Sharp v Kiama Municipal Council [2024] NSWLEC 1360 | Case summary

Sharp v Kiama Municipal Council [2024] NSWLEC 1360 | Case summary | Zoe

[21]

During cross examination, Mr Black gave evidence in response to questions regarding the meaning on the objective of cl 4.2A, namely, to minimise unplanned rural residential development. (Tcpt, 23 February 2024 p 38)
I find that a planned outcome can be in accordance with the provisions of the KLEP, and those provisions include development standards which may be contravened provided that the contravention is justified pursuant to the terms of cl 4.6 of the KLEP. Such a justified contravention of a development standard is a planned outcome. A dwelling on the Site would only be unplanned development if the Court were to conclude that the minimum lot size for the erection of a dwelling provided for in cl 4.2A of the KLEP were a prohibition, or in the alternative, if the minimum lot size is a development standard, a dwelling would be unplanned if there were no cl 4.6 written request or the cl 4.6 written request were deficient. The satisfaction of the terms of cl 4.6 is a jurisdictional prerequisite which adds weight to my conclusion that the grant of consent to the erection of a dwelling on an RU2 Rural Landscape lot less than 40ha may be a planned outcome.
There was some focus on the phrase 'rural residential development' in the objective of cl 4.2A of the KLEP in the evidence. Mr Sinclair says in the JER that there is a risk that the construction of a dwelling on the Site will result in the Site not being used for agricultural purposes, that it would become rural residential development as defined by him at par 53 of the JER. Mr Black does not agree that the risk of rural land not being used for agricultural purposes increases merely because a dwelling goes on an undersized lot. His opinion is that regardless of the lot if a dwelling can go on it there is a risk that it is rural residential development (as defined by Mr Sinclair) and that the risk does not increase or decrease depending on the lot because "particularly in this design where the dwelling is sitting above the part which we use for agricultural purposes." (Tcpt, 23 February 2024, p 22 (42)) He goes to explain that:

[29]

I find that, in the circumstances, the Proposed Development reduces to the smallest possible amount or degree unplanned residential development because of the design of the proposed dwelling limiting the footprint effectively to the existing shed thereby not interfering with any existing extensive agriculture and allowing for the intended expansion of extensive agriculture as set out in the floor plan (reproduced below at Fig 3) and the evidence before the Court in the Statement of Environmental Effects and Business Plan.
The third test in Wehbe at [46] is that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable and the Written Request states at p 8 that "it also satisfies the third test as the underlying rural objective is thwarted if no one can live on a property to be able to tend to it." I am not persuaded by this because there is no sufficient argument to demonstrate it within the Written Request other than that simple statement.
I accept the evidence of Mr Black because his approach is consistent with the terms of cl 4.2A of the KLEP and does not rely on importing definitions of phrases used in the objective of the clause from other sources. I do not accept Mr Sinclair's definition at par 53 of the JER to be definitive of the phrase nor does it bind the Court in the interpretation of cl 4.2A(3)(a) of the KLEP. The terms of cl 4.6 of the KLEP does not require an analysis of the history of the policy decisions of the Respondent regarding minimum lot size of rural land where the KLEP provides definitions of terms such as extensive agriculture but not 'rural residential development'. It is not appropriate to import definitions into an LEP however, one may be assisted or cautiously guided by other dictionary definitions such as the Macquarie Dictionary.
Finally, I am not persuaded by the Respondent's argument that the lack of certainty that extensive agriculture will be carried out on the Site following the construction of a dwelling is in any way definitive of the determination of the Proposed Development or even persuasive that the Proposed Development does not achieve the objective of the cl 4.2A of the KLEP. Firstly, the argument seems to be based on the premise of Mr Sinclair's definition of rural residential development resulting in the use of the Site being for the primary purpose of a residence, and to the exclusion of extensive agriculture. Secondly, it is not possible nor appropriate for the Applicant to seek consent to carry out extensive agriculture, the running of goats or keeping of beehives, because extensive agriculture is permissible without consent.
I am satisfied that the Written Request has adequately addressed the requirement in cl 4.6(3)(a) of the KLEP that compliance with the cl 4.2A(3) development standard is unreasonable or unnecessary in the circumstances of the case because the relevant objective of the standard, to minimise unplanned rural residential is achieved, notwithstanding the non-compliance. The objective is achieved firstly, because I have found that unplanned rural residential development is the seeking of development consent for the construction of a dwelling on rural land, such as the Site, which has an area of land less than 40 ha, and secondly because the Applicant has had to satisfy the jurisdictional prerequisite of the terms of cl 4.6 of the KLEP. I am further satisfied that the Proposed Development achieves this objective because of the design and location of the dwelling as described in the Written Request together with the agreed condition as to materials (condition [1848] EngR 947; 3, Ex 4).

[36]

I have dealt with cl 4.6(4)(a)(i) above and I am satisfied that the Written Request has adequately addressed the matters required to be demonstrated by subclause (3).
The objectives of the development standard in cl 4.2A of the KLEP were addressed in relation to the demonstration by the Written Request that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of the KLEP). The five objectives of the RU2 zone are reproduced above at [26 ].
Consistency with the objectives is dealt with in the Written Request at pp 14 to 16 however, I am not limited to consideration of the content of the Written Request. Mr Black's evidence is that the Proposed Development is not consistent with all of the RU2 zone objectives, namely it is not consistent with the first objective "To encourage sustainable primary industry production by maintaining and enhancing the natural resource base". (Tcpt, 23 February 2024, p 39 (12))
Mr Black's opinion is that the Proposed Development is arguably consistent with the second objective "To maintain the rural landscape character of the land." (Tcpt, 23 February 2024, p 39 (14))
Cross examination of Mr Black regarding the third objective (Tcpt, 23 February 2024, pp 39-40) and he was asked about whether the erection of a dwelling on the Site and if there is no extensive agricultural use carried out is consistent with the objectives of the RU2 zone. Mr Black relies on the design of the proposed dwelling and that "it still maintains a lower level for the agricultural uses".
I have already addressed the fact that consent cannot be obtained for 'extensive agriculture', however the Applicant relies on DA02 Rev M (Ex E, Tab 1) which is identical to DA02 Rev L which is listed as an "Approved plan" in the Proposed/Draft Conditions of Consent (Ex 4) and this drawing shows rooms which are labelled for uses related to an extensive agricultural use including "Apiary Store & Stock" and "Apiary Repair & Honey Extraction (Timber Hive Repair)". I reproduce an extract of DA02 Rev L Garage Floor Plan at Fig 3 below:

Parties

Applicant/Plaintiff:

Sharp

Respondent/Defendant:

Kiama Municipal Council

Legislation Cited (3)

Planning and Assessment Act 1979

Environment Court Act 1979

Planning and Assessment Regulation 2021

Cases Cited (24)

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No 10.2022.43.1 for the construction of a new dwelling house, earthworks and a swimming pool (the Proposed Development) at 44 Halls Road, Jerrara legally described as Lot 63 in DP1056591 (the Site).
The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 22 February 2024. I presided over the conciliation conference which was terminated when the parties failed to reach agreement and the appeal proceeded to hearing forthwith pursuant to s 34AA(2)(b)(i) of the LEC Act.
This case is about the proposed construction of a residential dwelling on land that is zoned RU2 Rural Landscape and where the size of the lot is less than 40 hectares (ha). The Respondent contends that the Proposed Development is prohibited on the Site because the minimum 40 ha lot size for dwelling houses on rural land prescribed for the Site by cl 4.2A(3)(a) of the Kiama Local Environmental Plan 2011 (KLEP) constitutes a prohibition and is not a development standard and, as the area of the Site is 19.35 ha, the Court does not have the power to grant consent. I will refer to this as the prohibition contention.
The Respondent contends, in the first instance, that the Applicant is not able to rely on a written request to justify the contravention of a development standard pursuant to cl 4.6 of the KLEP because the Site does not fall within any of the four categories identified in cl 4.2A(3) of the KLEP and, that as cl 4.2A(5) of the KLEP does not apply, the Court does not have power to grant development consent. The Respondent's case is that cl 4.2A(3)(a) is a prohibition and does not fall within the definition of a development standard in s 1.4 of the EPA Act and therefore cannot be varied or the contravention cannot be justified pursuant to the terms of cl 4.6 of the KLEP.
In the alternative, the Respondent contends that if the prescribed minimum lot size for the Proposed Development on the Site is found instead to be a development standard, the contravention of the development standard by the Proposed Development is not satisfactorily justified pursuant to cl 4.6 of the KLEP (Statement of Facts and Contentions filed 4 September 2023, Ex 1) and for that reason the appeal should be dismissed because the jurisdictional prerequisite is not satisfied.
The Applicant's case is that the minimum lot size for a dwelling house prescribed by cl 4.2A of the KLEP is a development standard and the Applicant relies on a written request prepared pursuant to cl 4.6 of the KLEP by Benjamin Black of Avenue Town Planning dated 4 December 2023 (Written Request) (Ex E, Tab 2) to justify the contravention of the development standard.
The Respondent, in opening, notes that the assessing officer found that the development application had merits following a merit assessment pursuant to s 4.15 of the EPA Act but, "due to concurrence not being granted by the Department of Planning and Environment for the requested variation to the minimum lot size" (Assessment Report, Tab 2, Ex 2 folio 18), the Council had no power to grant development consent. I acknowledge that the Notice of Determination dated 9 February 2023 was Council's decision (Tab 1, Ex 2) includes the following reason for refusal: "Pursuant to the provisions of Clause 4.6(5) of Kiama Local Environmental Plan 2011, the delegate of the Secretary of the Department of Planning and Environment has declined the granting of concurrence to the Clause 4.6 exception to the minimum lot size development standard in Clause 4.2A Erection of dwelling houses on land in certain rural and environment protection zones of Kiama LEP 2011 and must be refused …"
Nevertheless, I find that there are no merit reasons contended by the Respondent in this appeal as a reason for refusal. The Respondent, in opening, submits that there are no provisions of the Kiama Development Control Plan 2020 (Tab 11, Ex 2) that are raised on a merit basis by the Council following the agreement by the Applicant to a condition of consent requiring the weatherboards and the cladding et cetera to be of earthy tones in condition 3 (Ex 4) (Tcpt, 22 February 2024, p 15 (39)). I find that on a merit assessment, the Proposed Development warrants a grant of consent.
Before being able to determine the appeal pursuant to s 4.16 of the EPA Act, as both of the Respondent's contentions are jurisdictional, the Court must first be satisfied that the jurisdictional prerequisites to exercising the function as consent authority are in fact satisfied.
The Applicant tendered its Statement of Facts and Contentions in Reply (SOFAC in Reply) (Ex D) and relies on an amended application (Ex E) filed in Court on 23 February 2024. The Court notes that the Respondent agrees pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending the development application in accordance with the plans and documents which comprise Ex E as follows: 1. Revised Architectural plans, Rev L, dated 13 February 2024; 2. Cl 4.6 Variation Request prepared by Avenue Town Planning dated 4 December 2023; 3. Bushfire Hazard Assessment prepared by Harrisenvironmental Consulting Ref 4756BF dated 21 February 2024; 4. Land use Evaluation prepared by Little Steps Consulting dated 7 February 2024; 5. Everlong Farm Business Plan dated 14 February 2024; 6. Revised BASIX certificate 1237436S_04 dated 14 February 2024; 7. Revised NatHERS certificate 0009236605 dated 14 February 2024; 8. NatHERS stamped plans.
The Court and the parties undertook a view of the Site and returned to Albion Park Local Court and the hearing concluded on the second day, 23 February 2023 at the Land and Environment Court. There were no objectors that gave evidence onsite, however the Court was provided with a copy of three written submissions in the Respondent's Bundle of Documents (Ex 2). Two of the written submissions from neighbours were in support of the Proposed Development referring to it as "a quality residence that will enhance the area" (Ex 2, folio 442) and that "the house design is perfectly suited for the area given its farmhouse feel" (Ex 2, folio 443). The third is an anonymous written submission which objects to the Proposed Development on the basis of the lot size and seeks to rely on the planning controls to protect rural lands 'so we have the benefit of the rural environment even while not being able to buy there' (Ex 2, folio 444).
The Applicant submits that the "provision was the subject of previous consideration by the Land and Environment Court in which the Court found that it was a development standard within the meaning of s 1.4 of the EPA Act that can be varied under cl 4.6 of the Kiama LEP": see Elwaw v Kiama Municipal Council [2022] NSWLEC 1395 ("Elwaw") at [19]. In that case, the Respondent Council specifically submitted that "cl 4.2A(3)(a) was a development standard to which the Court agreed." (SOFAC in Reply, p 2). The Applicant submits further that "unless there's some magical argument that no one has thought of that is put before the Court that goes contrary to that conclusion, the Court would simply do what it did before, not for the reasons just because it did before but because when properly analysed, it is clearly a development standard." (Tcpt, 23 February 2024, p 70 (15))
I will now set out the analysis which leads me to the conclusion that cl 4.2A of the KLEP is a development standard.

The authorities

There are a number of authorities relied on by the parties and, as the Applicant puts it, "there's been a long history of debate about the prohibition versus development standard argument." (Tcpt, 23 February 2024, p 67 (1))
The Respondent relies on the two-step approach adopted in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 ("Poynting") described as requiring consideration of: 1. First, whether the proposed development is prohibited under any circumstances by the relevant provision where the provision is constructed in the context of the environmental planning instrument as a whole; and 2. Secondly, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the proposed development.
Recently, the Chief Judge, Preston CJ, in his decision of Canterbury Bankstown Council v Dib [2022] NSWLEC 79 ("Dib") distils the tests set out in previous decisions and at [50] identified that the definition of "development standards", reproduced above in this judgment at [14], requires firstly identification of the development that may be carried out with consent.
The Dib decision held at [49] that the cl 30AA in the State Environmental Planning Policy (Affordable Rental Housing) 2009 regarding boarding houses was a development standard where that clause read as follows: A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.
Here, in these proceedings, the development that may be carried out with consent is a "dwelling house".
In Dib, Preston CJ helpfully compares the language of the provisions considered in the previous authorities, including Poynting, as follows: "55. In contrast, in Strathfield Municipal Council v Poynting, the relevant provision precluded erection of a building for residential purposes on land within certain residential zones which had an area less than 560 square metres. The Court of Appeal interpreted this provision as not prohibiting the erection of a building for the stated purposes on residential land in any circumstances, only in the stated circumstance that the area of the land is less than the minimum size: at [102], [103]. Unlike in Woollahra Municipal Council v Carr, the minimum area of land on which a building may be erected for the stated purposes was not "an essential element of permitted use": at [36]."
Most recently, Pepper J in Australian Unity Funds Management Ltd in its capacity as Responsible Entity of the Australian Unity Healthcare Property Trust v Boston Nepean Pty Ltd & Penrith City Council [2023] NSWLEC 49 ("Australian Unity") dealt with an application to set aside a development consent on the basis that the consent authority did not have power to grant the consent for a building whose height exceeded the applicable maximum building height controls mandated for the site under cll 4.3(2) and 7.11(3) in the Penrith Local Environmental Plan 2010. Pepper J dismissed the summons and determined that the controls constituted development standards that were properly varied by the consent authority and the consent was validly granted. (Australian Unity at [4])

Legal submissions on whether the cl 4.2A(3)(a) is a prohibition or a development standard.

The Respondent makes submissions in relation to the first step in Poynting, namely, whether the Proposed Development is prohibited under any circumstances by the relevant provision where the provision is constructed in the context of the environmental planning instrument as a whole.
The Respondent relies on the meaning of certain provisions and how the KLEP works in context. The KLEP is a standard instrument local environmental plan (LEP) made in accordance with s 3.2 of the EPA Act. Being a standard instrument LEP, the Land Use Table identifies the development permitted in accordance with land zones. Within each zone the objectives of the zone, development that is permitted without consent, only with consent and development that is prohibited (cl 2.3 of the KLEP) is the tripart classification of development under ss 4.1 to 4.3 of the EPA Act. Clause 2.3(4) of the KLEP states that the zone objectives and land use table clause is subject to other provisions of the KLEP. This is relevant to the fact that "dwelling houses" are permitted with consent in the Zone RU2 Rural Landscape because the Respondent relies on other provisions of the KLEP to support the legal argument that cl 4.2A(3)(a) is a prohibition and not a development standard.
Continuing with the KLEP context analysis, Pt 4 of the KLEP is titled "Principal development standards". The last clause in Pt 4 of the KLEP is cl 4.6 titled "Exceptions to development standards" which at cl 4.6(8) provides the following: (8) This clause does not allow development consent to be granted for development that would contravene any of the following - (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4, (caa) clause 5.5.
It is clear that cl 4.2A of the KLEP is not included in the cl 4.6(8) list of exclusions.
Within Pt 4 of the KLEP there are eight subdivision clauses at cll 4.1, 4.1AA, 4.1A, 4.1B, 4.1C, 4.1D, 4.1E, 4.1F and then a ninth subdivision clause at cl 4.2 titled "Rural subdivision" which pursuant to cl 4.2(2) applies to the following rural zones: (a) Zone RU1 Primary Production, (b) Zone RU2 Rural Landscape, (baa) Zone RU3 Forestry, (c) Zone RU4 Primary Production Small Lots, (d) Zone RU6 Transition.
The stated objective of cl 4.2 of the KLEP is to provide flexibility in the application of standards for subdivision in rural zones to allow landowners a greater chance to achieve the objectives for development in the relevant zone. The Respondent cites cl 4.2(5) as an example of a prohibition within Pt 4 of the KLEP which reads "A dwelling cannot be erected on such a lot". I understand this to mean that in the circumstance where applicable rural zoned land is, with development consent, subdivided for the purpose of primary production creating a lot of a size that is less than 40 ha, the minimum lot size shown on the Lot Size Map of the KLEP, the erection of a dwelling house on that newly subdivided undersized rural lot is expressly prohibited. The language in cl 4.2(5) is clear, however the same or similar language is not used in cl 4.2A(3).

Is compliance with the development standard unreasonable or unnecessary in the circumstances?

In accordance with the decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ("Wehbe") at [42] and [46], the Written Request relies on the first and third test, being that the Proposed Development achieves the objectives of cl 4.2A and that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.
The objectives of cl 4.2A of the KLEP are reproduced at [16] above and are addressed in the Written Request at p 14. Only the first objective of cl 4.2A is relevant as the second objective quite clearly does not apply to the Proposed Development because it is not a replacement dwelling (Tcpt 23, February 2024, p 8 (21)).
In relation to the language of the first objective "to minimise unplanned rural residential development", I note the following evidence from the experts: 1. Mr Black agrees with Mr Sinclair that "minimise" has an ordinary meaning to reduce to the smallest extent possible (Tcpt, 23 February 2024, p 7 (35)); 2. Mr Black says that "unplanned" in the context of the KLEP relates to the specifics of the clause and applies to the RU1, RU2 and C3 zones (Tcpt, 23 February 2024, p 7 (45)); 3. The phrases "rural residential development" and "unplanned rural residential development" were the subject of lengthy cross examination and I will set out the evidence in some detail below.
Firstly, neither of the above phrases ""rural residential development" or "unplanned rural residential development" are defined in the KLEP. At par 53 of the JER, Mr Sinclair sets out his definition of "rural residential development" as follows: "The residential use of rural land is called rural residential development; that is, people live on rural lots, but use the land primarily for residential rather than agricultural purposes."
Mr Black neither agrees nor disagrees with Mr Sinclair's definition (Tcpt, 23 February 2024, p 8 (46)), instead at p 13 of the Written Request he states that: "The intent of the sunset provision is set out at Objective (a) of 4.2A, which seeks to minimise unplanned rural residential development. … Unplanned rural residential development occurs when the existing and continued viability of agricultural land is eroded by residential development that reduces the area of rural land, limits clear opportunities for amalgamation of larger land holdings, and detracts from rural uses due to potential rural residential conflict. … the proposed dwelling has been designed and located to promote the existing and continued use of the site for viable agricultural activities. There will be no such reduction in the potential for rural uses at the site and on adjoining properties." (Emphasis added.)

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83

Recently, the Chief Judge, Preston CJ, in his decision of Canterbury Bankstown Council v Dib [2022] NSWLEC 79 ("Dib") distils the tests set out in previous decisions and at [50] identified that the definition of "development standards", reproduced above in this judgment at [14 ], requires firstly identification of the development that may be carried out with consent.
The Dib decision held at [49] that the cl 30AA in the State Environmental Planning Policy (Affordable Rental Housing) 2009 regarding boarding houses was a development standard where that clause read as follows:

Most recently, Pepper J in Australian Unity Funds Management Ltd in its capacity as Responsible Entity of the Australian Unity Healthcare Property Trust v Boston Nepean Pty Ltd & Penrith City Council [2023] NSWLEC 49 ("Australian Unity") dealt with an application to set aside a development consent on the basis that the consent authority did not have power to grant the consent for a building whose height exceeded the applicable maximum building height controls mandated for the site under cll 4.3(2) and 7.11(3) in the Penrith Local Environmental Plan 2010. Pepper J dismissed the summons and determined that the controls constituted development standards that were properly varied by the consent authority and the consent was validly granted. (Australian Unity at [4])
The Respondent relies on the reasoning of Pain J at [44]-[51] in the decision of Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83 ("Karimbla"), where she considers the second Poynting step no specification in relation to an aspect of the development and concludes at [43] that ""No dwellings" for buffer area 1m in cl 6.1(3) is not a matter relating to a development standard but to the carrying out of development at all on that land." Pain J's reasoning at [44]-[45] provides as follows:

In relation to the context of cl 4.2A of the KLEP, the Respondent relies on the general principles of statutory construction which require cl 4.2A to be construed according to its text having regard to its wider statutory context and the general purpose and policy underpinning the clause and the KLEP. The Respondent refers the Court to the general principles as summarised by Robson J in Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75 ("Elimatta") at [43]-[45] as follows:

"43. The object of statutory construction is to construe the relevant statutory provision, so it is consistent with the language and purpose of the statue when considered as a whole. As a result, the statutory provision may, in certain (limited) circumstances, not be read in a way that reflects the literal or grammatical meaning of the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], [78]. As stated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]:

44. These general principles are applicable to the interpretation of environmental planning instruments: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]. In this respect, while environmental planning instruments should be interpreted in a practical manner (such that meticulous examination of language is avoided), it is clear that this does not override general principles of statutory interpretation nor require "laxity or flexibility" when construing environmental planning instruments: Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45].

45. The approach described above is also consistent with the strictures of s 33 of the Interpretation Act, which applies to environmental planning instruments by virtue of s 5(6) of the Interpretation Act, and provides:

The Respondent submits that cl 4.2A(3) of the KLEP may fall within one of the specified categories in the definition of development standard, such as area, but that it does not specify a requirement or fix a standard in respect of an aspect of carrying out development for the purposes of a dwelling house. "Rather, it requires the consent authority to be satisfied that the land on which the dwelling is proposed to be erected is a lot that is at least the minimum size specified for that land." (Written Submissions at par 2.23) The Respondent relies on the reasoning of Pain J in Karimbla [44]-[45] quoted above at [34 ] to argue that the provision has the effect of requiring the satisfaction of an existing attribute of the land on which the dwelling house is proposed to be erected.
The Respondent also relies on the Court of Appeal's decision in Mayoh which, as I note above at [38 ] is a decision regarding a provision with language markedly different to the language of the provision considered in the decision of Dib.
I have considered reasons given by Gray C, in AS Investment Company Pty Ltd v Liverpool City Council [2019] NSWLEC 1054 at [61] as to why a particular clause did not meet the definition of a development standard which I reproduce as follows:

(2006) 150 LGERA 130

(2018) 236 LGERA 256

(2001) 116 LGERA 319

(2007) 156 LGERA 446

(1998) 194 CLR 355

(2017) 262 CLR 362

(2006) 66 NSWLR 379

(2017) 95 NSWLR 361

The Respondent relies on the reasoning of Pain J at [44]-[51] in the decision of Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83 ("Karimbla"), where she considers the second Poynting step no specification in relation to an aspect of the development and concludes at [43] that ""No dwellings" for buffer area 1m in cl 6.1(3) is not a matter relating to a development standard but to the carrying out of development at all on that land." Pain J's reasoning at [44]-[45] provides as follows: "44. It is also necessary to identify the particular development in question in order to apply this step and determine whether the provision is directed to an aspect of that development (Chase Property Investments [61(6)], [61(8)]). The particular development the subject of the DA is characterised in the Applicant's submissions as the erection of "semi-detached dwellings". Whether or not this is correct (or whether the proposed development comprises the erection of "multi-dwelling housing" as the proposed dwellings are not to be located on separate lots according to the Council), cl 6.1(3) does not specify a requirement or fix a standard in relation to an aspect of that or any other development. 45. The pre-condition in cl 6.1(3) operates by reference to the number of dwellings to be erected on the whole of the land comprising the relevant sector or buffer area. It does not operate by reference to the number of dwellings to be erected as part of a particular development. Thus, cl 6.1(3) imposes a requirement comprising the Council's satisfaction as to the existence of an attribute of the whole of the land comprising the relevant sector or buffer area within which a proposed development is to be carried out. It does not impose a requirement relating to the carrying out of an aspect of a proposed development. Whether or not the Council is satisfied that the relevant area of land has the required attribute determines whether a proposed development is permissible at all, but it cannot be properly regarded as a requirement relating to the carrying out of an aspect of that development."

In relation to the history, the Court is assisted by the research undertaken by Mr Sinclair set out in some detail in the JER at par 25 which I reproduce below as it represents some of the context the Respondent relies on. "(a) Kiama Planning Scheme Ordinance was gazetted on 1 March 1969 and applied to all land in the Kiama LGA and therefore applied to the subject land. The subject land was zoned as Non-Urban. (b) On 19 April 1973, the State Planning Authority introduced the 40ha policy via Circular No. 67 and this applied to all "non-urban zones outside the Sydney Region". The land at the time was Zoned as Non-Urban. This policy is discussed in more detail in paragraphs 30 to 38. (c) It is not known if the Planning Scheme Ordinance was amended because a search of Trove has been undertaken for all amending Interim Development Orders and this has not produced any results. (d) The subdivision was granted development Consent in 1977, which was referenced in the Council Assessment Report for the Boundary Adjustment on 18 July 2000, which created the current lot configuration. This report is attached as Annexure D. The file has not yet been found and it is assumed that the subdivision was caried out in accordance with the PSO as it existed at that time. A search of Trove has revealed that there also were no amending Interim Development Orders (IDO) relating to the subject land. (e) This consent gave a dwelling entitlement to each of the four lots in the subdivision, as it can be assumed that it complied with the dwelling house clause, because the subdivision was approved. However, the file has not been found and this cannot be confirmed. (f) LEP No 5 commenced on 21 August 1981 and it repealed the Kiama Planning Scheme Ordinance and all Interim Development Orders as well as Kiama LEP Numbers 1 and 3. It became the major LEP for the Kiama LGA. (g) This was after the 1977 subdivision consent was granted but before the registration of the subdivision. The land was zoned as Rural 1(a). (h) Clause 16(4)(a) of LEP No. 5 stipulated that there was a minimum subdivision size of 40ha for land in Zones 1(a). (i) Clause 18(3) of LEP No. 5 permits dwelling houses under the following conditions: (a)has an area of not less than 40 hectares; (b)comprises the whole of an existing holding within the meaning of clause 16 (2) or an existing holding affected only by a subdivision carried out in pursuance of clause 16 (10)), being an existing holding that has an area of not less than 20 hectares and the council is satisfied that- (i) there will be adequate vehicular access to the dwelling house or each dwelling resulting from the dual occupancy development; (ii) the erection of the dwelling house or the carrying out of dual occupancy development will not create or increase ribbon development along an arterial road: and (iii) adequate public utility services are or will be available to the land the land; (c) is a concessional allotment referred to in clause 16 (5) and the council is satisfied that the dwelling-house or the carrying out of dual occupancy development is ancillary or subsidiary to the intended development of the land for the purpose of agriculture; (d)is a concessional allotment referred to in clause 16 (6) and the council is satisfied that the dwelling-house or at least one of the dwellings resulting from the dual occupancy development will be actually occupied by a person referred to in clause 16 (6) (a) , (b) or (c); (e) is an allotment the creation of which has been approved by the Council, the entry number of that approval in the council's subdivision register being shown in Column 2 of Schedule 6, opposite the number in Column 1 of the black square representing the allotment on the map marked "Map referred to in clause 18 (3)(e), Municipality of Kiama, Local Environmental Plan No. 5"; or (f) is a concessional allotment within the meaning of paragraph (a) of the definition of "concessional allotment" in clause 16 (2) or; (g)is an allotment created before 21 August 1981 in accordance with clause 32 (1) Kiama Planning Scheme Ordinance. (j) Subparagraph 18(3)(e) applied to the land. (k) The land was known as Part Portion 26 Parish of Kiama and so was an Old System title. (l) A Primary Application was lodged on 31 July 1984 to transfer the land to Torrens title, and the land became Lot 262 DP 634114 which was created on 20 November 1984. (m) The subdivision was registered as Lots 261 to 264 in DP806312 on 14 November 1990. The subject land was lot 263. (n) LEP No 5 was amended on 29 November 1991 by LEP No 61. According to the Council Report of 18 July 2000, this was done to clarify the dwelling entitlements for each of the lots, which suggests that there was some concern about the validity of the 1977 development consent. LEP No 61 dealt only with Lots 261-264. (o) The objective of LEP No 61 is as follows: "This plan aims to remove the existing subdivision and dwelling entitlements in relation to the land and permits a subdivision of the land to which it applies to allow a maximum of 4 allotments with only one dwelling-house on each allotment." (p) LEP No 61 amended LEP No 5 in two ways as follows: 5. Kiama Local Environmental Plan No. 5 is amended: (a)by inserting after clause 42 the following clause: Development of certain land in Mt Brandon Road, Jamberoo. 42 A. (1)This clause applies to Lots 261-264, D.P. 806312, Mt Brandon Road, Jamberoo, as shown edged heavy black on the map marked "Kiama Local Environmental Plan No. 61". (2)Despite any other provisions of this plan, a person may, with the consent of council: (a) resubdivide the land to which this clause applies so as to create separate allotments of land comprising approximately 3000 square metres, 4000 square metres, 19.3 hectares and 19.45 hectares, respectively, in area and; (b)erect a dwelling-house on each allotment so created. (b)by omitting from Schedule 6 the number "11" in Column 1 and the number "1040" on Column 2. (q) The lot sizes referred to in the clause match the sizes of the lots in DP806312. (r) Clause 18(3)(e) of Kiama LEP No. 5, is reproduced in paragraph (i) above and referenced Council's subdivision register of lots approved for subdivision and on which a dwelling house could be erected. This had the effect of taking away the dwelling entitlement to the land pursuant to clause 18(3)(e) because it deleted the relevant map number from Schedule 6, which can be seen from the Consolidated version of the Kiama LEP, which is attached as Annexure E. It is not known if this land was resubdivided in accordance with clause 42A(2)(a) and, according to the wording of LEP 61, this needed to occur before the dwelling entitlement could be established. IS acknowledges that this is his opinion, and it should be subject to review by the lawyers. (s) From the commencement of LEP No 61 on 29 November 1991, dwelling houses on Lots 261-264 were regulated under the provisions of clause 42A of LEP No 5, and not clause 18, thus making it prohibited. Clause 42A is a version of the 'Additional Permitted Uses' clause that exists today, and land is only included in this clause if it is prohibited. (t) However, it is noted that there was not a resubdivision of Lots 261-264 DP806312 as required by LEP No. 62, so it could be said that the dwelling entitlement did not exist until any resubdivision application was submitted to Council. (u) LEP 1996 commenced on 19 July 1996. Clause (3)(a) repealed LEP No 5. (v) LEP 1996 did not carry over cl 42A into the additional permitted uses under cl 63 and Schedule 4. This appears to be an error, as the additional permitted use under cl 42A of LEP No. 5 was inserted by LEP Amendment 1996 (No.3) (w) LEP 1996 Amendment No. 3 added a number of properties including Lots 261-264 DP DP806312 to Schedule 4 using the same wording as clause 42A of LEP No. 5. This schedule to clause 63 is titled 'Development for Certain Additional Purposes' and this clause permitted development that was prohibited. The effect of Amendment No. 3 was to reinstate the dwelling entitlement but also kept the need to resubdivide the land first. (x) LEP 2011 commenced on 16 December 2011. Clause 1.8(1) repealed LEP 1996. LEP 1996 only continued to apply to land identified as a "Deferred matter" on under cl 1.3(1A). Lots 261-264 were not identified as a Deferred matter on the Land Application Map. (y) The additional permitted use identified in Schedule 4 of LEP 1996 was not carried over to LEP 2011. A dwelling house could be erected on Lots 261- 264 under the provisions of clause 4.2A(3)(b) because they were created before the commencement of LEP 2011, and a dwelling house was permitted as an additional use under clause 63 and Schedule 4 of LEP 1996. However, the question of the need for the land to be re-subdivided in Schedule 4 of LEP 1996 should be clarified, to ascertain if lots 261 to 264 had dwelling entitlements. (z) Under the provisions of cl 4.2A(4) of LEP 2011, a sunset date of 5 years applied, and this came into effect on 16 December 2016. This revoked the dwelling entitlement for the land."

In relation to the context of cl 4.2A of the KLEP, the Respondent relies on the general principles of statutory construction which require cl 4.2A to be construed according to its text having regard to its wider statutory context and the general purpose and policy underpinning the clause and the KLEP. The Respondent refers the Court to the general principles as summarised by Robson J in Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75 ("Elimatta") at [43]-[45] as follows: "43. The object of statutory construction is to construe the relevant statutory provision, so it is consistent with the language and purpose of the statue when considered as a whole. As a result, the statutory provision may, in certain (limited) circumstances, not be read in a way that reflects the literal or grammatical meaning of the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], [78]. As stated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]: "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (citations omitted) 44. These general principles are applicable to the interpretation of environmental planning instruments: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]. In this respect, while environmental planning instruments should be interpreted in a practical manner (such that meticulous examination of language is avoided), it is clear that this does not override general principles of statutory interpretation nor require "laxity or flexibility" when construing environmental planning instruments: Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45]. 45. The approach described above is also consistent with the strictures of s 33 of the Interpretation Act, which applies to environmental planning instruments by virtue of s 5(6) of the Interpretation Act, and provides: '33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.'"

Firstly, there is the past decision of Elwaw, the Respondent Council submitted to the Court that cl 4.2A(3)(a) of KLEP was a development standard and supported a lot size variation pursuant to cl 4.6 of the KLEP. Elwaw at [14] to [19]: "14. The wording of cl 4.2A(3) of the KLEP uses the language "Development consent must not be granted…". Whereas for example, cl 4.1(3) states "The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown…". The parties acknowledge that the language used in cl 4.2A(3) is more prohibitory in nature than cl 4.1(3). 15. The parties refer to the recent decision of Preston CJ in Canterbury Bankstown Council v Dib [2022] NSWLEC 79. In that case, Preston CJ determined that cl 30AA of the now repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) was a development standard. Cl 30AA was in the following terms, 'A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.' 16. The parties note that cl 30AA was in similar prohibitory terms to cl 4.2A(3) of the KLEP. At [67], Preston CJ stated: "Development standards can be drafted in different ways. A provision may be drafted with language that appears regulatory or prohibitory, but the substance, however drafted, may be the same. As Giles JA observed in Strathfield Municipal Council v Poynting at [93]: 'Care must be taken lest form govern rather than substance.'" 17. Adopting His Honour's reasoning, the prohibitory language used does prevent cl 4.2A(3) of the KLEP from being a development standard. The parties are of the view that cl 4.2A(3) of the KLEP is a development standard which falls within the definition contained in s 1.4(1)(a) of the EPA Act and the parties note that cl 4.2A falls within "Part 4 Principal Development Standards" in the KLEP. 18. The parties also note that cl 4.2A is not identified in cl 4.6(8) of the KLEP. 19. I conclude that cl 4.2A of the KLEP is a development standard, and adopt the reasons given by the parties."

The Respondent provided detailed written submissions in closing. The Respondent provides seven reasons why cl 4.2A(3) of the KLEP is a prohibition at pp 6 to 11 to support the Respondent's submission that the first step in Poynting is not satisfied. I summarise below those seven reasons as follows: 1. Prohibitive language "must not" appears in the chapeau to the clause; 2. The Clause applies to any dwelling house and does not apply to any physical aspect of the dwelling house itself and "its indiscriminate application as a requirement for a dwelling house … is indicative of it being a prohibition (Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130; [2006] NSWCA 331 ("Laurence Browning") at [93] and Karimbla at [32]) 3. The specific limitation, requirement or standard, in cl 4.2A(3)(a) is on the size of the land on which the dwelling is to be erected not the development being carried out, being the erection of a dwelling house. "Because the Lot Size Map applies uniformly across the RU1, RU2 and C3 zones the purpose of cl 4.2A(3)(a) is to adopt a minimum land size on which a dwelling house is permitted" (Respondent's Written Submissions p 7, par 2.13) 4. Reliance on the role and purpose of cl 4.2A(5) where it provides an express exception to cl 4.2A(3) which is necessary to ensure that the operation of cl 4.2A(5) is unaffected by the prohibition in cl 4.2A(3). The Respondent makes the submission that: "The purpose behind imposing the sunset date in cl 4.2A(5) was to bring an end to the permissibility of dwelling houses on existing undersized allotments. This purpose would not be achieved if dwelling houses were still permissible on existing undersized allotments under cl 4.2A(3)(a) subject to satisfying the requirements of cl 4.6(4)." 1. It is relevant to note that cl 4.2A(5) does not limit its application to cl 4.2A(3)(a) but rather applies to the whole of cl 4.2A(3). I reject the submission that: "The purpose of cl 4.2A(5) is to permit a dwelling house on two limited categories of land which indicate that the purpose of cl 4.2A(3)(a) is to prohibit dwelling houses in the RU1, RU2 and C3 zones on lots smaller than the minimum lot size, except in limited circumstances." 1. Clause 1.2(1) of the KLEP mandatory adoption of the relevant standard environmental planning instrument under s 3.20 of the EPA Act. Although the Land Use Table of the KLEP sets out that dwelling houses are permissible with consent under item 3 of the RU1, RU2 and C3 zones, that does not mean another specific clause cannot prohibit the same development in certain circumstances because, under cl 2.3(4), the Land Use Table is subject to other provisions of the KLEP (Karimbla at [36]). The only means of prohibiting dwelling houses on certain lots in those zones is by way of a specific provision and the Respondent submits that cl 4.2A is such a clause. 2. Clause 4.2A has two objectives which support the construction of cl 4.2A(3) being a prohibition rather than involving a development standard namely: (a) to minimise unplanned rural residential development, (b) to enable the replacement of lawfully erected dwelling houses in rural and conservation zones. 1. It is agreed that the second objective does not apply to the Proposed Development so the Respondent focuses on the wording of the first objective and submits that the phrase "to minimise" means to "reduce to the smallest possible amount or degree" (Online Macquarie Dictionary 2024) and that in its context "minimise" is an express acknowledgement that there are limited circumstances in which dwellings are permissible on undersized under cl 4.2A(3)(b)-(d) and cl 4.2A(5), resulting in a limited amount of rural residential development. 2. I find that the word "minimise" still has some work to do in the application of the terms of cl 4.2A(3)(a) because cl 4.6 requires express consideration of the objectives of a standard when considering whether compliance with the standard is unreasonable or unnecessary and the public interest. I will come back to the objectives of cl 4.2A at [92]. 3. The Respondent submits that the other phrase in the first objective, "rural residential development" has a specific town planning meaning which refers to the residential use of rural land where primary use of rural land is residential rather than for agricultural purposes." (JER par 53, p 20) I reject this submission because the town planning definition relied on by the Respondent is not derived from the KLEP but rather from Mr Sinclair's definition extracted from his own text book. 1. The structure and context of Pt 4 of the KLEP relating to the subdivision of land in the RU1, RU2 and C3 zones support cl 4.2A(3) being a prohibition. I have dealt with the Respondent's submissions on the interpretation of cl 4.2A(3) in context above and I conclude firstly, that the Proposed Development is not for the creation of a new lot and secondly, an analysis of the structure and context of Pt 4 includes the terms of cl 4.6 which is also part of the planning scheme designed to expressly "provide an appropriate degree of flexibility in applying certain development standards to particular development".

I have considered reasons given by Gray C, in AS Investment Company Pty Ltd v Liverpool City Council [2019] NSWLEC 1054 at [61] as to why a particular clause did not meet the definition of a development standard which I reproduce as follows: "61. Sixthly, cl 7.12 does not meet the definition of a development standard as it does not specify a requirement or fix a standard in relation to an aspect of the development. Unlike provisions with respect to lot size or lot dimensions, which specify requirements in relation to an aspect of subdivision, cl 7.12 instead controls the carrying out of subdivision on the specified areas of land within the Dwelling Density Map. As distinct from the provision considered by Dixon SC in Oneten Properties Pty Ltd v Hawkesbury City Council, which she interpreted to specifically relate to the number of lots created by the subdivision the subject of a development application (without reference to previously created lots: see [76]-[77]), and therefore specified the way in which subdivision is to be carried out, cl 7.12 instead controls the circumstances in which the carrying out of subdivision can occur in specified areas. This distinction is drawn out by Pain J in Karimbla Constructions Services v Pittwater Council, in which Her Honour stated (at [45]) that the clause in question "does not operate by reference to the number of dwellings to be erected as part of a particular development" but instead "imposes… the existence of an attribute of the whole of the land comprising the relevant sector or buffer area within which a proposed development is to be carried out". In the same way, cl 7.12 does not operate by reference to the subdivision of the lot the subject of the development application, but instead requires the existence of an attribute of the entire area the subject of the maximum lot yield. Clause 7.12 therefore does not pass the second step in Strathfield Municipal Council v Poynting, and does not meet the definition of "development standards" in the EPA Act. I note also that the omission of cl 7.12 from cl 4.6(8) is explained by my view that cl 7.12 is not a development standard."

The Applicant refers to the examples given by the Respondent of prohibitions in the KLEP, in particular cl 4.2(5) of the KLEP, which is a plain prohibition, and the Applicant submits that the control in cl 4.2A could very readily have prohibited dwellings on land less than 40 ha but the textual indicators indicate that prohibition is not intended in cl 4.2A of the KLEP. Those textual indicators relied on by the Applicant include: 1. The objective at cl 4.2A(1)(a) is to minimise. The Applicant submits that "minimise" and "prohibit" are not synonyms. (Tcpt, 22 February 2024 p 26 (15)) 2. The language adopted for cl 4.2A(3) is very different to the language in cl 4.2(5) and "the indicator that tells you it's not a prohibition is the word "unless" which is a permissive word. You start from a prohibition but then it creates an exception. It allows and permits in particular circumstances something to occur. The language that is used in subcl (3)(a) is very similar to any number of minimum lot size clauses in LEPs all over the state." (Tcpt, 22 February 2024, p 26 (30)) 3. The definition of "development standards" in s 1.4 of the EPA is including the area of land. (Tcpt, 22 February 2024, p 26 (36)) 4. The fact that there is a provision later on in subcl (b), (c) and (d) of subcl (3) that are subject to a sunset clause in subcl (4) is "of no moment because it does nothing to turn off the operation of subcl (a) and the fact that it is a development standard." (Tcpt, 22 February 2024, p 26 (40)) 5. The subdivision clauses, referred to by the Respondent as explaining the context of the cl 4.2A within Pt 4 of the KLEP above at [56], are future focused. The Applicant further says: "The dwelling houses clause in cl 4.2A at least in cl (3)(b) to (d) were dealing with old lots, or the past, about things that already existed. Then you have cl (3)(a) which is neutral. You are not actually creating the new lot. It's just whether the circumstances happen to exist that a site is of a particular size, the land having a particular area. We say that the requirement of the land having a particular area is a development standard that can be varied if cl 4.6 is otherwise satisfied." (Tcpt, 22 February 2024, p 28 (15)). 1. The Applicant submits that what His Honour in Dib at [57] is drawing the distinction there or highlighting a distinction is if a requirement is internal to a development or inside a development, that is a prohibition. If it is external to it, that is a development standard (Tcpt, 23 February 2024, p 68 (23)). I reproduce extracts from Dib below as follows: "57. This "essential element" approach to determining whether a provision is a development standard is not without its difficulties. As Ipp JA observed in Blue Mountains City Council v Laurence Browning Pty Ltd at [14], it may be difficult to decide whether a requirement is inside (internal to) or outside (external to) a development; it may not infrequently be on the borderline. So too McClellan CJ at CL in Agostino v Penrith City Council at [74] observed that "every numerical control on development proposed under a LEP is capable of being described as 'an essential element'." He gave as an example a height control in an LEP, which indisputably is a development standard: "A height control which confines the maximum height of a building on a particular parcel of land to three stories is an essential element but without question a development standard." 58. The perceived difficulties with the essential element approach may be lessened if the inquiry involved is understood to be ascertaining whether the aspect of development is definitional of the development that may be carried out with consent. That was the case in Woollahra Municipal Council v Carr. The number of dentists and employees was part of the definition of the permissible development of "professional consulting rooms". In that way, the number of dentists and employees was an essential element of that development. … 61. I return to the provision in the present case, cl 30AA. The structure of cl 30AA is first to set a prohibition on the grant of development consent to specified development, "a boarding house", on land within the R2 Zone or an equivalent zone, and second to relax that prohibition if the consent authority forms the specified state of satisfaction, "that the boarding house has no more than 12 boarding rooms". This structure reveals that the development in respect of which it is asserted cl 30AA is a development standard, is "a boarding house" as first referred to in the clause. This is a reference to the development to which Division 3, within which cl 30AA sits, applies, namely development for the purposes of boarding houses. Equally, the second reference in cl 30AA to "the boarding house" is also a reference to the development to which Division 3 applies of development for the purposes of boarding houses. The matter about which the consent authority must be satisfied, "that the boarding house has no more than 12 boarding rooms", is an aspect of that development for the purposes of boarding houses to which Division 3 applies. 62. Clause 30AA does not operate to define the development that is permitted to be carried out with consent in the R2 Zone. Clauses 27 and 28 serve that function, cl 27 by specifying the development to which Division 3 applies, being development for the purposes of boarding houses, and cl 28 by specifying that such development to which Division 3 applies may be carried out with consent. Clause 30AA serves the different function of specifying the circumstances in which a consent authority can and cannot grant development consent to "a boarding house", a shorthand reference to development for the purposes of boarding houses, being the development to which Division 3 applies. This circumstance is whether the consent authority is satisfied that the boarding house has no more than 12 boarding rooms. This aspect of development is not an essential element of the development to which Division 3 applies, but rather conditions the exercise of the power to grant consent to that development. … 67. Development standards can be drafted in different ways. A provision may be drafted with language that appears regulatory or prohibitory, but the substance, however drafted, may be the same. As Giles JA observed in Strathfield Municipal Council v Poynting at [93]: "Care must be taken lest form govern rather than substance.""

Sharp v Kiama Municipal Council

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