32 As noted above, SEPP No 1 prevails over any inconsistency between it and any other environmental planning instrument. The evident purpose of cll 6 and 7 of SEPP No 1 is to enable the rigidity of an environmental planning instrument to be alleviated in the circumstances set out in cl 3, that is, "where strict compliance with development standards would, in any particular case, be unreasonable or unnecessary and tend to hinder the attainment of [the objects of the Act]". The clauses apply when a provision of an environmental planning instrument has imposed a development standard as permitted by s 26(1)(b) of the Act. Consent to development may be granted in a particular case notwithstanding the development standard.
33 It has long been accepted that not all provisions controlling development in environmental planning instruments are development standards. The words of s 26(1)(b) and the definition in the Act so indicate. How is a development standard to be distinguished from a provision controlling development in some other way? The immediate answer is that a provision controlling development is a development standard if it satisfies the definition in s 4(1) of the Act, but not otherwise. But that leads to a further question, and it has not proved easy to determine whether a provision controlling development satisfies the definition.
34 In Woollahra Municipal Council v Carr (1987) 62 LGRA 263 land could be used "for professional consulting rooms" with consent but otherwise only for dwelling-houses. "Professional consulting rooms" was defined, the definition including that the professional practice should not employ more than three employees. Application was made for consent to development as professional consulting rooms, but the proposed use went beyond the definition in that up to seven employees would be employed. The then applicant contended that he could take advantage of SEPP No 1 to overcome the restriction in the definition to three employees. It was held that he could not, because even if the restriction in the definition was a development standard it could not be said that the development could be carried out but for the development standard. The restriction was not only an (assumed) development standard, but also a description of the permitted use.
35 Of particular relevance are observations of McHugh JA on the trial court's view that the limitation on the number of employees was a requirement in respect of an aspect of the development, and so a development standard. His Honour said (at 269-70) -
"This analysis, however, overlooks the essential condition that the requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development. A provision is not a specified requirement or fixed standard "in respect of" an aspect of a development until the development and its aspects are defined. For example, the two storeys of a duplex building are not in any relevant sense requirements specified or standards fixed in respect of any aspect of the use of a duplex."
36 McHugh JA meant, it seems to me, that the limitation to three employees was not an aspect of the development, the development being use of the land for professional consulting rooms, susceptible of a requirement or standard. His Honour considered it an aspect of the development, and hence he said (at 269) that the conclusion required in the case was arbitrary because the limitation would have been a development standard if contained in the body of the instrument rather than the definition. But by virtue of the definition of professional consulting rooms it was an essential element of the permitted use, and not an aspect of the development in relation to which the definition stated a requirement or standard: so also, the two storeys of the duplex building (by which I understand his Honour to have meant a two-storied building) were not relevantly aspects of the development of erection of a duplex building.
37 The facts in Woollahra Municipal Council v Carr were rather special, and the decision may be justified on the ground that definition of permitted developments is fundamental to proper planning, even if the result can sometimes appear to elevate form over substance.
38 In Kruf v Warringah Shire Council (15 December 1988, unreported) Holland J was called on to categorise a provision, cl 28A, which forbade development for a motel if any means of vehicular or pedestrian access existed between the land and a main road or a public road near a main road. His Honour held that it was not a development standard. He said of the definition -
"Flexible though the definition of 'development standard' in s 4(1) of the Environmental Planning and Assessment 1979 may be, it is not possible sensibly to say that an absolute prohibition on a form of development in a specified locality or under specified conditions is setting a standard for that form of development. It is saying that there shall be no such development, not that there may be such development only if it complies with certain requirements or standards. In terms of the definition, there cannot be 'requirements specified or standards fixed in respect of any aspect of that development' when there may not be any such development. … In my opinion it is not open to the council and it is not open to the court to use SEPP No 1 to allow consent to be given in disregard of a prohibition of cl 28A."
39 Holland J referred to Woollahra Municipal Council v Carr as supporting his conclusion. Although not spelled out, presumably his Honour had in mind reasoning that cl 28A expressed an aspect of the permitted development, and was not a requirement in relation to an aspect of the development.
40 The conclusion to which Holland J came did not receive universal acceptance. In North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 Kirby P noted (at 227) cases in which, his Honour said, the then permanent judges of the Land and Environment Court had declined to follow the reasoning of Holland J. His Honour pointed out (at 229) that, for the purposes of the Act, control includes prohibition, and so a prohibition can relate to the carrying out of development and a prohibition is not excluded from categorisation as a development standard. The provision in question, cl 14A(1)(a), prohibited the erection of a residential flat building on land if any principal building on adjoining land was less than three storeys measured vertically above any point at natural ground level. His Honour considered that it was a development standard.
41 In Kirby P's view, cl 14A(1)(a) was a provision in relation to the carrying out of development, notwithstanding what Holland J had said in Kruf v Warringah Shire Council, because a prohibition could be such a provision. And, taking up the observations of McHugh JA in Woollahra Municipal Council v Carr as "the proper approach to the task of classification " posed by the words concerning requirements specified or standards fixed in respect of any aspect of the development, his Honour said (at 229) -
"The 'development' relevantly is 'a residential flat building". The 'aspects' of the development include its 'character', its 'design', its 'location' and its 'relationship … to development on adjoining land'. The requirements imposed by cl 14A(1)(a) of the LEP are 'external' to any and all of these 'aspects'. Furthermore, the requirement imposed by the clause that all principal buildings on an adjoining land must be three storeys or more in height is one which is specified 'in relation to' any and all of the foregoing aspects. Accordingly, the third condition of the definition of 'development standard' in s 4(1) of the Act is fulfilled.
Holland J's approach to the meaning of 'development standards' has, it must be conceded, a logical attractiveness when those words are given their ordinary English meaning. If development is prohibited, 'standards' for that 'development' are inapplicable. One does not descend into the detail of the 'standards' because the 'development' is simply forbidden. However, when one turns to the special statutory definition of the phrase appearing in s 4(1) of the Act, with the light case upon the intended operation of the phrase by s 26 of the Act, it becomes clear that a wider definition of 'development standards' is contemplated. Even one which (in offence to pure logic) envisages the carrying out of development where generally it is prohibited."
42 Turning to cl 14A(1)(a) in its context, his Honour said that the complete provision of which the prohibition was part expressed general requirements falling within the definition.
43 However, Kirby P was in dissent. Mahoney and Clarke JJA were of the opinion that the provision was not a development standard.
44 After setting out the definition in the Act, Mahoney JA said (at 232-3) -
"The definition, in its form, specifies the species of the 'provisions of an environmental planning instrument" with which it deals, namely, "provisions … in relation to the carrying out of development'; and then specifies that part of that species to which it is directed, namely, "provisions by or under which requirements are specified or standards are fixed in respect of an aspect of that development". If the definition is to be construed according to its terms, three things may be said. First, the definition applies, in the first instance, only to provisions which are 'provisions … in relation to the carrying out of development'. Therefore 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. And the requirements or standards are to be those fixed 'in respect of' 'that development'.
Secondly, the use of the phrase 'requirements are specified or standards are fixed' provides some (though, of course, not conclusive) support for the view that that with which the definition deals is the details of a development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all.
And thirdly, the matters detailed in subpars (a) to (n) of the definition, in so far as a pattern can be seen from them, provide further support for this view. They assume that development of a kind, for example, the erection of a residential flat building, can be carried out and they provide for the things which are required and the standards which are to be observed in the carrying out of that development. They deal, for example, with the 'siting' of the flat building which is to be erected on the land and 'the distance of' relevant things from any specified point'."
45 His Honour reasoned to his conclusion (at 234) -
"I do not think that cl 14A(1)(a) is a provision 'in relation to the carrying out of development … '. There is, in my opinion, a distinction in the provisions between a provision which in form provides: 'On land of characteristic X no development may be carried out' and a provision which in form provides: 'On such land development may be carried out in a particular way or to a particular extent.' The provision in cl 14A(2) is, I think of the latter kind. If cl 14A(1)(a) provided merely that 'no building shall be erected on land in Zone No 2(c) if … ' the position would, in my opinion, be clear. In fact cl 14A(1)(a) prohibits erection on the land described in par (a) not of all buildings but only of 'a residential flat building'. But it remains correct, I think, to say that, in respect of the land referred to in par (a) what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to 'the carrying out of' development of that or any other kind. If regard be had to purpose, the purpose of the provision was, I think, to proscribe development by buildings at the particular place. This is not a matter relating to 'development standards' but to the carrying out of development at all."
46 Clarke JA said (at 235) that it followed from the definition "that development standards are provisions specifying requirements or fixing standards in respect of an aspect of a development". He described cl 14A(1)(a) (at 236) as a provision which "lays down a prohibition against a specific land use applying to blocks of land within the zone which have the characteristics set out in the clause", and therefore not a development standard. His Honour added (also at 236) -
"The point is reinforced by the fact that cl 14A(1)(a) lays down an absolute prohibition on the use of certain land for a particular purpose whereas development standards lay down requirements or standards against which the proposed development is to be measured: see Warringah Shire Council v K V M Investments Pty Ltd (1981) 45 LGRA 425 at 432, 440. There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development.