TABLE OF CONTENTS
Introduction
The relevant State Environmental Planning Policy provisions
The Precinct Plan
The Affordable Rental Housing SEPP
The conflict between the SEPPs
The paramountcy provisions
Resolution of the conflict
Introduction
The relevant chronology
The making of cl 4.1AC of the Growth Centres SEPP
General
Introduction
A hierarchy of instruments
Timing
Matters of specificity
Consideration
Two matters to be set aside
Two decisive factors
The potential for dispensation from compliance with the development standard
Orders
[2]
Introduction
On 10 August 2018, Universal Property Group Pty Ltd (the Company) applied to Blacktown City Council (the Council) to build a dwelling and a secondary dwelling on an allotment at 17 Lennox Street, The Ponds (the site). The site has an area of 250 square metres.
For the purposes of the application to the Council, the Company relied, for the proposed development's permissibility, on cl 22(4)(a) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Affordable Rental Housing SEPP). This provision is in the following terms:
22 Development may be carried out with consent
(1) Development to which this Division applies may be carried out with consent.
(2) …
(3) …
(4) A consent authority must not refuse consent to development to which this Division applies on either of the following grounds:
(a) site area
if:
(i) the secondary dwelling is located within, or is attached to, the principal dwelling, or
(ii) ….,
(b) …
(5) …
In this instance, the secondary dwelling is proposed to be within the structure of the principal dwelling.
By the effluxion of time, the Council was deemed to have refused the Company's development application and, on 5 December 2018, the Company lodged a Class 1 appeal with the Court. As is customary in such proceedings, the Council prepared a Statement of Facts and Contentions (SOFAC) to support its view that the proposed development should be refused consent. The SOFAC gave three reasons why the Council held the opinion that the proposed development should not be permitted.
The first of those contentions, described below in a little more detail, pressed the impermissibility of the proposed development because of the breach (in the Council's view) of a mandatory development standard. The Council pleaded this barrier in circumstances where, as later discussed, no request had been made by the Company for dispensation from compliance with the pleaded standard.
The second and third contentions raised what can be described, at a level of generality, as town planning merit issues.
Before returning to the first of the Council's contentions, it is appropriate to interpose that, through the joint expert conferencing process involving Mr Grech, the Company's town planner, and Mr Apps, the Council's town planner, these two planning merit issues were resolved, a position reflected in their Joint Expert Report (Exhibit A).
The remaining contention pressed by the Council arises from a provision in Appendix 4 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP). Appendix 4 to the Growth Centres SEPP is the Alex Avenue and Riverstone Precinct Plan 2010 (the Precinct Plan). The Precinct Plan is modelled on the Standard Instrument Template (the Template).
[3]
The relevant State Environmental Planning Policy provisions
[4]
The Precinct Plan
The Precinct Plan contains an express provision that imposes controls on secondary dwellings (including secondary dwelling proposals of the type for which the Company had applied to the Council for consent). This provision of the Precinct Plan is contained in cl 4.1AC, a provision in the following terms:
4.1AC Minimum lot sizes for secondary dwellings in Zone R2 Low Density Residential and Zone R3 Medium Density Residential
(1) This clause applies to land in the following zones:
(a) Zone R2 Low Density Residential,
(a) Zone R3 Medium Density Residential.
(2) The minimum lot size for a secondary dwelling on land in Zone R2 Low Density Residential is 450m2.
(3) …
[5]
The Affordable Rental Housing SEPP
I have earlier set out the terms of cl 22(4)(a) of the Affordable Rental Housing SEPP. As a consequence of the proposed secondary dwelling being located within the principal dwelling, this provision, if it applies, acts to preclude the Council from refusing consent on any ground relating to the site area of the proposed development. This outcome is clearly contrary to the express provision of the above quoted cl 4.1AC of the Precinct Plan as the site only has an area of 250 square metres.
[6]
The conflict between the SEPPs
Reading the provision earlier quoted from the Affordable Rental Housing SEPP in conjunction with the above clause from the Precinct Plan makes it clear that they are in irreconcilable conflict.
If there is to be no minimum site area for development of the type proposed by the Affordable Rental Housing SEPP, the proposed development is permissible despite the fact that the site is only 250 square metres.
On the other hand, if the minimum allotment size of 450 square metres set out in cl 4.1AC of the Precinct Plan applies, the minimum allotment size for such a development is not achieved and thus the development standard requiring such a minimum allotment size acts as a barrier to approval (although not an insurmountable one, a position to which I will need to return).
[7]
The paramountcy provisions
Each of the two SEPPs here engaged contains a paramountcy clause. It is unnecessary to extract the precise provisions of each of them. It is sufficient to note that they are to identical effect, with that effect being stated to be that each SEPP, to the extent of any inconsistency with any other environmental planning instrument (this concept encompassing state environmental planning policies and local environmental plans - see s 3.13(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act)), that SEPP prevails.
As a consequence, neither of these paramountcy provisions can oust the other.
[8]
Introduction
As there is no self-evident resolution to this conflict, it is necessary to return to matters of general principle of statutory interpretation to consider how this dichotomy is to be resolved.
[9]
The relevant chronology
To assist in this process, it is appropriate to set out a chronology showing the relevant dates for the elements of the two SEPPs. This chronology is reproduced below:
the Growth Centres SEPP commenced on 28 July 2006;
the Affordable Rental Housing SEPP commenced on 18 September 2009;
clause 22 in its present form was in the Affordable Rental Housing SEPP at the time of its commencement in 2009;
Appendix 4 (the Precinct Plan) was inserted into the Growth Centres SEPP on 17 May 2010 by Sch 1[5] of State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Alex Avenue and Riverstone Precincts) 2010;
clause 4.1AC was inserted into the Precinct Plan on 11 August 2014 by Sch 1[21] of State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Housing Diversity) 2014.
[10]
The making of cl 4.1AC of the Growth Centres SEPP
During the course of the hearing, I asked whether any material was available about the making of the 2014 amendments, amendments which not only altered the Precinct Plan by inserting cl 4.1AC but which also effected a range of amendments to other precinct plans in appendices to the Growth Centres SEPP.
Additional written submissions were provided for the Council (13 November 2019) and the Company (18 November 2019). Each of these addressed such documentation as was available relating to these amendments. The submissions are to common effect - nothing in any of the available material provides any specific reason for, or justification of, the insertion of cl 4.1AC, let alone anything that would explain its inconsistency with cl 22 of the Affordable Rental Housing SEPP.
[11]
Introduction
I have had the advantage of thoughtful written and oral submissions on behalf of both the Company and the Council. Mr Lancaster SC, counsel for the Company, and Mr Seton, solicitor for the Council, also supplemented these written submissions with oral submissions expanding on them. The hearing was conducted efficiently and was concluded in half a day.
Each advocate advanced a number of reasons why the position supported by their party should be adopted. Before turning to consideration of the conclusion to which I should come, it is appropriate to set out the various competing propositions advanced to me. Each was concisely summarised in the competing written submissions.
[12]
A hierarchy of instruments
The submission was made on behalf of the Company that a broad hierarchical consideration of the two instruments leads to the conclusion that the provisions in the Precinct Plan are necessarily subordinate to the provision in the Affordable Rental Housing SEPP. It is sufficient, for this purpose, to quote Mr Lancaster's written submissions on this point. He wrote:
28 The Precinct Plans appended in the Growth Centres SEPP have an equivalent structure and form to a local environmental plan.
29 The Precinct Plans are the principal environmental planning instruments applying to all land within a stated geographical area. Precinct Plans control all forms of development within the applicable precinct. There are no local environmental planning instruments that apply to land to which the Precinct Plans apply. Further, the Precinct Plans are in the same form as the Standard Instrument LEP.
30 This interpretation of Precinct Plans is supported by clause 1.9(1) of the PP 2010 which states that the Precinct Plan is subject to the provisions of any SEPP that prevails over the Precinct Plan as provided in section 3.28 of the EPA Act. Clause 1.9(1) is extracted below:
"This Precinct Plan is subject to the provisions of any State environmental planning policy that prevails over this Precinct Plan as provided by section 3.28 of the Act."
Note. Section 3.28 of the Act generally provides that SEPPs prevail over LEPs. However, an environmental planning instrument may (by an additional provision included in the instrument) displace or amend a SEPP or LEP to deal specifically with the relationship between the instrument and the SEPP or LEP.'
31 Clause 1.9(1) presupposes that the PP 2010 is not part of the Growth Centres SEPP. The note to sub-clause (1) supports this assumption.
32 Therefore, having regard to the general presumption in section 3.28(1)(a) of the EPA Act, the ARH SEPP overrides and supplements the PP 2010 under the Growth Centres SEPP which is based on the Standard Instrument LEP.
The terms of the cited s 3.28(1)(a) of the EP&A Act are:
3.28 Inconsistency between instruments
(1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided -
(a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and
(b) (Repealed)
(c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.
The submission on behalf of the Council on this point was also concise. As encapsulated in Mr Seton's written submissions, it was that the two provisions were of hierarchal equivalence. The submission was in the following terms:
29 SEPP Growth Centres, which incorporates PP 2010, and SEPP ARH are both environmental planning instruments of the same kind. Accordingly, pursuant to section 3.28(1)(c) of the EP&A Act, the general presumptions of the law as to when an Act prevails over another Act apply to the resolution of an inconsistency between environmental planning instruments of the same kind unless otherwise provided.
[13]
Timing
The positions advanced by the parties concerning timing of making of the relevant provisions were to diametrically opposite effect. The submission advanced on behalf of the Company was:
25 Section 74(1) of the EPA Act, as referenced in clause 6(1) of the Growth Centres SEPP, as it existed prior to the coming into force of the Environmental Panning and Assessment Amendment Act 2017 on 1 March 2018, read as follows:
"an environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type."
26 In circumstances where the Growth Centres SEPP was subject to former section 74 of the EPA Act and the ARH SEPP is the later instrument, the later instrument may be taken to have amended the Growth Centres SEPP.
On the other hand, the position advanced on behalf of the Council was to the contrary effect:
33 Another general presumption of the law in relation to inconsistencies between the provisions of different statutes provides that priority should be accorded to the law made later in time.
34 As identified in the paragraphs above, PP 2010 commenced on a date after the relevant provisions in SEPP ARH. On the basis of the principle that priority is accorded to the law made later in time, PP 2010 must prevail over SEPP ARH in the event and to the extent of any irreconcilable inconsistency.
[14]
Matters of specificity
Mr Lancaster submitted that, as a consequence of the fact that the provision in the Affordable Rental Housing SEPP related to a narrower class of secondary dwelling than that contained in the Precinct Plan, this provision should be regarded as being more specific and should prevail on this basis. This was encapsulated in Mr Lancaster's written submissions in the following terms:
33 The ARH SEPP prevails over the Growth Centres SEPP because the ARH SEPP is more specific and is directed to one specific subject matter, that being the provision and retention of affordable housing compared to the Growth Centres SEPP.
Unsurprisingly, Mr Seton's submissions on this point were to the contrary. The Council's position was encapsulated in the relevant element of Mr Seton's written submissions, this being in the following terms:
37 Notwithstanding their simultaneous application to the proposed development the subject of these proceedings, the provisions at issue in SEPP ARH are properly characterised as more general in scope than those in PP 2010.
38 Division 2 of SEPP ARH applies to development for the purpose of a secondary dwelling on any land within the State of New South Wales situated within one of the residential zones pursuant to the provisions of an environmental planning instrument as specified in clause 20 of that Policy. In this context, the specification in clause 22(4) of SEPP ARH that a consent authority cannot refuse consent to secondary dwellings on land within those zones if the site area is at least 450 square metres and the specification in clause 22(5) that the consent authority may consent to development whether or not that standard is complied with will apply to development for the purpose of a secondary dwelling on any land within the zones specified in clause 20 of that Policy.
[15]
Two matters to be set aside
Two matters, one advanced for the Council and the other put for the Company, can be disposed of concisely before turning, equally concisely, to resolution of the matter requiring determination. First, Mr Seton relies on the proposition that the maxim generalia specialibus non derogant is here applicable. He wrote:
35 However, irrespective of the sequence of the statutes at issue, the rule of construction known as "generalia specialibus non derogant" further provides that a specific provision will prevail over a general provision relating to the same subject matter.
In Statutory Interpretation in Australia (8th ed, 2014, LexisNexis), the authors, D C Pearce and R S Geddes, made it clear (at 7.19 on pages 334-335) that this maxim only applies when a general proposition, when in conflict with a specific proposition, was enacted after the passage of the original, more specific provision (citing Barton ACJ in Maybury v Plowman (1913) 16 CLR 468; [1913] HCA 43 at 473-4). That is not here the position, as can be seen from the earlier cited chronology of the relevant elements (see below as to timing).
Second, the proposition advanced by Mr Lancaster that the provisions had a hierarchical relationship whereby the Affordable Rental Housing SEPP was to be regarded as hierarchically superior and, therefore, to prevail is not to be accepted. Although the Precinct Plan is, as earlier noted, based on the Template and takes a form entirely analogous to that of a local environmental plan, the Precinct Plan is nonetheless an appendix to the Growth Centres SEPP. As it forms part of that SEPP, it is to be regarded as hierarchically equivalent to the provision in the Affordable Rental Housing SEPP relied upon by the Company.
[16]
Two decisive factors
I am satisfied that there are two factors which weigh decisively in favour of the position advanced by Mr Seton on behalf of the Council that cl 4.1AC of the Precinct Plan is to prevail over the conflicting provision in the Affordable Rental Housing SEPP. They arise from matters of first principle and do not require recourse to authority for their obvious validity. The first arises from timing, whilst the second arises from the specificity (properly understood) of the Precinct Plan provision.
I have earlier set out the chronology of the relevant elements requiring consideration. Whilst it is correct that the Growth Centres SEPP is an earlier environmental planning instrument than the Affordable Rental Housing SEPP, that simplistic proposition does not have regard to the fact that the specific provision imposing the limitation in cl 4.1AC of the Precinct Plan was inserted by an amendment to the Growth Centres SEPP, made some nearly five years after the coming into effect of the Affordable Rental Housing SEPP. In this context, a proper understanding of timing makes it clear that the Precinct Plan provision is to be regarded as reflecting a later drafting intention than that of the earlier Affordable Rental Housing SEPP provision.
Second, whilst it is true that the Affordable Rental Housing SEPP provision relates to a narrower housing typology of secondary dwelling than the all‑embracing secondary dwelling typology contained in cl 4.1AC of the Precinct Plan, this narrowing is not as significant as the relevant geographic comparison of the two provisions' areas of operation. The Affordable Rental Housing SEPP operates on a statewide basis. On the other hand, the Precinct Plan is confined to a specifically limited geographic area defined by the mapping giving effect to it. In this sense, properly viewed, I am satisfied that the Precinct Plan is of a far more restricted and specific compass than the conflicting provision in the Affordable Rental Housing SEPP.
The combination of these two factors weighs overwhelmingly in favour of cl 4.1AC of the Precinct Plan displacing the contradictory provision in the Affordable Rental Housing SEPP. This conclusion is, in my view, irresistible.
The consequence of this is that cl 4.1AC of the Precinct Plan operates as a development standard which, unless displaced as discussed below, acts as a barrier to approving the Company's development proposal for the site.
[17]
The potential for dispensation from compliance with the development standard
I have earlier noted that the Precinct Plan is modelled on the Template. A result of that (relevant to the potential outcome of these proceedings) is the incorporation in the Precinct Plan of cl 4.6, a beneficial and facultative provision, in the same terms as is provided in the Template. This clause establishes a regime by which a development proponent can seek to make out appropriate grounds why a particular development proposal should be permitted despite it breaching a development standard otherwise established by the Precinct Plan.
I have earlier noted the specific terms of the contentions pressed by the Council in this appeal. It will be recalled that, in addition to the primary pleaded particular raising the barrier of cl 4.1AC of the Precinct Plan, the Council also pleaded that no cl 4.6 request had been made seeking dispensation from compliance with the minimum lot area provision of the Precinct Plan.
By pleading in this fashion, of course, the Council is not to be taken to be holding out that such a request to dispense with compliance with the minimum lot size for such a development would satisfy the tests set by this facultative provision. However, given that the planning issues have been resolved, the Company should be given the opportunity to consider if it wished to pursue this path.
During the course of the hearing, I indicated that, if I was to conclude that cl 4.1AC of the Precinct Plan prevailed over the more permissive position in the Affordable Rental Housing SEPP, I would afford the Company time within which to consider its position on this point.
As I have found that the Council's position should prevail, such a potential position can be accommodated by my making a self-executing order in these proceedings. Such an order, making dismissal of the Company's appeal contingent on the Company not seeking and being granted leave to amend its development application (to go to a hearing on whether or not dispensation pursuant to cl 4.6 of the Precinct Plan should be granted to set aside the minimum allotment size established by cl 4.1AC of that plan) is the appropriate outcome.
[18]
Orders
The orders of the Court, therefore, are:
1. Unless the Applicant seeks and is granted leave by 4.30 pm on Friday 13 December 2019 to seek dispensation pursuant to cl 4.6 of Appendix 4 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP) from compliance with the minimum allotment development standard in cl 4.1AC of Appendix 4 to the Growth Centres SEPP, the appeal is dismissed and Development Application DA-18-01537 seeking consent for a primary and a secondary dwelling at 17 Lennox Street, The Ponds is refused;
2. The exhibits are returned;
3. Costs are reserved; and
4. Liberty to relist on two days' notice before Moore J at 9.00 am until 11 December 2019 if the Applicant wishes to seek an extension of time to lodge an application for leave to rely on a cl 4.6 request pursuant to (1).
[19]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 November 2019