Consideration
28At the time the development application was lodged, the former SEPP was in force, and the subdivision of Lot A had been approved, but was not yet registered. At the time the Council determined the application, the amended SEPP was in force, and the subdivision was not yet registered. At the time the Class 1 appeal was lodged, the subdivision was registered.
29The savings and transitional provisions in cll 54 and 54A of the SEPP permit determination of a development application made before the commencement of the SEPP, or the commencement of the amendments made in 2011 respectively, under the legislation applicable at the date of lodgement. Both provisions provide a discretion, with additional requirements imposed by cl 54(2) and cl 54A(3) respectively if that discretion is exercised to apply the law as at the date of lodgement. The conferral of a discretion as to which planning controls to apply is in contrast with the savings provision in cl 1.8A of local environmental plans which adopt the standard provisions, and which provides that a development application lodged before the commencement of a new local environmental plan must be determined as if the new plan had not commenced. The conferral of the discretion is consistent with the aims of the SEPP, in particular the aim in cl 3(b) to facilitate effective delivery of new affordable rental housing. A broad construction of the provisions of the SEPP would be consistent with those aims, and also consistent with the approach adopted in the relation to the former SEPP 53 in decisions such as Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94, where Pearlman CJ described the purpose of SEPP 53 as facultative, and noted that it aimed to encourage a particular form of housing. In my view the savings and transitional provisions of the SEPP direct attention first, to the law as at the date of application, and then confer a discretion as to what law to apply to assessment of a particular application. Clause 54A(2) limits the availability of that discretion to a development application made before the commencement of the amended SEPP on 20 May 2011 to an application "in relation to development to which this SEPP applied before that commencement".
30The first step is to consider whether the proposed development was, at the date of lodgement of the development application, development to which the former SEPP applied. As at that date, the first question to be answered was whether Div 1 of Part 2 applied, which required that cll 10 and 11 be met. Subclauses 10(1) and (2) refer to "a development site", cl 10(1) directing attention to the applicable zoning, and cl 10(2) to accessibility issues. The term "development site" is not defined, however the definition of "site" makes it clear that the reference is to the area of "any land on which development is, or is to be, carried out", and that that land may include the whole or part of one lot, or more than one lot.
31Applying that definition, the "development site" referred to in cl 10 is not in terms limited to a lot or parcel or any other technical means of identifying land. That is consistent with the broad approach adopted in relation to the term "allotment" under the former SEPP 53. In Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94 Pearlman CJ held that that expression did not bear a technical meaning, but rather its ordinary meaning as being an identifiable piece or parcel of land; and that was satisfied in the circumstances of that case where three proposed lots were identified on a formal plan of subdivision to which consent had been granted, but which had not yet been registered. Pearlman CJ was satisfied that the broad construction accorded with the aims of SEPP 53. Pearlman CJ noted that Bignold J had reached a similar conclusion in Personal Design Projects Pty Ltd v Hornsby Shire Council [1991] NSWLEC 34, which concerned applications to carry out development on three lots in an approved but not registered subdivision of land. In circumstances where the council had not consented to subdivision, there may still be consideration of a development application, with any consent subject to a condition requiring registration of a plan of subdivision before the development was carried out: S & I Investments Pty Ltd v Pittwater Council [1993] NSWLEC 166.
32The parties disagreed as to whether the identification of the "development site" for the purposes of cl 10 is limited to the Development Application Form, or can be undertaken by reading that form together with the plans and Statement of Environmental Effects (SEE). The SEE states (at p6) that the subdivision of Lot A, approved but not yet registered, "separated the site of the heritage building from the redevelopment site" and that Lot 25, with an area of 3,378 sqm, was the site of the proposed development. The plans show the boundary between approved Lots 25 and 26.
33The Council relied on Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWCA 322, Farah v Warringah Council & Ors [2006] NSWLEC 191, and Owners Strata Plan 37762 v Pham & Ors [2005] NSWLEC 500 in support of its submission that the terms of the development application, in this instance the Development Application Form, identify what land an application relates to. I agree with the applicant that those decisions, concerning construction of development consents, do not necessarily assist in the task required by cl 10 of the SEPP. In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 789 Preston CJ noted, in a context where there was a misdescription in the development application of development as being amendment of an existing consent, that one looks to substance and not form, and that understanding what is the particular development being proposed may require looking at the particular plans accompanying the development application.
34I agree with the applicant that the Development Application Form identifies the "land on which development is ... to be carried out" as being part of what was then Lot A. The form requires insertion of information under "Property Description" to specify "Lot No.", "DP No.", "Unit/Shop/Street No.", "Street Name:" and "Suburb". The information provided in response was accurate in terms of the formal property description at a time when the subdivision of Lot A had been approved, but not registered, and included a reference to "8A Northcote Road Hornsby" and not the other street frontage "26 Pulbrook Parade". At Part B of the Form, requiring information for All New Buildings, the "Gross site area (m2)" is specified as "3,378 m2", which is less than the area of Lot A being 4,651 sqm. In my view, when read as a whole, the Development Application Form indicates that the "development site" is only part of the former Lot A, and not Lot A in its entirety.
35The definition of "site area" and "site" requires identification of the "land" on which the development is to be carried out. While the Development Application Form identifies that that land is only part of the former Lot A, further information is required to ascertain what that "land" is. The development application proposed "construction of a part two, part three storey residential flat building". The physical works required for that "development" were identified in the plans. While those plans show the boundary approved in the subdivision of Lot A into Lots 25 and 26, and the footprint of the proposed residential flat building on Lot 25 (now Lot 2), Drawing C2 of the Concept Stormwater Plan 1 shows construction of drainage works along the eastern boundary of proposed Lot 26, now Lot 1. The carrying out of that work would only be permissible if ancillary to the proposed multi-unit housing, and is part of the "development" proposed to be carried out in the development application.
36Applying cl 10, the "development site" is that part of the former Lot A on which the works identified in the plans is proposed to be carried out, which includes a significant part of what is now Lot 2, and part of what is now Lot 1. That is the "land" to which Div 1 of Part 2 of the former SEPP applied. Applying cl 11, the "development" is development for the purposes of a residential flat building requiring consideration under cl11(b). The land on which that development is proposed includes part of what is now Lot 1, and Lot 1 contains a heritage item. Accordingly, cl 11(b)(ii) is not satisfied, and Div 1 of Part 2 of the former SEPP did not apply to the proposed development. That conclusion means that cl 54A(2) is not satisfied.
37If, in the alternative, the relevant inquiry is that required by the amended SEPP, being the law in force as at the date of determination, rather than the law as at the date of lodgement of the development application, the proposed development must satisfy cl 10 as amended. Clause 10 does not require identification of a "development site", but rather identification of the "land" on which "the development" for the purposes of dual occupancies, multi unit dwelling housing or residential flat buildings is proposed. The "development" includes the proposed drainage works on Lot 1. If the word "land" is to be read, applying the broad construction adopted in Demihale, to mean a readily identifiable piece or parcel of land, after registration of the subdivision that land is now Lot 1, which is land that contains a heritage item. The proposed development does not satisfy cl 10(1) of the amended SEPP and Div 1 of Part 2 of the SEPP does not apply.