Universal Property Group Pty Ltd v Blacktown City Council

Land and Environment Court (NSW)|2020-07-29

Judgment

COMMISSIONER: These proceedings were heard pursuant to s 34AA(2)(b) of the Land and Environment Court Act 1979 being an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application no. DA-18-02568 (DA) which seeks consent for the construction of a detached dual occupancy and Torrens title subdivision into 2 lots (Proposed Development) on land now legally identified as lot 94 in DP1227480 at 22 Braeburn Crescent, Stanhope Gardens (the Site). The Court notes that the application for development consent was for subdivision of lot 11 in DP1239008 Perfection Avenue which was the title from the original residential subdivision into 101 residential lots (Original Residential Subdivision) and lot 94 in DP 1227480 is one of the resulting lots from that Original Residential Subdivision.
This case is about a dispute between the parties as to whether each of the two new dwellings will have a frontage onto a different road in circumstances whether the street name remains the same. The parties agree on the relevant statutory interpretation principles but do not agree on the interpretation of cl 4.1C(1)(a) of the Blacktown Local Environmental Plan 2015 (BLEP). The Applicant says that each of the two new "dwellings will face different roads albeit that the roads have the same name." The Respondent says that "each of the two dwellings will have a frontage to the same road, being Braeburn Crescent."

The Site

The Site is zoned 'R2 Low Density Residential' and has an area of 664m2 and is located on a corner or bend in Braeburn Crescent. The Applicant provides a detailed description at par [2] of the written submissions as follows: "[2] […] Braeburn Crescent runs north west along the Land's north eastern boundary and then turns 90 degrees and runs in a generally south westerly direction along the property's north western boundary before curving further to the south. The property's north eastern boundary which adjoins Braeburn Crescent is 12.32 m in length. Its north western boundary which adjoins Braeburn Crescent is approximately 40.65 m in length."
The Proposed Development is for each of the new dwellings to have a street frontage onto a different part of Braeburn Crescent and the resulting lot 94 will be 301m2 in area and the resulting lot 94A will be 363m2 in area which the parties note is less than the 450m2 minimum lot size according the Lot Size Map but greater than the 300m2 minimum lot size pursuant to cl 4.1C of the BLEP. The Proposed Development is depicted in the image below.

The two aspects to the Proposed Development

The Applicant explains that the Proposed Development has two aspects.
According to the Applicant, the first aspect is the construction of two new dwellings as part of a detached dual occupancy (the Construction Aspect) and the second aspect of the Proposed Development is the subdivision of the Site into 2 lots with each lot to contain one of the newly constructed detached dual occupancy dwellings ( the Subdivision Aspect).
The Respondent does not raise any merit contentions in the Statement of Facts and Contentions filed 30 January 2020 which assert that the Construction Aspect or the Subdivision Aspect of the Development should be refused. The dispute in these proceedings is limited to the legal argument regarding the prohibition or permissibility of cl 4.1C of the BLEP regarding the Subdivision Aspect. I accept that in these circumstances the Construction Aspect can be approved in these proceedings pursuant to s 4.16(4)(c) of the EPA Act and the remaining question to be determined is whether the Subdivision Aspect can be approved. The relevant issue for determination in these proceedings is whether the Proposed Development may benefit from the provision of cl 4.1C(1) of the BLEP.
In relation to the Subdivision Aspect, the Respondent contends that: "the Council, and subsequently the Court on appeal, has no power to grant development consent to the subdivision of the Site as the Proposed Development fails to satisfy the requirements of cl 4.1C(1) of the BLEP and no written request pursuant to cl 4.6 has been provided seeking to vary the minimum lot size under cl 4.1 of the BLEP."
During the proceedings, both parties referred to cl 4.6(8)(cb) of the BLEP which expressly excludes the development standards in cl 4.1C(1) from variation.

Issue in Contention: Will each of the two dwellings front a different road on the proper construction of cl 4.1C(1)(a) of the BLEP?

The Respondent argues that "the sole reason raised for refusal of the DA is limited to the Subdivision Aspect of the DA and in particular whether, upon its proper interpretation, consent can" in fact be granted to the subdivision pursuant to cl 4.1C(1) of the BLEP. As it is agreed that this is the sole area of dispute, I set out cl 4.1C of the BLEP in full as follows: 4.1C Subdivision of dual occupancies prohibited (1) Development consent must not be granted for a subdivision that would create separate titles for each of the 2 dwellings comprising a dual occupancy unless - (a) each of the 2 dwellings has a frontage to a different road, and (b) the size of each lot resulting from the subdivision is not less than 300 square metres. (2) Nothing in this clause or any other provision of this Plan prevents a subdivision that would create separate titles for each of the 2 dwellings comprising a dual occupancy of a detached dual occupancy development if the 2 resulting lots would meet the minimum size shown on the Lot Size Map in relation to that land.
It is relevant to note for the purpose of cl 4.1C(2) for detached dual occupancy development that the minimum lot size shown on the Land Size Map in BLEP in relation to the Site is 450m2.
Clause 4.1C(1) provides two conditions which must be satisfied in order for a consent authority's power to grant development consent for the subdivision of a dual occupancy to be enlivened pursuant to cl 2.6(1) of the BLEP.
In these proceedings the fact that the size of each lot resulting from the subdivision will not be less than 300 square metres is not in issue (refer par [8]) which satisfies cl 4.1C(1)(b) of the BLEP.
The sole disagreement between the parties in these proceedings is the proper construction of cl 4.1C(1)(a) of the BLEP and in particular whether each of the 2 dwellings has a frontage to a different road. The parties agree that each of the 2 dwellings have a frontage to a road, however the Respondent contends that the frontage is to the same road named Braeburn Crescent, not a different road. The Applicant does not agree on the basis that the name attributed to a road is not determinative for the town planning purpose of establishing whether dwellings in a dual occupancy will front a different road or not.

What is the proper construction of clause 4.1C(1)(a) - do each of the two dwellings have a frontage to a different road?

The parties provided written submissions to the Court and each submitted orally during the hearing that they substantially agreed on the legal principles regarding statutory interpretation which I now address to the extent that they are relevant to this dispute.

Beneficial and Facultative

The parties referred to the Court's decision in Christodoulou v Blacktown City Council [2017] NSWLEC 1554 and agree that the power in clause 4.1C of BLEP is beneficial and facultative. I agree that the clause is beneficial because it provides a dispensation on the minimum lot size for the subdivision of dual occupancies (300m2 as opposed to 450m2) and it is facultative through its operation. If both subcll (a) and (b) are satisfied then subdivision of this dual occupancy can be carried out with consent.
I accept, as submitted by the Applicant, that cl 4.1C, being a beneficial and facultative clause "should be construed so as to give the "widest interpretation that its language will give"." Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 (Radray). The Respondent argued that Radray was a case about the power to amend a development application provided by cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) and was not applicable to the construction of cl 4.1C of the BLEP. I do not accept this argument because Jagot J at par [9] was illustrating the application of how the Court is to avail itself of a jurisdictional power when a provision is of a facultative and beneficial nature and did not limit the decision to cl 55 of the Regulation. Accordingly, cl 4.1C is a provision which is of a facultative and beneficial nature and should be construed so as to give the "widest interpretation that its language will give". In Radray, Jagot J states: "[9] The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give "the widest interpretation which its language will permit" (Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260 - 261 per McHugh J referring to Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 at 19 per Rich J)."

Relevant Principles of Statutory Construction for the proper construction of clause 4.1C(1)(a)

The written submissions provided by the parties, when read together constitute an agreed summary of the relevant principles of statutory construction. I adopt the following from the Respondent's written submissions at pars [11] and [14] to [16]: "[11] The BLEP is a species of delegated legislation, being a statutory instrument, and should therefore be interpreted in accordance with the general principles of statutory interpretation: Cranbook School v Woollahra Council [2006] NSWCA 155;(2006) 66 NSWLR 379, 36 (McColl JA). […] [14] The primary objective of statutory construction was defined in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 78 which is for the judiciary to give the words of a statutory provision the meaning that the legislature is taken to have intended them to mean. The legislature manifests its intention by the use of language, and it is by determining the meaning of that language by having regard to the principles of statutory construction that the judiciary gives effect to the legislature's will (see Wilson v Anderson (2002) 213 CLR 401 at 8-9 (Gleeson CJ)). [15] The well settled approach to statutory construction was recently considered by Pepper J in Chief Executive, Office of Environment and Heritage v Wickman [2020] NSWLEC 23 in which her Honour at 48 referred and adopted Robson J reference in Cumberland Council v Younan; Cumberland Council v Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 at [71] and [72]: 71 The now well-accepted approach was recently considered in Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178, where Payne JA, with whom Basten and Gleeson JJA, Sackville AJA, and Simpson AJA agreed, said at [57]: The relevant principles of statutory construction were not controversial. The parties referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], where the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. The importance of context, including the general purpose and policy of the provision has subsequently been emphasised by the High Court: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] and [25]-[39]. 72 However, the importance of context does not detract from the centrality of the text and the principle that each word should be given work to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ('Project Blue Sky') at 381-382. Where the clear words of a statute demand a particular outcome, the fact that the outcome may appear inconvenient will not, in itself, be determinative. [16] Pain J has also recently discussed the modern approach to statutory interpretation in The Next Generation Pty Ltd v Independent Planning Commission [2020] NSWLEC 70 at para [49]: [49] Principles of statutory construction require the words of a statute to be considered in their context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381-382 (McHugh, Gummow, Kirby and Hayne JJ) cited by Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26 at [61]. Section 33 of the Interpretation Act requires a construction which promotes the purpose or object of an Act over one which would not. A general principle of statutory construction is that where words are plain and unambiguous they should be given their ordinary and grammatical meaning: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ) cited in Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191 at [42]. As the Applicant identified, the High Court confirmed a number of these principles recently in Australian Securities and Investments Commission v King (2020) 376 ALR 1; [2020] HCA 4 at [24] and [29] where Kiefel CJ, Gageler and Keane JJ, referred to "text, context and purpose" and "legislative context, history and purpose"."
I similarly adopt the following from the Applicant's written submissions at [14]: "[14] The following principles of statutory construction are said to be relevant to the task of construing environmental planning instruments (EPI), including in particular the BLEP: (a) There are not differing principles of statutory construction applicable to primary and delegated legislation. There is not "some general principle requiring laxity or flexibility in construing delegated legislated, or statutory instruments generally": 4Nature Inc v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191 at [45]. (b) The general principles relating to the interpretation of statutes are equally applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389; [1996] HCA 36 at 398. (c) The basic principles of statutory construction "require that the language be read in context and having regard to the objective which it was designed to promote", however "the primary focus must remain upon the text": 4Nature Inc v Centennial Springvale Pty Ltd at [51] and see Cranbrook School v Woollahra Municipal Council at [36]. […] (e) In choosing between "two strongly competing interpretations", the Court would prefer the interpretation "which provides the fairer and more convenient operation so long as it conforms to the legislative intention": Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 320-321 (Cooper Brookes) (f) "Where the drafter has been less than fastidiously precise in his or her choice of language" it might be appropriate "to give rather less weight to precise textual considerations": see Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54] - [55] and 4Nature Inc v Centennial Springvale Pty Ltd at [107]. In this respect it is relevant to ask whether the draftsperson has been precise in the choice of language?"
The above is the summary of the authorities agreed and submitted by the parties, for the what is accepted to be the modern approach to statutory interpretation which "requires words to be interpreted according to their plain and ordinary meaning by having regard to the text and context in which they appear." In essence, the above principles and authorities require consideration of the text, context and purpose of cl 4.1C(1)(a) of the BLEP. Consequently, I will undertake the task of determining the proper construction of cl 4.1C(a)(1) by beginning with a consideration of the text of the clause itself as informed by its legislative context, history and purpose.

Consideration of the text: each of the two dwellings has a frontage to a different road

Consistent with the above authorities, I begin the process of statutory construction with a consideration of the text of cl 4.1C(1)(a) of the BLEP itself.
The Respondent's case is that the Site does not satisfy the first requirement of cl 4.1C(1)(a) in that each of the two proposed dwellings does not have a frontage to a different road because the road is Braeburn Crescent, that is, the objective fact of having the same name is determinative of whether the road is a different road. As the phrase different road in cl 4.1C(1)(a) is not defined in the BLEP, the Respondent submits that the word "different should be construed according to its plain and ordinary meaning" and relies on the Online Macquarie Dictionary (Exhibit 5) and in particular the Respondent relies on the second definition provided which "defines different to mean "not identical; separate or distinct". Giving different its ordinary and plain meaning in the context of cl 4.1C(1)(a)", the Respondent submits that "it means that each of the two dwellings comprising a dual occupancy must have frontages to a separate road" with a different street name.
The Applicant argues that the Online Macquarie Dictionary definition of "different" includes 4 definitions and argued that this supported the Applicant's argument that the same name of the road was not determinative of whether the different portions of Braeburn Crescent were different roads for the purpose of cl 4.1C(1)(a) of the BLEP.
The Court notes that Exhibit 5 does list four definitions of different and although the Respondent relies on the second listed definition to support its case the Applicant relies on the totality of the definitions, in particular the first definition which in the context of being an adjective different is defined as: "differing in character; having unlike qualities; dissimilar."
The word different in cl 4.1C(1)(a) appears before the noun road and performs the function of an adjective as it describes the noun road, accordingly the first definition set out in the Online Macquarie Dictionary (Exhibit 5) as an 'adjective' is preferred.
As the phrase different road in cl 4.1C(1)(a) is not defined in the BLEP, I have regard to the ordinary and natural meaning of those words. The Respondent submits that "the requirement in cl 4.1C(1)(a) for each of the two dwellings comprising a dual occupancy to have a frontage to a "different road" is intentional" and has a specific purpose. The Applicant agrees that it may have been intentional to use the phrase however disputes the purpose of the words chosen.
The Applicant notes that "the word 'different' where it is used in cl 4.1C(1)(a) has not been qualified or limited to the name of a road" and submits that: "had it been intended to confine the meaning of the expression to circumstances where there were two differently named roads, as is the Respondent's case, it would have been a simple matter for the draftsperson to provide for that limitation by the use of the words differently named roads."
The Respondent submits that cl 4.1C(1)(a) is: "not concerned with a requirement to have only separate and different "street frontages" or only "corner lots", as such language could have been used if such a requirement was sought. Rather, the purpose of cl 4.1C(1)(a) is to require each dwelling comprising a dual occupancy to have a street frontage to a "different road" being something more than a requirement to achieve separate street frontages."
During the Respondent's opening statement, the Court was advised that the word different appears many times throughout the EPA Act and various examples were given. The Respondent submitted that as part the process of having the BLEP amended the draft amendment is referred to Parliamentary Council during which time the original proposed draft wording: "(a) the frontage of each dwelling comprising the dual occupancy faces a differently named street" was improved by the Parliamentary Council drafter to be consistent with the use of the word different in the EPA Act and the following text is the ultimate result (being the current text): "(a) each of the 2 dwellings has a frontage to a different road."
The difficulty with the Respondent's interpretation of cl 4.1C(1)(a), as identified by the Applicant, is that it seeks to alter existing words of the text and read additional words into the expression different road. In particular, the Applicant submitted that: "the Respondent seeks to add or alter the word different to differently and then add the word named between the altered word "differently" and the word "road"."
The Applicant submits that "there is no obvious error in the words that would warrant this approach" and states that: "it is generally accepted that additional words should not be lightly read into a statutory instrument, including EPIs: Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171 at [53] citing Lend Lease (Millers Point) Pty Ltd v Council of the City of Sydney (2014) 202 LGERA 314; [2014] NSWLEC 64 at [54]; Morton v Shoalhaven City Council [2016] NSWLEC 67 at [16]."
It is noted that the Respondent also relies on the submission that the text of cl 4.1C(1)(a) is clear and relies on this argument to rebut the Applicant's submission that the widest interpretation should be given to the language. The Respondent submits that statutory interpretation requires a focus on the text of the provision. The text of the provision the Court is required to interpret include the phrase different road.
The Respondent then referred to the word road which is defined in the BLEP as follows: road means a public road or a private road within the meaning of the Roads Act 1993, and includes classified road.
The parties agree that that definition is unhelpful as it is ultimately inclusive and does not itself define what constitutes a road.
During opening, the Respondent took the Court to the Land Use Table in the BLEP for the Zone R2 Low Density Residential and noted that both Dual Occupancies and Roads are permissible with consent. This was done by the Respondent in an attempt to give further meaning to the word road. This did not assist in the task at hand.
I have reviewed the Joint Report and not that Mr Grech, provides the definitions of the words road and different from the Macquarie Dictionary at par [53] of the Joint Report (Exhibit 3) as follows: "[53] [..] a. 'Different' is defined under the Macquarie Dictionary to mean "not the same as another or each other, unlike in nature, form or quality" or "distinct or separate". b. 'Road is defined under the Macquarie Dictionary to mean "a way, usually open to the public for passage of vehicles, persons and animals". "The track on which vehicles etc pass, as opposed to the pavement."
The Applicant submits that when applying the above Macquarie Dictionary definitions to the phrase different road, as the phrase appears in cl 4.1C(1)(a) of the BLEP, the construction of the phrase: would require that each of the relevant roads: are not the same as each other; are unlike in nature, form or quality; are distinct or separate from each other.
The Applicant submits further that there are four reasons why upon examination of "the evidence before the Court it is apparent that the road that runs along the north eastern boundary of the" Site "is different to the road that runs along the north western boundary" as follows: "the nature of the roads is that they are at 90 degrees to each other; The alignment of the roads are opposed to each other; This relationship results in the roads forming a corner where each of the roads are distinct and separate from each other; and As the roads are at 90 degrees to each other the roads have a different quality where a dwelling fronting one road cannot be seen (other than obliquely) in the same streetscape as the dwelling in the streetscape fronting the other road."
The Applicant argues that: "when the expression different road is given the widest interpretation that its language will give the Court would find that the subject roads which each of the dual occupancies have frontage to are different roads albeit that they have the same name."
The parties agree that the BLEP is not to be interpreted by reference to the Blacktown Development Control Plan 2015 (DCP) (s 3.43(5) of the EPA Act) and acknowledge that clause 4.2 of the DCP: "provides that the subdivision of dual occupancies and secondary dwellings is generally prohibited in circumstances where: The frontage of each dwelling comprising the dual occupancy or secondary dwelling faces a differently named street; The size of each lot resulting from the subdivision is not less than 300 sq.m"
The Applicant goes further to note that: "the Respondent has not pleaded clauses 4.2 or 4.3.2 of Part C of the DCP as a reason for refusal of the application and that in any event it should be noted that cl 4.2 of the DCP is nothing more than an incorrect recitation of cl 4.1C of the BLEP. The wording in the DCP is similar to the draft of cl 4.1C of the draft BLEP that was not adopted except that it also refers to secondary dwellings which are not referred to in either the draft form of clause 4.1C or the gazetted form of clause 4.1C. Clause 4.3.2 of the DCP provides: Where detached dwellings are proposed, the 2 dwellings must each face a differently named street. Whilst the above paragraph may be consistent with the incorrect recited version of clause 4.1C of BLEP in section 4.2 of the DCP it is not consistent or compatible with the adopted and gazetted version of clause 4.1C of BLEP and therefore it is of no effect pursuant to section 3.43(5) of the EPA Act (see paragraphs 22 to 23 of the Joint Report)."
A consideration of the text alone is not sufficient to determine the construction of cl 4.1C(1)(a) of the BLEP and I am required to take the next step and consider the context.

Consideration of context

Although it is agreed and well established that the primary focus of statutory interpretation is on the text it is necessary to consider the context, history and purpose which inform the text. This is particularly the case when the statutory provision being interpreted is facultative and beneficial.
The context of cl 4.1C in the BLEP is within a suite of provisions regarding the permissibility of subdivision of dual occupancy developments.
Dual occupancy is defined in the dictionary to BLEP. The relevant definitions are as follows: dual occupancy means a dual occupancy (attached) or a dual occupancy (detached). dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling. dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
The Land Use table in BLEP indicates that development for the purpose of dual occupancies is permissible in the R2 zone. "Subdivision of land is permissible pursuant to cl 2.6 of the BLEP but is subject to the minimum lot size provisions in cl 4.1 to 4.2 of the BLEP", or satisfies the conditions in cl 4.1C of the BLEP.
For the purpose of a subdivision, the minimum lot size provisions are found in Part 4 of the BLEP and sets out the principal development standards for development under BLEP. The minimum lot size applicable to the Site is 450m2, or 300m2 if the conditions of cl 4.1C are satisfied. As mentioned earlier, cl 4.1C is a development standard expressly excluded from variation under the provisions of cl 4.6 by operation of cl 4.6(8)(cb).
Clause 4.1C(1) applies to either attached or detached dual occupancies. Clause 4.1C(2) only applies to detached dual occupancies which as explained by the Respondent, permits subdivision (either torrens or strata) of a detached dual occupancy if each resulting lot complies with the minimum lot size of 450 square metres in the R2 zone and 250 square metres in the R1 zone. Clause 4.1C(1) allows the subdivision (torrens or strata) of either an attached or detached dual occupancy if each resulting lot has a minimum lot size of 300 square metres (regardless of whether it is in the R1 or R2 zone) and provided that each of the dual occupancy dwellings has a frontage to a different road.
This is precisely the issue to be resolved in these proceedings. As part of the consideration of the legislative context of the text, the parties referred to one of the relevant aims of the BLEP being cl 1.2(2)(b) which provides: (b) to ensure that appropriate housing opportunities are provided for all current and future residents through diversity of housing choice,
I find that the context of cl 4.1C of the BLEP as summarised above, indicates that: 1. dual occupancies are a form of development which adds to diversity of housing choice in the low and general residential zone. 2. Development for the purpose of detached dual occupancies can be carried out on land in the R2 zone provided that it has a minimum lot size of 600 square metres. 3. The only opportunity for subdivision of a dual occupancy, regardless of zoning, is facilitated through clause 4.1C. 4. Clause 4.1C(1) does not permit the subdivision of any dual occupancy on land less than 600 square metres. 5. Clause 4.1C(2) permits subdivision of a detached dual occupancy without any dispensation on lot size. In other words, subdivision under cl 4.1C(2) is no different to what would be permitted under clause 4.1 of the LEP which would allow a 900 square metres lot in the R2 zone (or a 500 square metres lot in the R1 zone) to be divided into 2 lots and to have a dwelling house erected on each lot without any further limitation such as a requirement that each dwelling house have frontage to a different road. 6. Clause 4.1C(1)(a) permits subdivision of an attached or detached dual occupancy provided that each of the 2 dwellings that comprise the dual occupancy have a frontage to a different road with each resulting lot having a lot size of not less than 300 square metres.

Consideration of history and purpose of clause 4.1C of the BLEP

Having considered the text of the provision and its legislative context within the BLEP, the provision then must be informed by the history and purpose of the provision in order to be satisfied that the construction of the provision promotes the purpose or object of the BLEP over one which would not (s 33 Interpretation Act 1987).
The Applicant argues that there are competing interpretations being presented to the Court and that if "the interpretations are at least equal competitors then in accordance with the principle of statutory interpretation the Court would prefer the interpretation "which provides the fairer and more convenient operation so long as it conforms to the legislative intention". In this case, I accept that there are competing interpretations of cl 4.1C(1)(a).
The Applicant argues that their "interpretation is the fairer and more convenient operation and it conforms to the legislative intention." The Applicant refers to the fairer and more convenient operation as illustrated by the context of the Proposed Development as part of the scheme envisaged in the originally approved 101 lot subdivision described in the Joint Report at pars [28] to [32] by agreement between the Town Planning experts (Exhibit 3). The Applicant tendered the five prior dual occupancy and subdivision approvals from in the original 101 lot subdivision (Exhibit 5) and notes that this Site is larger than all of the lots with approved dual occupancies with subdivision. The Proposed Development otherwise complies with all controls and the only obstacle is the Respondent's alternate and 'unfair' interpretation of the phrase within the provision, different road on the objective basis of the name attributed to the road.
At par [29] of the Joint Report the Experts agree that: "The majority of the lots in the original subdivision are close to the standard minimum lot size of 450m2. The proposed lot is one of the 8 lots separately identified by pink coloring. The planners agree that those corner lots were sized over 500m2 to implicitly accommodate dual occupancy developments."
Relevantly, the Experts agree that the roads were not named at the time of the original subdivision (par [30] Joint Report) and that if "one arm of Braeburn Crescent was differently named, then the subdivision proposed under this development application could proceed" (par [33] Joint Report).
Before being able to choose or prefer the interpretation of cl 4.1C(1)(a) which provides the fairer and more convenient operation the Court needs to ensure that this interpretation conforms to the legislative intention. (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 (Cooper Brookes) and s 33 Interpretation Act 1987). The next necessary step is to consider and establish what is the legislative intention of the language which has the precondition to subdivision of a dual occupancy that each of the 2 dwellings has a frontage to a different road.
In order to establish the legislative intention, I will firstly consider the purpose and underlying object of the BLEP (including one of the stated aims as referred to in par [54]) and of cl 4.1C of the BLEP. The history of the clause is a little more complicated and is contentious between the parties, so I will deal with the history in more detail below at pars [74] to [102].
The Respondent submits that the purpose of cl 4.1C is: "to prevent dual occupancy subdivision of inappropriate allotments, being allotments which could achieve separate street frontages but only to the same road." and that: "this purpose cl 4.1C(1)(a) is clear when one considers the legislative context, history and purpose of cl 4.1C(1)(a)."
The parties agree that the BLEP, including cl 4.1C, contains no express statement of the object or purpose of the constraint in cl 4.1C(1)(a). Accordingly, I am required to identify the likely underlying object or purpose of the subdivision requirements in cl 4.1C(1) that each of the dual occupancy dwellings have a frontage to different roads and a minimum lot size of 300 square metres. The Experts have considered possible objectives for the control in their Joint Expert Report filed 22 May 2020 in the table at par 62 (Exhibit 3). As Mr Apps puts it in par 61: "In the absence of any stated objective, some assumptions must be made as to the underlying purpose of the control."
The Applicant argues that "there is no evident planning reason which would support that requirement [of each frontage being to a differently named road]."
Mr Apps concedes, in cross examination, that the language of cl 4.1C(1)(a) is "unusual and inelegant" and that but for the name of the road this Proposed Development is permissible. Mr Apps also did not identify any planning purpose for the narrow interpretation of cl 4.1C(1)(a) only to say that that the word road is given "different weight" and justifies the departure from the usual town planning interpretation of the word road and the phrase different road for planning and assessment purposes.
The Applicant argues that "it is more likely that the purpose of the requirements in clause 4.1C(1)(a) is to provide an incentive and disincentive to encourage and discourage dual occupancy development unless the development achieves a certain planning purpose."
The Experts agree at par 62 of the Joint Report that "the ability to subdivide dual occupancies makes dual occupancy development attractive to investors."
The issue for determination, according to the Applicant, "is what is the planning purpose or objective of encouraging development for the purpose of dual occupancies by allowing a reduced land size only where each of the two dwellings fronts a different road."
The Experts disagree "as to the purpose of the control and whether that purpose is met or offended by the proposed development" (at par 41 Joint Report).
The Applicant submits that "it is unlikely that the planning purpose or objective is to give the development different street names to each dual occupancy in their postal addresses." Mr Grech disagrees with Mr Apps' proposition that the purpose of cl 4.1C is to allow the subdivision of dual occupancies only if roads have a different name because: "[45] […] This was originally proposed by Council but was not accepted as part of the amended clause as finally made. It would not have made sense to have accepted such a clause in my view, as that could have allowed for subdivision in unintended situations. There are examples in the Blacktown LGA and in other areas where one road merges into another with a different street name, in a way that can leave a lot with a frontage to two differently named roads that my not be corner lots […]"
The Applicant submits that "it is more likely that the planning purpose is that identified by Mr Grech" in the Joint Report at par [55] which the applicant summarises as being: "To limit the prevalence of dual occupancy development so as to maintain the low density character in the R2 zone. To encourage dual occupancy development in locations where: each of the dwellings comprising the dual occupancy do not appear in the same streetscape; potential traffic conflicts are minimised by the configuration of the adjoining roads; high levels of internal and external amenity are achieved by enabling each of the dual occupancy dwellings to face different road frontages consistent with adjoining housing. To improve the opportunity for affordable ownership of housing in optimum locations and housing choice."
These "planning objectives are achieved where each dwelling addresses different roads, being two roads of a different alignment or form, regardless of the name of the roads and are certainly achieved by the Development." Mr Apps, in cross examination agreed that the result of the control would be such however he did not agree that it could be concluded that these were the objectives of the control in cl 4.1C(1)(a).
The Applicant put to Mr Apps that: "as a town planner you are not interested in the name of the road, you are more interested in the function of the road."
Mr Apps agreed that cl 4.1C of the BLEP was unique to the extent of his experience with Local Environmental Plans and said that yes, normally the street name is relevant only to location of land but when looking at cl 4.1C of the BLEP road names have a different weight. Mr Apps also said that he had not dealt with a subdivision where the road was still unnamed. The Applicant put to Mr Apps that his approach or logic was the tail wagging the dog if he was relying on his conclusion that in this case it was the same road because it had the same name. Mr Apps agreed in cross examination that this Proposed Development would be permissible in exactly the same terms except with the sole difference being that the name of the road was different for each dwelling frontage. That is, for this development if the name of each arm the road was different the subdivision of the detached dual occupancy would be permissible. Mr Apps was asked what was the town planning purpose and he responded that the cl 4.1C of the BLEP was not elegant but his reading of it was with the object to limit where dual occupancies can occur. He stated that a detached dual occupancy development was permissible on the land without subdivision however he agreed that without subdivision there was little incentive to investors to construct dual occupancies.
Mr Grech in oral evidence referred to planning decisions not being based on road maps but instead it was more functional to define a road by frontage.
The Respondent cross examined Mr Grech and put to him that cl 4.1C does not refer to the function of a road and that none of the characteristics he refers to in par [56] of the Joint Report in determining what are different roads are in cl 4.1C. The Respondent then suggested to Mr Grech that development standards are applicable across the whole Blacktown local government area and that these development standards are interpreted regularly, are simple and objective and are usually numerical. Mr Grech disagreed with this proposition and his evidence was that they (development standards) may start off being simple and numerical but almost always require subjective interpretation giving examples of FSR and calculation of GFA. Mr Grech did not agree that the interpretation of development standards was simple and objective, he said it was not black and white.

What is the history of cl 4.1C(1)(a) of the BLEP?

The final step in the process of interpreting cl 4.1C(1)(a) of the BLEP is to consider the history of the clause. The Respondent submits that the "legislative purpose behind this amendment is clear when one compares the difference to the standard imposed in cl 4.1(1)(a) in its original and amended form."
The Respondent provided the following summary of the history: 1. The BLEP commenced operation on 7 July 2015, being six weeks from the date of its publication on the NSW legislation website (cl 1.1AA). 2. At the commencement of the BLEP in the year 2015: "it contained clause 4.1C in a form substantially the same as its current form, with the exception that it provided in clause 4.1C(1)(a) that the frontage of each dwelling comprising the dual occupancy is a corner lot" 1. The Applicant does not agree that the original cl 4.1C and the current cl 4.1C are substantially the same and submits that at the commencement of the BLEP the original version of the clause was nonsensical as it is impossible to achieve each dwelling as a corner lot. The Respondent's summary in its written submissions, of the history continues as follows: "[35] After its commencement, clause 4.1C was amended by the Blacktown Local Environmental Plan 2015 (Amendment No 7) which commenced on 10 August 2018 (2018 LEP Amendment). [36] The 2018 LEP Amendment to cl 4.1C(1)(a) omitted the words in cl 4.1C(1)(a) the frontage of each dwelling comprising the dual occupancy is a corner lot and instead inserted each of the 2 dwellings has a frontage to a different road. […] [38] Clause 4.1C(1)(a) in its original form required each dwelling comprising a dual occupancy to be a corner lot. Dual occupancy subdivisions could not be carried out under cl 4.1C(1) on any land other than corner lots, regardless of whether separate street frontages could be achieved. This limited the application of cl 4.1C(1) to types of dual occupancies which could receive its facultative benefit. [39] Clause 4.1C(1)(a) could therefore be satisfied as long as each dwelling had separate street frontages on a corner lot notwithstanding those street frontages were to the same street. As such, allotments on corner bends or roundabouts could have satisfied the requirements of cl 4.1C(1)(a). [40] The 2018 LEP Amendment to cl 4.1C(1)(a) removed the focus on whether the land was a corner lot and instead required that each dwelling have a frontage to a "different road". Consequently, following the 2018 LEP Amendment the subdivision of dual occupancies could occur whether or not the land was a corner lot. In this aspect, the 2018 LEP Amendment broadened the land on which subdivision of dual occupancies could be carried out; for example, on allotments with road frontage to the front and rear."
The BLEP is a Local Environmental Plan for the purposes of the EPA Act, the parties agreed that the proceed of preparing a draft BLEP or any amendments to it are submitted as a planning proposal to be made by the Minister and the final wording is drafted by parliamentary counsel.
The Respondent's Bundle (Exhibit 1) includes the relevant historical documents such as the Planning proposal to amend Blacktown Local Environmental Plan 2015 prepared by Blacktown City Council dated July 2016 at page 177 of Exhibit 2 (Planning Proposal). This is the Planning Proposal that led to the amendment of cl 4.1C of BLEP. The Applicant submits that it would appear that the drafter of the Planning Proposal may have been less than fastidious with their choice of words and refers to item 2 of Table 1 on page 180 of the Respondent's Bundle, Exhibit 1, where the Matter is identified as "Subdivision of dual occupancies" and the Amendment to BLEP 2015 is described as being: "Amend Clause 4.1C Subdivision of dual occupancies prohibited as applies to corner lots to clarify the intent of the provision."
The Applicant submits that the description above "is a reference to the prior version of clause 4.1C which appears at folio 165 of the Respondent's bundle" (Exhibit 1) and quoted at par [78(2)] above. The description unhelpfully provides no explanation of the "intent of the provision".
The next reference in the Planning Proposal to clause 4.1C is at folio 193 of the Respondent's Bundle where the draft of proposed amended clause 4.1C is set out in full. There are a number of differences between the proposed draft cl 4.1C and the current form, the most notable being in the draft proposed subcl (2)(a) which reads: "the frontage of each dwelling comprising the dual occupancy faces a differently named street".
The parties agree that that draft was not accepted by the Minister and in particular the words in draft clause 4.1C(2)(a) that provide "the frontage of each dwelling comprising the dual occupancy faces a differently named street" (emphasis added) were changed. The Applicant submits that the reason for the change to the draft proposed wording "may well be because the wording of the draft amendment did not reflect the comment set out immediately below it" in the Planning Proposal. The comment refers to the Respondent's resolution dated 20 November 2013 (SD330097) and says: "The gazetted clause is inconsistent with Council's resolution dated 20 November 2013 (SD330097) regarding subdivision of dual occupancies on corner lots. It is proposed to amend the clause to require that the frontage for each dual occupancy in dual occupancy subdivision faces a different street consistent with Council's resolution. The purpose of this provision is to prevent dual occupancy subdivisions occurring on unsuitable sites, for examples sites that are located on road bends or on roundabouts."
The Applicant notes that the "comment does not refer to differently named roads but rather uses the words faces a different street" and notes that the Site "is not on a roundabout or a bend but is on a corner", relying on "the ordinary meaning of a bend in a road being a curve and the ordinary meaning of a corner being a road that turns 90 degrees."
The next reference to cl 4.1C in the Planning Proposal appears at folio 229 of the Respondent's Bundle under the heading Supporting analysis at point 2 listing the minor amendments at A1-9 which states "Reword clause 4.1C - "Subdivision of dual occupancies prohibited". Under the heading "Reason" the Planning Proposal provides as follows: "The gazetted clause is inconsistent with Council's Resolution dated 20 November 2013 (SD330097) regarding subdivision of dual occupancies on corner lots. It is necessary to amend the clause to be consistent with Council's resolution that each dual-occupancy on a corner lot must front a different street."
The Applicant draws attention to the choice of words, that there is a reference to different street rather than differently named street.
In order to understand the language used in the Planning Proposal it is necessary to look at the Council's resolution of 20 November 2013 (SD330097) which appears in the Respondent's Bundle at folio 233-242. The subject of the document containing the Council's resolution (Council's Resolution) is: "SD330097-Development Application Seeking the Demolition of the Existing Structures within the Site and the Construction of Two Detached Dwelling and Concurrent Subdivision as a Dual Occupancy Development - Lowana Crescent, Seven Hills - Further Consideration Following Site Inspection." and relates to the refusal of that development application (the Lowana Crescent Subdivision). The context of the Lowana Crescent Subdivision is in relation to cl 10A(2) of the BLEP 1988 and further set out in Council's Resolution at par [4(f)] which relevantly states: "[…] The proposed dwelling on each proposed lot will face different street frontages of the same street."
At par [4(g)] Council's Resolution goes on to give some background that in the previous 5 years (leading up to November 2013 and in the context of cl 10A(2) of the BLEP 1988) 150 corner lot dual occupancies have been approved by Council and that of these, 4 have been on a bend of the same road, that is, not on 2 differently names streets. Then at par [4(h)]: "It was not the intention of the original subdivision amendment for corner lot dual occupancies to define a corner lot based on having 2 street names, rather to acknowledge the 2 separate street frontages regardless of whether there were 1 or 2 street names."
The resolution itself is set out on folio 242 of the Respondent's Bundle (Exhibit 1). The Applicant notes that the resolution is a refusal of the Lowana Crescent Subdivision and the reasons for refusal and that there is no resolution to amend the BLEP. It appears that paragraphs (a) and (c) of the resolution are the relevant grounds of refusal which refer to the Lowana Crescent Subdivision not being considered a corner allotment and that it is an irregular shaped lot on a sweeping bend in Lowana Cresent.
The experts referred to the Lowana Crescent Subdivision at pars [37] - [39] of the Joint Report. At par [39] Mr Grech recalls the Lowana Cres matter being the subject of an appeal but could not recall what led to the approval as the matter did not proceed to hearing. During the hearing the Applicant tendered to the Court a s34 Agreement detailing the approval for the Lowana Crescent Subdivision (Exhibit F).
The Applicant argues that the "proposed draft clause 4.1C in the Planning Proposal is clearly not consistent with" the Resolution because nothing in paragraphs (a) and (c) of the resolution refer to two differently named streets.
Paragraph (a) of the Resolution provides: "The subject site is not considered to be a corner allotment in accordance with Section 4.4 of BDCP 2006, as the proposed two dwellings must face different streets."
The Council Resolution does not use the words differently named streets but rather it uses the words different streets. It is the Applicant's case that: "this confirms that the use of the words different street rather than differently named streets was deliberate in the adopted version of cl 4.1C and that the drafter of the adopted version of clause 4.1C was not less than fastidious."
Paragraph (a) of the resolution also refers to section 4.4 of BDCP 2006, extracted at the bottom of folio 234 and the top of folio 235 of the Respondent's Bundle. The Applicant notes that "There is no reference in the extracts of the DCP that refer to differently named roads. The requirement was that the 2 dwellings must each face different streets." This was the same wording in cl 10A(2)(a) of the BLEP 1988. The Applicant argues that: "If it was the intention of the amendment to give effect to the Respondent's resolution of 20 November 2013 then it did so by using the expression different roads instead of differently named roads."
Paragraph (c) of the Resolution provides: "The subject site is not suitable for the proposed dual occupancy development consisting of 2 substantial dwellings on a sweeping bend in Lowana Crescent."
The Applicant submits that to the extent paragraph (c) of the Resolution has any relevance to the purpose of cl 4.1C, "the form of Braeburn Crescent is that of a" 90 degree "corner not a curve" or sweeping bend and that "there is no reference anywhere in section 4.4 of the BDCP or the [Council] Resolution that refers to roundabouts."
The Respondent argues that "if the purpose of the 2018 LEP Amendments was to only maintain the requirement for separate street frontages notwithstanding those street frontages were to the same street and/or road then this purpose could have been expressed by clear words" and goes on to submit that: "The 2018 LEP Amendment rather requires each dwelling in a dual occupancy to have a street frontage to a different road. Accepting the plain and ordinary meaning of "different", the effect is that 2018 LEP Amendment is that the corner lots located on a bend of the same street and/or road or on a roundabout cannot satisfy the standard in clause 4.1C(1)(a). The 2018 LEP Amendment has resulted in certain allotments no longer being able to receive the facultative benefits of cl 4.1C(1) despite being able to previous do so in its original form."
The Respondent concludes that "the purpose of the 2018 LEP Amendment therefore sought to restrict the exact types of subdivision of which the Applicant now seeks consent," namely the subdivision of dual occupancies on corner allotments located on a bend of the same road.
The Respondent submits that the Court should therefore: "reject any construction of cl 4.1C(1) which would shift the focus from an objective requirement for each dwelling comprising a dual occupancy to have a street frontage to different road to a subjective requirement to only demonstrate separate street frontages can be achieved on an appropriate allotment having regard to various other planning considerations regardless of whether those street frontages are too different roads. This would defeat the clear language used in cl 4.1C(1)(a) and would result in broadening the types of dual occupancies which could be subdivided otherwise than in accordance with the specific objective standard the 2018 LEP Amendment introduced in order to carry out dual occupancies subdivisions under cl 4.1C(1)."
I accept that the Court must give effect to a purpose when the clear words used within the text permit such a construction, however I do not accept that the words used in the text of cl 4.1C are clear and I am not convinced that the purpose of the clause is clear. I form this opinion based on my reading of the content of the Council Resolution in full, the history and context of the amendments and the ultimate agreement reached between the Council and the applicant for the Lowana Crescent Subdivision. These factors as well as others combine to lead me to the conclusion that the words used in the text of cl 4.1C are open to more than one interpretation and as such the Court should prefer the fairer construction of the clause (Cooper Brookes) and give the words the widest interpretation that its language will give (Radray).
The Applicant made submissions that there is an alternate approach available to the interpretation EPIs where a provision is capable of more than one interpretation (Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 31; [2002] FCA 1127 at [44]). The alternate approach has regard to the nature of the instrument and was posited by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 ALL ER 180 at 183. The Applicant explains that in that case the Court was dealing with the interpretation of regulations made under the Factories Act 1937 (UK) relating to the use of scaffolding, ladders etc. The Court in that case was tasked with interpreting the meaning of phrases such as "working place" and "working platform" and the Applicant goes on to say that: "The approach has been adopted in this Court by Lloyd J in Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41 at [18] to [20] where his Honour said: [18] I find the competing submissions nicely balanced. It must be remembered, however, that the Policy is subordinate legislation and not drafted with the particularity or specificity of a statute: it should not be construed in a strict or over-technical way but rather in a practical, reasonable and commonsense way: Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289 at 294; Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266 at 279. [19] It is necessary, therefore, to construe the Policy with the flexible and practical approach to construction adopted by Lord Reid in the House of Lords in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 ; [1963] 1 WLR 929, an English building regulation case: I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry … So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament. [20] These comments of Lord Reid have been cited and adopted in applying and interpreting subordinate legislation, including planning instruments: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531, Hecar Investments No 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323; GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51; Port Stephens Shire Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 231."
The Applicant submits that "EPIs are prepared by town planners and applied by town planners" and in reference to the evidence of Mr Grech submits to the effect that "the names of roads are irrelevant to town planning except for the purpose of finding a site to carry out an inspection."
The Applicant argues that "this practical, reasonable and commonsense approach was taken by the town planner who assessed the Lowana Crescent Subdivision", the development application that seems to have initiated the amendment to cl 4.1C. To support this town planning purpose argument, the Applicant refers to the Council Resolution (Respondent's Bundle folio 239) where the town planner wrote at par [4(h)]: "h. Therefore, whilst corner dual occupancy with subdivision on the bend of the same road has not been a common occurrence it has been accepted by Council Officers that these are corner lots and they have been allowed to proceed to subdivision provided they satisfy traffic requirements for a corner lot, including safety issues on a bend. It was not the intention of the original subdivision amendment for corner lot dual occupancies to define a corner lot based on having 2 street names, rather to acknowledge the 2 separate street frontages regardless of whether there were 1 or 2 street names."
The Applicant argues that there is also a further vice in the Respondent's interpretation submitting as follows: "It is often the case that a developer will seek consent for the subdivision of land together with the construction of buildings on the proposed subdivided lots. Such a development will usually include the construction of roads to provide access to the subdivided lots. As part of such a development application consent can be sought for the construction of a dual occupancy development on one or more of the proposed lots in the proposed subdivision. At the time of lodgement, assessment and determination of the application the roads do not exist and do not have names. On the Respondent's construction of clause 4.1C(1)(a), permissibility would be unknown until such time as the roads are named which, according to the Respondent's Engineering Guideline, occurs before the linen plan is submitted to the Respondent that creates the new road."
The Applicant submits that when construed in a practical, reasonable and common-sense way giving the widest interpretation that its language will give the Court would accept that the Subdivision Aspect of the Development meets the requirement in cl 4.1C(1)(a) in that each of the dwellings will face different roads albeit that the roads have the same name.
I am satisfied that if the Applicant's interpretation is accepted it may be preferred because it "promotes the purpose or object underlying the Act or statutory rule" (s 33 Interpretation Act) in circumstances where the Respondent's interpretation "would not promote that purpose or object."
The above considerations support the Applicant's construction of clause 4.1C(1)(a) that: "the use of the words different roads is not interested in the name of the roads but rather is interested in the nature, form or quality of the road that each dual occupancy will have a frontage to, and whether the nature form or quality of the road to which each dual occupancy has frontage is sufficient to distinguish the roads so that they can be said to be distinct or separate from each other."

Precedent

During the hearing the Respondent made the submission that there was some concern that an undesirable precedent in the local government area would be set if the wording of cl 4.1C is constructed to allow subdivision of dual occupancy development with frontage on different roads but with the same street name. This is stated earlier as the third reason at par [5]. However, the Respondent also clarified that there would not be many roads in the local area with lots of land in the right zone, of the right size which would be capable of subdivision. The Respondent did not present any further argument in relation to setting an undesirable precedent.

Findings

Having carefully considered the evidence and submissions of the parties I make the following findings: 1. The words are inelegant, as Mr App stated in his oral evidence, and that these are the words of the text of cl 4.1C(1)(a) of the BLEP which the Court is being tasked to interpret in these proceedings. 2. There are competing interpretation or constructions of cl 4.1C for the reason that the text is not plain and unambiguous and as such I have undertaken a review of the purpose of the clause and an assessment of the legislative intention in order to apply the conforming fairer and more convenient operation (Cooper Brookes). 3. Clause 4.1C is facultative and beneficial for the reasons in pars [20] and [21] and that the phrase different road is to be given the "widest interpretation that its language will give" (Radray). 4. The purpose or object of cl 4.1C(1)(a) is to limit the permissibility of subdivision of dual occupancy developments in the Blacktown local government area by requiring that each dwelling comprising the dual occupancy will have a frontage to a different road and thereby achieving planning objectives and outcomes evident in the BLEP. I have formed this conclusion following the careful review of the parties' submissions, the Joint Report and oral evidence given by the Experts including the concession of Mr Apps that the Proposed Development meets and complies with all other controls and that he did not identify any planning purpose for the reliance on the narrow construction of the text to render impermissible the subdivision purely on the basis of the name of a road. Accordingly, I find that the legislative intention is for the words different road to refer to form and function and not have the narrow restricted interpretation of the name of the road. 5. The sections or arms of Braeburn Crescent are different roads for the purpose of cl 4.1C of the BLEP because of the cumulative factual elements of those parts of Braeburn Crescent being its 90 degree angle, the different orientation and alignment and I conclude that the relevant sections of Braeburn Crescent onto which each of the dual occupancies will have a frontage to are different roads for the purpose of section 4.1C(1)(a) of the BLEP.
I have considered and assessed the concern raised by the Respondent regarding the risk of setting an undesirable precedent. I find that the risk of setting an undesirable precedent is low to negligible as the Respondent concedes that there are not many roads in the local area that would be caught by cl 4.1C in that it would not be common for land to be in the right zone, of the right size and capable of subdivision.
Having assessed the evidence, including the Joint Report and the oral evidence of Mr Grech and Mr Apps, and having considered the written and oral submissions of the parties and for the reasons set out in this judgment, I have determined that the Court has the power to approve the Proposed Development based on the findings as to the construction of cl 4.1C(1)(a) of the BLEP and note that there were no merit contentions raised for consideration or assessment by the Court.
The parties were able to agree to draft Conditions of consent and I have taken note and adopt those conditions of consent.

Orders

That Court orders that: 1. The appeal is upheld. 2. The Development Application no. DA-18-02568 for construction of a detached dual occupancy and Torrens title subdivision into 2 lots on land now legally identified as lot 94 in DP1227480 at 22 Braeburn Crescent, Stanhope Gardens is approved subject to conditions of consent annexed 'A'. 3. Exhibits be returned except Exhibit A (Class 1 Application filed 20 November 2019).

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: 17 September 2020

(2017) 224 LGERA 301

(2006) 145 LGERA 292

(2018) 231 LGERA 145

(2015) 213 LGERA 103

(2014) 202 LGERA 314

(1993) 130 LGERA 266

(2005) 141 LGERA 226

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