(vi) "… anything less than complete prohibition means that there can be the development in question". (343)
48 His conclusion in relation to cl 41(2) was (344):
"The development in question … at least on the basis on which the separate questions were put forward must be taken to have been the erection of a building on the residential 2(a) land for the purpose of a single dwelling, an attached dual occupancy, detached dual occupancies or multiple-unit housing. So far as clause 41(2) is concerned with multiple-unit housing, the effect of [the zoning table] is that a building may not be erected on residential 2(a) for that purpose at all. There is no development in respect of an aspect of which it specifies a requirement or fixes a standard …
So far as clause 41(2) is concerned with a single dwelling or with dual occupancies, erection of a building on residential 2(a) land for those purposes is generally permissible with consent … Clause 41(2) then provides that consent shall not be given unless the land has an area of not less than 560m². Reading the provision as part of the Ordinance as a whole, this is not a prohibition on the erection of a building for the stated purposes on residential 2(a) land in any circumstances. It is prohibitory so far as it precludes development in particular cases, but not prohibitory of development by erection of a building for the stated purposes on residential 2(a) land. The development is permissible in the circumstances (negatively) expressed in clause 41(2).
Does clause 41(2) specify a requirement or fix a standard in respect of an aspect of the development? In my opinion it does".
49 The intended development, other than for multi-unit housing, was permissible with consent in the zone, and on the unsubdivided block. The case was argued on the basis of the controls on the erection of buildings in cl 41(2), and not on the basis of the controls on subdivision in cl 41(1). The parties may have conducted the case in this way because of s 80(2) which provides:
"(2) … the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development".
50 In that case attached or detached dual occupancies were clearly permissible with consent on the unsubdivided land in accordance with cl 41(2). In that context it is not hard to see that the assumed control on subdivision by reference to the control on the types of buildings that could be erected on the land, including the land in its unsubdivided form, was a development standard in relation to the proposed subdivision. There was in fact no relevant control, except possibly with reference to single dwellings, on the proposed building development on the existing block.
51 Giles JA carefully analysed the majority judgments in Mayoh. He said of the clause relevant in that case (332):
"… [it] imposed a criterion in relation to adjoining land, not the land to be developed. It was therefore readily seen as a prohibition on erection of a [residential flat] building on the land to be developed, rather than relating to or a requirement or standard in respect of an aspect of the development".
52 Later he said (343):
"… [Mayoh] must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances … because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining [low] buildings, so there was relevantly a prohibition on [that] development in any circumstances".
53 In Quinn O'Hanlon 114 cl 22(1) of the Leichhardt Plan, the FBL clause, was indistinguishable from cl 22(2) of the Plan but sub cls (2) and (3) were very different. These provided:
"(2) The council may, after taking into consideration the probable aesthetic appearance of the proposed building or work in relation to the foreshore, consent to:
(a) the erection of baths, boat sheds, dressing sheds, wharves, jetties or swimming pools; or
(b) the extension, alteration or rebuilding of a building which encroaches the foreshore building line, on land between a foreshore building line and the foreshore to which that line relates.
(3) The Council shall not grant consent under sub cl (2)(b) in respect of any alteration, extension or rebuilding where -
(a) the total encroaching floor area will be increased by more than 10 percent over the encroaching floor area as it was on the appointed day; or
(b) the building as altered, extended or rebuilt, will be closer to the foreshore than the building as it was on the appointed day".
54 The development involved alterations and additions to an existing residential building but the Council refused consent because part of the building work was to be constructed between the FBL and the foreshore (115). The existing building already encroached on the FBL and the proposed alterations and additions would have extended the building towards the foreshore (116).
55 It seems to me that cl 22(2) and (3) were capable of being viewed as development standards in relation to alterations and extensions to an existing building which already encroached on the FBL and that as such they were amenable to SEPP 1. However Cripps CJ did not decide the case on that basis. Indeed his comments on the status of the clause as a development standard were strictly unnecessary for his decision as the appeal failed on planning merit grounds. However he said (118-19):
"… the erection of a dwelling house is permissible in the zoning tables over the whole of the land except that which is permitted … may not, subject to certain exceptions, be erected over part of the land. It would seem to me, in the absence of any authority to the contrary, that the fixing of a building line as a special provision in the planning ordinance would be relevantly a development standard and one being 'in respect of an aspect of the development' viz the siting of a permissible building on the land".
56 It will be seen that his Honour focussed on the whole of the developer's land and not just the land within the FBL. He first distinguished Kruf v Warringah Shire Council (15 September 1988, Holland J unrep) (Kruf), saying (119) that the prohibition in that case applied to the whole of the land but concluded that the case was wrongly decided (119-120).
57 In Mayoh Mahoney JA did not refer to Kruf or Quinn O'Hanlon but Clarke JA referred to both. He approved the decision in Kruf ((1990) 71 LGRA at 236, 238) but said that in his tentative view Quinn O'Hanlon was correctly decided although the point had not been fully argued (238).
58 In my view cl 22 of the Plan and the relevant FBL, in the language of Stein J in Napper v Shoalhaven Shire Council (12 February 1988 unrep), "served a zoning function". They created what is in substance a special foreshore protection zone with its own regime of controls overlaid on the development control tables for the various zones within the foreshore protection area. There is no requirement for zoning control to follow title boundaries and it is common for a parcel of land in the one ownership to include areas within different zones. Development prohibited by the zoning table for land within one of those zones is not brought within SEPP 1 merely because it is permissible under the zoning table applicable to adjoining land in the same ownership.
59 In my judgment the issues which arise in this case as to the application of SEPP 1 to cl 22 must be considered in relation to the land within the FBL. The zoning control over other land in the same parcel and the same ownership is in my view irrelevant. This question did not arise in Kruf where, as Cripps CJ pointed out in Quinn O'Hanlon (119), the prohibition extended to the whole of the relevant land owned by the developer, as it did in Mayoh.
60 In Bowen v Willoughby CC (2000) 108 LGERA 149, 159 Bignold J distinguished the decision of Sheahan J in McKay v North Sydney Council (2000) 107 LGERA 203 on the basis that "the proposed development … was wholly contained within the foreshore side of the foreshore building line". However this is also the position in the present case.
61 The point was not considered in Quinn O'Hanlon, or in later cases including the decision under review, and it has simply been assumed, without analysis or reasons, that in determining whether some restriction was a development standard one looked at the whole of the developer's land. Thus in Quinn O'Hanlon Cripps CJ said, at 119, that the fixing of a building line was a development standard because it related to "the siting of a permissible building on the land".
62 One can see the force of this reasoning where, for example, a clause of general application mandates minimum setbacks from front and side boundaries. Typically in such cases a dwelling or residential flat building would be permissible on the land and the setbacks could properly be viewed as development standards. It would be difficult, if not impossible, to regard such a clause as serving a zoning function because of its general application.
63 No such difficulties arise in the present case. The foreshore protection area within the FBL forms a distinct area which could have been made a separate zone. The special regime under cl 22 applies irrespective of the underlying zoning and provides a coherent planning regime for the affected land. Cl 22 therefore performs a zoning function. As Clarke JA said in Mayoh (235) there is no requirement that all provisions regarding land use appear in the development control tables. The Plan provides in express terms for cl 22 to prevail over the provisions of a development control table (pars 23, 24).
64 In my judgment the correct question in this case is whether cl 22 in its application to land within the FBL is a development standard. It is not whether it is a development standard in relation to land outside the FBL, or land partly within the FBL and partly outside it. The question is not to be answered by reference to the development control table for the zone, because this is subject to cl 22 (pars 23, 24). Moreover s 76B in explicit terms requires the Court to focus on the land which is the subject of the prohibition (par 21).
65 When one considers cl 22 in relation to the land which is directly affected there can only be one possible answer. Although the proposed development involves an addition to an existing building it is itself a building for the purposes of the Act. The whole of the proposed development is to take place within the FBL and no part of it is permissible. The clause prohibits the proposed development and, in accordance with Mayoh and s 76B, there is no room for the application of any development standards or SEPP 1. As Giles JA said in Poynting (332):
"The provision in [Mayoh] imposed a criterion in relation to adjoining land, not the land to be developed. It was therefore readily seen as a prohibition on erection of a building on land to be developed rather than relating to or a requirement or standard in respect of an aspect of the development".
Clause 22 is in the same category because it imposes a criterion in relation to the adjoining waters of Port Jackson which is within the definition of land for the purposes of the Act.
66 The objector has therefore established an error of law on the face of the record. In my judgment this was an error as to jurisdiction. Although the Court had jurisdiction to entertain the developer's appeal and to consider whether cl 22 was a development standard, and in that sense to embark on that enquiry, it could not, by a wrong decision on that question, give itself jurisdiction under SEPP 1 to relax the controls imposed by that clause. See Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 per Lord Reid and 210 per Lord Wilberforce; R v Dunphy ex parte Maynes (1978) 139 CLR 482, 495-6 per Mason J and R v Gray (1985) 157 CLR 351 at 371-2 per Gibbs CJ. The relevant test for present purposes is that stated by Gibbs CJ at 372:
"However if [the Federal] Court gives a wrong meaning and effect to the word 'irregularity' in Part IX - if it applies the wrong test in deciding what is an irregularity - and so holds that something is an irregularity which is not in law capable of being so described, it is assuming to exercise the powers conferred on it by statute although the condition of their exercise is not satisfied".
67 The remaining question is whether this Court should refuse prerogative relief in the exercise of its discretion. Under s 123 the objector would have had standing to bring Class 4 proceedings to challenge, on judicial review grounds, any consent granted by the Council in breach of cl 22. He also has standing, in accordance with Onus v Alcoa of Australia Limited (1981) 149 CLR 27 to maintain judicial review proceedings to challenge a consent granted by the Court in breach of that clause. It would be anomalous in the extreme if a neighbour, such as the objector, could challenge a development consent granted by the Council in judicial review proceedings in the Court, but could not challenge in this Court a consent granted on appeal by the Court. The proceedings were brought promptly and I can discern no ground on which relief could properly be refused in the exercise of this Court's discretion.
68 I would therefore grant appropriate prerogative relief. In these circumstances there is no need for me to consider the objector's claims for appellate relief.
69 The following orders should be made:
(1) Order that the record of the proceedings in the Land and Environment Court in matter No. 10500 of 2001 between Salvatore Paino as applicant, Woollahra Municipal Council as respondent and Frank Lowy as intervenor be removed into this Court;