Porfiri v Ku-ring-gai Council

JUDGMENT: 7 IN THE LAND AND MATTER No. 0051-54 of 2002 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 22/08/02

Porfiri F.C. Applicant v Ku-ring-gai Council Respondent

Question of Law

1. In these Class 1 appeals the applicant seeks consent, by four separate development applications, to develop a single residential lot. The land the subject of the appeal is Lot 24 in Deposited Plan No. 4880 being known as 8 Havilah Road Lindfield ("the lot"). The lot area is 1,372 m2 and erected on the land is a single dwelling with carport.
2. The applicant has made four related development applications to Ku-ring-gai Council ("the council'). Each application relates to a separate stage of the proposed development which may be summarised as follows:- Stage 1 Demolition of the existing dwelling and carport located on the subject site and construction of an attached single level dual occupancy towards and across the rear of the subject site.

Stage 2 Torrens title subdivision of the attached dual occupancy resulting from Stage 1.

Stage 3 Construction of a detached single storey dwelling upon the front setback of each of the two allotments resulting from the Stage 2 subdivision.

Stage 4 Torrens title subdivision of each of the 2 detached dual occupancy developments resulting from Stage 3. 3. Each application has been the subject of a deemed refusal by the council and appeals therefrom have been instituted in the Court. The question of law now posed for the Court arises because, following the Stage 2 subdivision, the area of the lots thereby created is less than the minimum required for the erection of a dwelling which is proposed by Stage 3. 4. Accordingly the respondent challenges Stage 3 and the following question of law arises:- Whether the proposed Stage 3 dual occupancy development is permissible under Clause 17 of SEPP 53 as the Ku-ring-gai Planning Scheme Ordinance does not permit a dwelling house to be erected on either of the allotments proposed to be created by the Stage 2 torrens subdivision application. Planning Controls 5. The land is affected by the provisions of the Ku-ring-gai Planning Scheme Ordinance 1971 ("the KPSO") and pursuant thereto the land is zoned Residential 2(b). Clause 43 of the KPSO specifies minimum areas and dimensions of lots for dwelling-houses. Clause 43(2) applies to Zone No. 2(b) and relevantly provides: (2) A dwelling-house shall not be erected in Zone No 2(b) - (a) on any allotment which has an area of less than 9,000 square feet; (b) on any rectangularly shaped allotment which has a width of less than 60 feet; 6. Clause 58B was inserted into the KPSO on 20 March 2001. Such clause applies to subdivision for dwelling-house lots and specifies minimum areas and dimensions for such lots. In respect of Zone No. 2(b) the specified minimum area for subdivision for dwelling-house lots is, by cl 58B(3)(b), the same as that referred to in cl 43(2)(a) except that metric measurements are used, thus requiring a minimum area per lot of 836 m2. The Court notes that an area of 9,000 ft2 is equal to 836 m2 and not 876 m2 as referred to in the Agreed Statement of Facts. Nothing turns on this discrepancy. Clause 58B(5) provides:- (5) This clause does not apply to a subdivision creating two adjoining lots if the dwelling-houses on those lots are lawful because of a consent granted pursuant to Sydney Regional Environmental Plan No. 12 - Dual Occupancy or State Environmental Planning Policy No. 53 - Metropolitan Residential Development before or after the commencement of this clause .

State Environmental Planning Policies 7. The applicant has given notice of an objection in respect of the Stage 3 appeal pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) in respect of the application of cl 43(2) of the KPSO. Clause 6 of the SEPP 1 provides: 6 Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection. 8. State Environmental Planning Policy No. 53 - Metropolitan Residential Development ("SEPP 53") Part 3 - Dual Occupancy contains cl 17 which provides:- 17 This Part allows development that results in two dwellings being located on the one allotment of land if another environmental planning instrument permits a dwelling-house to be erected on that allotment and the development is carried out in accordance with this Part and Part 5. 9. Accordingly the issue for resolution is whether Stage 3 is permissible. Clause 17 of SEPP 53 would allow such development, provided a condition thereof is fulfilled, namely that an environmental planning instrument "permits" such development. Council's Submissions 10. The council submits that following the subdivision of the lot as per Stage 2, each of the new lots would not possess the area required by cl 43(2) for the further development proposed by Stage 3. The council says that the proposed development would result in the erection of a dwelling-house on lots which have areas of 644.44 m2 and 727.56m2. The minimum area per lot pursuant to cl 43(2)(a) of the KPSO is 836 m2. Accordingly the requirements of the KPSO would not be satisfied. 11. Council claims that the provisions of cl 17 of SEPP 53 cannot apply to Stage 3 of the development. It submits that cl 17 would only assist the applicant "if another environmental planning instrument permits a dwelling-house to be erected on that allotment …". The KPSO does not permit Stage 3 because the area of each lot would not comply with the requirements of cl 43(2)(a). 12. The council acknowledges that the requirements of cl 43(2) of the KPSO comprise a development standard and as such are amenable to the provisions of SEPP 1. However the council submits that the SEPP1 objection does not assist the applicant because even if upheld, it would have no impact on the requirement of cl 17 of SEPP 53. 13. Council relies upon the approach of the New South Wales Court of Appeal in Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95. In that decision development consent was sought to subdivide land into lots having less than the minimum prescribed areas with the object of erecting dwellings on such lots. Although the appellant might have obtained approval for the proposed subdivision by virtue of a SEPP 1 objection, the erection of dwellings would nevertheless have been prohibited since such development could only take place on a subdivision which was "not prohibited under cl 12", which fixed minimum areas for lots. The latter requirement, being a prohibition, could not have been overridden by the SEPP 1 objection. Accordingly the application failed. Similarly council submits that the applicant's SEPP1 objection cannot alleviate the requirement contained in cl 17 of SEPP 53. 14. Council refers to cl 58B(5) of the KPSO. It submits that had the Minister disagreed with such provision which was introduced as an amendment to the KPSO, he would either have disallowed it or alternatively required amendments to cl 43 of the KPSO to permit dual occupancies irrespective of the requirements of cl 43. Applicant's Submissions 15. The applicant acknowledges that the Stage 3 development does not comply with the minimum requirements of land area nor frontage as specified by cl 43(2) of the KPSO. However it submits that those requirements become otiose when the provisions of cl 17 of SEPP 53 are considered. The applicant says that the words "if another environmental planning instrument permits" are sufficiently wide to include a successful objection under SEPP1. The applicant relies upon the supremacy of a State Environmental Planning Policy over the provisions of a local environmental plan in the event of inconsistency by virtue of s 36 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Accordingly it submits that SEPP1 is "another planning instrument" as required by cl 17. 16. The applicant also relies upon an extract contained in the judgment of Priestley JA in Healesville. At p 102 His Honour made reference to the possible effect of the operation of SEPP 1 as follows:- Although it may be that when cl 12 is read together with the dispensing power created by SEPP No 1, it would not be accurate to say that subdivision of land Zoned 1(a) into lots having an area of less than 2 ha is legally impossible, that is, that the law as a whole does not prohibit the subdivision of such land into lots having areas less than 2 ha, such a conclusion, if correct, would not seem to me to answer the question whether such a subdivision was prohibited under cl 12. 17. The applicant submits that such observation supports its contention that the erection of dwellings upon lots which do not comply with the requirements of cl 43(2) of the KPSO is not necessarily prohibited. The applicant says that, unlike the circumstance in Healesville, the provisions of cl 43(2) of the KSPO comprise part of a development standard and can be made the subject of a SEPP1 objection. 18. The Court was also referred by the applicant to the distinction between an outright prohibition contained in an environmental planning instrument compared to a development which is permissible with consent but which may be prevented for other reasons: see Hunt v Blacktown City Council (2001) 116 LGERA 356 (CA); see also Springer v Woollahra Municipal Council & Ors [2000] NSWLEC 135. Findings 19. Clause 17 becomes operative and would assist the applicant provided a condition precedent is fulfilled, namely, "if another environmental planning instrument permits a dwelling-house to be erected on that allotment". 20. The provisions of cl 43(2) of the KPSO specify a minimum lot size for a particular purpose, namely the erection of a dwelling-house. Such provisions do not permit a dwelling house to be erected on a lot having less than the prescribed area. Stage 3 of the proposed development seeks the development of dual occupancy dwellings on allotments which contain an area less than that prescribed by cl 43(2). As such Stage 3 is not permitted. 21. The making of a SEPP 1 objection may allow a concession to the applicable standard. However, this result is a separate and distinct matter to the question whether "another planning instrument permits a dwelling-house to be erected on that allotment" (cl 17). No planning instrument exists which permits the proposed development. The fact that, following a merit assessment, the SEPP1 objection may be upheld is not relevant to the requirements of cl 17. 22. A SEPP1 objection is of limited effect. It "is not to be used as a means to effect general planning changes" (Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, NSWLEC, 2 June 1986, unreported at p 6)). The Chief Judge, Pearlman J, in Roberts and Ors v Ballina Shire Council and Anor [2001] NSWLEC 242 observed that SEPP 1 "applies in particular circumstances of a particular case". 23. The result of the SEPP 1 objection does not bear upon the question to be answered. Even if the objection were upheld, the question remains: does another planning instrument permit the development? A favourable result of a SEPP 1 objection does not mean that the condition is satisfied. Such result may afford some relief to the strict application of a planning instrument, but the applicable planning instrument (in this instance the KPSO) is that to which regard must be paid to ascertain whether a particular development is permitted for the purpose of cl 17. 24. The applicant's case is not advanced by the observations of Priestley JA in Healesville. The provisions of cl 17 of SEPP 53 are contained in a state environmental planning policy which is a planning instrument as defined in s 4 of the EP&A Act. It is not amenable to a SEPP 1 objection. Accordingly, unless a dwelling is permissible by the KPSO cl 17 has no operation. Since there is no planning instrument which "permits" the Stage 3 development, the requirement of cl 17 has not been satisfied. 25. It should also be noted that the Stage 4 development would be prohibited. Clause 58B(5) of the KSPO allows a dispensation in respect of minimum area for subdivision for a dual occupancy dwelling where the dwelling-houses are "lawful" because of SEPP 53. If the dwellings are not sanctioned by cl 17 of SEPP 53 a subdivision could not be achieved because a condition of cl 58B(5) would not have been satisfied. Orders 26. The question of law asked of the Court is answered as follows:- The proposed Stage 3 dual occupancy development is not permissible under cl 17 of SEPP 53 in view of the requirements of the Ku-ring-gai Planning Scheme Ordinance which does not permit a dwelling house to be erected on either of the two allotments created by Stage 2 of its torrens subdivision application. 27. The Court orders that the exhibits be returned. 28. The Court directs that these proceedings be listed for directions before the Registrar on 29 August 2002.

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