The Council sought in particular to support the primary judge's finding that, by dint of the extended definition of "building" in s 4(1) of the EP&A Act as including "part of a building", in the present case each of the two dwellings was contained in a part of the building and, therefore, each part itself constituted "a building" within the meaning of the definition of "dwelling house". [27] There are a number of problems associated with that finding. The first is that the definition only applies except insofar as the context or subject matter otherwise indicates or requires. In the present case, the matters to which I have referred in [23] above make it tolerably clear that the reference in the definition of "dwelling house" in the 1980 Model Provisions to "a building" is a reference to that building taken as a whole rather than to any part thereof. Secondly, if the argument is taken to its logical conclusion, each room in a building would constitute a part of the building and, therefore, according to the Council's submission, a building in its own right. As I have observed, the context in which the word "building" is used in the definition of "dwelling house" makes it clear that the extended definition of "building" in s 4(1) of the EP&A Act has no application thereto.
The construction for which the Certifier contends would also subvert the zoning and the land use table, as to which the caution expressed by Basten JA in Calleja at [45] is in point: [45] …Whether the term "building" in that definition can mean part of a building in some circumstances, such as a caretaker's flat in a school-house, need not be determined for present purposes. As Tobias JA has explained, it should not be given that meaning in relation to a building containing two dwellings, being parts each used or capable of being used as a separate domicile, so as to constitute each part a separate building. If that construction were correct, it is difficult to see why a building containing four flats would not constitute four dwelling houses, at least if the construction involved no common areas. That conclusion would tend to undermine the distinction drawn between residential "A" and residential "B" zones. Apart from the reference in the objects of the latter zone to housing "other than detached housing", the incorporation into the developments permitted with consent in that zone of "residential flat buildings" is the only variation from the kinds of development permitted in residential "A" zones. A construction which effectively removed this point of distinction would subvert a clear purpose of the different zoning provisions and should not be accepted.
Accordingly, the proposed Hornsby structure is, for this additional reason, not a dwelling house referred to in item 3 of the LEP R2 zone land use table, and is prohibited by the sweeper provision in item 4.
Finally, the Certifier submits that in any event whether or not the Hornsby proposed structure comprises a single building or multiple buildings is a question of fact on which reasonable minds may differ and a conclusion by the Certifier that each "studio" in the Hornsby structure is a separate building was reasonably open to him.
I do not accept the submission. It was not reasonably open to the Certifier to conclude that each studio in the Hornsby building comprised a "building" given that there is a single floor plate, the two studios are separated by a single fire rated wall (not two adjoining party walls), there are continuous walls on all elevations and there is a single continuous roof. Thus, the built form is clearly of a single building containing two dwellings.

At a glance

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Before

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Judgment (22 paragraphs)

Parties

Cases Cited (21)

Cited By (12)