Is clause 13(3)(a) a prohibition?
Applicant's submissions
16The applicant submits that clause 13(3)(a) is not a prohibition but is a development standard. The applicant relies on the decision of Talbot J in Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352, which considered cl 13(3) and 13(4) of the LEP. While accepting that cl 13(4) has since been repealed, and cl 13(3) amended as a consequence of that repeal, the applicant relies on the conclusion of Talbot J, which was confirmed by the Court of Appeal on appeal ( Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104) that cl 13(3) is a development standard. In Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104 at [55] Giles JA referred to his judgment in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 in which his Honour set out the two step approach subsequently adopted in the Court:
96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step.
97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of 'development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.
98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit...
17The applicant submits that the provision under consideration in Pancho Properties, Poynting , and in Bell v Shellharbour Municipal Council (1993) 78 LGERA 429, is very different to that under consideration by the Court of Appeal in Blue Mountains City Council v Lawrence Browning Pty Ltd (2006) 150 LGERA 130, where Tobias JA held:
53 ...Even accepting the "wider view" of the concept of "aspects of the development" advocated in Poynting , I would not be prepared to extend that concept to a requirement which is unrelated to the development proposed but is an attribute of the whole of the land within the area shown edged with a heavy black line on the Map and which engages more than the land the subject of the application.
54 In other words, even accepting the "wider view", I do not regard the consolidation requirement in cl.29.2 as being equivalent or analogous to a provision that a dwelling house shall not be erected upon an allotment of less than a specified area. The two requirements in my opinion are essentially different. Although one is a requirement with respect to an aspect of the proposed development, the other is not. The latter, as is implicit in the reasons of Basten JA, is an "essential element" to the permissibility as a matter of zoning (in the wider sense referred to by his Honour) of the proposed development and not an aspect of that development which is external to that element.
18The applicant submits that the provision under consideration in Agostino v Penrith City Council (2010) 172 LGERA 380, which is the most recent consideration by the Court of Appeal of these issues, is also very different to that in cl 13(3). The applicant submits that the development for which consent is sought is a dwelling house, which is permissible in zone 7(a). The definition of "dwelling house" contains no area component, in contrast to the permissible development in Agostino , which was held by the Court of Appeal to be the composite or complete phrase of "fruit or vegetable store with a maximum floor area of 150 sq m". The provisions in cl 13(3)(a) constitute provisions of an environmental planning instrument relating to the carrying out of the permissible development, and being directed to area specifically fall within the included provisions of the definitions of "development standard" in s 4(1) of the Act. On that basis the applicant submits that cl 13(3)(a) of the LEP is a development standard.
Respondent's submissions
19The Council submits that cl 13(3) is included within Div 2 of Part 3 of the LEP which deals with "development in rural and environmental zones", which includes zone 7(a), and that cl 13(3) deals specifically with a dwelling house in that particular zone. Clause 13(3) permits the erection of a dwelling house in that zone but only if the land has an area of not less than 40ha. Clause 13(3) specifies a number of circumstances in which a dwelling house may , with consent, be erected, and that includes land which comprises the whole of an "existing parcel". The Council submits that the proper construction of clause 13(3) is prohibitory, relying in particular on Agostino . The Council submits that the cases referred to above demonstrate that while opinions have differed on the identification and application of relevant principles in determining whether a particular provision is a development standard, the proposition that commands general support is that close and careful attention needs to be given to the particular drafting of the relevant provisions. The Council submits that as in Agostino , the essential conditions or considerations in determining the permissibility of a dwelling house in zone 7(a) are that the development proposal is for a single dwelling house as defined, and that proposal must relate to land which has a minimum of 40ha. Since the second element is not met, the development is prohibited.
20In considering the relevant authorities, the Council submits in relation to Pancho Properties that the Court of Appeal did not deal with clause 13(3), and its findings on the nature of the 40 ha requirement in subclause 13(4) were obiter. In reaching its decision the Court of Appeal in Pancho Properties adopted and applied what was described as the wider view in Poynting , and held that the 40 ha requirement in subclause 13(4) was a development standard. In applying that wider view, the Council notes that the Court was dealing with a particular type of application for consent to erect a dwelling house, in that instance a second dwelling house on land. In that instance, under cl13(4) it was permissible with consent where the land in question had an area of not less than 40 ha, but only if the Council was satisfied that each additional dwelling house met the requirements stipulated in paragraphs (a) and (b) of what was then subclause 13(4). On the Council submissions, the essential considerations or conditions (in the sense used in Agostino ) in determining whether the particular development in Pancho Properties was permissible, were those specified in paragraphs(a) and (b) of subclause 13(4). The words "land which has an area of not less than 40 hectares" were regarded not as a essential condition or consideration, but rather was a development standard. The Council relies on the distinction drawn in North Sydney Municipal Council and PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222, where the Court distinguished between two provisions of the relevant LEP, being clauses 14A(1)(a) and 14A(2). The distinction between those provisions lay in their drafting; and the distinction between the two different provisions drawn in Mayoh applies, in the Council's submissions, equally to subclauses 13(3) and (4) of the LEP in this instance. Having regard to those authorities, the Council submits that the 40 ha minimum area requirement is an essential condition to the permissibility of the construction of a dwelling house, as opposed to being an aspect of the carrying out of a development which is permissible with consent, and that accordingly the proposed development is prohibited.
Findings
21I note that consideration of the question of whether a particular provision is a development standard, and thus amenable to variation by means of an objection under SEPP 1 has, as the parties' submissions demonstrate, generated considerable litigation. The starting point for consideration of whether cl 13(3)(a) is a development standard is the definition of "development standards" in s 4(1) of the 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,
...
22I agree with the Council that the primary focus of attention must be on the particular provision in the LEP and its context. As noted by Giles JA in Poynting :
93 ...Care must be taken lest form govern rather than substance. A provision in the form, "A building may be erected on land in a particular zone if the land has an area greater than a particular area" appears regulatory, whereas a provision in the form, "A building must not be erected on land if the land has an area less than a particular area" appears prohibitory, but the substance is the same.
23I agree with the Council that caution must be exercised in relying too heavily on conclusions drawn from construction of particular provisions in other LEPs, and that the correct approach to adopt is that most recently identified by the Court of Appeal in Agostino by Tobias JA (with whom Giles JA agreed):
43 As has been stated on a number of occasions in the authorities to which I have referred, at the end of the day what is involved in the resolution of the present issue is a question of construction of the particular provisions of the particular planning instrument under consideration. The starting point in the present case, in my view, is the proposition that prior to the insertion of clause 41 into the LEP, a fruit and vegetable store, being a shop (as defined) was a prohibited use. Clause 41 was inserted as an exception to that general prohibition to provide for a particular permissible use on a particular parcel of land.
44 The description of that permissible use is to be found in clause 41(3). In my view the Council's submission that the proper description of that use is a "fruit and vegetable store with a maximum floor area of 150m" should be accepted so that any such store with a floor area (as defined) exceeding that maximum falls outside the purview of clause 41(3) and is thus prohibited.
45 In Lawrence Browning Basten JA (at [102]), when dealing with the proper identification of the development proposed in that case, observed:
"Part of that identification should have included reference to the zoning criteria for the land on which the proposed development is to take place. That is because the particular zoning criteria are essential considerations in determining whether the development is permissible. It is clear that, had the erection of dwelling houses been proposed with respect to land on which such a development was not permitted, the decision would have been different. If the consolidation requirement were understood to be a part of the zoning of the land, on the same logic the result would have been different."
46 In the present case, what one is required to do is to identify the proposed development and then to determine whether it falls within the description of that which clause 41(3) makes permissible with consent. In performing this exercise it is necessary to identify which criteria are essential conditions in determining whether the particular development proposed is permissible. Thus as Giles JA observed in Lowy at [116], it is necessary to first address the LEP by reference not only to principle but also to its own structure and provisions. In so doing care is also to be taken to ensure that form does not govern substance: Poynting at [93].
24In construing cl 13(3)(a) of the LEP, I agree with the submissions of the applicant that the permissible use is a "dwelling house". Contrary to the position in Agostino , where the use for a fruit and vegetable store would otherwise have fallen within the prohibition of a "shop", that use is permissible with consent in the 7(a) zone under the LEP. The only essential criterion for the permissibility of that use in the 7(a) zone is that it not be for a rural worker's dwelling. I agree with the applicant that what distinguishes Agostino from the circumstances of the present case is the inclusion of the essential element of area within the provision which identified the development that was permissible in that case. That does not appear in cl 13 of this LEP, which identifies that a "dwelling house" is that which requires development consent. The provisions contained in cl 13(3)(a) constitute provisions of an environmental planning instrument in relation to the carrying out of that permissible development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, and that characterisation accords with the definition of a development standard in s 4(1) of the Act. The provisions of cl 13(3)(a) are directed to area, in this instance being 40 ha, and thus falls specifically within the provisions included within the definition of development standards. I agree with the applicant that in this respect the provisions of cl 13(3)(a) is no different to clauses 18 and 41(4) of the Penrith Local Environmental Plan No 201 which were identified by Tobias JA in Agostino as being development standards .
25That conclusion means that on my construction of the LEP, the proposed development is permissible, however upholding the SEPP 1 objection made by the applicant when lodging the development application to compliance with the 40 ha minimum lot size is a precondition which must be satisfied before the proposed development can be approved on consideration of the merits: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; Wehbe v Pittwater Council [2007] NSWLEC 827.