Planning controls
The site is zoned 2(d) Residential "D" under WLEP 1995 and the proposal is permissible with consent. Clause 13(3) requires the development to be consistent with one or more of the aims of plan and at least one specific objective of the zone.
The relevant aims and objectives of the WLEP 1995 are:
(b) to allow development at a scale that is sensitive to environmental and planning constraints,
(d) to maintain and enhance the amenity of residential areas, for example, by protecting those areas from inappropriate development, and
(e) to ensure that residential development conforms with the scale and character of the individual residential area
8The objectives of the 2(d) zone are:
(a) To consolidate high-rise and high density residential flat buildings in selected and accessible locations, and
(b) To enable the provision of appropriate communal recreation facilities for use by residents.
9The site is included in Locality "C" of the 2(d) zone for the purposes of cl 23(e) of WLEP 1995, which permits a maximum FSR of 1.5:1. The objectives for the FSR control are set out in cl 13E as:
(a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land,
(b) to limit traffic generation as a result of that development,
(c) to limit the bulk and scale of that development.
10The approved development has FSR of 2.32:1, which exceeds the FSR control in cl 23. The proposal will have an FSR of 2.45:1 and will further exceed the control.
11Under cl 24(1)(d) of WLEP 1995 a maximum height limit of nine storeys is permitted in Locality "C" of the 2(d) zone. There are no objectives for the height control in WLEP 1995. The approved development is nine storeys. The proposed development would be ten storeys.
12The applicant has submitted SEPP 1 objections as to why strict compliance with the FSR and height standards is unreasonable and unnecessary. The parties disagree on whether the SEPP 1 objections are well founded, which is discussed later in this judgment.
13Willoughby Development Control Plan (DCP) applies to the development.
14State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered.
15WLEP 2012 commenced on 31 January 2013. Under WLEP 2012 the site is zoned R4-High Density Residential. The allowable FSR under cl 4.4 is 1.7:1 and the height limit under cl 4.3 is 34m.
16The parties disagree on the weight to be given to WLEP 2012 based on a different interpretation of the savings provision in cl 1.8A of WLEP 2012, which is discussed below.
Weight to be given to WLEP 2012
17Clause 1.8A of WLEP 2012 provides:
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
18Ms Carpenter, for the council, submits that the development application is to be assessed under WLEP 1995 and that no weight should be given to WLEP 2012 by virtue of cl 1.8A in WLEP 2012. She relies on the decision in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302, where Dixon C considered an identical provision and found at [20] and [21]:
The transitional provision in cl1.8A requires the LEP 2012 to be taken into consideration under s 79C(I) of the Act as if the Plan had been made but not commenced. The words in the savings clause under review in this case are different to those considered by the Court of Appeal in Terrace Towers. Therefore, the case at hand can be distinguished from reasoning of the Court of Appeal in Terrace Towers. I accept the applicant's submission that there must have been a purpose in the drafter of the clause removing the words "had been exhibited" from the final Plan as made. If I accept the Council's interpretation of the clause then it is irrelevant that the words "had been exhibited" were removed from the final version of cl1.8A.
The only interpretation of the savings clause, which I can accept on the evidence and submissions is that proposed by the applicant. It is simply illogical to adopt the legal reasoning of the Court of Appeal in Terrace Towers with respect to the savings clause under consideration in this case. The words, which underline the reasoning of the Court in Terrace Towers, "as if the Plan had been exhibited ", are purposively removed from cl1.8A of LEP 2012. Accordingly, it must follow that the prevailing planning instrument remains the LEP 2005 for this application by dint of the savings provision in cl1.8 A of LEP 2012. It also follows that LEP 2012 is not a relevant consideration under s 79C (1)(a) (i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.
19Mr Tomasetti SC, for the applicant submits that WLEP 2012 is "imminent and certain" as it has been made and therefore should be given "determinative weight". He relies on the numerous authorities to support this submission, including the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 where at [5], Spigelman CJ referred to the line of authority in the Court outlined by Mason P at [46]:
to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft.
......
20Further, Mason P at [59] said:
.....The transitional provisions require LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as "made". This cannot be read as a self-referential, self-defeating indication that only the transitional provision itself is to be taken into account. The obvious intent is that the consent authority may look at those provisions of LEP 2000 that are pertinent to the zone and the proposed development.
21Mr Tomasetti SC made further submissions in response to the decision in Alamdo. He submits that although WLEP 2012 "is notionally to be regarded as not commenced, it otherwise existed in fact and is to be regarded therefore as a draft instrument the provisions of which are to be given appropriate weight".
22Further, Mr Tomasetti SC submits that "In the task of statutory construction, absurd results are to be avoided" and refers to Abret Pty Limited v Wingecarribee Shire Council [2009] NSWLEC 132, where Sheahan J at [24] to [30] states:
24 The Interpretation Act 1987 s 33 provides:
"In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
25 As a species of delegated legislation, statutory instruments such as LEPs and REPs fall for interpretation in accordance with the general principles of statutory interpretation, looking at the language, context, policy, intention and purpose of all the instrument's provisions. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69] and [78]; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379, at [36], [46], and [63]; Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731, at [35]-[36].
26 The court must look to the intention of the draftsman, and avoid irrationality and injustice in its construction of the instrument.
27 In Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336, at 350, Gibbs J said:
"... where two meanings are open ... it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust".
28 In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297, at 320, Mason & Wilson JJ said:
"On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
29 In R v Young (1999) 46 NSWLR 681, at 687-688, Spigelman CJ observed (citations omitted):
"[15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction."
30 In Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306, Tobias JA said, at [52]:
It is well established that the rules of statutory construction permit the avoidance of an irrational result of a particular construction unless the language of the provision in question is intractable or where, although the language is not intractable, the operation of the provision, read literally, is such as to indicate that it could not have been intended by the draughtsperson".
23I note that the Court of Appeal did not question the principles in Abret (see Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107).
24Mr Tomasetti SC submits that in applying these principles, the "absurd result" in this case is:
if the 2012 instrument had not commenced it would be treated as a draft under s79C(1)(a)(ii) and be specifically relevant. Yet having actually commenced it then, in accordance with Alamdo, is not legally relevant. This is absurd when as a matter of relevance a draft instrument having commenced is obviously more certain and imminent than one that has not in fact commenced. It is also contrary to the "line of authority" referred to by the Chief Justice in Terrace Towers at [5] and the" stream of case law" referred to by the President at [44].
The change in the wording of the savings clause makes no substantive change to the long line of cases referred to in Terrace Towers.
Findings
25I accept the reasoning by Dixon C in Alamdo, which has been followed by other decisions of the Court, including decisions made after this hearing (see Moscaritolo v The Hills Shire Council [2013] NSWLEC 1014, Signature Gardens Retirement Resort Pty Limited v Cessnock City Council [2013] NSWLEC 1070, Greenwood v Warringah Council [2013] NSWLEC 1119 and Wang and Anor v Canterbury City Council [2013] NSWLEC 1098)
26The savings clause in WLEP 2012 is identical to the clause considered in Alamdo but is different to that considered in Terrace Towers in that the requirement to determine the application "as if the plan had been exhibited but not been made" has been removed and replaced with the requirement that the application "must be determined as if this plan had not commenced". While there would appear to be a lack of logic in allowing the exhibited plan to be considered under s 79C(1)(a)(ii) prior to the making of the Plan, but not to do so after it has commenced, I accept that Alamdo is the correct interpretation of the words in cl1.8A. There is no reason to indicate that the outcome that results from the application of cl 1.8A was not intended by the draughtsperson.
27In accepting that the Court has no authority to take WLEP 2012 into account in its assessment of the development application under s 79C (1)(a)(i) or (ii), I note that in Alamdo at [7] and [12], the applicant accepted that the LEP is relevant as an aspect of the public interest under s 79C(1)(e), but that "by its terms cl 1.8A speaks against the instrument operating to prohibit the present application or be of determinative weight". Dixon C at [21] found
21 Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.
28Alamdo was discussed discussed further in Wang where at [11] to [13] Moore SC said:
11 She dealt with the difference in the legal position arising, in her view, as a consequence of the new wording of the transitional provision compared to the position that had been adopted by the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289. My colleague held in Alamdo that, notwithstanding the provisions of cl 1.8A, for the purposes of s 79C1)(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979, the new Local Environmental Plan, as a consequence of cl 1.8A should be regarded as not existing, in effect.
12 It was also put to her in those proceedings [as has been put to me in these proceedings by Mr Jackson], that, notwithstanding her conclusion with respect to s 79C(1)(a) that the provisions of that 2012 Local Environmental Plan were required to be considered as a matter of the public interest - that arising under s 79C(1)(e).
13 I am satisfied that is a correct and appropriate interpretation. However, that question was also dealt with by Dixon C in Alamdo, where she held that, notwithstanding the failure to engage the new Local Environmental Plan by virtue of s 79C(1)(a), s 79C(e) was engaged to call up the LEP for consideration. She held that that consideration immediately brought into play the terms of cl 1.8A of the LEP - with the LEP having been imported by 79C(1)(e), it automatically excluded itself from further consideration as a consequence of clause 1.8A.
29For the above reasons, the development application must be determined as if WLEP 2012 had not commenced and the relevant planning instrument remains WLEP 1995. The development application does not comply with the FSR and Height standards in WLEP 1995. The experts have agreed that in considering the SEPP 1 objections and the objectives of these standards, it is relevant to consider the existing and likely future context of the site. In determining the likely future context, the experts have been guided by WLEP 2012. While WLEP 2012 is not relevant to the development application on the site, I accept that it can be considered in determining whether strict compliance with the FSR and Height standards in WLEP 1995 would be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act and consequently whether the SEPP 1 objections are well founded. WLEP 2012 provides guidance as to the development likely to occur through future development applications on other land and to the likely future character in the locality of the site.