Rahman v Campbelltown City Council - [2024] NSWLEC 1453 - NSWLEC 2024 case summary — Zoe

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Rahman v Campbelltown City Council

[2024] NSWLEC 1453

Land and Environment Court (NSW)|2024-06-13

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-06-13

Catchwords

[2005] NSWCA 337 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379
[2006] NSWCA 155 Fitch v Shoalhaven City Council (1987) 67 LGRA 165 Intrapac Skennars Head Pty Ltd v Ballina Shire Council (2021) 249 LGERA 400
[2021] NSWLEC 83 Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159
[2003] NSWCA 266 SAS Trustee Corporation v Miles (2018) 265 CLR 137

Source

Original judgment source is linked above.

Catchwords

[2005] NSWCA 337 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379[2006] NSWCA 155 Fitch v Shoalhaven City Council (1987) 67 LGRA 165 Intrapac Skennars Head Pty Ltd v Ballina Shire Council (2021) 249 LGERA 400[2021] NSWLEC 83 Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159[2003] NSWCA 266 SAS Trustee Corporation v Miles (2018) 265 CLR 137[2018] HCA 55 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Judgment (154 paragraphs)

[1]

The Applicant rests its case on the fact that 'co-living housing' is not one of the common typologies listed in Table 2 of the CLIC Plan 2018.
The dictionary of the CLIC Plan 2018 (clause 2.2) does not have a definition of co-living housing, and "words and phrases" used in this plan have the same meaning as the terms defined in the CLEP 2015, or the EPA Act, except as provided for below. In this plan, the words and phrases have the meanings as set out in Table 1.
As a statutory instrument made under the EPA Act, the CLIC Plan 2018 is construed according to the ordinary principles of statutory construction (as set out above by the Applicants at [28] above. The Applicant concludes its argument by limiting the residential development referred to in section 2.6(a) to those residential typologies listed in Table 2.

[98]

In relation to Draft Condition 29(c) of Ex 2, Council submits that having regard to the DA's permissibility with consent being pursuant to the Housing SEPP, Council agrees with the summary provided in pars [15]-[17] in the Applicant's submissions above.
It is also not disputed that absent the provision of the permeable paving at the western extremity of the proposed driveway (shown in Figure 2 above) the proposed development will not comply with section 3.7.2.9(a)(iii) in Part 3 of Volume 1 of CDCP 2015, and therefore the non-discretionary development standard in s 68(2)(f) of the Housing SEPP.
Condition 29(c) has the effect of amending the DA so that the whole of the proposed driveway shall be constructed of concrete, for the reasons provided in particulars (a) and (b) of Part B2, Contention 1 of Ex 1, notwithstanding that the result would be that the DA does not comply with the non-discretionary development standard.
As the development the subject of the DA complies with the non-discretionary development standard, it is s 4.15(2) of the EPA Act, rather than s 4.15(3) of the EPA Act which is invoked. The only fetter on the consent authority's discretion to impose a condition of consent on such development is that which is expressed in s 4.15(2)(c) of the EPA Act, being that the relevant authority must not impose a condition of consent that has the same, or substantially the same, effect as the standard but is more onerous than that standard.
The effect of Draft Condition 29(c) is to allow greater than the otherwise allowable maximum impervious area forward of the building line, having regard to the particular circumstances of this case. The draft condition does not offend s 4.15(2)(c) of the EPA Act because it does not have the same, or substantially the same, effect as the non-discretionary development standard, and nor is it more onerous. Draft Condition 29(c) ought to be imposed for the reasons outlined in particulars (a) and (b) of Contention 1 in Part B2 (see [18]-[19] above).
In relation to Draft Condition 41, it is well accepted that the development contributions provisions within Pt 7 of the EPA Act are the exclusive source of power to a consent authority to impose a condition on a DA requiring the dedication of land free of cost or the payment of monetary contributions (Fitch v Shoalhaven City Council (1987) 87 LGRA 165 at 170).
Section 7.13(1) of the EPA:

[101]

Council agrees that the CLIC Plan 2018, rather than the Campbelltown Local Infrastructure Contributions Plan 2018 (Amendment 1) applies to the DA due to the time of its lodgement on 12 July 2023. The Contributions Plan commenced on 19 December 2019.
The imposition of a condition under s 7.11 of the EPA in terms of Draft Condition 41 (Ex 2) on a development of the kind proposed is authorised by CLIC Plan 2018 for the reasons set out below.
The Applicant's argument that the CLIC Plan 2018 does not authorise the imposition of a condition under s 7.11 of the EPA Act is wholly predicated upon the fact that the common development types (typologies) included in Table 2 to section 2.6 of the CLIC Plan 2018 do not expressly refer to 'co-living housing'. This development type did not exist until the Housing SEPP commenced on 26 November 2021, and the State Environmental Planning Policy (Affordable Rental Housing ) 2009 was repealed.
Table 2 in section 2.6 of the CLIC Plan 2018 does not purport to be an exhaustive list of the types of residential and non-residential developments to which the differing types of contributions apply. This is clear from the sentence preceding Table 2 which expressly states: "Table 2 shows common development types and the types of contributions that apply to those developments under this plan".
The ultimate determinant as to which of the 'contributions types' applies, a s 7.11 contribution or s 7.12 levy under the EPA Act, is governed by (a) and (b) (thereafter called "Type (a) and Type (b)" developments) in the chapeau of s 2.6 of the CLIC Plan 2018. Table 2 merely assists as an aid to the identification of the particular "Type (a)" or "Type (b)" development by reference to "common development types".
In that regard, the development proposed is clearly a type of "Residential Accommodation development that would result in a net increase in residents on the land" as per section 2.6(a) of the Contributions Plan as a single-storey brick dwelling is to be demolished and a co-living housing development accommodating a total of 18 residents is to be constructed. The Dictionary in CLEP 2015 as currently in force now identifies "co-living housing" as being a type of "residential accommodation". Whilst "co-living housing" was not separately identified as a type of 'residential accommodation' at the time of the CLIC Plan 2018 commenced, the genus of "residential accommodation" was (and continues to be) an open-ended class and merely required and continues to require that the development be a "building or place used predominantly as a place of residence". It could not reasonably be contended that the proposed development is not such a building or place.
The 'co-living housing' development typology was not introduced into the Standard Instrument (and therefore CLEP 2015) until the commencement of the Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021 on 26 November 2021 (SI amendment Order 2021).
In addition to introducing the 'co-living housing' development typology, it is relevant to note that the SI Amendment Order 2021 also replaced the previous definition of "boarding house" with the now current definition of that development typology. Prior to the commencement of the SI Amendment Order 2021 and from the date the CLIC Plan 2018 commenced, including section 2.2, the term "boarding house" was defined in CLEP 2015 as follows (Ex 3, Tab 18, pp 450-451, Dictionary in CLEP 2015):

[153]

Under "other" there is no typology of residential accommodation listed in Table 2. It only appears under the heading "Residential" in Table 2.
The heading for Table 2 is: "Development types and the contributions types that would apply". Table 2 is not intended to exclusively list every type of possible development, especially one that has not been designed prior to the adoption of CLIC Plan 2018. The chapeau for Table 2 states: "Table 2 shows common development types and the types of contribution that apply to those developments under this plan".
Co-living housing as a development type has only existed since the Housing SEPP commenced on 26 November 2021, just over two and a half years ago. Although it is likely to be a common type of residential development in the future, one could hardly expect the Council to have inserted it in its contributions plan three years before this type of development existed.
I find that co-living housing is a type of residential development in accordance with section 2.6 (a) of CLIC Plan 2018.
The typology of co-living housing falls within Table 2 under the common typologies of "Boarding houses, group homes, hostels" for the purpose of determining that s 7.11 of the EPA Act applies, and the assumed occupancy rates under Table 6 of CLIC Plan 2018. The only other possible type listed within Table 2 is seniors living housing, either independent units or integrated facilities with residential care facilities, neither of which apply when considering how the contribution is calculated under Table 6 (that is, 3.16 per dwelling vs 1 per private room for boarding houses/group homes/hostels vs , or 1.66 persons per dwelling for seniors development).
In considering the statutory regime, and taking into account the text and context of the application of developer contributions, section 2.6 cannot be viewed alone. Consideration also needs to be given in this case to sections 2.2, and 2.10 of CLIC Plan 2018. Therefore, pursuant to s 4.17(1) of the EPA Act and s 39(2) of the LEC Act, I find that the DA is likely to require the provision for, or increase in demand for, public amenities and public services within the area pursuant to s 7.11(1) of the EPA Act.
I note the amount of contribution has been agreed between the parties, and I am not required to decide the reasonableness of the contribution to be paid (Intrapac Skennars, per Preston CJ at [40]-[45].)
The Draft Conditions of Consent in Ex 2 are to be amended to delete condition 41A, leaving condition 41.
I shall uphold the appeal, and direct the parties to file a final copy of Annexure A - Conditions of Consent in relation to conditions 29(c) and 41A.
The Court orders that:

Parties

Applicant/Plaintiff:

Rahman

Respondent/Defendant:

Campbelltown City Council

Legislation Cited (3)

Planning and Assessment Act 1979

Environment Court Act 1979

Planning and Assessment Regulation 2021

Cases Cited (15)

Applicant's submissions

Part 3 of Ch 3 "Co-living housing" of the Housing SEPP applies to this DA. Specifically, s 68(2) (Non-discretionary development standards) provides as follows: "(2) The following are non-discretionary development standards in relation to development for the purposes of co-living housing - … (f) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential - the minimum landscaping requirements for multi dwelling housing under a relevant planning instrument…"
The property is zoned R3 Medium Density Residential and a "relevant planning instrument" is defined under Sch 10 of the Housing SEPP to include a "development control plan".
Pursuant to the Housing SEPP, s 68(2) of the non-discretionary standards, the minimum landscaping requirements for multi-dwelling housing under CLEP 2015 applies. Relevantly, clause 3.7.2.9(a)(iii) of CDCP 2015 applies which provides that 'no more than 30% of the area forward of any building line shall be surfaced with impervious materials".
In contention under Part B2 of Ex 1 is whether Draft Condition 29(c) should be further amended. The contention states: "Pervious driveway A condition of consent should be imposed requiring the plans to be amended to require the driveway to be of full concrete construction."
The particulars of this contention are summarised below: 1. The DA as amended proposed that part of the driveway be constructed with a pervious material for a width of 1m on its western extremity. The use of a pervious material for the driveway is not considered necessary as the DA proposes an acceptable extent of pervious area forward of the building line. 2. Concrete for the construction is preferable in terms of achieving a uniform streetscape presentation for the DA, and also for reasons of durability and maintenance given the driveway will be traversed by vehicles. 3. The following condition of consent, in terms similar to the following, should be imposed requiring plans to be amended to provide for the full concrete construction of the driveway: "Amendments to Approved Plans The plans referred to in Condition 1 are to be amended to provide for the driveway to be of full concrete construction. The plans amended pursuant to this condition are to be submitted to and approved by the Council's Manager Development Assessment prior to the issue of the Construction Certificate. The development is to be carried out in accordance with the plans amended in accordance with this condition."
Condition 29(c) of the Draft Conditions of Consent, Ex 2 p 4: "29 Amendments to Approved Plans The plans referred to in Condition 1 are to be amended to address the following: a. Deleted. b. Deleted c. The driveway shall be fully constructed of concrete. …"
The pervious driveway which is a contention under Part B2 (Contentions to be addressed via conditions) headed "Pervious Driveway" remains to be addressed (Ex 1, pp 8-9). In relation to the pervious driveway, the area of the entire front setback is 5.5m x 15.24 = 83.82m2.
The concreted area in the front setback measures 5.5 x 4.32 = 23.76m2. This represents (23.76/83.82) = 28.3% of the total front setback area would be impervious.
If the permeable area is extended to 1m on the western edge in Figure 2 below as non-permeable concrete, the total area is 5.5 x 5.5 = 30.25m2. This represents (30.25/83.82) = 36% of the total front setback area which would be impervious. Figure 2: Extract from Drawing No. DA200 "Ground Floor" (prepared by Mike & Morlly Architects, Issue P6, dated 23 April 2024) (taken from the Council's Submissions).
Conversion of the driveway material under the proposed Condition 29(c) would exceed the CDCP 2015 control for total impervious area.
The second issue in contention is draft Condition 41 and 41A of the Draft Conditions of Consent, Ex 2, pp 12-14. Council's draft Condition 41 is on pp 12-13 of Ex 2, and the Applicant's draft condition 41A is on pp 13-14 of Ex 2.
The issue turns on the fact that the particular typology (co-living housing) is not expressly listed in Table 2 of CLIC Plan 2018 (Ex 1, p 358). Notwithstanding the prior opening words in section 2.6 of the Contributions Plan (a) Residential accommodation development that would result in a net increase in residents on the land), we say that it has to be read in conjunction with Table 2 in terms of the typologies set out therein.
Monetary contribution: the Applicant contends that a monetary contribution pursuant to s 7.11 of the EPA Act is not required for this 'type' of development as the CLIC Plan 2018 does not have the definition of 'co-living housing', After the date the DA was lodged, Campbelltown Local Infrastructure Contributions Plan 2018 (Amendment 1) came into effect (Amended Contributions Plan). The DA was lodged on 12 July 2023, prior to the Amended Contributions Plan on 27 November 2023.
For the reasons set out below, s 7.11 contributions do not apply to this DA: 1. Section 2.2 (Dictionary) of the CLIC Plan 2018 states: "Words and phrases used in this plan have the same meaning as the terms defined in the CLEP 2015, or the EPA Act, except as provided for below. "In this plan, the words and phrases have the meanings as set out in Table 1." 1. Table 1: "Terminology used within this plan", meaning the CLIC Plan 2018 (Ex 1, p 357) does not contain a definition of 'co-living housing', and therefore the applicable definition is the Standard Instrument definition contained in the CLEP 2015. 2. Table 2: "Development types and the contributions types that apply" of the CLIC Plan 2018 (Ex 1, p 358), the Applicant notes that the development type 'co-living housing' is not listed under the "Residential' section. 3. As a statutory instrument made under the EPA Act, the CLIC Plan 2018 is construed according to the ordinary principles of statutory construction (ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [28], and Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]-[43]. Accordingly, section 2.6 of Contributions Plan 2015 must be construed having regard to its text and context, which includes its purpose (SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] and [37]-[39]; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20], and Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118 at [77]. 4. The Applicant submits that the opening general statement in section 2.6 of the CLIC Plan 2018, that: "this plan applies to … Residential Accommodation development that would result in a net increase in residents on the land" and such "…developments will be subject to condition requiring a contribution imposed under section 7.11 of the EP&A Act" must be read with the detailed information in Table 2. Table 2 expressly identifies the specific subtypes of 'residential accommodation' where a 7.11 contribution applies. As a matter of ordinary statutory interpretation, the whole of the provision (section 2.6) needs to be read in context including the detail in Table 2. 5. Absent the express inclusion of 'co-living housing' (or houses) in the residential section of the 'development types', must lead to a conclusion that this particular development must be caught by the catch-all in Table 2, i.e. "Other Development" - which applies a levy pursuant to s 7.12 of the EPA Act. 6. Section 4.17(1)(h)(iii) of the EPA Act gives a consent authority power to impose conditions of consent, and provides (inter alia) that a condition of consent may be imposed if it is authorised to be imposed under ss 7.11 or 7.12 of the EPA Act. Section 7.13(1) of the EPA Act provides: "A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division)." 1. The Applicant further submits that this is a matter of statutory interpretation and is not a matter that would otherwise trigger the Court's jurisdiction in relation to s 7.13(3) of the EPA Act, i.e. whether the condition is unreasonable. 2. Therefore, it is clear that there is no power to impose s 7.11 development contributions on this DA, as that part of the applicable development CLIC Plan 2018, does not apply to the type of development sought in the application, being co-living housing. 3. However, there is power under the Contributions Plan to impose a levy pursuant to s 7.12 of the EPA Act, in the sum of $8,100 based on the Applicant's Cost Summary Report dated 6 July 2023 submitted with the DA, Ex B. 4. The Applicant refers the Court to Ex 2, pp 12-14 and recommends the deletion of the Council's Draft Condition 41, and the insertion of the Applicant's alternative Condition 41A.

Council's submissions

In relation to Draft Condition 29(c) of Ex 2, Council submits that having regard to the DA's permissibility with consent being pursuant to the Housing SEPP, Council agrees with the summary provided in pars [15]-[17] in the Applicant's submissions above.
It is also not disputed that absent the provision of the permeable paving at the western extremity of the proposed driveway (shown in Figure 2 above) the proposed development will not comply with section 3.7.2.9(a)(iii) in Part 3 of Volume 1 of CDCP 2015, and therefore the non-discretionary development standard in s 68(2)(f) of the Housing SEPP.
Condition 29(c) has the effect of amending the DA so that the whole of the proposed driveway shall be constructed of concrete, for the reasons provided in particulars (a) and (b) of Part B2, Contention 1 of Ex 1, notwithstanding that the result would be that the DA does not comply with the non-discretionary development standard.
As the development the subject of the DA complies with the non-discretionary development standard, it is s 4.15(2) of the EPA Act, rather than s 4.15(3) of the EPA Act which is invoked. The only fetter on the consent authority's discretion to impose a condition of consent on such development is that which is expressed in s 4.15(2)(c) of the EPA Act, being that the relevant authority must not impose a condition of consent that has the same, or substantially the same, effect as the standard but is more onerous than that standard.
The effect of Draft Condition 29(c) is to allow greater than the otherwise allowable maximum impervious area forward of the building line, having regard to the particular circumstances of this case. The draft condition does not offend s 4.15(2)(c) of the EPA Act because it does not have the same, or substantially the same, effect as the non-discretionary development standard, and nor is it more onerous. Draft Condition 29(c) ought to be imposed for the reasons outlined in particulars (a) and (b) of Contention 1 in Part B2 (see [18]-[19] above).
In relation to Draft Condition 41, it is well accepted that the development contributions provisions within Pt 7 of the EPA Act are the exclusive source of power to a consent authority to impose a condition on a DA requiring the dedication of land free of cost or the payment of monetary contributions (Fitch v Shoalhaven City Council (1987) 87 LGRA 165 at 170).
Section 7.13(1) of the EPA: "(1) A consent authority may impose a condition under section 7.11 o 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division). … (3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction."

(2014) 254 CLR 1

(2005) 142 LGERA 104

(2006) 66 NSWLR 379

(2021) 249 LGERA 400

(2003) 58 NSWLR 159

(2018) 265 CLR 137

(2017) 262 CLR 362