Shaynd v Ku-ring-Gai Council [2005] NSWLEC 79 | Case summary

JUDGMENT 1 HIS HONOUR: This matter comes before me this morning to resolve a preliminary question of law. The question which the parties have framed is in the following terms: "Whether the Court has the power to approve the application the subject of these proceedings having regard to the fact that part of the property upon which it is proposed to carry out the development the subject of these proceedings is land to which subclause (a) of Schedule 3 of State Environmental Planning Policy 53 applies." 2 The land, the subject of the development application, is land known as 86 Kitchener Street, St Ives being Lot 5 in Deposited Plan 523490. The land is controlled by the Ku-ring-gai Planning Scheme Ordinance under which it is zoned Residential 2(c). In that zone, dwelling houses are permissible with the consent of the Council. 3 However, the application which has been lodged with the Council and in respect of which the appeal has been brought seeks consent to erect two dwellings on the parcel of land. The applicant submits that because of the operation of Part 3 of State Environmental Planning Policy 53 - Metropolitan Residential Development, the application for two dwellings is permissible with the consent of the Council. The Council submits that by reason of the operation of clause 16(2) of the State policy, the application is prohibited. 4 State Policy 53 was brought into existence in order to encourage the provision of housing in the metropolitan area. It applies within the municipality of Ku-ring-gai. It includes provision for a variety of forms of residential development. Part 3 makes provision for dual occupancy. Clause 15 of the policy provides the objectives of the part which are: "(a) to create opportunities for two dwellings to be developed on a single allotment of land, and (b) through the other provisions of this Policy, to ensure that dual occupancy development is: (i) designed and assessed with a full understanding of the opportunities and constraints of each site, and (ii) designed and assessed having adequate regard for the design principles contained in Part 5." 5 Clause 16 provides that Part 3 of the Policy applies to all land to which the Policy applies that is within a residential zone under another environmental planning instrument. Accordingly, because the subject land is within a residential zone under the Ku-ring-gai Planning Scheme Ordinance, the Policy prima facie applies to it. 6 Subclause (2) of clause 16 provides an exception, indicating that "this part does not apply to land with an area described in Schedule 3 (Areas excepted from Part 3 (Dual Occupancy))". Schedule 3 provides: "Land that is: (a) identified on a bushfire prone land map certified under section 146 of the Act as "Bushfire prone land - vegetation category 1", or (b) shown cross-hatched on the map marked "State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (Amendment No 5) Bush Fire Evacuation Risk Map" deposited within the Department of Infrastructure, Planning and Natural Resources." 7 The parties have tendered in evidence an extract from the relevant Bushfire Prone Land Map. It indicates that a triangular section on the south west part of the allotment is included within an area defined as "bushfire prone vegetation category 1." However, the major portion of the site is in an area described as "bushfire prone vegetation buffer" and, accordingly, on that part of the allotment, there is no question but that the Policy applies. 8 In a previous decision of this Court, the question was determined as to whether, if part of an allotment was coloured red, the consequence was that SEPP 53 did not apply to any part of the allotment. The matter came before Bignold J who determined specific questions framed by the parties in class 1 proceedings. His Honour determined that if an allotment was partly coloured red, it did not have the consequence that SEPP 53 did not apply to other parts of that allotment. The Council does not make any submission that his Honour's decision in that case, Hones v Ku-ring-gai Council [2004] NSWLEC 168 was wrong. 9 However, the question to be determined in the present case is whether in the circumstance where the dwellings are proposed to be constructed on orange land but ancillary facilities in the nature of gardens and the like are to be developed on the red coloured land, the proposed development is permissible. 10 The Council submits that a conventional approach to the issue should be adopted. It submits that the application should be understood to be an application for the purpose of developing and therefore using the allotment of land for a "dual occupancy." Accordingly, it would follow that the ancillary facilities in the nature of landscaping and recreation areas would be described by the dominant purpose for which the land is being used, that is, dual occupancy. See Warringah Shire Council v Raffles (1978) 38 LGRA 306 and Food Barn Pty Limited v Solicitor General for New South Wales (1975) 32 LGRA 157. In the latter case, Glass JA said in a formula which has been accepted as a fundamental element of planning law that: "where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former, and treat the dominant purpose as that for which the whole is being used." 11 Accordingly, the Council submits that the landscaping, open space, driveway and stormwater retention facilities proposed on the red land in the present case, being subordinate to the purpose described as the dominant purpose of a "dual occupancy" which is not available on the red land, the application cannot be approved. 12 The applicant accepts that if the Council is correct in its submission that it is appropriate to describe the use of the red land as being for the purpose of dual occupancy, the application could not be approved. However, it submits that in the context of SEPP 53 the Council's submission is flawed. The applicant's submission is that although SEPP 53 contemplates two dwellings being erected on a single allotment of land in circumstances where only one dwelling would have been permissible, it is not appropriate to describe the use of the land as being for the purpose of "dual occupancy." 13 It is submitted that all that SEPP 53 contemplates is that on land where dwelling houses are permissible with consent, the policy will operate to allow two dwellings houses to be constructed rather than one. Although those dwellings may have ancillary facilities, those facilities are properly described as ancillary to the dwellings and are permissible by reason of the planning scheme ordinance which permits dwelling houses and ancillary facilities. 14 In my opinion the applicant's submission is correct. Whether one construes the Policy in a purposive manner or literally, I am satisfied that the same conclusion is reached. The objectives of Part 3 are described as being "to create opportunities for two dwellings to be erected on a single allotment." The objectives do not refer to the contemplated development as being development for the purpose of "dual occupancy" or for some purpose other than dwelling houses. 15 Furthermore, neither Part 3 of the Policy nor the Policy itself provides for a purpose of "dual occupancy." This is quite different to planning instruments where land is controlled by reference to the use of land for a purpose and definitions are provided of those purposes. If the Policy had sought to operate in that way, "dual occupancy" would have been defined as a purpose for which land can be used and controls would have been imposed on the use of land in that way. 16 Clause 17 of the Policy is in the following terms: "This part allows development that results in two dwellings being located on the one allotment of land if the land is within a zone which, under another environmental planning instrument, permits the erection of dwelling houses and the development is carried out in accordance with this Part and Part 5." 17 This is a further indication of the way in which the Policy was intended to operate. The exception provided by Part 3 permits two dwellings not described in any way other than by reference to the number of dwellings to be located on the one allotment of land. 18 The Policy does not speak in terms of the two dwellings having a different character for planning purposes so that the use of the land is for a purpose other than for dwelling houses. All that the Policy contemplates is that the land will continue to be used for dwelling houses but that two may be built on land to which the Policy applies. 19 It follows, in my opinion, that the ancillary facilities remain permissible under the Ku-ring-gai Planning Scheme Ordinance which allows the use of the red land for the purpose of dwelling houses with the consent of the Council. It is only on the land coloured orange that the policy will apply and will operate to permit two dwellings to be constructed on that land. 20 Accordingly, the question raised in these proceedings being: "Whether the Court has the power to approve the application the subject of these proceedings having regard to the fact that part of the property upon which it is proposed to carry out the development the subject of these proceedings is land to which subclause (a) of schedule 3 to State Environmental Planning Policy 53 applies."

Shaynd v Ku-ring-Gai Council

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