Poynting v Strathfield Municipal Council

An abbreviated version of the relevant facts may be distilled from the parties' respective versions of the statements of facts (Exhibits 1 and A) as follows:

1. The appeal site is included in the Residential 2(a) Zone in terms of the Strathfield Planning Scheme Ordinance (the LEP).
2. Within that zone, the LEP designates particular "purposes for which buildings or works may be erected or carried out or used only with the consent" (of the Council) and those purposes relevantly include the following purposes

attached dual occupancies which are not subdivided;

detached dual occupancies which are not subdivided; single dwellings.

(The LEP contains in cl 4(1) definitions of " attached dual occupancy ", " detached dual occupancy " and " dwelling " 3. The Applicant has lodged a development application with the Council proposing the subdivision of the appeal site into two lots - each lot having an area of 557.4 m2. The application is supported by an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP No 1). 4. The appeal site has a site area of 1,114.8 m2 , a width of 15.24 m and a depth of 73.15 m. 5. Development of the appeal site is governed by the LEP relevant provisions of which are as follows: (i.) cl 22 which relevantly provides:

Subject to the provisions of Parts iv, v, vi and vii and to any other special provisions of this Ordinance -

…………. (ii) for which buildings or works may be erected, carried out or used only with the consent of the responsible authority in each of the Zones are respectively shown opposite thereto in column iv of the Table.

Column iv of the Table in respect of the Residential 2A Zone includes the following purposes attached dual occupancies which are not subdivided; detached dual occupancies which are not subdivided; single dwellings. (ii.) Cl 24 relevantly provides:

Subject to the provisions of Part iv and to the provisions of any other special provisions of this Ordinance -

……….. (b) land, included in a zone, whether forming the site of a building or not, shall not be used for any purpose for which a building in the same zone may not be erected or used. (iii) Clause 41 which is contained in Part vii (" Special Provisions ") provides as follows::

41 (1) The Council shall not grant consent to the subdivision of land within Zone No 2(a) or 2(b) which creates allotments intended to be used for the erection of single dwellings, attached or detached dual occupancies, or multiple-unit housing, unless each proposed allotment has an area of not less than 560 square metres and a width at the front building line of not less than 15 metres. (2) A single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing must not be erected on an allotment of land within Zone No 2(a) or 2(b) which has an area of less than 560 square metres or a width at the front building line of less than 15 metres. (3) For the purposes of subclause (1) and (2), the area of a battle-axe shaped allotment shall not include the area of the access corridor. (4) Nothing in this clause shall operate to prohibit the erection of a single dwelling in Zone No 2(a) or 2(b) on an allotment of land that was in existence as a separate allotment of land on the appointed day (21 February 1969). (iv) Clause 43A (contained within Part vii) provides as follows:

A person shall not subdivide any land without development consent.

Although the three questions of law to be answered are integrally related, for convenience I shall separately consider them.

Question 1 - Does cl 41(2) of the LEP contain an absolute prohibition?

According to the manner in which the question was addressed by the parties' competing arguments, the question as formulated by the Council is to be understood in the dialectic sense of "absolute prohibition" as opposed to "development standard" which is amenable to the dispensational power conferred by SEPP No 1.

In submitting that cl 41(2) of the LEP is not a development standard but is an absolute prohibition, the Council expressly conceded that by contrast, cl 41(1) of the LEP was a development standard. This concession which directly reflected the decision of the Court of Appeal in Bell v Shellharbour Municipal Council (1993) 78LGERA 429 was, in my respectful opinion, properly made.

However, so to acknowledge the appropriateness of the Council's concession is to immediately expose the difficulty encountered by Council's argument that cl 41(2) is not a development standard. The question that naturally arises is: what is it, in the content of cl 41(1) and of cl 41(2), that differentiates the interpretive result suggested by the Council's argument of the former provision being a development standard but the latter not being a development standard?

The Council's answer to this apparent dilemma was to alight upon the presence of cl 41(4) of the LEP. The Council submitted that cl 41(4) provided relief in certain situations against the prohibiting effect of cl 41(2) and its presence (and purpose or function) in the clause excluded the possibility of cl 41(2) being interpreted as a development standard.

I do not find this argument to be persuasive. Indeed, it comes perilously close to (if not perpetuating the same) error that had been made by the trial judge in Bell and which was corrected by the Court of Appeal in its judgment - see at pp 431 - p 432.

Applying the same reasoning as is expressed in the judgment of Cripps JA in Bell, I would hold that cl 41(4) of the LEP does not impose any implied limitation or inhibition on the applicability of SEPP No 1. Rather, it provides an alternative solution without the need to resort to the dispensational power available under SEPP No 1.

Once the Council's argument based upon the presence of cl 41(4) in the LEP is disposed of, the Council's argument that cl 41(2) is not a development standard (whereas by concession, cl 41(1) is a development standard) appears, with respect, to be bereft of substance. In so concluding, I am unable to discern any substantive difference (notwithstanding some slightly different language) between the prohibitory effect of cl 41(1) and of cl 41(2) of the LEP.

Moreover, even if the Council had not made what I regard as the proper concession concerning cl 41(1) of the LEP, I am of the opinion that cl 41(1) and cl 41(2) of the LEP each imposes a relevant "development standard" within the meaning of the EP&A Act and SEPP No 1. In so concluding, I rely upon the reasoning founding my decision delivered earlier today in Fencott Drive Pty Ltd v Lake Macquarie City Council([2000] NSWLEC 146).

I do not repeat what I there have said. (In the course of the hearing of the present case, I had informed the parties that I had recently reserved my decision in the Fencott case where the same question had been substantially argued and I had their concurrence that the decision in the present case, would await the decision in that case). Apart from the Council's reliance upon cl 41(4) of the LEP in the present case, the argument addressed in the present case basically traversed the same ground that had been traversed in the competing arguments encountered in Fencott.

Although it is true that each relevant provision of an environmental planning instrument must be separately construed in order to determine whether or not it is a development standard, there is really no difference between the two cases as to the type of statutory provision requiring interpretation.

Accordingly, much if not all, of the reasoning that led me to conclude in Fencott, that the relevant statutory provision was a development standard, applies with equal force to lead me to the same conclusion in respect of cl 41(2) of the LEP.

For all the foregoing reasons, I would answer the first question in the negative but for the sake of clarification, I would add the comment that cl 41(2) is a "development standard" within the meaning of the EP&A Act and SEPP No 1.

Question 2 - Is the use of the appeal site prohibited?

Question 2 is directed to "the use of" the land forming the appeal site (being the focus of cl 24(b) of the LEP) in contradistinction to "the erection" of "a building on the land" (the focus of cl 41(2) of the LEP).

However, though the focus of each clause is discrete (namely (i) the use of land and (ii) the erection of a building on the land) the control on "use" of land is both derivative from, and complementary to, the control on the erection of a building.

The Council's Solicitor properly conceded that the answer to this question should be the same (as a matter of legal consequence) as the answer to the first question.

Accordingly, since I have answered the first question in the negative, this question is likewise answered in the negative.

Question 3 - Is the future development of the subdivided lots prohibited?

Question 3 directs attention to the future, upon the assumption that the present proposed subdivision of the appeal site is approved and implemented. In such event, it asks whether the use for residential development of the two created lots will be prohibited or not.

In a real sense, this question is the most relevant and fundamental on the facts of the case, because the Council's concession that cl 41(1) of the LEP is a development standard inevitably means that there is no legal reason precluding the upholding of the present appeal, and the grant of development consent to the proposed subdivision.

In so concluding, I have discounted any possible application to the facts of this case of s 80(2) of the EP&A Act for the reasons that led me to a similar conclusion in Bowen v Willoughby Council [2000] NSWLEC 69 where the possible effect of the EP&A Act, s 80(2) was fully argued.

Nonetheless, the answer to this question obviously is integrally related to the answers to questions 1 and 2 and ultimately, the answer to this question must be seen to be the inevitable consequence of my answers to those earlier questions.

Accordingly, I would answer this question in the negative.

For all the foregoing reasons, I answer the questions of law as follows: Question 1 - Does cl 41(2) of the LEP contain an absolute prohibition? No. Cl 41(2) of the LEP is a development standard within the meaning of the EP&A Act and SEPP No 1.

Question 2 - Is the use of the appeal site prohibited? No.

Question 3 - Is the future development of the subdivided lots prohibited? No.

Questions 4 and 5 - Do not require to be answered on the facts.

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.

23. Question 3 directs attention to the future, upon the assumption that the present proposed subdivision of the appeal site is approved and implemented. In such event, it asks whether the use for residential development of the two created lots will be prohibited or not.

24. In a real sense, this question is the most relevant and fundamental on the facts of the case, because the Council's concession that cl 41(1) of the LEP is a development standard inevitably means that there is no legal reason precluding the upholding of the present appeal, and the grant of development consent to the proposed subdivision.

25. In so concluding, I have discounted any possible application to the facts of this case of s 80(2) of the EP&A Act for the reasons that led me to a similar conclusion in Bowen v Willoughby Council [2000] NSWLEC 69 where the possible effect of the EP&A Act, s 80(2) was fully argued.

26. Nonetheless, the answer to this question obviously is integrally related to the answers to questions 1 and 2 and ultimately, the answer to this question must be seen to be the inevitable consequence of my answers to those earlier questions.

27. Accordingly, I would answer this question in the negative.

28. For all the foregoing reasons, I answer the questions of law as follows:

Does cl 41(2) of the LEP contain an absolute prohibition?

No. Cl 41(2) of the LEP is a development standard within the meaning of the EP&A Act and SEPP No 1.

Is the future development of the subdivided lots prohibited?