Laurence Browning Pty Ltd v Blue Mountains City Council

Georgakis v North Sydney Council (2004) 140 LGERA 379; Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179; CASES CITED: North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Woollahra Municipal Council v Carr (1985) 62 LGRA 263

APPLICANT M Craig QC SOLICITORS LEGAL REPRESENTATIVES: Hannaford Lawyers RESPONDENT J Robson SC SOLICITORS McPhee Kelshaw

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: Introduction

1. The applicant is the owner of land known as the "Coronation Estate" located at 80-104 Railway Parade, Wentworth Falls, in the local government area of the respondent Council. The land comprises 84 lots, lots 1 to 67 and 73 to 89 in deposited plan 7988. The deposited plan creating the subdivided lots was registered on 13 August 1914.
2. The applicant proposes to consolidate the 84 lots into 14 lots (each of about 5000 square metres) and to erect upon each lot a dwelling house. To that end, the applicant lodged a development application with the Council on or about 24 October 2003. The development application seeks consent to erect dwelling houses and ancillary works on each of the proposed consolidated lots. The proposed consolidation of lots is to be by registration of a plan of consolidation within the meaning of s 195 of the Conveyancing Act 1919. Registering such a plan is outside the definition of "subdivision of land" in s 4B of the Environmental Planning and Assessment Act 1979 ("the EPA Act") and thus not "development" within the meaning of that word as defined in s 4(1).
3. The Council refused the development application on 20 July 2005. One of the grounds of refusal stated that the development was "contrary to cl 29.2 of Local Environmental Plan 1991 in that development is prohibited unless all lots are consolidated into one". The applicant filed an appeal pursuant to s 97(1) of the EPA Act against the refusal of its development application. By consent, the applicant and the Council filed a document styled "point for determination" seeking the determination of a "preliminary point" as follows: Whether clause 29.2 of the Respondent's Local Environmental Plan 1991 is a development standard or a prohibition.
4. The representatives of both parties clarified that the question should be recast as follows: Is clause 29.2 a development standard as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 and thus amenable to the application of State Environmental Planning Policy No. 1 - Development Standards?
5. If the clause is not a development standard, then it is common ground that cl 29.2 would operate according to its terms and that, irrespective of any obscurity in the meaning of that provision, the development as proposed is not capable of being the subject of a grant of consent (see ss 76A and 76B of the EPA Act).
6. There is no dispute between the parties with respect to the facts relevant to determining this question. The land to which the development application relates is zoned Bushland Conservation under the Blue Mountains Local Environmental Plan 1991 ("the LEP"). The zone objectives for the Bushland Conservation zone are set out in cl 6.2. The LEP does not apply to the whole of the local government area (see cl 4.1) but, in effect, applies to the land outside the primary urban parts of the area.
7. The Bushland Conservation zone is shown on the "map" (a term defined in Sch 4 of the LEP) by the annotation "BC", as described in cl 8(a) of the LEP. The land, according to cl 8(b), also has a "zone subscript" of "Consolidation Requirement". This zone subscript is shown on the map by the annotation "(CONS)". According to cl 8(c), the land is within a protected area being "Land Between Towns", which is shown on the map by diagonal broken lines (and in respect of which the objectives in cl 7.4 are relevant).
8. The general control on development is in cl 9.1 of the LEP which provides that: With the consent of the Council, development for the purposes of any activity, building, place or work specified in the Table may be carried out on land within a zone where "C" is shown in the Table.
9. Clause 9.2 provides that: Except as permitted by clause 9.1 or by some other specific provision of this plan, the carrying out of development is prohibited.
10. The table referred to in cl 9.1 shows that the carrying out of development on land in the Bushland Conservation zone is permissible with development consent for a number of purposes. Relevantly, development for the purpose of "dwelling houses" is shown in the table as permissible with consent in the Bushland Conservation zone.
11. Clause 10 of the LEP concerns "Development Criteria - General", the provisions of which apply (variously) to development for any purpose, development for certain purposes and development in certain zones. Clause 11 concerns "Development Criteria - Protected Areas", a description which is self-explanatory. Clause 21 concerns dwelling houses and provides that: (a) Where a dwelling house is permissible under the Plan, no more than one dwelling house may be erected on a lot. (b) A person may, with the consent of the Council, erect a second dwelling house on a lot where a dwelling house already exists, provided that the new dwelling house is intended to wholly replace the existing dwelling house.
12. Clause 29, headed "Minimum Area and Consolidation Requirements", is in the following terms: 29.1 Where a Minimum Area Requirement is specified on the Map for any land, the Council shall not consent to development (other than for the purpose of bushfire hazard reduction) on a lot of that land unless the lot contains land within the Bushland Conservation zone or Residential Bushland Conservation zone equal to or greater than the Minimum Area Requirement. 29.2 Where a Consolidation Requirement is shown on the Map, development (other than an existing use or for the purpose of bushfire hazard reduction) is prohibited unless all adjoining lots with this subscript which are shown edged with a heavy black line on the Map have been consolidated into one lot.
13. Clause 34 concerns subdivision. Clause 34.3(b) applies to the land. That clause is headed "Bushland Conservation Zone - Special Provisions" and is as follows: The Council may only consent to subdivision of land shown BC (NS), BC (CONS) or BC with a Minimum Area Requirement on the map if: (i) it is for a boundary adjustment where no additional lots are created and each resulting lot has an area of at least 5,000 m2 zoned Bushland Conservation that includes a Principal Development Area; or (ii) it is for the purpose of providing land for public purposes.
14. "Principal development areas" are provided for, and are the subject of detailed regulation in, cl 30 of the LEP.
15. The map shows the land within a larger area edged with a continuous heavy black line. Within that line, the annotations "BC" and "(CONS)" appear. The land is thus a subset of the total area subject to the "(CONS)" subscript. On the same sheet of the map at least one other area of land, comprising multiple lots, is also edged with a continuous heavy black line and bears the same annotations. Is clause 29.2 a development standard?
16. The Council submits that cl 29.2 of the LEP prohibits the proposed development because the land on which the development is proposed (not being an existing use or for the purpose of bushfire hazard reduction) is subject to a "Consolidation Requirement" shown on the map and all lots with this subscript (within the heavy black line) have not been consolidated into one lot.
17. The Council submits that the clause requires consolidation as a prerequisite to the carrying out of development otherwise permissible in the Bushland Conservation zone. Further, that when development is proposed on any lot with the "(CONS)" subscript, the clause operates to require consolidation into one lot of all lots within the continuous heavy black line (whether or not, for example, the development application relates to some lesser area of land or the continuous heavy black line bounds land owned by persons other than the applicant for consent).
18. The applicant disputes the Council's construction of cl 29.2. It submits that the clause requires consolidation of lots that adjoin the lot or lots on which the development is proposed. Hence, depending on the facts in the particular case, the clause may require consolidation into one lot of something less than all lots within the continuous heavy black line.
19. The applicant acknowledges that the development proposed in its development application (which consolidates 84 lots within the heavy black line into 14 lots rather than into one lot) breaches cl 29.2 on either meaning. But for that acknowledgement, the question is unlikely to have been suitable for separate determination on the facts agreed for its resolution. Having made that acknowledgement, the applicant says that the clause provides a development standard amenable to variation pursuant to State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") and that the proposed development is thereby permissible.
20. The clause suffers from the deficiency of "obscure drafting" which Young CJ in Eq. identified as one of the factors leading to "long and expensive" processes in this area of the law (Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at 347 [124]). Given that the applicant acknowledges that the proposed development breaches cl 29.2 on either construction and that I did not hear full argument on the meaning of the clause, it is not necessary that I resolve this issue. The law in relation to "development standards"
21. "Development standard" is defined in s 4(1) of the EPA Act. development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) ….
22. The phrase appears in s 26(1)(b) of the EPA Act, which concerns the content of environmental planning instruments. Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: (a) …, (b) controlling (whether by the imposing of development standards or otherwise) development,
23. Section 4(1) also provides that: control , in relation to development or any other act, matter or thing, means: (a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or (b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions.
24. These sections enable provisions in an environmental planning instrument to control development by imposing "development standards" or otherwise. In the context set by ss 76A and 76B of the EPA Act, the question whether a provision is a "development standard" or otherwise controls development is significant, because cl 7 of SEPP 1 operates to enable a consent authority to grant consent to a development application "notwithstanding the development standard" in the circumstances prescribed in that instrument.
25. Giles JA (with whom Heydon JA and Young CJ in Eq. agreed) observed in Poynting at 327 [33] that it "has not proved easy to determine whether a provision controlling development satisfies the definition" of "development standard".
26. The principles that I derive from the authorities may be summarised as follows: (1) The provision in question must be "seen as part of the environmental planning instrument as a whole" ( Poynting at 342 [94]). The "wider context" of the provision, as part of the instrument overall, should be considered in construing the provision ( Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182 - 183 [2] per Mason P). (2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of "development standard", that fact alone does not mean that the provision is thereby a development standard. The provision must be "in relation to the carrying out of development" and must fix requirements or standards in respect of an aspect of the development ( Poynting at 333 -334 [58]). (3) Although we must distinguish between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between "regulation" and "prohibition" cannot replace the definition in the EPA Act. As this conceptual division "will bring finely divided decisions", "care must be taken lest form govern rather than substance" ( Poynting at 342 [93]). (4) A provision that prohibits the development under any circumstances controls development, but is not a development standard ( Poynting at 343 [96] and [98]). (5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then "in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development". Hence: Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard. ( Poynting at 343 [98]) . (6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development ( Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269-270 per McHugh JA and Poynting at 343 [97]). (7) An essential condition of the definition of "development standard" is that the "requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development" ( Carr at 269 -270 per McHugh JA). (8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of "development standard" shows that "a broad view of what is an aspect of a development should be taken" ( Poynting at 343 [99]).
27. The reasoning ultimately adopted in Poynting discloses the significance of adopting a "broad view" of the aspects of the development. Clause 41(2) provided that "a single dwelling … must not be erected on an allotment of land … which has an area of land less than 560 square metres". At 344 [103], Giles JA said that: Does cl 41(2) specify a requirement or fix a standard in respect of an aspect of the development? In my opinion it does. On one view the area of the land on which the building is to be erected is not an aspect of the development. The size, height, distance from boundaries and so on of the building are aspects of the development, but it matters not to the development whether the building is to be erected on a small or large parcel of land. On a wider view, the aspects of the development include the size of the parcel on which the building is to be erected, and both independently and because para (a) of the definition of "development standards" includes area and dimensions of land I consider that to be correct.
28. In Lowy, Giles JA (with whom Mason P agreed) confirmed the approach articulated in Poynting - namely, asking: - (1) is the development prohibited under any circumstances (I interpolate, prohibited by the provision construed in the context of the instrument as a whole); and (2) if the development is not so prohibited, does the provision specify a requirement or fix a standard in respect of any aspect of the permitted development?
29. The Court in Lowy also rejected a submission that, in the first step, the relevant land is "confined to that the subject of the provision the categorisation of which is in question" (in that matter, the land on the foreshore side of the foreshore building line). The Court reasoned that the local environmental plan, a planning instrument, addresses land in zones and the "development is by reference to the land in the zone" (at 205-206 [123]).
30. In Georgakis v North Sydney Council (2004) 140 LGERA 379 McClellan J observed that the "broad" or "wider" view of the aspects of a development adopted in Poynting may have consequences for the continued application of the reasoning in North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222. McClellan J said at 389 [38] - [39]: Notwithstanding that the relevant clause in Poynting defined, albeit by reference to specified dimensions of the allotment, whether the particular development is permissible on the land, the court, taking "the wider view", held that it was a development standard. In Mayoh , permissibility was defined by reference to the attributes of adjoining land. In Poynting , permissibility was defined by attributes of the land itself. It would seem that the difference is significant when determining whether the provision contains a development standard. It was submitted by the council in the present case that the reasoning in Mayoh remains the guiding principle when resolving whether a particular provision contains a development standard. Of this proposition Giles JA said in his detailed reasons in Lowy that "it may not be entirely correct." If his Honour had in mind the "wider view" adopted in Poynting , with respect, I doubt that the approach in Mayoh now completely reflects the law.
31. At 390 [44], his Honour continued: But for the decision of the Court of Appeal in Poynting and the approach taken by Giles JA and Mason P in Lowy there may have been force in the submission that, rather than being an aspect of permissible development, cl 12 defines a characteristic of the land without which the development is prohibited on that land. However, I consider that conclusion to be excluded by the necessity to take the "wider view" identified by Giles JA in Poynting and endorsed by Mason P in Lowy . Categorisation of clause 29.2
32. Consistent with the principles and approach to categorisation identified above, it is necessary to identify the development. The development for which consent is sought is the erection of dwelling houses on land zoned Bushland Conservation under the LEP.
33. Having identified the development, it is necessary to ask whether that development, carried out on land in the Bushland Conservation zone to which the development application relates, is prohibited under any circumstances. Under cl 9.1 of the LEP, development may be carried out with development consent for the purpose of "dwelling houses" on land zoned Bushland Conservation. The Council submits that cl 29.2 establishes an absolute prohibition in that it requires consolidation into one lot as a prerequisite to any development.
34. The approach in Poynting requires substance to govern, rather than form. The first step identified in Poynting (and confirmed in Lowy), in my opinion, does not call up for consideration whether the provision should or may be characterised as a prerequisite to development. I do not consider that the words "…have been consolidated…" in cl 29.2 can bear the significance which I understand the Council places upon them. Many provisions that control development (and which are development standards) may be characterised as prerequisites to development. I consider that the use of this formula of words in cl 29.2 does not transform the clause into one which prohibits development under any circumstances or which establishes a control on development incapable of falling within the definition of "development standard". To conclude otherwise would be to elevate form over substance.
35. I also do not accept the Council's submission that the development in this case is prohibited under any circumstances merely because cl 29.2 expressly states that "development is prohibited" unless and until the step of consolidation as required by the clause has been taken. Considered in the context of the instrument as a whole, the proposed development is permissible, albeit only in the circumstances identified in cl 29.2. The fact that the development may be carried out only in the circumstances identified in cl 29.2, does not mean that the development is prohibited under any circumstances by reason of that provision. To the contrary, the development is permissible in the circumstances identified in that provision (even though the provision is expressed in the negative).
36. I find support for these conclusions by considering cl 29.2 in the context of the LEP as a whole. The provision appears amongst provisions that deal with minimum area requirements. Those provisions are within part of the instrument entitled "Special Provisions". This part of the instrument adopts various positive and negative expressions to control development (such as "the Council may grant development consent…only …", "the Council shall not grant consent …unless…", "development is prohibited…unless…", and "a person may, with the consent of the Council…but only where…").
37. The more difficult issue in this matter arises when considering the second step - is cl 29.2 a provision by or under which requirements are specified or standards are fixed in respect of any aspect of the proposed development? It is in this context that the "wider view" adopted in Poynting, and the observations in Georgakis referred to above, are significant. The Council submits that the provision does not relate to any aspect of the development, but requires that a certain lot configuration be established before any development consent is granted.
38. The absence of reference to the consolidation of lots with adjoining lots in sub-paras (a) to (n) of the definition of "development standard" in s 4(1) of the EPA Act is not determinative of the status of the provision. Sub-paragraphs (a) to (n) are expressed to be matters included within the preamble to the definition and are not exhaustive of that preamble.
39. The consolidation of lots with adjoining lots describes an action that results in the creation of a parcel of land of certain dimensions and area. In substance, that requirement is analogous to a provision relating to the prescribed area and shape of a parcel of land on which development may be carried out, as referred to in sub-para (a) of the definition in s 4(1). Requiring the consolidation of lots appears to me to be a means of reaching an end similar to the provision considered in Poynting - that is, for development to be carried out on land of a certain area and configuration. If substance and not form is to govern (as it must in this context), then I again consider that the words "…have been consolidated…" in cl 29.2 cannot bear the significance which I understand the Council places upon them for resolution of the second step required by the reasoning in Poynting and Lowy.
40. The provision refers to both the land on which the development is proposed and land adjoining that land. The clause requires that the adjoining land be consolidated with the land on which the development is proposed. The provision should be understood as defining permissibility by reference to the attributes of the land on which the development is proposed (namely, whether that land has been consolidated with other land). The provision does not, in my opinion, define permissibility by reference to the attributes of adjoining land as in Mayoh.
41. Having regard to these considerations, and in particular the "wider" view of the concept of "aspects of the development" recognised in Poynting, I consider that the arrangement of land on which the development may be carried out as required by cl 29.2 is an aspect of the development, being development which is otherwise permissible.
42. Clause 29.2 is thus a provision by or under which requirements are specified in respect of an aspect of that development.
43. For these reasons, I conclude that cl 29.2 of the LEP contains a "development standard".
44. I thus answer the separate question as recast by the parties in the following manner: "Yes".
45. Costs may be argued.

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