Porfiri v Ku-ring-gai Council

Land and Environment Court (NSW)|2002-08-22|Before: Cowdroy J

CITATION : Porfiri v Ku-ring-gai Council [2003] NSWLEC 34 APPLICANT Porfiri F.C. PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 0051 of 2002 CORAM: Cowdroy J KEY ISSUES: Development Application :- whether provisions of planning scheme ordinance restricting erection of dwellings affects zoning of land for the purpose of the erection of dual occupancy pursuant to State Environmental Planning Policy No. 53 - inconsistency between State environmental planning policy and local environmental plan. LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance 1971 State Environmental Planning Policy No. 53 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; CASES CITED: Porfiri v Ku-ring-gai Council [2002] NSWLEC 136; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 DATES OF HEARING: 13/02/2003 DATE OF JUDGMENT: 02/28/2003

APPLICANT Mr B Preston SC

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 0051 of 2002

28/02/2003 F C Porfiri Applicant v

Ku-ring-gai Council Respondent Judgment

1 In March 2002 the applicant made four separate development applications to the respondent ("the council") under Part 3 - Dual Occupancy ("Part 3") State Environmental Planning Policy No. 53 - Metropolitan Residential Development ("SEPP 53") in respect of land known as 8 Havilah Road Lindfield being the whole of the land comprised in lot 24 Deposited Plan No. 4880 ("the lot"). The area of such lot is 1,372m² and there is an existing dwelling and carport erected on such land.

2 In Porfiri v Ku-ring-gai Council [2002] NSWLEC 135 delivered on 22 August 2002 the Court determined a question of law concerning the application of cl 17 of SEPP 53 to the same development. Clause 17 of SEPP 53 then stated:- 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. 3 The four stage development proposal which was made by the applicant was summarised in the Court's judgment 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 subdivisions. Stage 4 Torrens title subdivision of each of the 2 detached dual occupancy developments resulting from Stage 3.

4 Pursuant to the Ku-ring-gai Planning Scheme Ordinance 1971 ("KPSO") the lot is within a residential zone, namely Zone No. 2(b). Consequently SEPP 53 applies by virtue of cl 16 of SEPP 53 which relevantly states:-

16(1) This Part applies to all land to which this Policy applies that is within a residential zone under another environmental planning instrument. 5 Minimum areas for the purpose of the erection of a dwelling are provided by both the KPSO and by SEPP 53. Clause 43(2) of the KPSO relevantly provides:- 43(2) A dwelling- house shall not be erected in Zone No 2(b) - (a) on any allotment which has an area of less than 836 square metres; (b) on any rectangularly shaped allotment which has a width of less than 18 metres;

Clause 19 of SEPP 53 establishes minimum areas for lot sizes allowed pursuant to Part 3 of the Policy as follows:- 19(1)(a) Allotment size: The allotment is to have an area of:

(i) 400 square metres or more where the two dwellings are attached, or (ii) 600 square metres or more where the two dwellings are detached.

6 As a result of stage 2 of the proposed development, two lots would be created known as lot 24A and lot 24B. Each allotment contains an area of 644.44m² and 727.56m² respectively. The required minimum area for the purpose of erection of a dwelling pursuant to cl 43(2) of the KPSO is 836m².

7 Stage 3 proposes a construction of a second dwelling house on each of allotments 24A and 24B, thereby creating a detached dual occupancy on each allotment. Each allotment, at the time of construction would contain an area less than the minimum prescribed by cl 43(2) of the KPSO, but greater than the minimum allotment size of 600m² fixed by cl 19 of SEPP 53 . 8 Stage 4 proposes the subdivision of allotments 24A and 24B, creating two additional allotments (24C and 24D). One dwelling would be located on each of the four allotments, such allotments containing an area of approximately 350m². Each allotment would therefore contain an area less than the minimum areas prescribed by both the KPSO and by SEPP 53.

9 The Court found in Porfiri that the applicant was prevented from relying upon the provisions of cl 17 of SEPP 53 because the area of each lot resulting from the stage 2 subdivision did not contain the minimum area required by the provisions of cl 43(2) of the KPSO for the erection of a dwelling.

10 For the reasons set out in Porfiri the Court determined that stage 3 (and hence stage 4) of the applicant's proposal was prohibited. Amendments to SEPP 53 11 SEPP 53 has been amended since the decision in Porfiri by State Environmental Policy No. 53 - Metropolitan Residential Development (Amendment No. 8) ("Amendment No. 8") which was published in the New South Wales Government Gazette No. 256 on 13 December 2002. The amendments are contained in Schedule 1 to Amendment No. 8. Consequently cl 17 of SEPP 53 now provides:- 17 This Part allows development that results in two dwellings being located on the one allotment of land if the land is within a zone which, under another environmental planning instrument, permits the erection of dwelling houses and the development is carried out in accordance with this Part and Part 5. Question of Law 12 The following question of law now arises in respect of the amended cl 17:- Whether in terms of clause 17 of SEPP 53, as amended by Amendment No. 8, the proposed allotments referred to in Stage 3 are within a zone under the Ku-ring-gai Planning Scheme Ordinance which permits the erection of dwelling houses.

13 The council submits that land in the residential zone containing an area less than that prescribed by cl 43(2) of the KPSO is excluded from development for the purpose of the erection of dwelling houses. The council refers to Part III of the KPSO entitled "Restrictions on Building and Use of Land". Such part incorporates the development control table for permissible uses in the Ku-ring-gai area. The introductory clause provides:- 23. Subject to the other provisions of this Ordinance, the following table describes in Column 1 how land within a particular zone is shown on the scheme map and opposite thereto in Columns 2, 3 and 4 specifies for land within each zone the development which is: (a) Development that may be carried out without development consent (Column 2); (Clause 23(b) amended vide Government No 33 of 5th March 1982) (b) development that may be carried out only with development consent (Column 3); and (c) prohibited development (Column 4).

14 The council contends that the opening words of cl 23 namely "Subject to the other provisions of this Ordinance" demonstrates that the zoning table is to be read having regard to the other provisions of the KPSO. Clause 43 is such a provision as it directly relates to the erection of a dwelling house on land in the residential Zone No. 2(b). Accordingly the council claims that cl 23 and 43 are to be read together to determine the permissibility for the erection of a dwelling house within Zone No. 2(b). Since the applicant's proposal would result in the erection of dwellings on a lot containing an area less than the minimum area prescribed, the requirements of cl 43(2) of the KPSO would not be satisfied. Council submits that the lot is therefore not within a zone which permits the erection of a dwelling house. 15 The council submits that its interpretation of cl 17 of SEPP 53 is reinforced by the objectives of Amendment No. 8 which, inter alia, provides:- 3 Aims, objectives etc This Policy aims to amend the Principal Policy: (a) to make it clear that clause 17 of the Principal Policy allows dual occupancy development on land if the zoning of the land under another environmental planning instrument permits the erection of dwelling houses, and….

Council submits in summary that the lot is not within a " zone which, under another environmental planning instrument, permits the erection of dwelling houses…" as required by cl 17 of SEPP 53. 16 Additionally the council submits that the definition of "zone" has two components. The word "zone" is defined in cl 4(1) of the KPSO as follows:- " Zone " means land referred to in Column 1 of the Table to clause 23 of this Ordinance and shown on the scheme map by distinctive colouring or edging or in some distinctive manner as referred to in such Column for the purpose of indicating the restrictions imposed by Part Ø of this Ordina nce on the erection and use of buildings, the carrying out and use of works or the use of land in such zone.

Council emphasises that the land is so zoned "for the purpose of indicating the restrictions imposed by Part Ø of the Ordinance on the erection and use of buildings, the carrying out and use of works or the use of land in such zone." Therefore it says that if cl 43(2) prevents the erection of dwelling houses on land having less than the prescribed minimum area, such provision must be given effect by virtue of the opening words contained in cl 23, that is, the words "Subject to the other provisions of this Ordinance..". Applicant's Submissions

17 The applicant submits that cl 43(2) of the KPSO constitutes a "development standard" as defined in s 4(1) of the EP&A Act, and that cl 43(2) does not operate to prohibit the erection of dwelling houses in Zone No. 2(b). Rather, cl 43(2) merely restricts the carrying out of that type of development on land containing an area less than the prescribed minimum area. 18 The applicant submits that the lot is contained within Zone No. 2(b) which permits the erection of dwelling houses, and the condition contained in cl 17 relating to zoning is thereby satisfied. Clause 17 is not directed to the question whether the erection of dwelling houses is permissible on land having specified requirements and the characteristics of the land, including its area and dimensions, are irrelevant. 19 The applicant contends that the above construction of cl 17 is consistent with the objective of Amendment No. 8, and that a contrary interpretation would frustrate the intention of such amendment. Council's Submission in Reply

20 The council submits that if cl 17 of SEPP 53 is to be construed in the manner submitted by the applicant, it would serve no useful purpose because cl 16(1) of SEPP 53 applies the Policy to land "within a residential zone under another environmental planning instrument". The council submits that if cl 17 is construed as being satisfied merely by the requirement that the development be in an area where dwellings may be erected, it would add nothing to the application of SEPP 53. Council says that such a result could not have been intended. Applicant's Submission in Reply

21 In respect of the council's submission in reply, the applicant says that the provisions of cl 16(1) and 17 are quite distinct. Clause 16 provides for the application of Part 3 of SEPP 53. Clause 17 specifically allows development on land which satisfies the requirements of that clause. Accordingly the two clauses are directed to different subjects. Findings Legal principles applicable to interpreting cl 17 of the SEPP 53

22 When interpreting a statute it is the function of the court to ascertain the intention of Parliament. In Kingston and Another v Keprose Pty Ltd (1987) 11 NSWLR 404 per HcHugh JA (as he then was) said at p. 421:- Where the text of the legislative provision which embodies the proposition is grammatically capable of only one meaning and neither the context, the purpose of the provision nor the general purpose of the Act throws any real doubt on that meaning, the grammatical meaning must be taken as representing Parliament's intention as to the meaning of the law. If the ordinary grammatical meaning of a statutory provision would produce a real doubt then the court must then search for the apparent intention of the draftsperson: see s 33 Interpretation Act 1987 ("the Interpretation Act"); Kingston per McHugh JA at p. 423; Mills v Meeking and Another (1990) 169 CLR 214 per Dawson J at p 235. The extent to which a court may strain the ordinary meaning of the words to further the purpose or objective of the legislation was enunciated by Lord Reid in Luke v Inland Revenue Commissioners [1963] AC 557 where His Honour stated at p. 577:- The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail.

McHugh J stated in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at p. 113:- If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured or unrealistic manner to covers another set of circumstances. 23 Where the Court is obliged to consider the terms of a State environmental planning policy a similar approach to interpretation should be taken as s 33 of the Interpretation Act is applicable. Section 33 of the Interpretation Act relates to statutory rules in addition to statutes. Section 21 of the Interpretation Act relevantly provides:-

"statutory rule" means: (a) a regulation, by-law, rule or ordinance: (i) that is made by the Governor, or (ii) that is made by a person or body other than the Governor, but is required by law to be approved or confirmed by the Governor, or

Section 39 of the EP&A Act makes provision, inter alia, for the making of a State environmental planning policy. Section 39(4) of the EP&A Act provides that the Governor may make such policy. Accordingly a State environmental planning policy is a statutory rule for the purpose of the Interpretation Act since it is required to be made by the Governor. The Court must therefore interpret the words of SEPP 53 in order to give them their intended effect pursuant to s 33 of the Interpretation Act and pursuant to the legal principles extracted above.

Interpreting cl 17 of SEPP 53 24 Amendment No. 8 introduced a significant change to cl 17 of SEPP 53. The ordinary meaning of the words in the provision are clear and are consistent with the intention expressed in cl 3 of Amendment No. 8. The amendment to cl 17 was intended to allow dual occupancy development under Part 3 of SEPP 53 on land if the zoning of the land under another environmental planning instrument permitted such development. The Court is not required to consider whether another environmental planning instrument permits a dwelling house to be erected, as formerly prevailed under the unamended cl 17 of SEPP 53.

25 The zoning table for the Ku-ring-gai municipality is contained in Part III of the KPSO entitled "Restrictions on Building and Use of Land". Significantly, the definition of "zone" contained in cl 4(1) of the KPSO refers to the restrictions in Part III but does not include any restriction in Part VII. Clause 43(2) is contained in Part VII of the KPSO entitled "Special Provisions" and as noted above restricts development, namely the erection of dwelling houses on land having less than the prescribed minimum area of land. Such clause comprises a standard for development: see Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at 343, but it does not relate to nor change the zoning of the land. That is, the land does not lose its zoning of "residential" because the minimum area requirements specified by cl 43(2) are not satisfied.

26 The amended cl 17 of SEPP 53 is not concerned with the characteristics of the lot to be developed, nor whether such lot might meet the specifications for building required by KPSO. Instead the only inquiry relevant to the purpose of cl 17 is whether the land is contained within a zone which permits the erection of dwellings. Accordingly the provisions of cl 43(2) have no relevance to cl 17 of SEPP 53. 27 In answer to the submission of the council that cl 17 would be superfluous if construed in this manner, it is apparent that cl 16 and 17 of SEPP 53 are directed to different considerations. Clause 16 applies Part 3 whereas cl 17 describes the type of development that is permissible within the local government area. Inconsistency between cl 17 of SEPP 53 and cl 43(2) of the KPSO

28 Section 36 of the EP&A Act provides for inconsistencies between environmental planning instruments. In these proceedings there is a potential inconsistency. Clause 43(2) of the KPSO restricts the erection of dwelling houses which fail to comply with its requirements, but Part 3 of SEPP 53 authorises the development for residential purposes on such land irrespective of the requirements of cl 43(2). Section 36(1)(b) of the EP&A Act provides:- 36(1) In the event of an inconsistency between environmental planning instruments, then, to the extent of the inconsistency and unless otherwise provided: (b) the provisions of a later environmental planning instrument prevail over those of an earlier environmental planning instrument, whether of the same or a different kind.

SEPP 53 and the KPSO are environmental planning instruments made under Part 3 of the EP&A Act. In this instance SEPP 53 commenced on 26 September 1997 and was amended on 13 December 2002 and thus prevails over the KPSO which was enacted in 1971. 29 Further s 36(2) of the EP&A Act provides:- 36(2) A State environmental planning policy prevails over a regional environmental plan or a local environmental plan made before or after the policy to the extent of any inconsistency, if the policy expressly so provides.

Clause 5(2) of SEPP 53 makes such a provision as follows:- 5(2) If this Policy is inconsistent with any other environmental planning instrument made before or after this Policy, this Policy prevails to the extent of the inconsistency except as provided by subclause (3).

Subclause 3 of cl 5 is not relevant to the present question. 30 It is apparent from these provisions in the EP&A Act and the above findings of the Court that cl 43 of the KPSO is not applicable. To ascertain the zoning of the land it is only necessary to consider the provisions of the development control table in cl 23 of the KPSO alone and not in conjunction with cl 43. Conclusion 31 The amendments to cl 17 of SEPP 53 introduced by Amendment No. 8 have fundamentally altered the application of cl 17. The amended cl 17 does not require the Court to consider the attributes of the specific lot which is to be developed. The only question is whether the land to be developed pursuant to Part 3 is contained in a residential zone pursuant to the relevant planning instrument. Answer to Question of Law

32 The question of law is answered in the affirmative. 33 The court reserves the question of costs.

Orders 34 The Court orders that:-

The exhibits be returned.
The matter be remitted to the Registrar's callover list for mention on 5 March 2003.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2001) 116 LGERA 319

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