Strathfield Municipal Council v Poynting

CITATION : Strathfield Municipal Council v Poynting [2001] NSWCA 270 FILE NUMBER(S) : CA 40614/00 HEARING DATE(S) : 13 June 2001 JUDGMENT DATE : 8 November 2001

PARTIES : Strathfield Municipal Council - Appellant Robert Poynting- Respondent JUDGMENT OF : Giles JA at 1; Heydon JA at 109; Young CJ in Eq at 110

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 10117/00 FILE NUMBER(S) : LOWER COURT Bignold J JUDICIAL OFFICER :

COUNSEL : B J Preston SC & S E Pritchard - Appellant W R Davison QC & I J Hemmings - Respondent SOLICITORS : Houston Dearn O'Connor, Burwood - Appellant Pike Pike & Fenwick - Respondent CATCHWORDS : PLANNING LAW - no building on land with an area less than 560 square metres - whether a development standard - application of definition of development standards considered. D Bell v Shellharbour Municipal Council (1993) 78 LGERA 429; Bowen v Willoughby City Council (2000) 108 LGERA 149; Egan v Hawkesbury City Council (1993) 79 LGERA 321; Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318; Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95; Herald-Sun TV Proprietary Limited v Australian Broadcasting Tribunal (1985) 156 CLR 1; Kerridge v Girling-Butcher [1933] NZLR 646; Kruf v Warringah Shire Council (Holland J, 15 December 1988, unreported); CASES CITED: McKay v North Sydney Council (2000) 107 LGERA 203; North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222; Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114; Scott Revay & Unn v Warringah Council (1995) 88 LGERA 1; Slattery v Naylor (1988) 13 App Cas 446; Swan Hill Shire Council v Bradbury (1937) 56 CLR 746; Toronto, Municipal Coroporation of the City of v Virgo [1896] AC 88; Tungamah Shire Council v Merrett (1912) 15 CLR 407; Turnbull Group Pty Ltd v Hornsby Shire Council (2001) 115 LGRA 108; Woollahra Municipal Council v Carr (1987) 62 LGRA 263. DECISION : (1) Appeal allowed in part; (2) Vary the answers given by Bignold J: (a) by adding at the commencement of the answers to each of question 1 and question 2, "Save as to the erection of multiple-unit housing."; and (b) by adding at the commencement of the answer to question 3, "Save as to use for multiple-unit housing,"; (3) Otherwise dismiss the appeal; (4) Appellant to pay the respondent's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40614/00 LEC 10117/00

Thursday 8 November 2001 STRATHFIELD MUNICIPAL COUNCIL v POYNTING JUDGMENT 1 GILES JA: The respondent appealed to the Land and Environment Court against the appellant's deemed refusal of his development application for the subdivision of land. Bignold J decided three separate questions in the appeal. The answers were adverse to the appellant, which appeals to this Court. Its appeal to this Court is limited to questions of law (Land and Environment Court Act, 1979, s 57(1)), but the separate questions are of that nature.

The development application 2 The respondent is the owner of the property 26 Mitchell Road, Strathfield. The property is rectangular in plan, having a width at the road frontage of 15.24 metres and a depth of 73.15 metres. Its area is therefore 1114.81 square metres. The property is zoned Residential 2(a) under the Strathfield Planning Scheme Ordinance ("the Ordinance"). 3 The respondent applied to divide the property into two equal allotments, one the front portion of the property with complete access to the road and the other the rear portion of the property served by a right of way over the front portion. Each allotment would therefore have an area of 557.405 square metres. 4 The development application was accompanied by an objection under State Environmental Planning Policy No 1 - Development Standards ("SEPP No 1").

The Ordinance 5 Clause 22 of the Ordinance, in its Part III, provides - "22. Subject to the provisions of Parts IV, V, VI and VII and to any other special provisions of this Ordinance - (a) a person shall not erect, carry out or use a building or work or use land in any of the Zones specified in Column 1 of the Table to this clause except for the purposes referred to in Column II of such Table without the consent of the responsible authority:

(i) … (ii) for which buildings or works may be erected, carried out or used only with the consent of the responsible authority in each of such zones are respectively shown opposite thereto in Column IV of the Table:

(iii) for which buildings or works may not be erected, carried out or used in each of such zones are respectively shown opposite thereto in Column V of the Table." 6 Column IV of the Table in respect of the zone Residential 2(a) includes "attached dual occupancies which are not subdivided", "detached dual occupancies which are not subdivided" and "single dwellings". It does not include multiple-unit housing, which is however included in column IV of the Table in respect of the zone Residential 2(b). Column V of the table in respect of the same zones reads "Any purpose other than those permitted by Column IV". 7 Clause 24 of the Ordinance, also in its Part III, provides - "24. Subject to the provisions of Part IV and to any other special provisions of this Ordinance - (a) land, included in a zone, whether forming the site of a building or not, shall not be used without the consent of the responsible authority for any purposes for which a building in the same zone may be erected or used only with the consent of the responsible authority;

(b) land, included in a zone, whether forming the site of a building or not, shall not be used for any purpose for which a building in the same zone may not be erected or used." 8 Clause 41 of the Ordinance, in its Part VII and under the heading "Special provisions", provides - "41. (1) The council shall not grant consent to the subdivision of land within Zone No 2(a) or 2(b) which creates allotments intended to be used for the erection of single dwellings, attached or detached dual occupancies, or multiple-unit housing, unless each proposed allotment has an area of not less than 560 square metres and a width at the front building line of not less than 15 metres.

(2) A single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing must not be erected on an allotment of land within Zone No 2(a) or 2(b) which has an area of less than 560 square metres or a width at the front building line of less than 15 metres.

(3) For the purposes of subclause (1) and (2), the area of a battle-axe shaped allotment shall not include the area of the access corridor.

(4) Nothing in this clause shall operate to prohibit the erection of a single dwelling in Zone No 2(a) or 2(b) on an allotment of land that was in existence as a separate allotment of land on the appointed day (21 February 1969)." 9 Clause 43A of the Ordinance provides - "43A. A person shall not subdivide any land without development consent." SEPP No 1 10 SEPP No 1 was made pursuant to s 39 of the Environmental Planning and Assessment Act 1979 ("the Act"), by which the Minister was empowered to recommend to the Governor the making of a State environmental planning policy applying to the State or such part of the State as is described in the policy. Clause 3 states under the heading "Aims, objectives, etc." - "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." 11 By cl 5 of SEPP No 1 it prevails over any inconsistency between it and any other environmental planning instrument whenever made. It therefore overrides the Ordinance. 12 Clauses 6 and 7 of SEPP No 1 provide - "6. Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefore) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection. 7. Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6." 13 Thus a provision of the Ordinance precluding development, if it falls within the description of a development standard, can be overcome, and the appellant can grant consent to the development despite the provision. 14 By cl 2 of SEPP No 1 "development standards" has the meaning ascribed thereto in section 4(1) of the Act. The meaning ascribed should be set out in full - "' 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: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

(b) the proportion or percentage of the area of a site which a building or work may occupy,

(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,

(d) the cubic content or floor space of a building,

(e) the intensity or density of the use of any land, building or work,

(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,

(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,

(h) the volume, nature and type of traffic generated by the development,

(l) the effects of development on patterns of wind, sunlight, daylight or shadows,

(m) the provision of services, facilities and amenities demanded by development,

(n) the emission of pollution and means for its prevention or control or mitigation, and

The separate questions 15 The issues raised by the appellant in the appeal included - "The proposed development is inconsistent with the provisions of clause 41(2), 41A(1), clause 24(b) and the Table of Land Uses under clause 22 of the Strathfield Planning Scheme Ordinance." 16 Bignold J recorded that the respondent did not intend to act upon an existing dual occupancy development consent, to which in any event the proposed subdivision did not relate. Inconsistency with cl 41A(1) of the Ordinance therefore fell away. Inconsistency with the other provisions remained an issue because the two allotments resulting from the subdivision would have areas less than 560 square metres. 17 Apart from questions to do with cl 41A(1), the separate questions as framed by the parties were - "1. Does clause 41(2) of Strathfield Planning Scheme Ordinance lay down absolute prohibitions against the erection of the named buildings on land having either of the specified characteristics within zone number 2(a)?

2. Do the provisions of clause 24(b) and 41(2) when read together, prohibit not only the erection of a single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing but also the use of land, whether forming the site of a building or not, for the purposes of single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing where the area of the allotment of land has an area of less than 560 m2 with zone number 2(a)?

3. If the current subdivision application is approved, will the future use of each of the two allotments of land created by the subdivision be prohibited for the purposes of single dwellings, attached dual occupancy, detached dual occupancies or multiple-unit housing?" 18 The questions were meant to address the appellant's powers, putting aside the merits of the application for subdivision. They went beyond the express provision as to subdivision in cl 41(1) of the Ordinance. 19 This, it may be inferred, was because of the appellant's then view that cl 41(1) did not absolutely prohibit granting consent to subdivision where the proposed allotments would have areas less than 560 square metres, see later in these reasons. Although it was not expressly stated, implicit in the questions was that the respondent intended to use the property, if subdivided, for a single dwelling, attached dual occupancy, detached dual occupancies or multiple-unit housing. The questions addressed the use of the allotments as if there were the subdivision, presumably on the reasoning that consent to subdivision should not be granted if the allotments could not be used for such an intended purpose. The inconsistency asserted, therefore, was at one remove, and the appellant's position was that it had no power to grant consent to the erection of a building in accordance with the respondent's intention or to the use of the allotments for the purposes of any such building, because the allotments would have areas less than 560 square metres. 20 I do not consider the course taken in the appeal to the Land and Environment Court to be satisfactory. The implicit intention is not exhaustive of the purposes for which buildings or works may be erected, carried out or used in the zone Residential 2(a), and the purpose of multiple-unit housing is not permissible at all. Despite the wording of the questions, Bignold J made no reference to that purpose when going to the Ordinance. The answers to the questions do not necessarily determine the fate of the development application. 21 The utility of the separate questions, and the adequacy of their terms, were not doubted in the appeal to this Court, nor was there raised any need for separate attention to multiple-unit housing. In the appeal to this Court the single issue was argued, whether cl 41(2) of the Ordinance is a development standard. I will not pursue my disquiet over the manner in which the issue came to this Court, but will dispose of the appeal accordingly.

Bignold J's answer to Question 1 22 To repeat, the question for separate decision was - "Does clause 41(2) of Strathfield Planning Scheme Ordinance lay down absolute prohibitions against the erection of the named buildings on land having either of the specified characteristics within zone number 2(a)?" 23 Bignold J answered the question - "No. Clause 41(2) of the Strathfield Environmental Plan is a development standard within the meaning of the Environmental Planning and Assessment Act and State Environmental Planning Policy No. 1."

24 The named buildings in the question were intended to be the buildings within the descriptions of a single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing. The specified characteristics in the question were intended to be the area of less than 560 square metres and the width at the front building line of less than 15 metres. 25 Clause 41(2) prohibits the erection of the named buildings on land having either of the specified characteristics. The point of the question, at least in the eyes of the parties when it was framed, lay in the word "absolute". The prohibition was not absolute if cl 41(2) was a development standard, so that by force of SEPP No 1 consent to the erection of one of the named buildings could be granted notwithstanding that the land had one of the specified characteristics. Hence the terms of the answer to the question. 26 Bignold J recorded that the appellant expressly conceded that cl 41(1) of the Ordinance was a development standard. His Honour said that the concession directly reflected the decision of this Court in Bell v Shellharbour Municipal Council (1993) 78 LGERA 429, and that in his opinion it was properly made. 27 His Honour then recorded the appellant's submission "that cl 41(4) provided relief in certain situations against the prohibiting effect of cl 41(2) and its presence (and purpose or function) in the clause excluded the possibility of cl 41(2) being interpreted as a development standard". He continued - "11. I do not find this argument to be persuasive. Indeed, it comes perilously close to (if not perpetuating the same) error that had been made by the trial judge in Bell and which was corrected by the Court of Appeal in its judgment - see at pp 431 - p 432.

12. Applying the same reasoning as is expressed in the judgment of Cripps JA in Bell , I would hold that cl 41(4) of the LEP does not impose any implied limitation or inhibition on the applicability of SEPP No 1. Rather, it provides an alternative solution without the need to resort to the dispensational power available under SEPP No 1.

13. Once the Council's argument based upon the presence of cl 41(4) in the LEP is disposed of, the Council's argument that cl 41(2) is not a development standard (whereas by concession, cl 41(1) is a development standard) appears, with respect, to be bereft of substance. In so concluding, I am unable to discern any substantive difference (notwithstanding some slightly different language) between the prohibitory effect of cl 41(1) and of cl 41(2) of the LEP."

28 His Honour went on to say that, apart from the concession as to cl 41(1) of the Ordinance, he considered that cl 41(1) and cl 41(2) were each a development standard within the meaning of the Act and SEPP No 1, and that he relied on the reasoning found in his decision delivered earlier on the same day in Fencott Drive Pty Ltd v Lake Macquarie City Council (now reported (2000) 110 LGERA 318). He said that although each provision of an environmental planning instrument must be separately construed in order to determine whether or not it is a development standard, there was "really no difference between the two cases as to the type of statutory provision requiring interpretation", and that much, if not all, of the reasoning in Fencott Drive Pty Ltd v Lake Macquarie City Council applied with equal force to lead to the same conclusion in respect of cl 41(2) of the Ordinance. 29 The appellant's concession made below was at first maintained in this Court, but in the course of argument was withdrawn. The respondent did not submit that the appellant should be held to its concession. Accordingly, the appeal should be approached as Bignold J secondly approached it, without commitment to the status of cl 41(1) of the Ordinance as a development standard. It remains necessary, of course, to consider the effect of the reasoning and decision in Bell v Shellharbour Municipal Council. I will come to that case, and to Fencott Drive Pty Ltd v Lake Macquarie City Council, in due course.

Development standards: prohibition v regulation? 30 The defined phrase "development standards" is used in the Act only in s 26(1)(b), by which an environmental planning instrument may make provision for or with respect to "controlling (whether by the imposing of development standards or otherwise) development". A great many other matters are described in the preceding and following paragraphs in s 26(1). Thus it can be said that a development standard is something imposed to control development, but it is necessary to go to the definition to see whether the particular provision controlling development is a development standard or controls development in some other way. 31 It is relevant, however, that "control" is defined in s 4(1) of the Act as meaning, in relation to development or any other act, matter or thing - "(a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or

(b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions."

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.

This point was made with some force by Holland J in Kruf v Warringah Shire Council (15 December 1988, unreported) : 'Flexible though the definition of development standard' in s 4(1) of the Environmental Planning and Assessment Act 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 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.' Subject only to the reservation that there may be difficulties flowing from the inclusion of the words "or under specified conditions" I agree with his Honour's statement."

47 Mahoney JA did not refer to Woollahra Municipal Council v Carr. Clarke JA did, explaining his "understanding of the thrust of McHugh JA's observations" (at 237) - "In Carr the proposed development in question was that of professional consulting rooms which was defined in the relevant intrument to mean a number of rooms, inter alia, 'used or intended for use … by not more than three dentists .. and who employ not more than three employees'. The submission was that the condition restricting the number of employees was a development standard as it specified a requirement in respect of an aspect of that development. The argument was rejected upon the ground that the restriction appeared in the definition of the development which was under consideration. The point being made by his Honour was simply that the provision did not lay down a standard against which the proposed development could be measured but itself formed part of the definition of the development. If, for instance, in the present case, residential flat buildings were defined in the table in cl 9 as meaning residential flat buildings with no more than two storeys no part of that definition could be regarded as a development standard. In this case the Court is not concerned with the definition of residential flat buildings and with the greatest respect to Bignold J the passage in McHugh JA's judgment does not assist in the resolution of the question whether cl 14A(1)(a) lays down a development standard."

48 Later in his reasons his Honour emphasised the need to construe the particular provision in the environmental planning instrument in order to determine whether it laid down a development standard, and said (at 238) that he accepted - " … that the substantial effect of particular prohibitions … may be to impose a requirement but this recognition only serves to focus attention on the prohibition under consideration. On the other hand I agree, as I have already said, with that portion of the judgment of Holland J I have quoted (subject to the qualification I expressed). In my view it expresses with clarity the distinction between a prohibition against the carrying out of a particular development on land and the setting of a standard against which a permitted development may be measured." 49 The provision in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) imposed a criterion in relation to adjoining land, not the land to be developed. It was therefore readily seen as a prohibition on erection of a building on the land to be developed, rather than relating to or a requirement or standard in respect of an aspect of the development. But the reasoning of Mahoney JA and Clarke JA's approval of what Holland J had said in Kruf v Warringah Shire Council have been taken to endorse, in determining whether the definition is satisfied, a distinction between a provision prohibiting carrying out development and a provision stating requirements or standards for carrying out permitted development. 50 The cases deciding whether or not a particular provision is a development standard are legion. In Fencott Drive Pty Ltd v Lake Macquarie City Council Bignold J said (at 330) that many of them resorted to "the dichotomy of 'prohibition v regulation'", and that there were "overwhelming inherent limitations both in the validity and utility of doing so": see later in these reasons. His Honour meant the distinction endorsed in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2), which he described (at 333) as "the high water mark of the influence of the dichotomy". 51 I will return to the dichotomy. But I will first consider a submission by the respondent which, if accepted, would make resort to the dichotomy unnecessary in the present case and in many other cases.

Development standards: the paragraphs in the definition? 52 The argument began that, for the reasons given by Kirby P in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2), a provision imposing a prohibition can be a development standard. Since SEPP No 1 enables a provision prohibiting development to be overcome, a development standard can be regarded as prohibitory, and language or effect of prohibition, even absolute prohibition, does not mean that a provision can not be a development standard. Whether it is a development standard depends on the application of the definition of "development standards". But, the argument continued, there can be no doubt as to the application of the definition if the provision falls within one of the paragraphs (a) to (n) in the definition. A provision falling within one of the paragraphs is a development standard whether or not it is regarded as a prohibition. In the present case, cl 41(2) was a provision in respect of the area and frontage of land, within para (a) of the definition. Without more, the respondent submitted, and even if it is regarded as prohibitory, it satisfies the definition and is a development standard. 53 Despite the commencement of the argument, the respondent did not submit that the distinction endorsed in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) was a false distinction, or that the guidance in that case should be abandoned. The distinction, and the guidance, he said, were of no moment in the present case, whereas the provision in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) did not fall within one of the paragraphs in the definition and so it was necessary to determine in some other way whether or not it was a development standard. The respondent recognised the prospect of the prohibition or regulation dichotomy in circumstances where the prohibition was outside one of the paragraphs, and he denied inconsistency with the approach of the majority in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2). 54 The respondent's submission to this Court was not made to Bignold J. From the terms of question 1, his Honour was asked to categorise cl 41(2) as an absolute prohibition or as something else. As has been seen, he was less than enthusiastic about the dichotomy of prohibition or regulation, but he did not cast it aside: and he was not asked to apply in its place a simple test of satisfaction of one of the paragraphs in the definition. 55 Nor was the submission to be found in the respondent's written submissions in this Court, which did no more than state that Bignold J's reasoning was adopted and add a plea for a purposive approach to the interpretation of cl 41. The respondent's oral submissions in the appeal were confined to the argument just described, and it was acknowledged that the argument that it was sufficient for a provision to be a development standard if it fell within one of the paragraphs in the definition was without direct support in the authorities. 56 A novel argument is not thereby a bad argument. It would be rather remarkable, however, if an uncomplicated solution to distinguishing a development standard from a provision controlling development in some other way had escaped previous notice. Further, I do not think North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) can be distinguished as readily as the respondent suggested: the provision there seen as a prohibition on development by building on land was arguably in respect of the intensity or density of the use of land within para (e) of the definition, even if the measure of intensity or density was a building on adjoining land. 57 In my opinion the respondent's submission is unsound, and should not be accepted. The argument pays inadequate regard to that part of the definition of "development standards" preceding paras (a) to (n). 58 The provision must be a provision "in relation to the carrying out of development". On the reasoning of Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2), a provision falling within one of the paragraphs will not be such a provision if it prohibits development as distinct from regulating it. The provision must also be a provision "by or under which requirements are fixed or standards are fixed in respect of any aspect of that development". The paragraphs describe possible aspects of a development in respect of which requirements or standards may be fixed, but that a provision falls within one of the paragraphs does not mean that it is with respect to an aspect of the development or that it fixes a requirement or standard, and on the reasoning of Clarke JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) the notion of requirements or standards qualifies the paragraphs and must be satisfied. It remains necessary, even if a provision is to do with one of the stated aspects of a development, to consider whether it is in relation to the carrying out of development and whether it fixes requirements or standards in respect of that aspect of the development.

Consideration of the dichotomy 59 The appellant adopted the distinction stated by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) whereby two different kinds of provision can be identified. One kind of provision is in the form, "On land of characteristic X development may be carried out in a particular way or to a particular extent", categorised as a development standard. The other kind of provision is in the form, "On land of characteristic X no development may be carried out", categorised as not a development standard. Although Clarke JA's reasoning was not the same as that of Mahoney JA, his Honour's expression of a distinction 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 is in substance to the same effect. 60 The appellant illustrated each kind of provision, and it is useful to go to the illustrations in order better to understand the distinction and its application. 61 Cited as illustrations of the first kind of provision were the provisions held to be development standards in Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114, Scott Revay & Unn v Warringah Council (1995) 88 LGERA 1, Bell v Shellharbour Municipal Council and Bowen v Willoughby City Council (2000) 108 LGERA 149. 62 In Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council the provision was in the terms that, other than in limited circumstances, "a building shall not be erected between a foreshore building line and foreshore to which that line relates". The applicant wished to erect a dwelling-house partly between the foreshore building line and the foreshore. The limited circumstances did not apply. In holding that the provision was a development standard, Cripps CJ said (at 118-9) - "In the present case, as I have said, the erection of a dwelling house is permissible in the zoning tables over the whole of the land except that that which is permitted (that is, a dwelling house) may not, subject to certain exceptions, be erected over part of the land. It would seem to me, in the absence of any authority to the contrary, that the fixing of a building line as a special provision in a planning ordinance would be relevantly a development standard and one being 'in respect of an aspect of the development' viz the siting of a permissible building on the land."

63 His Honour distinguished Kruf v Warringah Shire Council on the ground that the "prohibition" in that case extended to the whole of the land the subject of the application, whereas in the instant case the "prohibition" applied only to that part of the land on its foreshore side. He said that the use of the word "prohibition" caused difficulty, that in Kruf v Warringah Shire Council motels were not absolutely prohibited but were permitted subject inter alia to access, and that cl 28A in that case was in his opinion relevantly a "requirement specified or standard fixed in respect of that development". 64 Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council was decided prior to North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2), and was one of the cases noted by Kirby P in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) as declining to follow the reasoning of Holland J. Mahoney JA did not refer to it in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2). Clarke JA expressed the "tentative view" at (238) that Cripps CJ was correct, and that the provision did not prohibit the erection of a building on the land but simply laid down a requirement that it be sited in a particular part of the land. This was followed by his Honour's acceptance that the substantial effect of particular prohibitions may be to impose a requirement and the repeated approval what Holland J had said in Kruf v Warringah Shire Council, as set out earlier in these reasons. 65 In Scott Revay & Unn v Warringah Council cl 21(1) provided that a residential flat building "may be erected on land within [particular zones] only in an area edged heavy black with the notation '2' or '3' on the Flat Map"; cll 21(2) and 21(3) provided that residential flat buildings erected in the areas "shall not have more than two storeys' (cl 21(2) for area 2) and "shall not have more than three storeys" (cl 21(3) for area 3). The issue was whether cl 21(3) was a development standard. 66 Pearlman CJ posed as the question (at 3-4) whether cl 21(3) went to the permissibility of the development at all or whether it laid down requirements or standards against which the carrying out of the development was to be measured. Her Honour reasoned that development for the purpose of a residential flat building within the relevant zone was prohibited "unless for the purpose of that class of residential flat building which is permitted by cl 21" (at 5, referring to the zoning table); that the class of residential flat building so permitted was found in cl 21(1) (at 6); and that cl 21(3) then specified a requirement or standard in respect of an aspect of a particular development, namely one erected in area 3. Her Honour said (at 6) - "When subcl (3) comes into operation, the permissibility of development for the purpose of residential flat buildings is already established by subcl (1). Subcl (3) operates only to set a requirement that a residential flat building (of the class described by the adjectival words) shall not have more than three storeys. Subclause (3) thus sets out a requirement which goes to the particular way in which or the particular extent to which that development may be carried out (see Mahoney JA in Mayoh at 234)." 67 Because it was said to be of particular significance to the present case, I should go to Bell v Shellharbour Municipal Council in a little more detail. 68 In that case cl 15(1) provided that, except as provided by cl 16(4), a person should not without the consent of the council subdivide land to which the plan applied. Clause 16(1) stated that cl 16 applied to land in particular zones. Clauses 16(2) and (3) provided - "(2) The council shall not consent to the subdivision of land to which this clause applies unless each allotment of land to be created by the subdivision will have - (a) an area of not less than 40 hectares; and (b) where the allotment has frontage to a main road -- a frontage of not less than 200 metres. (3) Notwithstanding subclause (2), the council may consent to the subdivision of land to which this clause applies to create an allotment with an area of less than 40 hectares if the council is satisfied that - (a) the allotment is intended to be used for a purpose (other than agriculture or a dwelling-house) for which it may be used without or only with the consent of the council under this plan; and

(b) where the allotment will have frontage to a main road or an arterial road, the frontage will be not less than 200 metres."

69 The landowners applied for consent to divide land to which cl 16 applied into two allotments, each of which would have an area less than 40 hectares and one of which would have a frontage to a main road of less than 200 metres. The application was accompanied by a SEPP No 1 objection. 70 Cripps JA, with whose reasons Mahoney and Clarke JJA agreed, said (at 431) - "Before the Land and Environment Court and this Court on appeal, the Council conceded that cl 16(2)(a) and cl 16(2)(b) were relevantly "development standards" within the meaning of the Environmental Planning and Assessment Act 1979 . The Council's concession was, in my opinion, correctly made. Clause 16(2)(a) and cl 16(2)(b) were, clearly enough, provisions specifying requirements or fixing standards in respect of an aspect of the proposed development. However, the Council contended before Talbot J and maintained before us that cl 16(3) was a provision the effect of which was to wholly prohibit subdivision of land into lots less than 40 hectares and having frontages of less than 200 metres."

71 His Honour said (at 432) that cl 16(3) did not wholly prohibit subdivision, but qualified the operation of cl 16(2); accordingly, whether it was a development standard did not arise. This appears to be the correction of error which Bignold J in the present case said was possibly perpetuated by the appellant's reliance on cl 41(4) of the Ordinance. I am not sure that his Honour's comment correctly characterised the appellant's argument, but the argument was not put in this Court. 72 Noting (also at 432) that in the course of argument there had been reference to a number of decisions "dealing with certain clauses in planning instruments and the amenability of those clauses to the dispensing power in State Environmental Planning Policy No 1", which cases were named, Cripps JA then said (at 433) - "I trust I do no disservice to the arguments presented when I say it is unnecessary in this appeal to deal with these cases. There is, self-evidently, a difference between a clause absolutely prohibiting development on the one hand and a clause regulating development by specifying requirements or fixing standards on the other. Whether a particular clause in a local environmental planning instrument has the effect of regulating or prohibiting development is a matter of construction. In some of the cases the Court has held that the relevant clause was an absolute prohibition - in others it was held that the clause was regulatory. But, as was pointed out in Mayoh , the obligation of the Court is to interpret the clause in the instrument before it." 73 Affirming his opinion that the standards referred to in cl 16(2)(a) and cl 16(2)(b) were amenable to the dispensing power in SEPP No 1, his Honour considered whether it was appropriate for the Court to act on the trial judge's view that, if there were power to do so, dispensation should be granted, and concluded that it was. An order granting consent was made. 74 As noted earlier in these reasons, the appellant initially conceded that cl 41(1) of the Ordinance was a development standard, but withdrew the concession in the course of argument. The initial concession was thought to be required by the view taken of cl 16(2) in Bell v Shellharbour Municipal Council and given effect in the decision in that case. Putting aside any question of the authority of a concession, even one said by the court to be correct and acted on in the order made, I do not think that it was. The status of a provision depends on its interpretation in the relevant environmental planning instrument. Clause 41(1) of the Ordinance must be read as part of an entire provision, and particularly together with cl 41(2). There was no equivalent to cl 41(2) in the provision in question in Bell v Shellharbour Municipal Council. 75 The point may be amplified in this way. In his first line of reasoning in the present case Bignold J took cl 41(1) as a development standard, was unable relevantly to distinguish cl 41(2) from it, and so concluded that cl 41(2) was a development standard. It could equally have been reasoned that cl 41(2) was not a development standard, that cl 41(1) could not relevantly be distinguished from it, and so that cl 41(1) was not a development standard. That is not to say that Bell v Shellharbour Municipal Council is to be ignored, but the categorisation of cl 16(2) in that case can not automatically be transposed to cl 41(1) of the Ordinance. 76 The relevant provision in Bowen v Willoughby City Council, cl 16(3), was to the same effect as that in Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council. Again, by other provisions generally development for the purpose of a dwelling house was permissible with consent. The applicant wished to re-subdivide in such manner that three allotments would be between the foreshore building line and the foreshore. In a manner not clearly explained the power to subdivide was linked to the power to build an accessway partly on the landward side and partly on the seaward side of the foreshore building line. Bignold J said (at [35]) that the parties' submissions had properly focussed on whether the terms of cl 16(3) "have the effect of absolutely prohibiting the proposed subdivision … or whether they regulate by imposing requirements or fixing standards in respect of development that may be carried out", but went on to say (at [36]) that, more narrowly focussed, the issue was whether cl 16(3) operated or functioned as a development standard within the meaning of the Act and SEPP No 1. 77 The applicant relied on Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council. The council distinguished it, arguing that cl 16(3) was prohibitory because about half the accessway would be built between the foreshore building line and the foreshore. After discussion in particular of Bell v Shellharbour Municipal Council and reference (at [70]) to the "conventional dichotomy of 'prohibiting' and 'regulating' controls on development", Bignold J said (at [71-72]) - " 71. In my opinion, cl 16 of the LEP (i) in fixing the FBL and (ii) in prohibiting the erection of a building (save for immaterial exceptions) on the foreshore side of the FBL, is relevantly a development standard in that (i) it is a provision of an environmental planning instrument in relation to the carrying out of development, and (ii) which specifies a requirement or fixes a standard in respect of an aspect of that development. 72. To elaborate upon, and to contextualise this conclusion, it is to be noted that the relevant development is the subdivision of the development site, being a development that is permissible with consent (vide cl (11)) where that development provides an internal accessway servicing the three rear lots which accessway is partly located on the landward side of the FBL and partly located in the foreshore side of the FBL. Properly construed, the FBL specifies a requirement in relation to that development, (namely by requiring any building to be located on the landward side of the FBL) which requirement is relevantly a requirement in respect of (a) the distance of any building from any specified point; (b) the proportion of the area of the site which a building may occupy; (c) the location and siting of a building or work - as these several expressions appear in the enumerated matter in the definition of 'development standards' in the EP&A Act s 4."

78 Cited as illustrations of the second kind of provision were North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) and Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95. I have already referred to North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2). The provision in Healesville Holdings Pty Ltd v Pittwater Council was said to be analogous to cl 41(2) of the Ordinance in the present case. 79 In Healesville Holdings Pty Ltd v Pittwater Council the environmental planning instrument first prohibited the erection of dwelling houses on land in the relevant zone, but by cl 17(2)(a) then gave power to consent to the erection and use of a dwelling house on an allotment within the zone inter alia where the allotment "was created by a subdivision which was not prohibited under clause 12". Clause 12(2) provided - "(2). A person shall not subdivide land within a Zone specified in column I C of the Table to this clause unless the area of each allotment to be created by the subdivision within the Zone will be not less than the area specified opposite that Zone in column II of that Table".

80 It was proposed to subdivide land into allotments with less than the specified area, with a view to erecting dwelling houses on the allotments. In the course of an appeal against the council's refusal of the application for subdivision it was thought necessary to decide whether the dwelling houses could be erected. The applicant for development argued that the minimum area prescribed in cl 12(2) was a development standard, that by force of SEPP No 1 allotments could be created with less than the specified area, and that the prohibition on erection of dwelling houses therefore did not apply because the subdivision was not prohibited under cl 12. 81 It was held that the fact that cl 12(2) could be overcome by force of SEPP No 1 would not mean that the subdivision was not prohibited under cl 12. That SEPP No 1 provided a means whereby cl 12(2) could be overcome did not make it any less a prohibition for the purposes of cl 17(2)(a). Whether the prescription of the minimum area in cl 12(2) was a development standard was not decided. 82 If cl 17(2)(a) had itself been a development standard, the applicant might have had another route to development consent. However, Priestley JA recorded (at 102) that "[i]t was agreed by counsel for the appellant, in my opinion correctly, that par (a) does not itself import a development standard and is not thus directly subject to the possibilities of a SEPP No 1 objection". Powell and Stein JJA agreed generally with Priestley JA, with further observations not material to this acceptance of the status of cl 17(2)(a). 83 Again putting aside any question of the authority of a concession accepted by the court, it can be seen that the relevant provision in Healesville Holdings Pty Ltd v Pittwater Council was not analogous to cl 41(2) of the Ordinance. The judicial observation was concerned with cl 17(2)(a), not with cl 12(2). In the absence of relevant reasons, the illustration is of limited use. 84 The appellant suggested that the distinction between the two kinds of provision could be seen in variations on the facts in Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council and Bowen v Willoughby City Council and in a further decision. If a provision of the kind in those cases specified that only certain kinds of buildings or works could be erected on the land affected by the foreshore building line, it said, buildings or works not of the specified kind would be prohibited and the provision would not be a development standard. McKay v North Sydney Council (2000) 107 LGERA 203 at 209 was cited. Again, if the land on which the buildings or works were to be erected was not traversed by the foreshore building line, but instead was wholly on the foreshore side of that line, there would be no part of the land upon which the buildings or works could be erected and the provision would not be a development standard. Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, it was said, distinguished Kruf v Warringah Shire Council on this ground (at 119) and Bowen v Willoughby City Council distinguished McKay v North Sydney Council on a similar ground (at [57]). 85 In the present case, apart from the concession as to cl 41(1) of the Ordinance, Bignold J concluded that cl 41(2) is a development standard in reliance on his reasoning in Fencott Drive Pty Ltd v Lake Macquarie City Council. It is appropriate at this point to go to what his Honour said in that case. 86 Two provisions were in question, both part of cl 13. According to cl 13(2)(a), a person "shall not erect a dwelling-house" on an allotment of land within certain zones unless the allotment has a minimum area, the area depending upon the zone. According to cl 13(3)(a), a person "may, but only with the consent of the Council erect a dwelling house" on an allotment of land within certain zones having a certain minimum area. Both provisions were held to be development standards. 87 Bignold J recorded the competing arguments, and said that there had been an analysis of many decided cases in the area of the law; he noted some of the cases. The applicant's argument was to the effect that the provisions did not say that there should be no development for the purposes of a dwelling-house, but rather that there may be such development if it complied with a requirement or standard, namely a requirement or standard in respect of the area of any land and arguably the intensity or density of the use of any land. These phrases were clearly enough taken from paras (a) and (e) in the definition of "development standards" in the Act. The council's argument was to the effect that the provisions and other provisions in cl 13 contained prohibitions on development by way of pre-conditions or facts which must be established before the power to grant consent can be exercised. 88 His Honour said (at 328) - "51. If the question were to be determined without reference to the decided cases, I would have no hesitation in holding as a matter of construction that both cl 13(2)(a) and cl 13(3)(a) of the LEP is relevantly a " development standard " in that each is - (i.) a provision of an environmental planning instrument (namely the LEP);

(ii.) in relation to the carrying out of a permissible purpose of development (namely a dwelling-house on land within Zone No 1(a));

(iii.) by which requirements are specified or standards are fixed in respect of an aspect of that development (namely " the area of the land " upon which a dwelling-house may be erected). 52. In so construing, cl 13(2)(a) and cl 13(3)(a) of the LEP, I would respectfully adopt the construction contended by the Applicant in preference to that contended by the Council. With respect, I am wholly unpersuaded by the Council's " condition precedent " argument. In so concluding, I do not think it necessary to separately consider subclause (2) and (3) since they are clearly intended to operate in a mutually complementary manner." 89 His Honour explained his conclusion by reference to cl 10, which permitted erection of dwelling houses with consent. From this he saw cl 13 as operating not by prohibiting what cl 10 permitted, but rather in a complementary manner by specifying required minimum areas. His Honour went on (at 329-30) - "55. It is important to note the nature and function in the scheme of the EP&A Act of a ' requirement ' specified, or a 'standa rd' fixed, by a development standard.

Firstly, the ' imposition' of a development standard in an environmental planning instrument is a means of 'controlling development' : s 26(1)(b) where the Act defines in a very comprehensive manner the terms 'control' and 'development ' (s 4(1)).

But for the existence of the dispensational power conferred by SEPP No 1, any such 'requirement' specified or 'standard' fixed, must be obeyed - vide: s 76(1), 76A(1) and s 122 - s 125 (inclusive)-not only by all persons wishing to carry out development, but by consent authorities in determining any development application to carry out development.

The dispensational power conferred by SEPP No 1, applies in terms (vide cl 6) to cases 'where development could, but for any development standard, be carried out under the Act' and where the dispensational power is exercised, it empowers the grant of development consent 'notwithstanding the development standard '. It is thus clear beyond argument, that a development standard which is not relaxed by dispensation granted under SEPP No 1, prohibits the carrying out of development.

It is also to be noted, the SEPP No 1 'prevails over any inconsistency between it and any other environmental planning instrument whenever made': vide cl 5. This can only mean that a development standard in force under an environmental planning instrument would prohibit the carrying out of the development, but for the operation of SEPP No 1, which prevails in the case of inconsistency with other planning instruments.

Having regard to the nature and function of a development standard, (and more particularly the nature and function of the ' requirements ' specified, or the ' standards ' fixed, by a development standard), it may readily be appreciated that there are overwhelming inherent limitations both in the validity and utility of resorting (as do many of the decided cases) to the dichotomy of ' prohibition v regulation ' in the task of determining, as a matter of construction, whether or not a particular provision of an environmental planning instrument is a development standard.

This is a crucial matter to appreciate in the task of construction … ".

90 His Honour then asked himself whether what he had said was consistent with the cases. He considered that it was supported by the decision in Bell v Shellharbour Municipal Council, and repeated (at 332-3) the analysis of that case which he had made in Bowen v Willoughby City Council. The analysis included, after citing from the reasons of Cripps JA and setting out the relevant provisions - "Applying those provisions to the relevant facts of the case, it would be an unexceptional deduction to say that the proposed subdivision was prohibited development because each of the lots proposed to be created contained an area far less than the prescribed minimum area. Indeed logically it could be deduced, again unexceptionally, that the relevant land was legally incapable of subdivision for the intended purposes because it simply lacked the requisite area to be subdivided in accordance with the relevant statutory provisions.

Nonetheless, the Court held that the statutory provisions relevantly constituted development standards because cl 16(2) contained provisions `specifying requirements or fixing standards in respect of an aspect of the proposed development': at 431.

Bell , in my respectful opinion, sounds an important cautionary note against an oversimplistic or excessive reliance in this field of jurisprudence, upon the dichotomy of prohibition' and regulation' as providing the interpretive solvent to whether a particular statutory provision is, or is not, relevantly a development standard.

Although the later decision of the Court of Appeal in Healesville appears to have adopted a more cautious approach as to whether a very similar statutory provision (albeit in an urban setting) operated as a development standard (inasmuch as Priestley JA who gave the leading judgment considered it unnecessary to consider whether the concession that a development standard was involved, was well founded) the Court's attention does not appear to have been directed to the decision in Bell . Rather, the argument directed attention to the earlier decisions in Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86 and P D Mayoh .

However, in the still later decision of the Court of Appeal in Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 where the relevant statutory provisions and relevant facts were not materially different from those in Bell , the Court of Appeal proceeded on the basis that the statutory provision was relevantly a development standard amenable to the dispensational power conferred by SEPP No 1.

It is not necessary in the present case to completely explore the ramifications of the Court of Appeal's decision in Bell for the conventional dichotomy of prohibiting and regulating controls on development other than to make two observations. Firstly, it appears too late in the day to say that the dichotomy serves no useful purpose. Clearly, it is an apt descriptor of the interpretive result in cases as to whether provisions are or are not, development standards. Secondly, that a development standard may involve prohibition was recognised as long ago as 1985 when Carr was decided: see at 269 per McHugh JA (as he then was). Even in P D Mayoh , which appears to be the high water mark of the influence of the dichotomy, Clarke JA recognised at 238 that the `substantial effect of particular prohibitions ... may be to impose a requirement' (constituting a development standard)." 91 His Honour concluded (at 333) - "In the present case, I have delved more deeply into the questionable utility of recourse to the 'prohibition v regulation' dichotomy, but only to the extent necessary to resolve the present question of statutory construction, being satisfied that in so doing, my reasoning is entirely supported by the decision in Bell . It may be that the present case is, in any event, entirely answered by application of the decision in Bell . If so, then I have travelled further than needed, in deference to the detailed submissions advanced by the council and for the purpose of fully explaining my approach to construing cl 13 of the LEP." 92 With respect, it is not entirely clear what reasoning in Fencott Drive Pty Ltd v Lake Macquarie City Council led Bignold J to his conclusion in the present case. He did not identify the equivalent provision to cl 10 in Fencott Drive Pty Ltd v Lake Macquarie City Council by which development was permitted which was then regulated by requirements or standards fixed by cl 41(2). The respondent, although adopting his Honour's reasoning, did not offer enlightenment. 93 I do not think it profitable to go to further decided cases, which will only reveal how a provision has been categorised in the interpretation of the particular environmental planning instrument. It is evident that a process of construction to find regulation on the one hand or prohibition on the other hand will bring finely divided decisions. Care must be taken lest form govern rather than substance. A provision in the form, "A building may be erected on land in a particular zone if the land has an area greater than a particular area" appears regulatory, whereas a provision in the form, "A building must not be erected on land if the land has an area less than a particular area" appears prohibitory, but the substance is the same. 94 As was done in, for example, Fencott Drive Pty Ltd v Lake Macquarie City Council, the provision must be seen as part of the environmental planning instrument as a whole. Regulation or prohibition may depend on the governing characteristic perceived in the provision. In the second form of provision just set out, if the characteristic is land in the particular zone the area requirement may be seen as stating a permissible way or extent of development, but if the characteristic is land with the particular area no development may be carried out. I do not find the so-called dichotomy, or its expression in the two different kinds of provision, either clear or providing ready answers. 95 There must be found a distinction between a provision which is a development standard and a provision which controls development in some other way, and the guidance of the dichotomy in providing a conceptual basis for the distinction must be acknowledged. But neither the dichotomy itself nor its expression in the two different kinds of provision can replace the definition in the Act. 96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step. 97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr, to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of 'development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development. 98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard. 99 In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of "development standards" in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances. Healesville Holding Pty Ltd v Pittwater Council must be explained in a similar way. The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed - siting of the building (Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council), number of storeys of the building (Scott Revay & Unn v Warringah Council), minimum subdivisible area (Bell v Shellharbour Municipal Council).

Clause 41(2) at last 100 The development in question in the present case is, or at least on the basis on which the separate questions were put forward must be taken to have been, the erection of a building on the Residential 2(a) land for the purpose of a single dwelling, an attached dual occupancy, detached dual occupancies or multiple-unit housing. 101 So far as cl 41(2) is concerned with multiple-unit housing, the effect of cl 22(b)(ii) is that a building may not be erected on Residential 2(a) land for that purpose at all. There is no development in respect of an aspect of which it specifies a requirement or fixes a standard, and to that extent cl 41(2) is not a development standard. 102 So far as cl 41(2) is concerned with a single dwelling or with the dual occupancies, erection of a building on Residential 2(a) land for those purposes is generally permissible with consent (cl 22(b)(ii)). Clause 41(2) then provides that consent shall not be given unless the land has an area not less than 560 square metres. Reading the provision as part of the Ordinance as a whole, this is not a prohibition on the erection of a building for the stated purposes on Residential 2(a) land in any circumstances. It is prohibitory so far as it precludes development in particular cases, but not prohibitory of development by erection of a building for the stated purposes on Residential 2(a) land. The development is permissible in the circumstances (negatively) expressed in cl 41(2). 103 Does cl 41(2) specify a requirement or fix a standard in respect of an aspect of the development? In my opinion it does. On one view the area of the land on which the building is to be erected is not an aspect of the development. The size, height, distance from boundaries and so on of the building are aspects of the development, but it matters not to the development whether the building is to be erected on a small or large parcel of land. On a wider view, the aspects of the development include the size of the parcel on which the building is to be erected, and both independently and because para (a) of the definition of "development standards" includes area and dimensions of land I consider that to be correct. The opinion expressed in Bell v Shellharbour Municipal Council, although on a different worded provision and not elaborated, is consistent with this.

Questions 2 and 3 104 To repeat, the questions were - "2. Do the provisions of clause 24(b) and 41(2) when read together, prohibit not only the erection of a single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing but also the use of land, whether forming the site of a building or not, for the purposes of single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing where the area of the allotment of land has an area of less than 560 m2 within zone number 2(a)? 3. If the current subdivision application is approved, will the future use of each of the two allotments of land created by the subdivision be prohibited for the purposes of single dwellings, attached dual occupancy, detached dual occupancies or multiple-unit housing?" 105 Bignold J answered both questions No. His Honour said, as to question 2 by concession and as to question 3 because it was "integrally related" to the answers to questions 1 and 2, that the answers followed from his answer to question 1. 106 No argument as to these questions was presented in the appeal in this Court. As I have said, the single issue was argued, whether cl 41(2) of the Ordinance is a development standard. I take the appellant to accept that, if the answer to question 1 remains, the other answers also remain.

Disposal of the appeal 107 Bignold J's answer to question 1 turned on whether cl 41(2) of the Ordinance was a development standard. Save so far as they are concerned with multiple-unit housing, his Honour's answers to the separate questions remain. Variation to his Honour's answers is necessary, but the appellant did not put a separate argument in relation to multiple-unit housing and gains no costs benefit. 108 I propose the following orders -

1. Appeal allowed in part.
2. Vary the answers given by Bignold J - (a) by adding at the commencement of the answers to each of question 1 and question 2, "Save as to the erection of multiple-unit housing,"; and (b) by adding at the commencement of the answer to question 3, "Save as to use for multiple-unit housing,".

4. Appellant to pay the respondent's costs of the appeal.

109 HEYDON JA: I agree with Giles JA. 110 YOUNG CJ in Eq: I have read in draft the judgment of Giles JA and agree with it. However, I feel I should add some comments of my own. These comments came to mind as the court both during oral argument and subsequently trawled through a host of reported decided cases on very similar problems which produced diverse results. 111 My comments fall into two areas: (A) The practice of isolating separate questions in the Land and Environment Court; and (B) What is a development standard as opposed to an absolute prohibition on development. 112 As to the first matter, almost all superior courts are enabled to isolate separate questions of law and fact for decision prior to (or even after) trial of the proceedings generally. However, that power needs to be exercised with care. Very often isolating a separate set of questions actually increases the costs. There are several reasons for this. First, people get lulled into a false sense of security that they are only looking at the cost of a short hearing rather than a three day final hearing. However, by the time one takes into account the extra work considering the impact the answers have on the proceedings, engrossing and serving orders, applications for leave to appeal and the appeal itself, the bill for legal costs may be higher. Secondly, the parties cease to focus on the main issues, and, more importantly, resolving those main issues, whilst their lawyers have an intellectually satisfying debate on some arcane point. 113 The received law is that separate questions should only be posed when there is a critical matter which if dealt with in a preliminary hearing will far more likely than not be convenient and save significant expense. 114 The question as to whether there should be separate questions is, of course, a matter of discretion for each judge. However, the reported cases to which we were referred during the hearing disclose a general pattern of too free a use of the separate question procedure. 115 In discussion of the second matter, I will employ the same abbreviations as does Giles JA in his reasons. 116 SEPP No. 1 (clause 4) provides that "development standards" has the meaning ascribed thereto in section 4(1) of the Act. The Act defines "development standards" as: "... provisions of an environmental planning instrument 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 (a specified list of particular items as set out in the judgment of Giles JA)." 117 The term "standard" is well known to the law. In Herald-Sun TV Proprietary Limited v Australian Broadcasting Tribunal (1985) 156 CLR 1, 4, the High Court approved the definition in the Shorter Oxford Dictionary, viz: "A definite level of excellence, attainment, wealth, or the like, or a definite degree of any quality, viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose." 118 In that case the High Court said, in relation to television programs that a standard fixed the quality or nature of the program in such a way as the licensee and a court could determine whether the program answered the criteria set by the standard. There is also useful discussion of the term in the Federal Court in the same case see (1984) 2 FCR 24 and (1984) 57 ALR 309.

119 Section 4(1) of the Act provides consent authorities with the power to determine standards or requirements to be observed in the carrying out of development. As Mahoney JA pointed out in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 ("Mayoh"), the phrase "requirements are specified or standards are fixed" supports the view that the definition relates to the detail of a development to be carried out or the standards to be observed in the carrying out of it, not whether the development may be carried out at all. Additionally, the matters provided by way of example in paras (a) to (n) illustrate that the definition deals with the detail of a development to be carried out or the standards to be observed in the carrying out of that development.

120 Mayoh concerned the question of whether a provision (Cl 14A(1)(a)) in the North Sydney Environmental Plan 1989 was a development standard. The Court said that it was not. Mahoney JA said at p 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'." 121 Clarke JA said something very similar at p 236: "The point is reinforced by the fact that cl 14A(1) 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 the carrying out of that development." 122 Mahoney JA construed the definition "development standard" in s 4 of the Act. He identified three things [at 232, 233]: "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 all. And, thirdly, the matter detailed in subpars (a) to (n) of the definition, in so far as a pattern 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 a flat building which is to be erected on the land and 'the distance of' relevant things from any specified point."

123 Thus, the task of the Court, as Mahoney JA said in Mayoh at p 233, is to discern the intention of the instrument, which is to be derived from the words which have been used and the meaning of them in their context. 124 That task is not an easy one as appears from the number of times in which there has been a reported dispute. The difficulty has been exacerbated by what Meagher JA described in Egan v Hawkesbury CC (1993) 79 LGERA 321, 330 as instruments " drafted in specialised bureaucratic jargon to whose authors neither logic nor clarity has urgent attention." Obscure drafting is, of course, not the only reason for long and expensive process in this area of the law, but it is certainly a factor in the overall problems. Of course, drafting of such instruments is a difficult matter since, as Giles JA points out, mere form of drafting will not necessarily disclose whether a provision is a development standard. 125 The analysis of Giles JA sets out the true and workable approach to these problems. 126 The dichotomy between a development standard and an absolute prohibition provides a valuable guideline as long as it is remembered that a development standard may contain expressly or impliedly some sort of prohibition. However the sort of prohibition involved is a prohibition on the extent of development, not a prohibition as to whether development is possible at all. 127 This point is made clear by some of the late 19th and early 20th century cases on the by-law making power of local and statutory authorities. Depending on the words of grant of power, the cases drew a stark distinction between giving power to a statutory body to regulate a trade and a power to prohibit. Thus a by-law excluding chapmen from the busiest streets in Toronto was held to be a prohibition and outside a power to regulate chapmen; see Toronto MC v Virgo [1896] AC 88. A power to regulate ordinarily does not permit prohibition subject to a discretionary power to licence or permit; see eg Swan Hill SC v Bradbury (1937) 56 CLR 746. These cases show the primal dichotomy. 128 However, it was always recognized under this line of case that to an extent, the power to regulate enabled the authority to impose some prohibitions. Thus, had the council in Virgo merely prohibited, for instance, trade outside the main railway station, the by-law may have survived. 129 Thus, Isaacs J said in Tungamah SC v Merrett (1912) 15 CLR 407, "Regulation may include prohibition. It depends on what is to be regulated. The regulation of subject matter involves the continued existence of that subject matter, but is not inconsistent with an entire prohibition of some of its occasional incidents." Again, as Smith J said in Kerridge v Girling-Butcher [1933] NZLR 646, 690, "No doubt a certain power of prohibition is implied in the power to regulate and control. That depends upon what is to be regulated." 130 The prime illustration is probably Slattery v Naylor (1888) 13 App Cas 446 where the Privy Council unsurprisingly held that the decision of the Newtown Court of Petty Sessions and this Court that a by-law regulating burials was valid insofar as it forbad burials within a hundred yards of buildings. See also the Swan Hill case at p 762 per Dixon J. 131 Thus the distinction between a development standard and a prohibition as a matter of law is clear. The application of the distinction to any particular planning instrument might be difficult. However, the reporting and citation of myriads of cases in which courts have construed particular instruments obscures rather than illuminates the principle. Most of the cases have been referred to in the judgment of Giles JA to which I might add the recently reported decision of McEwen AJ in Turnbull Group Pty Ltd v Hornsby SC (2001) 115 LGRA 108. 132 In the instant case, I agree with the other members of the Court that Bignold J correctly classified the provision in question. 133 Finally, I might be permitted to note my concern, not only in this appeal, but also in others that the environment law is getting far too technical and expensive. The arguments presented are often chocked full of sophistry. This is quite against the public interest. Councils should be able to use their scarce resources on roads and services rather than on administration and legal fees. Members of the public seeking to protect the environment through the courts are also entitled to a speedy and cheap resolution on the merits. People should be able to improve our society by development without having to face unexpected delays and bills for legal costs and holding charges while the stately saraband of the law takes its course. 134 Accordingly, I agree with the orders proposed by Giles JA.

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