Keay & Anor v Wollongong City Council

BYT Nominees Pty Limited v North Sydney Council [2008] NSWLEC 164 BYT Nominees Pty Limited v North Sydney Council (No 2) [2008] NSWLEC 228 Hunt v Blacktown City Council (2001) 116 LGERA 356 CASES CITED: Matic v Mid-Western Regional Council [2008] NSWLEC 113 North Sydney Council v Phillip Perrie and Associates Pty Limited [1995] NSWLEC 115 North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 Teppell Investments Pty Limited v North Sydney Council [1996] NSWLEC 61 Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86

APPLICANTS Ms F J Berglund SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Mr M C Fraser SOLICITORS Kells the Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

NERISSA KEAY ROB TAYLOR Applicants

JUDGMENT Jagot J: 1 The applicants wish to replace a dwelling house on land they own at 107 Morrison Avenue, Wombarra (lot 5 in deposited plan 700996). To this end they lodged a development application proposing to "remove existing relocatable home and construct new dwelling". The applicants appealed to the Court under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) when the Council failed to determine the application within the prescribed time. The Council's position is that neither it, nor the Court exercising the Council's functions on appeal, has power to grant consent to the development application.

2 The parties proposed and I ordered determination of a separate question as follows: Whether development consent may be granted to DA 2008/269.

3 The parties agreed the facts. The relevant facts are incorporated in the summary below.

4 The land to which the development application relates is lot 5 in deposited plan 700996 and is known as 107 Morrison Avenue, Wombarra.

5 Lot 5 was created by registration of a deposited plan in 1983. It has an area of 1002.8m2. At some time before 1988 a dwelling house was erected on lot 5. However, that fact cannot be relevant because dwelling houses became permissible with consent on 2 March 1984 and consent was obtained for a new dwelling house as indicated below (I note that the decision in BYT Nominees Pty Limited v North Sydney Council [2008] NSWLEC 164 explains that permissible development cannot remain an existing use within the meaning of s 106 of the EPA Act. See also BYT Nominees Pty Limited v North Sydney Council (No 2) [2008] NSWLEC 228 rejecting a contention of existing use rights where a zoning table permitted the use of existing apartment buildings to continue).

6 On 30 August 1988 the Council granted development consent for a new dwelling house on the land. Dwelling houses were permissible with consent on lot 5 under Wollongong Local Environmental Plan No 38 (which commenced on 2 March 1984).

7 On 17 October 1988 the Council granted a building approval for the new dwelling house on the land. Under s 315 of the Local Government Act 1919 (as then in force) building approvals lapsed after 12 months but councils had the power to extend the time for lapse.

8 In late 1988 the existing dwelling house was demolished and the new dwelling house erected on lot 5.

9 On 28 December 1990 Wollongong Local Environmental Plan 1990 (WLEP 1990) commenced.

10 The relevant provisions of WLEP 1990 have not been amended in any material respect since commencement.

11 Clause 6(1) of WLEP 1990 defines dwelling house as: …a building or buildings containing one but not more than one dwelling, on one allotment.

12 WLEP 1990 zoned lot 5 Zone No 7(b) (Environmental Protection Conservation Zone).

13 Clauses 9(2) and 9(3) of WLEP 1990 provide as follows: 9(2) Except as provided otherwise by this plan, the development on land within a zone: (a) that may be carried out without development consent, and (b) that may be carried out only with development consent, and (c) that may be carried out only with development consent granted in accordance with clause 11 to a development application that has been advertised as is required for designated development, and (d) that is prohibited, is specified in the Table to this clause under the headings "Without development consent", "Only with development consent", "Only with development consent granted after advertising and satisfying clause 11" and "Prohibited", respectively, appearing in the matter relating to the zone.

9(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

14 The table to cl 9(2) identifies development for the purpose of a dwelling house as permissible only with consent on land within the 7(b) zone. By operation of cl 9(2), however, the zoning table operates except as provided otherwise in WLEP 1990.

15 Clause 14(1) of WLEP 1990 is as follows: (1) The Council shall consent to the erection of a dwelling-house on an allotment of land within Zone No 1, 7(b) or 7(d) only if there is no dwelling-house on the allotment and if the allotment: (a) is an existing holding which has an area of not less than 10 hectares, or (b) is an allotment: (i) which was created after 30 April 1971 but before 23 February 1984, and (ii) which has an area of not less than 20 hectares, or (c) is an allotment of not less than 40 hectares, or (d) is an allotment which was created before or after the appointed day: (i) by a subdivision approved by the Council not more than 2 years before that day, or (ii) (Repealed) and if the Council is satisfied that: (e) adequate vehicular access will be provided to the site of the proposed dwelling-house or dwelling, (f) the erection of the proposed dwelling-house and associated activities on the allotment will not detract from the environment by way of visual intrusion, vegetation clearance, drainage pollution or bushfire risk, and (g) the proposed dwelling-house will be provided with an adequate water supply and means of disposal of sewage.

16 Lot 5 does not satisfy any of the area requirements in cl 14(1)(a) to (d).

17 On 17 May 2002 State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was amended by the insertion of cl 4(2) as follows: This Policy does not apply to the land shown edged heavy black and shaded on the map marked "State Environmental Planning Policy No 1 - Development Standards (Amendment No 5)" deposited in the head office of the Department of Planning and copies of which are deposited in the office of Wollongong City Council. 18 Lot 5 is within the area edged heavy black on the map referred to in cl 4(2) of SEPP 1.

19 The applicants' first argument is that cl 14(1) should be construed as applying to land only if there is no dwelling house on the allotment. Lot 5 already has a dwelling house erected on it and thus cl 14(1) does not apply to lot 5 at all. The applicants submitted that this construction of cl 14(1) accords with the Council's likely planning purpose (to prevent new dwelling houses but not replacement dwelling houses) and thus promotes a purposive construction of WLEP 1990 (referring to s 33 of the Interpretation Act 1987). They supported this argument by reference to the fact that the Council's approach to cl 14(1) has changed over the past year or two and would prevent people in the applicants' position maintaining or rebuilding their home after fire.

20 I summarised some principles relevant to the construction of environmental planning instruments in Matic v Mid-Western Regional Council [2008] NSWLEC 113 as follows: 7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] - [46] and [63]; s 33 of the Interpretation Act 1987). "Context" has a wide scope and may include the "mischief which…one may discern the statute was intended to remedy" so that, by this method, an alternative construction to the literal meaning may be preferred if it is "reasonably open and more closely conforms to the legislative intent" (CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).

8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested "by the use of language" in the document to be construed (Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly:

…it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred (Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]).

9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for "some preconceived general notion of what constitutes planning" (Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] "any attempt to always find planning logic in planning instruments is generally a barren exercise".

21 Those principles are relevant to the applicants' first submission. The fact that the Council apparently changed its approach to cl 14(1) does not necessarily demonstrate any ambiguity in the provision. The applicants' argument that the clause applies only if there is no dwelling house on the allotment transforms a condition on the exercise of the power to grant consent into a condition on application of the clause. I accept that there is some ambiguity in the clause arising from the fact that the definition of dwelling house in cl 6(1) already requires that there be only one building containing a dwelling on an allotment for the purpose to be a dwelling house. In this sense cl 14(1) seems to contain some element of redundancy in drafting. But the ordinary meaning of the words the "…Council shall consent to…[a] …only if…[x] and…[y] " is clear. The clause expresses two conditions ([x] and [y]) on the power to grant consent. It is simply not possible (or at least not possible within the canons of ordinary use of the English language) to transform one of these conditions into a condition on the application of cl 14(1) itself. Such a reading would require, at the least, a notional transposition of the phrase "if there is no dwelling house on the allotment" to the beginning of the clause and the deletion of the word "and". But any reworking of the clause to this effect would be far beyond that permitted by the Court's basic obligation to give effect to the language of the instrument.

22 The applicants' second argument faces a similar difficulty. The applicants submitted that the words "the erection of a dwelling-house…" in cl 14(1) should be construed as meaning a dwelling house other than one replacing an existing dwelling house. But there is no justification for reading those limitations into cl 14(1). It is also inconsistent with the meaning given to "the erection of a building" in s 4(2) of the EPA Act (which specifically includes the rebuilding of a building). Section 11 of the Interpretation Act provides that "words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made".

23 It is also relevant to note that the consequences of giving cl 14(1) of WLEP 1990 its ordinary meaning could not properly be described as absurd. As explained below, not all building works involve the erection of a building. Accordingly, there is scope for existing buildings to be maintained in an adequate condition. The fact that the Council has recognised that this protection is inadequate (because it does not deal with replacing buildings damaged or destroyed), prompting a change to the provisions in the draft local environmental plan, does not enable the Court to read cl 14(1) in a manner inconsistent with its ordinary meaning.

24 The applicants thirdly rely on the provisions of the EPA Act with respect to existing use rights. Section 107(1) specifies that: (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

25 Section 106 defines an existing use in these terms: In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

26 The Council's primary argument is that cl 14(1) does not have the effect of prohibiting the use of lot 5 for the purpose of a dwelling house because the clause is a development standard as defined in s 4(1) of the EPA Act. "Development standard" means a provision "of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of" nominated matters.

27 Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86 needs to be considered. Vaniga concerned the provisions relating to the lapse of development consents in s 99 of the EPA Act (as then in force). The Court of Appeal (Clarke JA, with whom Priestley and Meagher JJA agreed) held that provisions of an instrument prohibiting the erection of buildings exceeding a certain height and floor space ratio had the effect of prohibiting a particular development to a greater height and floor space ratio within the meaning of s 99 irrespective of the fact that the provisions were development standards. SEPP 1 simply enabled the developer to "circumvent or overcome the prohibitions". The power to grant consent by reason of SEPP 1 does not mean that the provisions "do not effect prohibitions. All that it means is that the consent authority is vested with power under [SEPP 1] to grant consents despite those provisions of, and prohibitions in, planning instruments concerning development standards" (at 90).

28 The decision of the Court of Appeal in Hunt v Blacktown City Council (2001) 116 LGERA 356 should also be considered. In Hunt the instrument contained provisions materially the same as cll 9(2) and 9(3) of WLEP 1990. The land was zoned 2(a) Residential. It had long been developed for the purpose of a poultry farm. Use of the land for that purpose was within item 3 of the zoning table (development permissible only with consent) because that item specified permissible development as development for any purpose other than those purposes nominated in items 2 or 4 of the table. Poultry farms were not so nominated. However, the appellant contended that the Council could not lawfully form an opinion that carrying out of development for the purpose of a poultry farm was consistent with one or more of the zone objectives of the 2(a) zone as required by cl 9(3). The appellant said that cl 9(3) thus had the effect of prohibiting the poultry farm within the meaning of s 106 of the EPA Act (making the poultry farm an existing use). The Court of Appeal held to the contrary. Powell JA (with whom Meagher and Beazley JJA agreed) said at [43]: The present appeal, which involves a determination of the interaction of the appropriate parts of cl 9(2) and (3) and that part of the Table to cl 9 dealing with Zone No 2(a) (residential A zone) - in my view invites a similar approach to that taken by Clarke JA in Vaniga Pty Ltd v South Sydney City Council and by Priestley JA in Healesville Holdings Pty Ltd v Pittwater Council [(1997) 97 LGERA 95]. In my view the only developments which are prohibited within a residential A zone are those set out under item 4 in the appropriate part of the Table, all other developments - other than those set out under item 2 in the Table - being permissible with the consent of the respondent - on this approach, the provisions of cl 9(3) do not operate to prohibit development, but place a limit upon the power of the respondent to grant consent.

29 Two decisions of this Court should also be mentioned ( North Sydney Council v Phillip Perrie and Associates Pty Limited [1995] NSWLEC 115 and Teppell Investments Pty Limited v North Sydney Council [1996] NSWLEC 61). Both cases considered an instrument under which residential flat buildings were identified as development permissible with consent in the relevant zone. The zoning table was subject to the other provisions of the instrument. One of those other provisions said that a residential flat building shall not be erected on land in the zone if any principal building on adjoining land was less than three storeys in height. That clause had been held not to be a development standard ( North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222).

30 In Phillip Perrie the applicant wanted to erect a new residential flat building to replace the existing residential flat building. The provision applied but the applicant asserted existing use rights for the purpose of a residential flat building. Talbot J rejected the applicant's submission because the provision regulated only the erection of a future residential flat building on land and had nothing to say about the continued lawful use of the existing residential flat building. As the use for the purpose of the existing residential flat building was not prohibited, s 106 of the EPA Act was not engaged and there was no existing use within the meaning of that definition.

31 In Teppell Investments Pearlman J had to deal with an existing residential flat building subject to the same circumstances as that in Phillip Perrie . However, the applicant in Teppell Investments wished only to carry out relatively minor alterations and additions to the existing building. The parties accepted that the distinction between erection and use in Phillip Perrie was correct. Pearlman J observed that whether any particular building works amount to the erection of a residential flat building involved considerations of fact and degree. On the facts Pearlman J held that the minor non-structural works proposed did not amount to the erection of a residential flat building and thus were not prohibited.

32 These decisions disclose the fundamental difficulty confronting the applicants in this matter. According to the zoning table, dwelling houses are permissible with consent on lot 5. Clause 14(1) does not have the effect of prohibiting the continuing use of either the existing building or the land for that purpose (and could not have that effect in any event with respect to lot 5 given the terms of s 109B of the EPA Act). Clause 14(1) is not directed at the use of the existing building on, or land within, lot 5. It is directed at the Council's power to grant consent to the erection of a new building for the purpose of a dwelling house in the nominated circumstances. The amendment to SEPP 1 on 17 May 2002 has no effect on this distinction. Clause 4(2), as inserted into SEPP 1 on that date, did nothing more than remove the power to "circumvent or overcome" the prohibition on the erection of a new dwelling house on lot 5. It did not prohibit the continued use of lot 5 for the purpose of a dwelling house any more than cl 14(1) has that effect.

33 This conclusion does not diminish the fact that cl 9(2) subjects the zoning table to the other provisions of WLEP 1990 (by the opening words "Except as provided otherwise by this plan…"). The conclusion involves a determination of the interaction of the zoning table and the other provisions of WLEP 1990 (specifically, cl 14(1)) in order to ascertain whether any provision of that instrument (whether a development standard and amenable to SEPP 1 or not) has the effect required by s 106 of the EPA Act. I am unable to discern any such effect in the operation of cl 14(1) of WLEP 1990 or cl 4(2) of SEPP 1. Other provisions may interact differently and I do not understand Hunt to be suggesting to the contrary (in Hunt there simply was no provision interacting with the zoning table other than cl 9(3)).

34 I accept that the consequence of this construction (despite the leeway for some building works not to amount to the erection of a building as referred to by Pearlman J in Teppell Investments ) is harsh for people in the applicants' position. The Council also readily conceded this fact and observed that the same provisions are not replicated in the Council's current draft local environmental plan. But the language of the relevant provisions of WLEP 1990 and SEPP 1, against the requirements of s 106 of the EPA Act, is intractable. The development proposed in DA 2008/269 is the erection of a dwelling house. The Council (and thus the Court on appeal) does not have the power to grant consent to the erection of a dwelling house on lot 5 because the lot does not meet any one of the requirements in cl 14(1)(a) to (d) and the dispensing power in SEPP 1 is not available. The lack of power to grant such consent does not mean that the use of the building on or land within lot 5 is prohibited. The use remains lawful, may continue and has not been prohibited. Section 106 is not engaged and thus the existing use provisions of the EPA Act (specifically, s 108) do not provide a source of power to grant consent to DA 2008/269.

35 The separate question must be answered in the negative. Development consent may not be granted to DA 2008/269.

36 In these circumstances the answer to the separate question has had the effect of determining the appeal against the applicants. Accordingly, I make the following orders: (1) The appeal is dismissed. (2) The exhibits may be returned. (3) Each party is to pay its own costs. ****************************

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