Roberts and Ors v Ballina Shire Council and Anor

SECOND RESPONDENT Mrs J C Kelly (Barrister) SOLICITORS Pike Pike & Fenwick

IN THE LAND AND 10298 of 2001 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 22 October 2001

MABEL ISABEL ROBERTS, BARRY THOMAS ROBERTS and WARREN KEITH ROBERTS Applicants v BALLINA SHIRE COUNCIL First Respondent DIRECTOR-GENERAL OF THE DEPARTMENT OF URBAN AFFAIRS AND PLANNING Second Respondent

1. Two preliminary questions of law have arisen for determination in these class 1 proceedings. They are as follows:

(1) Whether cl 12(3)(a)(ii) of the Ballina Local Environmental Plan 1987 ("the LEP") is a development standard to which State Environmental Planning Policy No 1 - Development Standards ("SEPP 1") may apply; and (2) Whether or not, as a matter of law, SEPP 1 may be used to vary the 40 hectare development standard in cl 12(3)(a)(ii) of the LEP in the circumstances of this case. 2. A third question of law was raised but was not pressed.

An agreed statement of facts was filed from which the following salient facts are derived. The land the subject of the class 1 appeal ("the land") is lot 1 in DP 575688, No 2 Old Pacific Highway, Newrybar. It has an area of 815 square metres, and is zoned 7(c) - Environmental Protection (Water Catchment) Zone under the LEP. The applicants sought development consent for the erection of a dwelling-house upon the land, and they have appealed against the council's refusal of that development application.

Both the applicants and the council claim that cl 12(3)(a)(ii) is a development standard, which is therefore amenable to variation under SEPP 1. The second respondent, who is the Director-General of the Department of Urban Affairs and Planning and who raised the questions of law, claims that the contrary is the case.

Clause 12(3)(a)(ii) of the LEP forms part of a much larger cl 12, and it is useful to set out the whole of that clause, although, for convenience, I have highlighted subcl (3)(a)(ii) since it is the critical provision in this case. Clause 12 is in the following terms: 12 Dwelling-houses within Zone No 1(a1), 1(a2), 1(b), 1(d), 1(e), 7 (a), 7 (c), 7(d), 7(f), 7 (i) or 7(l). (1) This clause applies to land within Zone No 1(a1), 1(a2), 1(b), 1(d), 1(e), 7(a), 7(c), 7(d), 7(f), 7(i) or 7(l).

(1A) For the purpose of this clause, a reference to a dwelling-house includes a reference to a dwelling-house operated as a bed and breakfast establishment.

(2) The Council shall not consent to the erection of a dwelling-house on land to which this clause applies except in accordance with this clause.

(3) A dwelling-house may, with the consent of the council, be erected on vacant land to which this clause applies only where that land: (a) has an area of not less than:

(i) in the case of land within Zone No 1(a1) or 7 (i) - 20 hectares, (ii) in the case of land within Zone No 1(a2), 1(b), 1(d), 1(e), 7(a), 7 (c) , 7 (d),7(f) or 7(l) - 40 hectares. (b) is an existing holding.

(c) is an allotment created by subdivision to which development consent has been granted in accordance with clause 11,

(d) is an allotment created by a subdivision to which development consent has been granted in accordance with clause 13 as in force when consent for the subdivision was granted but before the gazettal of Ballina Local Environmental Plan 1987 (Amendment No 36), or

(e) is an allotment created by a subdivision to which development consent was granted before the appointed day, not being a development consent which was granted subject to a condition that a dwelling-house could not be erected on that allotment;

(f) is an allotment not in the 7(f) zone created on or after the appointed day by a subdivision carried out in accordance with Part 12 of the Local Government Act 1919 where:

(i) the consent of the Council was not required for the subdivision, and (ii) before the subdivision was carried out, a dwelling-house could have been erected under this clause on the land comprising that allotment. (3A) Notwithstanding the provisions of subclause (3), the council may consent to the erection of a dwelling-house on an allotment of land that was lawfully created before the appointed day and upon which a dwelling-house could lawfully have been erected immediately prior to the appointed day.

(4) A rural workers' dwelling may, with the consent of the council, be erected on an allotment of land, being an allotment having an area of not less than:

(a) in the case of land within Zone No 1(a1) or 7(i) - 10 hectares for the first rural workers' dwelling and 30 hectares for each subsequent rural workers' dwelling, and

(b) in the case of land within Zone 1(a2), 1(b), (1(d), 7(a), 7(c), 7(d), 7(f) or 7(l) - 20 hectares for the first rural workers' dwelling and 60 hectares for each subsequent rural workers' dwelling,

(c) the erection of each additional dwelling will not impair the suitability of the land for agriculture;

(d) the needs of existing agriculture genuinely require that rural workers reside on the land, and

(e) any other rural workers' dwellings on the holding are being used by persons substantially engaged in agricultural employment on that land .

I turn now to the 7(c) zone. The zoning table is introduced by a conventional clause (cl 9(2)) which refers to the uses specified in the table as being divided into those not requiring development consent, or as being permissible with consent, or as advertised development, or as prohibited development, with such clause taking effect "[e]xcept as otherwise provided by this plan". No development is prohibited with zone 7(c), and dwelling-houses are an innominate use permissible with consent. The relevant objectives of the 7(c) zone are as follows: A The primary objective is to prevent development which would adversely affect the quantity or quality of the urban water supply.

B The secondary objective is to enable development as permitted by the primary and secondary objectives of Zone No 1 (a1) except for development which conflicts with the primary objective of this zone.

The reference is to zone No 1(a1) which is entitled Rural (Plateau Lands Agriculture) Zone. Its primary objectives are generally directed to ensuring the use of land for "purposeful agricultural production, particularly for horticulture", and its secondary objectives are generally directed to maintaining "the rural character of the locality".

SEPP 1 applies to permit a person intending to carry out development to make an objection to a development standard on the basis that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case. Where the consent authority is satisfied that the objection is well founded, it may grant development consent notwithstanding the development standard. The first preliminary question of law, therefore, is concerned with whether or not cl 12(3)(a)(ii) is a "development standard" because, if it is, it is amenable to variation under the provisions of SEPP 1.

The expression "development standards" is defined in s 4(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") as follows: 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 [subparas (a) to (o)]. 10. Subparagraphs (a) to (o) of the definition comprise a number of matters which include, amongst other things, "(a) the area … of any land".

As Mahoney JA pointed out in North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222 at 232: … that with which the definition deals is provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards to be observed.

In determining whether or not a particular provision in an environmental planning instrument is a "development standard" within the terms of the definition, the task of the Court is to construe the particular provision having regard to its context and purpose, and having regard to the definition itself (cf Clarke JA in North Sydney Council v PD Mayoh at p 237, and see Bell and Anor v Shellharbour Municipal Council (1993) 78 LGERA 429 at 433).

Under the zoning table in the LEP, the erection of a dwelling-house in zone 7(c) is a use which is permissible with consent. But as cl 9(2) of the LEP states, the zoning table applies "[e]xcept as otherwise provided" in the LEP. Accordingly, the permissibility of the proposed development under the zoning table is not determinative, because cl 12 may operate as an exception to that permissibility (cf Clarke JA in North Sydney Council v P D Mayoh at p 235).

The language of cl 12 is couched in terms of permissibility. The heading refers to dwelling-houses within the nominated zones, and cl 12(2) in my opinion operates to set the parameters of permissible dwelling-houses within those zones, by providing that consent for the erection of a dwelling-house shall not be given except in accordance with cl 12. Similarly, the opening words of cl 12(3) indicate that the erection of a dwelling-house may be carried out.

In my opinion, sub-cl (3)(a) sets a standard with which the erection of such a dwelling-house must comply, and, relevantly in the 7(c) zone, that is the requirement that the land upon which the dwelling-house is to be erected must have an area of not less than 40 hectares. In my opinion, cl 12(3)(a) does not prohibit the erection of a dwelling-house, but instead, it fixes a requirement in respect of an aspect of the erection of the dwelling-house, that is, in respect of the area of land upon which the erection of the dwelling-house may be carried out.

Mrs Kelly, appearing for the Director-General, submitted that there were three additional things about cl 12 which indicate sub-cl (3)(a)(ii) operates as prohibition. First, the opening words of cl 12(3) include the word "only", and Mrs Kelly submitted that, when read with cl 12(2), this leads to the interpretation that cl 12(3)(a)(ii) is a prohibition. I do not agree that the word "only" has the effect of prohibition. In my opinion, its use in sub-cl (3) is of the same effect as sub-cl (2), that is, it makes clear that the requirements pertaining to the erection of dwelling-houses in the specified zones are limited to those stipulated in cl 12.

Secondly, it would appear that sub-cls (3)(b) through to (3)(f) are not development standards, but operate to prohibit the erection of dwelling-houses unless the land upon which the dwelling-house is to be erected is of the particular kind specified in each of those clauses, for example, an existing holding. Mrs Kelly argued, therefore, that an inference is available that the draftsperson intended sub-cl (3)(a) to be of the same category. However, whether or not sub-cls (3)(b) to (3)(f) operate as prohibitions (and I expressly refrain from deciding that question), the sub-clauses in cl 12 are alternatives, and they do not, in my opinion, govern the proper construction of sub-cl (3)(a).

Thirdly, Mrs Kelly drew attention to the nature of each of the zones which are specified in cl 12, all of them being concerned with agricultural, rural or environmental protection land. Having regard to that fact, and to sub-cl (4), which refers to rural workers' dwellings, Mrs Kelly submitted that the purpose of sub-cl (3)(a) was to promote the agricultural, rural and environmental nature of land in the specified zones, and thus sub-cl (3)(a) operates to prohibit a dwelling-house on land of less than the specified area because that would be out of character. I agree that the purpose of sub-cl (3)(a) is to encourage the erection of dwelling-houses on large allotments in conformity with the agricultural, rural and environmental nature of the land in the specified zones, but I do not agree that this requires sub-cl (3)(a) to be treated as other than a development standard. As Bignold J pointed out in Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318 at 329, but for the dispensation power conferred by SEPP 1, any requirement specified or standard fixed by a provision in an environmental planning instrument must be complied with. That ensures that, subject to the flexibility provided by SEPP 1, the purpose of the development standard is carried out.

A number of cases were cited in argument, but it is necessary only to refer to three of them in particular. As Clarke JA pointed out in North Sydney Council v P D Mayoh at p 237, decisions on other clauses in other instruments are of limited assistance, but Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103, Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352 and Fencott Drive v Lake Macquarie were each concerned with provisions relevantly similar to cl 12(3)(a)(ii). In Dixson v Wingecarribee, Lloyd J held that the particular provision was a prohibition, but his decision was not followed by Talbot J in Pancho Properties v Wingecarribee where the same provision was construed as a development standard. In Fencott Drive v Lake Macquarie, Bignold J held that the particular provision was a development standard. These decisions are of assistance only to show that the weight of authority suggests that a provision of the kind of cl 12(3)(a)(ii) is likely to be a development standard.

I conclude, for all the reasons stated above, that on its proper construction cl 12(3)(a)(ii) is a development standard to which SEPP 1 may apply.

The second question - can SEPP 1 apply as a matter of law?

This preliminary question of law arises out of my finding above. The Director-General raises the second question of law, because she claims that a variation of the development standard in this case would have the effect of rezoning the land.

Mrs Kelly amplified that claim with the following propositions:

(1) Under the LEP, zones 2(a) Living Area and 2(b) Village Area are the only relevantly residential or urban zones prescribed in the zoning table to the LEP; (2) The objectives of both the 2(a) zone and the 2(b) zone reflect the residential and urban nature of those zones, and furthermore, no minimum lot size in those zones is prescribed in respect of subdivision or the erection of a dwelling-house;

(3) Development for the purpose of a dwelling-house is permissible with consent in the 7(c) zone, but that development is subject to a particular development standard as set out in cl 12(3)(a)(ii), that is, a minimum lot size or area; (4) Furthermore, the objects set out in s 5(a)(i) of the EP&A Act distinguish between agricultural land, natural areas and villages, as can be seen from the terms of that section, which relevantly is as follows: 5. The objects of this Act are - (a) to encourage - (i) The proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;

(5) Clause 3 of SEPP 1 provides as follows: 3 This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. (6) If development consent was to be granted to the erection of a dwelling-house on the land despite the development standard, the effect would be to rezone the land for urban or residential purposes, contrary to the zoning table in the LEP, the objects of the EP&A Act, and the purpose of SEPP 1. Hence, as a matter of law, a variation of the development standard in the circumstances of this case is not authorised by the EP&A Act. 23. I do not accept this submission. The purpose of SEPP 1, as cl 3 states, is to provide flexibility in the application of planning controls operating by virtue of development standards. Clause 12(3)(a)(ii) is a planning control which is a development standard. If the applicant makes an objection, and if the objection is well founded (which is a matter of fact for decision by the judge or commissioner presiding at the merits hearing), then the consequence is that the particular development standard may be ignored. In other words, development consent could be granted for the erection of a dwelling-house on the land, despite the fact that the area of the land is less than 40 hectares. This is not a de facto rezoning of the site; it is on the contrary a relaxation of the development standard so as to permit a particular development to take place without compliance with that standard. The consequence might be that a residential use is carried out on land which is not specifically zoned for residential or urban purposes, but the fact is that development for the purpose of a dwelling-house is a permissible use in the 7(c) zone so long as it complies with the development standard, and, for the purpose of providing flexibility, that standard might, in the particular case, be relaxed. 24. In the preceding paragraph of this judgment, I have emphasised the particular rather than the general nature of the application of SEPP 1. In other words, SEPP 1 applies in the particular circumstances of a particular case. It does not have a general effect, and, as Cripps J said in Hooker Corporation Pty Ltd v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported at p 6) (cited by Lloyd J Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 at par 25), SEPP 1 "… is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act". 25. Of course, there are a number of matters of fact which the presiding judge or commissioner might properly take into account in determining whether or not a SEPP 1 objection made by the applicants is well founded, that is, whether or not compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The zoning of the land and the purpose of the development standard are relevant matters to take into account, but no question of law arises in respect to them, and the application of SEPP 1 is properly a matter left to the presiding judge or commissioner. 26. Accordingly, SEPP 1 may be used to vary the development standard. Whether or not it is so used is a question of fact for the merits hearing.

Conclusion 27. I answer the preliminary questions of law as follows:

Question 1: Whether cl 12(3)(a)(ii) of the Ballina Local Environmental Plan 1987 is a development standard to which State Environmental Planning Policy No 1 may apply.

Answer: Clause 12(3)(a)(ii) is a development standard to which SEPP 1 may apply.

Question 2: Whether or not, as a matter of law, SEPP 1 may be used to vary the 40 hectare development standard in cl 12(3)(a)(ii) in the circumstances of the case.

Answer: SEPP 1 may be used to vary the development standard in cl 12(3)(a)(ii). Whether it is so used is a matter of fact for determination at the merits hearing.

28. No submissions were made about costs, and accordingly I reserved the question of costs.

30. The class 1 appeal should proceed to hearing on 24 - 25 October 2001 in accordance with the findings above.

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