Universal Property Group Pty Ltd v Blacktown City Council

headnote [This headnote is not to be read as part of the judgment] Universal Property Group Pty Ltd ("Universal") appealed against a decision of the Land and Environment Court refusing consent to a development application. The development application was for the construction of a secondary dwelling located within a principal dwelling on a parcel of land in Lennox Street, Schofields. The land had a lot size of 250m2. The Council resisted Universal's application in the Land and Environment Court on the basis that the land was below the minimum "lot size" standard of 450m2 set by cl 4.1AC of the Growth Centres State Environment Planning Policy. Universal argued that cl 22(4)(a) of the Affordable Housing SEPP precluded the Council refusing consent to the proposed secondary dwelling on the basis of "site area". The preclusion contained two elements, namely, (i) the secondary dwelling was located within, or attached to, the principal dwelling, or (ii) the area was not less than 450m2. Universal contended that its proposal fell within (i), so that consent could not be refused on the basis of "site area", whatever the size of the lot. In the Land and Environment Court, the primary judge accepted there was an irreconcilable inconsistency between cll 4.1AC and 22(4)(a). The primary judge held that cl 4.1AC prevailed, that clause having been promulgated later than the Affordable Housing SEPP. Consent was thus prohibited, as the lot size was only 250m2. Universal appealed to the Court of Appeal. It submitted that if there were inconsistency, the Affordable Housing SEPP prevailed; if there were not, the Affordable Housing SEPP operated according to its terms. The Court (Basten JA, Gleeson JA, Emmett AJA) dismissed the appeal and held: by Basten JA (Gleeson JA agreeing at [39]):

1. Claims of "actual contrariety" between provisions emanating from one legislative source should not be accepted unexamined. There is a "very strong presumption" of long standing that a legislative authority does not intend to contradict itself: [7]-[8]. Garnett v Bradley (1878) 3 App Cas 944; Butler v Attorney General for the State of Victoria (1961) 106 CLR 268; 1961 HCA 32; Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2, applied.
2. This principle of harmonious operation gives preference to a reasonable construction of a statutory instrument if the result is consistent with the operation of another instrument, where a different interpretation would create inconsistency: [13].
3. An implied intention that the Affordable Housing SEPP varied the Growth Centres SEPP requirements as to minimum lot size should not be found absent "actual contrariety" between the two instruments: [23]. The text and structure of the Growth Centres SEPP did not support the conclusion that it impliedly varied cl 4.1AC: [23]-[27]. The fact that each SEPP contains a paramountcy clause emphasises the need for actual contrariety before inferring derogation or repeal: [32].
4. However, if the provisions were assumed to be inconsistent, the primary judge was correct to conclude that cl 4.1AC of the Growth Centres SEPP was not impliedly repealed by cl 22 of the Affordable Housing SEPP, given it was promulgated five years later: [33]. by Emmett AJA:
5. The terms "lot size" and "site area" as used in the Growth Centres SEPP and the Affordable Housing SEPP referred to distinct concepts: [53]-[62]. As each dealt with different matters, there was no inconsistency between the two planning requirements. The minimum lot size requirement of cl 4.1AC was therefore applicable, and the Council was obliged, absent a request to be exempted from compliance with the standard, to refuse consent to the proposed development on that ground: [66].

Judgment

1. BASTEN JA: This appeal concerns the interaction of two State Environmental Planning Policies, and their application to a parcel of land within the Blacktown City Council area. The parcel of land has an area of 250m2; the proposed development includes both a dwelling and a "secondary dwelling" within the structure of the principal dwelling. The question is whether the proposed development required a minimum lot size of 450m2, pursuant to a State Environmental Planning Policy.
2. A development application lodged by the appellant on 10 August 2018 was deemed to have been refused by the respondent Council. The appellant lodged an "appeal" in the Land and Environment Court challenging the deemed refusal of consent. The Council resisted the appeal on the basis that the minimum lot size for such a development was not satisfied.
3. The appellant did not contend that the minimum lot size was complied with; rather, it relied upon a different State Environmental Planning Policy which, it submitted, overrode the minimum lot size requirement.
4. The trial judge found that the minimum lot size requirement was engaged and therefore the development application had to be refused. [1] He reached that conclusion on the basis that it was necessary to resolve an "irreconcilable conflict" between the two planning instruments. [2] For the reasons set out below, the better view is that there was no conflict between the instruments; however, on either view, the judgment below was correct in concluding that the minimum lot size was engaged. Accordingly, the appeal must be dismissed.

Principles of statutory interpretation

1. The irreconcilable conflict identified by the primary judge resulted from a common position of the parties before him. [3] As a result, there was no detailed consideration of the relevant provisions, nor an attempt to reconcile them. In this Court, the appellant contended that the trial judge erred in resolving the accepted inconsistency in favour of the application of App 4 of the Growth Centres SEPP, but also contended there was no inconsistency. [4] It nevertheless contended that the relevant constraint on lot size did not apply. (The Council maintained its position that there was inconsistency.)
2. Despite the ambivalent position of the parties, it is important to identify with precision the nature and scope of the supposed inconsistency. If it cannot be resolved as a matter of statutory construction, it will be necessary to ask whether the earlier provision was impliedly repealed by the later; there was a dispute as to which was the later. Thus, even the formulation of that question was fraught with difficulty in relation to the relevant environmental planning instruments. The circumstances reflect those described by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom: [5] "[48] First, there is some difficulty, given the tortuous legislative history, of fixing one or other of the two sets of provisions with the temporal character required by the doctrine. The doctrine requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands. [6] …"
3. Claims of "actual contrariety" [7] between provisions emanating from one legislative source should not be accepted unexamined. That is because there is a strong presumption that a legislative authority does not intend to contradict itself nor, particularly in modern times where legislation is drafted by highly skilled Parliamentary counsel with computer-based search facilities, is it likely that such a contradiction will arise through inadvertence.
4. The underlying principle is one of long standing; it was described by Fullagar J in Butler v Attorney General for the State of Victoria [8] as a "very strong presumption". [9] Fullagar J identified the "classical statement on the subject" as the opinion of Lord Blackburn in Garnett v Bradley. [10] Fullagar J expressed it in the following terms: "The books contain, of course, plenty of examples of an implied repeal - total or partial - of an earlier statute by a later statute of the same legislature. But it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent."
5. Windeyer J in Butler quoted with approval a statement from Maxwell on The Interpretation of Statutes: [11] "A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the Statute-book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention."
6. This principled approach was repeated by Gaudron J in Saraswati v The Queen: [12] "It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other …."
7. In Commissioner of Police for New South Wales v Eaton, [13] the High Court extended the principle applied to provisions within one statute in Project Blue Sky Inc v Australian Broadcasting Authority, [14] Crennan, Kiefel and Bell JJ stating: "[78] In accordance with ordinary rules of construction concerning the internal operation of a statute, the Police Act should be construed in a way which best achieves a harmonious result. The same principle of consistency informs the construction of two statutes which may share a field of operation." Gageler J said: "[98] …That principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create 'a very strong presumption that the … legislature did not intend to contradict itself, but intended that both … should operate'."
8. The principle should be applied equally, if not with greater emphasis on the search for harmonious operation, when considering two statutory instruments administered within the one government department with respect to a single broad subject matter, namely State environmental policies governing development and use of land.
9. The principle of harmonious operation gives preference to a reasonable construction of a statutory instrument if the result is consistent with the operation of another, where a different interpretation would create inconsistency.

State Environmental Planning Policies

1. The minimum lot size was prescribed by the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (NSW), Appendix 4. (It is convenient to refer to this instrument as the "Growth Centres SEPP", as did the primary judge.) The scheme of the Growth Centres SEPP is as follows. First, it identifies four growth centres described as "the North West Growth Centre", "the South West Growth Centre", the "Wilton Growth Area" and the "Greater Macarthur Growth Area", all within the greater Sydney region. The land in question is located within the North West Growth Centre. A table in Pt 2, cl 7 of the Growth Centres SEPP identifies precincts within particular growth areas and identifies, by reference to appendices, the standard-setting provisions applying to the carrying out of development in each precinct. The land the subject of the appellant's development application lies in "Alex Avenue and Riverstone Precincts", for which the applicable provisions are to be found in Appendix 4.
2. The Growth Centres SEPP, as first promulgated, envisaged that the details required to be provided in the numerous appendices would be provided sequentially. Until such provisions were specified, cl 16(1) (Pt 4 Development Controls - General) stated that consent was not to be granted unless the consent authority had taken into account a number of matters.
3. Appendix 4 was inserted into the Growth Centres SEPP on 17 May 2010. [15] The relevant provision, cl 4.1AC, was inserted in Appendix 4 in 2014. It is: 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, (b) 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) The minimum lot size for a secondary dwelling on land in Zone R3 Medium Density Residential is the minimum lot size for the principal dwelling in conjunction with which the secondary dwelling is established as determined in accordance with clause 4.1AB, 4.1AE or 4.1AG.
4. The proposed development being in Zone R2, cl 4.1AC(2) is engaged.
5. The second relevant planning policy is the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW). (It is convenient to refer to this instrument as the "Affordable Housing SEPP".)
6. The Affordable Housing SEPP applies to any land within specified land use zones, one of which is Zone R2 Low Density Residential. [16] Part 2 deals with "New affordable rental housing"; Division 2 of Pt 2 deals with "secondary dwellings". Div 2 applies to "development for the purposes of a secondary dwelling and ancillary development": cl 21. There is a definition of this term in cl 19 which, with its accompanying note, provides: 19 Definition In this Division - development for the purposes of a secondary dwelling includes the following - (a) the erection of, or alterations or additions to, a secondary dwelling, (b) alterations or additions to a principal dwelling for the purposes of a secondary dwelling. Note. The standard instrument defines secondary dwelling as follows - secondary dwelling means a self-contained dwelling that - (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land (not being an individual lot in a strata plan or community title scheme) as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling.
7. The provision relied on by the appellant is cl 22, which should be set out in full: 22 Development may be carried out with consent (1) Development to which this Division applies may be carried out with consent. (2) A consent authority must not consent to development to which this Division applies if there is on the land, or if the development would result in there being on the land, any dwelling other than the principal dwelling and the secondary dwelling. (3) A consent authority must not consent to development to which this Division applies unless - (a) the total floor area of the principal dwelling and the secondary dwelling is no more than the maximum floor area allowed for a dwelling house on the land under another environmental planning instrument, and (b) the total floor area of the secondary dwelling is no more than 60 square metres or, if a greater floor area is permitted in respect of a secondary dwelling on the land under another environmental planning instrument, that greater floor area. (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) the site area is at least 450 square metres, (b) parking if no additional parking is to be provided on the site. (5) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (4).

Construction issue

1. The appellant contended that subcl (4) specified two grounds on which consent could not be refused, namely (a) site area and (b) parking. "Site area" involved two disjunctively identified elements. It submitted that if a proposal engaged either element consent could not be refused on the basis of "site area", a term which included any standard involving "lot size" as indicated by subpar (ii). [17] The appellant's development application fell within subpar (i) and therefore its development application could not be refused on the ground of site area, although its lot size was less than 450m2. To reject the application on the ground that the lot size did not fall within subpar (ii) would be to treat the two limbs as cumulative, whereas they are expressed disjunctively. Further, it submitted that to treat the two limbs as separate requirements would be to ignore the structure of subcl (4) which identifies only two separate grounds, site area and parking.
2. On one view, this construction had an anomalous result. Par (i) did not identify all secondary dwellings, but only those "located within" or which are "attached to" the principal dwelling, while the definition of "secondary dwelling" includes those which are "separate from" the principal dwelling. Thus an application for a secondary dwelling which fell within the two categories identified in subpar (i) could not be rejected even if the lot size was less than 450m2, whereas a secondary dwelling separate from the principal dwelling could be rejected on that basis. The appellant contended that this result was not anomalous because the former category would remain subject to lot size standards for the principal dwelling, and it was not illogical to require that the lot size standard could be a ground of refusal where the secondary dwelling was separate from the principal dwelling.
3. The appellant's submission focused on the disjunctive "or" between subpars (i) and (ii). The provision was read as if there could be no objection based on any aspect of "site area" if either limb of the prohibition were satisfied. That approach is apt to undermine the zoning based on density and is implausible as a planning standard. While the appellant suggested that the lot size standard applicable to a principal dwelling would apply, it did not say what standard that was, but it was presumably less than the 250m2 of the lot the subject of the proposal. Relevantly, however, the appellant's reading renders the standard fixed by the Growth Centres SEPP inapplicable. The Affordable Housing SEPP expressed no intention to vary the minimum lot size standard set by the Growth Centres SEPP; accordingly, the derogation from the operation of cl 4.1AC required an implied intention. An implied intention should not be found absent "actual contrariety", established on the basis that there was no construction of cl 22(4) which allowed the respective provisions an harmonious operation.
4. However, there is an alternative reading of cl 22(4) which was put to the parties in the course of the hearing. It was that, while "site area" was a single ground on which refusal was prohibited, subpars (i) and (ii) consisted of two separate elements, neither of which could form a basis for refusal. The mere fact that a secondary dwelling was to be included within, or be attached to, a principal dwelling could not be a ground of refusal; nor could lot size, where the lot was not less than 450m2. That reading would have the effect of preventing the consent authority from refusing consent on either of those two separate bases, without derogating from the standard with respect to minimum lot size set by cl 4.1AC. This reading is consistent with the use of the disjunctive "or" between the two factors listed under par (a) site area.
5. There is a further basis for concluding that the Affordable Housing SEPP was not intended to remove all lot size requirements for some secondary dwellings; rather it recognized and gave effect to such standards. That may be seen by reference to further provisions of Pt 2, Div 4 of the Affordable Housing SEPP.
6. Clause 23 makes separate provision with respect to complying development, that is, development which does not require consent. [18] A condition of cl 23(1) is that the development "is on a lot that has an area of at least 450m2": cl 23(1)(d). The development standards to be satisfied in such a case are those set out in Sch 1: cl 23(1)(g). Schedule 1 assumes that the lot will have an area of at least 450m2. [19] There is no apparent reason to require a minimum lot size of 450m2 with respect to complying development, but not to permit a consent authority to refuse consent for a smaller lot size where the additional element of consent is engaged.
7. The appellant sought to resist this reasoning on the basis that cl 23(1) did not apply to secondary dwellings located "entirely within an existing dwelling house", which was said to be one of the three categories identified in the definition of secondary dwelling and one of the two categories identified in cl 22(4)(a)(i). If correct, that argument did not entirely remove the apparent anomaly. More importantly, no limb of the definition of secondary dwelling referred to "an existing dwelling house". That addition made clear the limited basis of the exclusion from the requirements of cl 23(1). Indeed, the category of excluded proposals was further limited by various other conditions, including that there be "no external alterations to the principal dwelling other than the provision of an additional entrance": cl 23(2)(d).
8. There is a further powerful reason for preferring a construction of cl 22(4) of the Affordable Housing SEPP which achieves conformity with cl 4.1AC in Appendix 4 of the Growth Centres SEPP. It is that the statutory scheme for resolving inconsistency is impenetrable. The form of resolution required under the general law was, in the case of irreconcilable conflict, to imply an intention that the later instrument may, in the case of unavoidable inconsistency, repeal the earlier. [20] The general law principle is referred to in s 3.28 of the Planning Act which provides: 3.28 Inconsistency between instruments (cf previous s 36) (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. (2), (3) (Repealed) (4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.
9. It may be assumed that the chapeau to subs (1) allows for such an instrument itself to otherwise provide. The Growth Centres SEPP, as promulgated in 2006, contained cl 6(1) in the following terms: 6 Relationship with other environmental planning instruments (1) Subject to section 74(1) of the Act, in the event of an inconsistency between this Policy and another environmental planning instrument whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. Section 74(1) of the Planning Act (now s 3.24(11)) provided that an environmental planning instrument may be amended "by a subsequent environmental instrument, whether of the same or a different type."
10. The next instrument chronologically was the Affordable Housing SEPP which also made express provision with respect to inconsistency: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
11. The third instrument, Appendix 4 to the Growth Centres SEPP included the following provision: 1.9 Application of SEPPs (1) 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. (2) State Environmental Planning Policy No 1 - Development Standards does not apply to the land to which this Precinct Plan applies. (3) Subject to section 74(1) of the Act, in the event of an inconsistency between this Precinct Plan and any other provision of this State Environmental Planning Policy or any other environmental planning instrument whether made before or after the commencement of this Precinct Plan, this Precinct Plan prevails to the extent of the inconsistency. Note. The other provisions of this State Environmental Planning Policy also contain provisions applying development controls to the North West Growth Centre, including the Alex Avenue and Riverstone Precincts.
12. The attempt to control inconsistency with later environmental planning instruments is fraught. An earlier enactment or instrument cannot control the effect of a later enactment or instrument. [21] Thus, the general view of such provisions is that they merely emphasise the constraints which should apply to implied repeal by a later instrument, namely that there must be a clear basis for demonstrating actual contrariety before the necessary inference of derogation or repeal can be drawn.
13. Because cl 4.1AC of the Precinct Plan was inserted into the Growth Centres SEPP five years after the promulgation of the Affordable Housing SEPP, cl 22 of the latter cannot be construed as impliedly repealing, or derogating from the operation of, cl 4.1AC; the contrary view is untenable. This last factor was at the heart of the reasoning of the primary judge in giving effect to the standard fixed by cl 4.1AC. [22] Assuming inconsistency, he was correct.

Conclusion

1. The proceedings in the Land and Environment Court were brought in the Class 1 jurisdiction in that Court. The appeal, on a question of law, came to this Court from a judge of the Land and Environment Court pursuant to s 57 of the Land and Environment Court Act 1979 (NSW). However, the orders made by the primary judge on 29 November 2019 neither granted the relief sought in the application filed by Universal, nor did they unconditionally dismiss the application. In terms they provided the applicant with an opportunity to seek dispensation from the requirements of cl 4.1AC of Appendix 4 to the Growth Centres SEPP, pursuant to cl 4.6 in that instrument. The principal order was conditional; if the condition were not met, the appeal would be dismissed and the development consent refused; if the condition were to be met, the proceedings would remain on foot. The order therefore appears to be interlocutory.
2. The applicant contended that the order was not interlocutory because it had not exercised its option to seek a dispensation from the requirements of cl 4.1AC; indeed it had not sought such an opportunity in the Court below. The order was, in a practical sense, a final order. No doubt that is so, but it is the legal form of the issue raised and the order made which dictate whether it is interlocutory or not. The better view is that the order was interlocutory and the applicant therefore required leave to pursue the present proceedings. [23] The issue raised having been fully dealt with, and being one which would have attracted a grant of leave if originally sought, to the extent necessary leave should be granted. Nevertheless, the appeal must be dismissed.
3. Had the appeal been upheld, there would have been an issue as to whether the matter should be remitted to the Land and Environment Court for final relief, or whether it could be disposed of by this Court. Final relief favourable to the appellant would have been a grant of consent to its development application. However, that would have required the imposition of conditions. It was said that the "merit issues", which presumably included appropriate conditions, were not in dispute. However, whether this Court could make such a final order would depend on the order, being an order other than remittal, was "in relation to the appeal", within the terms of s 57(2)(b) of the Land and Environment Court Act. There must be doubt that this Court take such a step. However, the matter need not be resolved as the issue does not arise.
4. The appellant must pay the respondent Council's costs in this Court.
5. I propose that the Court make the following orders: 1. To the extent necessary grant Universal Property Group Pty Ltd leave to appeal from the judgment and orders given in the Land and Environment Court on 21 November 2019. 2. Treat the notice of appeal filed on 17 December 2019 as validly filed, to the extent that leave was required. 3. Dismiss the appeal. 4. Order that the appellant pay the respondent's costs in this Court.
6. GLEESON JA: I agree with Basten JA.
7. EMMETT AJA: This appeal is concerned with a development application lodged by the appellant, Universal Property Group Pty Ltd (Universal), with the respondent, Blacktown City Council (the Council). The development application sought the consent of the Council for the construction of a double storey dwelling with an attached secondary dwelling on a parcel of land in Lennox Street, Schofields (the Land).
8. On 5 December 2018, Universal commenced proceedings in the Land and Environment Court (the L&E Court) against the Council's deemed refusal of the development application. On 21 November 2019, for reasons published on that day, a judge of the L&E Court (the primary judge) ordered that, unless Universal sought and was granted leave to seek dispensation from compliance with a minimum allotment development standard, the appeal to the L&E Court be dismissed and the development application be refused. By notice of appeal filed on 17 December 2019, Universal appeals to this Court from the orders made by the primary judge.
9. The question before the L&E Court and the question in the appeal to this Court concerns the proper construction of cl 22(4) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (the Affordable Housing SEPP) and whether the effect of cl 22(4) of the Affordable Housing SEPP is that the Council must not refuse consent to the proposed development on the ground that the size of the Land is less than 450 m². Universal contends that that is the effect of cl 22(4). The Council, on the other hand, says that the development application must be refused because the area of the Land is less than 450 m². The question turns on the proper construction of cl 22(4) of the Affordable Housing SEPP in the context of its interaction with the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (NSW) (the Growth Centres SEPP).
10. The Growth Centres SEPP applies to all land in a "growth centre" as defined in cl 3 of the Growth Centres SEPP. The Land is in the North West Growth Centre. Clause 7 of the Growth Centres SEPP relevantly provides that the provisions applying to the carrying out of development in the Alex Avenue and Riverstone Precincts of the North West Growth Centre are those in appendix 4. The Land is in the Alex Avenue and Riverstone Precincts. Part 4 of appendix 4 deals with "principal development standards". Clause 4.1AC of Pt 4 deals relevantly with minimum lot sizes for secondary dwellings in Zone R2 low density residential (Zone R2) and applies, relevantly, to land in Zone R2. The Land is in Zone R2. Clause 4.1AC(2) provides that the minimum lot size for a secondary dwelling on land in Zone R2 is 450m². Under the Land Use Table located under Pt 2 of appendix 4, the uses of the Land that are permitted with consent include secondary dwellings.
11. For the purposes of the Growth Centres SEPP, a secondary dwelling is defined in the Dictionary to that policy as a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling); and (b) is on the same lot of land as the principal dwelling; and (c) is located within, or is attached to, or is separate from, the principal dwelling.
12. The Affordable Housing SEPP applies to the whole of New South Wales. Division 2 of Pt 2 of the Affordable Housing SEPP applies to secondary dwellings. For the purposes of the Affordable Housing SEPP, a secondary dwelling has the same meaning as under the Growth Centres SEPP. Division 2 applies to development on land within Zone R2 for the purpose of a secondary dwelling.
13. Clause 22 of the Affordable Housing SEPP provides that development to which Div 2 applies may be carried out with consent. Under cl 22(2), a consent authority, the Council in this case, must not consent to a development to which Div 2 applies if the development would result in there being on the land, any dwelling other than the principal dwelling and the secondary dwelling. Clause 22(3) prohibits the Council from consenting to a development to which Div 2 applies unless:

• the total floor area of the principal dwelling and the secondary dwelling is no more than the maximum floor area allowed for a dwelling house on the land under another environmental planning instrument; and
• the total floor area of the secondary dwelling is no more than 60 m² or, if a greater floor area is permitted in respect of a secondary dwelling on the land under another environmental planning instrument, that greater floor area.

1. Clause 22(4) is critical and is in the following terms: (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) the site area is at least 450 square metres, (b) parking if no additional parking is to be provided on the site. However, cl 22(5) provides that the Council may consent to development to which Div 2 applies whether or not the development complies with the standards set out in cl 22(4).
2. The area of the Land is 250 m². It is therefore below the minimum lot size for a secondary dwelling provided for in cl 4.1AC(2) of the Growth Centres SEPP. However, the secondary dwelling proposed under Universal's development application is located within the principal dwelling proposed. It therefore falls within cl 22(4)(a) of the Affordable Housing SEPP.
3. Universal contends that the effect of cl 22(4)(a)(i) is that, since the development proposed under Universal's development application is for a secondary dwelling that is located within the principal dwelling, the Council may not refuse consent solely on the ground of "site area", notwithstanding that the area of the Land is below the minimum lot size for a secondary dwelling provided for in cl 4.1AC(2). The Council, on the other hand, says that, subject to cl 22(5), it may refuse consent because of the operation of cl 4.1AC(2).
4. The first question of construction that is raised is whether there is inconsistency between cl 4.1AC(2) of the Growth Centres SEPP, on the one hand, and cl 22(4)(a) of the Affordable Housing SEPP, on the other. Before the primary judge, it appears to have been common ground that there was irreconcilable conflict between the two SEPPs. The respective arguments of Universal and the Council were directed to the question of which of the two SEPPs prevailed in the light of that inconsistency between cl 22(4) and cl 4.1AC(2). Clause 8 of the Affordable Housing SEPP relevantly provided that, if there was an inconsistency between that SEPP and any other environmental planning instrument, the Affordable Housing SEPP was to prevail to the extent of the inconsistency. Clause 6 of the Growth Centres SEPP, however, provided that subject to s 74(1) of the Environment Planning and Assessment Act 1979 (NSW) (the Planning Act), in the event of an inconsistency between the Growth Centres SEPP and another environmental planning instrument, the Growth Centres SEPP was to prevail to the extent of the inconsistency. Section 74(1) relevantly provided that an environmental planning instrument may be amended, altered, varied or repealed in whole or in part by a subsequent environmental planning instrument whether of the same or a different type. [24]
5. Section 3.28 of the Planning Act, the Act under which both SEPPs were made, also deals with inconsistency. Section 3.28(1) relevantly provides that, in the event of an inconsistency between environmental planning instruments and unless otherwise provided, there is a general presumption that a SEPP prevails over a local environmental plan or other instrument made before or after that SEPP. The general presumption of the law as to when an Act prevails over another Act applies to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.

• to make development controls for land in the precincts that will ensure the creation of quality environments and good design outcomes;
• promoting housing choice and affordability in those precincts; and
• providing for the sustainable development of those precincts; Clause 2.1 in Pt 2 of appendix 4 specifies the land use zones under the precinct plan. Clause 2.3 provides that the land use table at the end of Pt 2 specifies for each zone:
• the objectives for development;
• the development that may be carried out without consent;
• development that may be carried out only with consent; and
• development that is prohibited. Clause 2.3(2) provides, relevantly, that the Council must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

1. Clause 4.1AC must be construed in the context of the above. Clause 4.1AC does not, in its terms, prohibit the granting of consent for a secondary dwelling on land that is below the minimum lot size specified of 450 m². Clause 4.1AC appears under the heading "principal development standards" and is preceded by cl 4.1AB, which deals with minimum lot sizes for residential development in Zone R2 and Zone R3 (medium density residential). Under cl 4.1AB(1), the objectives of cl 4.1AB are:

• to establish minimum lot sizes for residential development in Zone R2;
• to ensure that residential development in the relevant precincts results in the efficient use of land and contributes to the supply of new housing in the North West Growth Centre;
• ensure that residential development has adequate usable areas for buildings and open space;
• to ensure that residential development is compatible with the character of the precincts and with surrounding residential areas; and
• to facilitate and encourage the provision of a range of residential lot types, in particular, small lot housing.

1. Clause 4.1AB specifies a minimum lot size for:

• a dwelling house;
• a dual occupancy;
• a semi-detached dwelling;
• an attached dwelling;
• multi-dwelling housing;
• a manor home; and
• a residential flat building. The minimum lot size varies according to the location of the land in question.

1. Clause 4.6 deals with contravention of development standards. The objects of cl 4.6 are stated to be to provide an appropriate degree of flexibility in applying certain development standards to particular development and to achieve better outcomes for and from development by allowing flexibility in particular circumstances. Under cl 4.6(2), consent may be granted for development even though the development would contravene a development standard imposed by the Growth Centres SEPP or any other environmental planning instrument. However, under cl 4.6(3), consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard.
2. There are, in essence, three consequences of cl 22(4) of the Affordable Housing SEPP as follows: 1. the Council must not refuse consent to development to which Div 2 applies on the ground of site area if the secondary dwelling is located within, or is attached to, the principal dwelling; 2. the Council must not refuse consent to development to which Div 2 applies on the ground of site area if the site area is at least 450 square metres; and 3. the Council must not refuse consent to development to which Div 2 applies on the ground of parking if no additional parking is to be provided on the site.
3. As a matter of plain English, the first consequence of cl 22(4), is that if the secondary dwelling is located within, or is attached to, the principal dwelling, site area is not a ground upon which the Council may refuse consent.
4. Minimum lot size is something that the Council is to take into consideration. Thus, s 4.15(1) of the Planning Act relevantly provides that, in determining a development application, a consent authority is to take into consideration such of the matters specified as are of relevance to the development that is the subject of the development application. Those matters include:

• the provisions of any environmental planning instrument, any development control plan, any planning agreement, that apply to the land to which the development application relates;
• the likely impact of that development;
• the suitability of the site for the development; and
• any submissions made in accordance with the Planning Act. Further, as I have said, under cl 4.6(3), consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard.

1. There is no inconsistency between cl 4.1AC and cl 22(4). The two provisions can be reconciled, in so far as they deal with different matters: one deals with site area and the other deals with lot size. In the present case, the first consequence of cl 22(4) applies. Therefore, the Council may not refuse consent solely on the ground of site area. However, the minimum lot size requirement of cl 4.1AC is applicable. There being no written request from Universal, cl 4.6(3) prohibits the Council from granting consent.
2. That is the conclusion reached by the primary judge. The appeal should be dismissed. Universal should pay the Council's costs of the appeal.

Endnotes

1. Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 179 ("Universal").
2. Universal at [11]; see also tcpt (LEC), 13/11/19, p 11(5)-(7).
3. Universal at [11].
4. Notice of Appeal, ground 5.
5. (2006) 228 CLR 566; [2006] HCA 50.
6. See Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275; Saraswati v The Queen (1991) 172 CLR 1 at 17-18; Shergold v Tanner (2002) 209 CLR 126 at 136-137 [34]-[35]; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at 7 [14], 13-14 [43]; Putland v The Queen (2004) 218 CLR 174 at 189 [40].
7. The phrase is to be preferred in this context to "inconsistency": Potier v Attorney General for New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [53].
8. (1961) 106 CLR 268; [1961] HCA 32.
9. Butler at 276; see also M Leeming, Resolving Conflicts of Laws (The Federation Press, 2011) at 73-74, 93-94; D Pearce, Statutory Interpretation in Australia (9th ed, LexisNexis, 2019) at 7.11].
10. (1878) 3 App Cas 944 at 966; Butler at 275-276.
11. (8th ed, 1937) at p 147; Butler at 290.
12. (1991) 172 CLR 1 at 17; [1991] HCA 21.
13. (2013) 252 CLR 1; [2013] HCA 2.
14. (1998) 194 CLR 355; [1998] HCA 28 at [70].
15. State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Alex Avenue and Riverstone Precincts) 2010 (NSW); see Universal at [17].
16. Affordable Housing SEPP, Pt 2, Div 2 secondary dwellings, cl 20.
17. "Site area" was defined in cl 4(1), but not in a way which affected this dispute: "site area or site means the area of any land on which development is, or is to be, carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Policy."
18. Environmental Planning and Assessment Act 1979 (NSW), ss 4.2(5) and 4.25 ("Planning Act").
19. See, for example, Sch 1, Pt 2, cl 2(1) and cl 3(1), cl 4(2), cl 7(3), cl 9(1) and cl 10(2).
20. Goodwin v Phillips (1908) 7 CLR 1 at 10 (Barton J); [1908] HCA 55.
21. South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 625 (Dixon J); [1939] HCA 40; Rose v Hvric (1963) 108 CLR 353 at 357 (Kitto, Taylor and Owen JJ); [1963] HCA 13.
22. Universal at [33].
23. Land and Environment Court Act, s 57(4)(d).
24. Section 74 of the Planning Act was repealed in 2017 by the Environmental Planning and Assessment Amendment Act 2017 (NSW). Section 74(1) is now contained in s 3.24(11) of the Planning Act. 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: 09 June 2020