Williams v Blue Mountains City Council

Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331 CASES CITED: Strathfield Municipal Council v Poynting [2001] NSWCA 270 Bell v Shellharbour Municipal Council (1993) LGERA 429

APPLICANT Mr I Hemmings (barrister) SOLICITOR Mr T Cork (solicitor) of McPhee Kelshaw Conveyancers LEGAL REPRESENTATIVES:

RESPONDENT Mr F Hicks (barrister) SOLICITOR Mr F Airbeaggi (solicitor) of Yates Beaggi Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11243 of 2008 Ralph Douglas Williams v Blue Mountains City Council

JUDGMENT Background. 1 This appeal was lodged against council's deemed refusal of a development application for a 6 lot residential subdivision and associated works at 53 Coughlan Road, Blaxland. A number of issues were identified for the appeal, which are summarised as follows: o Whether the development is prohibited? o Adequacy of information. o Bushfire risks. 2 During the appeal process, the applicant has applied to have the proposed number of lots reduced to 5. Also, the parties agreed to the appeal being undertaken in 2 stages with the initial stage being the determination of the first issue as to whether the proposal, in principle is prohibited.

3 This issue arises from the provisions of the Blue Mountains LEP dealing with subdivisions. In particular, whether those controls present a prohibition for the type of subdivision proposed, or whether the control is a development standard that is amenable to the application of a SEPP 1 objection. In this regard, reference was made to a number of authorities on this question, from which an important element concerns the identification of the development.

The site 4 The subject site is described as Lot 5 in DP 1036777 and it has a total area of 133,690.21sq m. This lot was created in 2002 by way of subdivision of an original land parcel being Lots 281 and 282 DP 703293, then owned by Mr and Mrs Williams in 1998.

5 There have been a number of successive subdivisions of this original parcel as follows: DP Reference No of Lots 876443, registered 22.4.1998 24 (incl. 1 lot for sewer) 1000095 registered 21.4.1999 7 1022216 registered 15.2.2001 2 (service provision only) 1036777 registered 18.1.2002 8 1071874 registered 27.8.2004 2 1101491 registered 27.8.2004 2

6 The site is located on the western end of Coughlan Road. It comprises a relatively level plateau on which a dwelling house, garage and workshop are presently located. The site falls to the north, west and south of this plateau. To the east, other residential lots previously subdivided from the original land border the site.

Planning controls 7 The following controls apply: o Blue Mountains LEP 1991; under which the site is zoned part Residential Bushland Conservation 4ha (RBC 4ha) and part Environmental Protection (EP). The relevant portions are: Zone % of Lot Approx. area in sq m . RBC (4/ha) 21.4 28,613.8 EP 78.59 105,067.79 Nat. Park (NP) 0.01 7.17 8 The LEP format in Clause 8 refers to a number of different zones, including the Residential Bushland Conservation - (RES - BC) zone. It also refers to Zone Subscripts, such as the 'Density Control Provisions shown as lots per hectare, which in the subject case is 4/ha.

9 According then to the Table in Clause 9 of the LEP, subdivision is permissible with consent in the RES-BC zone.

10 The specific subdivision controls are set out in clause 34 as follows: 34 SUBDIVISION 34.1 General Provision (a) The Density Control Provision shown on the Map specifies the maximum number of lots per hectare into which land may be subdivided with the consent of the Council. (b) The Council may consent to subdivision of any land covered by a Density Control Provision shown on the Map only if the total number of lots (other than lots for a public purpose) existing after the subdivision will not exceed the product of the notional development area of the original lot, in hectares, multiplied by the maximum number of lots per hectare specified in the Density Control Provision in respect of the original lot, rounded down to the nearest whole number. (c) The Council may consent to subdivision of any land that is zoned Bushland Conservation or Residential Bushland Conservation only if each new lot proposed to be created, (other than lots for a public purpose, and other than lots created as part of a cluster housing development), and intended to be the site of a dwelling house, includes land with a minimum area of 750 m2, no part of which is development excluded land, and which is so configured as to be capable of being the site of a dwelling house and accommodating development ordinarily incidental and ancillary to a dwelling house. (d) The Council may consent to subdivision of any land for the purpose of cluster housing development only if it is satisfied that: (i) all development for the purpose of any dwelling house proposed to be erected as part of the cluster housing development; and (ii) all development ordinarily incidental and ancillary to a dwelling house, is not to be located on any development excluded land… 34.4 Residential Bushland Conservation Zone - Special Provisions (a) Where a Density Control Provision is shown on the Map, subdivision of the land, in accordance with clause 34.1, to a density exceeding that shown is prohibited. (b) For the purpose only of clause 34.1, the notional development area of that part of a lot zoned RES-BC and subject to a Density Control Provision of (8/ha) shown on the Map shall not include any land which is steeper than 20%. (c) The Council may only consent to subdivision of land shown RES-BC (NS), RES-BC (CONS) or RES-BC with a Minimum Area Requirement on the Map if: (i) it is for a boundary adjustment where no additional lots are created; or (ii) it is for the purpose of providing land for public purposes. 11 The LEP contains a number of relevant definitions including: "Original Lot"; means a lot in a current plan (within the meaning of section 327AA (1) of the Local Government Act, 1919 existing as at 27 December 1991.

The submissions 12 In light of the competing positions regarding the permissibility of the proposal, the applicant formulated the following questions for determination: .1 Whether clause 34.4(a) of the BMCC LEP is a development standard? .2 Whether 34.1(b) of the BMCC LEP is a development standard? .3 Whether, if the answer to questions .1 and .2 is "No", the SEPP 1 application filed on 9 December 2008 should be dismissed? 13 Submissions were made regarding the lines of authority established in past cases dealing with the difficult distinction between the prohibition of a development as opposed to an approach that allows the consideration of development standards. It seems to me that the relevance of those cases has been taken into account and overviewed in the more recent matter of Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331, which both parties have referred to.

14 However that case specifically deals with the interpretation of clause 29.2 - Minimum area and consolidation requirements in the same Blue Mountains LEP 1991. In doing so, a number of alternative tests for distinguishing when development is prohibited under the terms of this LEP were identified.

15 The appropriateness of the alternative tests was identified by Justice Ipps, including the "Zoning Criterion Test" as follows: 19 Another test that has found favour depends on whether zoning criteria are applicable. If the relevant provision is a zoning criterion, and if the developer's proposal contravenes that criterion (irrespective of how "development" is defined), the provision is regarded as an outright prohibition and not a standard. This, in essence, is the basis of the decision in Woollahra Municipal Council v Carr (1987) 62 LGRA 263 and is also the basis of the reasoning of Basten JA and (partly) that of Tobias JA in this case. 20 The zoning criterion test is a beacon of certainty and simplicity in the Wonderland of s 4(1), inhabited as it is by the shifting sands of words used contrary to their ordinary meaning, indeterminate abstract concepts and vague, complex notions that are incapable of ready resolution. 21 The zoning criterion test can easily be applied in this case. The reasoning process is brief and straightforward . 16 Consequently, it was determined that the designated consolidation requirement is a "zoning subscript" and in the context of that development, it was not a development standard. Accordingly, the council's submissions are that that this finding can be simply applied to the subject case on the following basis: "The relevant provision for the Laurence Browning proceedings was the Consolidation Requirement shown on the Map. That is, by reference to cl.8, a zone subscript . The Density Control Provision the subject of these proceedings is also, by reference to cl.8, a zone subscript . Ipp JA then refers to the relevant parts of Basten and Tobias JA's decision. Ultimately, as Justice Ipp notes, "the point is that the Consolidation Requirement is a zoning criterion: it is a zoning subscript. Being a zoning criterion, it is not a Development Standard." 17 By reference to other aspects of this case, the further submission for council is that Justice Tobias, in Laurence Browning also dealt with the provision on an alternative basis of the "zoning provision" test and concluded it was not a development standard. Furthermore, if the decision was able to be distinguished, Justice Tobias held at para 53: "I would not be prepared to extend that concept to a requirement which is unrelated to the development proposed, but is an attribute of the whole of the land within the area shown edged with a heavy black line on the map and which engages more than the land the subject of the application." 18 In that case the zone subscript was a "Consolidation Requirement". This applied to an area of land greater than that to which the development application related. As a result, his Honour was satisfied that - even on the Poynting "wider view" - it could not amount to a development standard. 19 Against this approach, I note the applicant's submission that the current matter is distinguished from Browning because it is fundamentally different in that clause 29.2 of the LEP created a precondition that is required to be satisfied before any permissible development may be carried out. This is quite different to the subject application because 34.1 (b) permits subdivisions, subject to regulations, including density standards.

20 The submission also refers to the following findings of Justice Bastens in Browning: 78 In other cases, statements are to be found as to the importance of preferring substance to form. However, those statements should be read in their context, which is usually concerned with the difficulty in distinguishing conditional prohibition from regulation. Thus in Poynting, at [93], Giles JA noted: "Care must be taken lest form govern rather than substance. A provision in the form 'A building may be erected on land in a particular zone if the land has an area greater than a particular area' appears regulatory, whereas a provision in the form 'A building must not be erected on land if the land has an area less than a particular area' appears prohibitory, but the substance is the same." 79 This concern rests on attempts to distinguish a prohibition from regulation. However, in the abstract, that distinction is unhelpful in this, as in many other contexts, as recognised by Handley JA in Lowy at [32]-[33]. On the other hand, a particular result may be achieved in different ways and, for relevant legal purposes, the means adopted may be important. Thus, in the present context, it was not suggested that the principles espoused by McHugh JA in Carr were wrong, no doubt because they have been widely affirmed: see, eg, Poynting at [97] (Giles JA). Furthermore, those principles appear to underlie the broadly accepted distinction, not challenged by the parties in the present proceedings, that a zoning requirement was not a development standard: see Lowy at [58] and [62] where the term "a zoning function" was used by Handley JA. Thus, if an LEP prohibits a particular form of development in a particular zone, that provision will not generally be considered a development standard, whereas if a particular form of development is permitted with consent in the specified zone, but further and separately identified controls are imposed on such developments, the further controls may constitute development standards. Self-evidently, the drafter of an LEP may be able to achieve the desired result either by a zoning provision, or by a development standard: the way in which it is done will be important, because of the need to distinguish a development standard from other forms of prohibition. A legitimate concern about substance and form should not be allowed to blur the distinction between result and means… 81 The appropriate course is said to depend on what are the essential elements of a development. The use of the (non-statutory) phrase "essential element" seems to have gained acceptance as a reflection of the principle set out above: see Poynting at [36] (Giles JA). So understood, it is a convenient label. It is not disputed that classifications required for the purposes of zoning define essential elements of the development. However, it does not follow that only those elements which are included in the zoning table and map which form part of the usual LEP, are to be included as essential elements of the development. There may be other elements in a particular LEP which should properly be treated in the same way as the zoning table. Whether a particular requirement will so qualify in a particular case will depend not only on the nature of the requirement, but also on the drafting of the LEP. That proposition was expressly accepted by the majority in Lowy: see Mason P at [2] and by Giles JA at [123].

Conclusion 21 Having carefully considered the alternate submissions, I am satisfied that the findings in Browning provide a line of authority that can be applied in the subject matter, particularly as it deals with clauses in the same LEP.

22 Insofar as Browning deals with a 'zone subscript', concerning the consolidation of land and ultimately finds that the zone subscript fulfils a zoning function and is therefore not a development standard, a different zone subscript (Density Control Provisions) is now in question in the subject matter. Therefore, it does not automatically follow on the basis of form that this 'density control' zone subscript also fulfils a zoning function that represents a prohibition.

23 Instead, it seems to me that the various authorities deal with the circumstances where there is a distinction between prohibition and regulation of development. On this basis the differentiation by the applicant has merit. In Browning, cl 29.2 of the LEP requires the consolidation of land before any development can occur. At para 48, Justice Tobias states: 48 Although the matter is not free from difficulty, I have come to the conclusion that the answer to the question so posed is in the affirmative. The requirement that all adjoining lots within the relevant subscript shown edged with an area within the heavy black line on the Map have been consolidated into one lot is a characteristic of the land to which that subscript applies and which must be satisfied before any form of development is permissible with consent upon that land. 24 This is different in the subject case because development in the form of subdivision is permissible with consent according to the Table in Section 9 of the LEP. Also, there is no prerequisite such as consolidatiin. In this regard, I note that the provisions of clause 34 of the LEP then regulate this permitted form of subdivision development. One way that the regulation may occur is by the use of development standards. In this regard, the definitions in s4(1) of the EPA & Act states: " development standards means provisions of an Environmental Planning Instrument or the Regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land,… 25 In the circumstances of the subject appeal, the proposed development is for subdivision, whereby the particular requirements such as area, shape, etc can be regulated by way of the aforementioned development standards. This appears to be the situation with clauses 31.1 and 34.4.

26 Insofar as cl 34.4 uses the term of prohibition, I think this is covered by the discussions on the relative importance of the form and substance of the controls. On this basis, it appears to me that the substance of the matter concerns the subdivision of land, which is permissible and can be regulated by development standards. The form of stated of prohibition is therefore not determinative in these circumstances.

27 The various cases also refer to Strathfield Municipal Council v Poynting [2001] NSWCA 270 and Bell v Shellharbour Municipal Council (1993) LGERA 429. The Bell matter relevantly dealt with a subdivision application under the provisions of Shellharbour LEP No 16. The provisions of this LEP identified subdivision of land as a column IV purpose for which development may be carried out with the consent of the council. Clause 15 then provided: " Except as provided by cl 16(4), a person should not without the consent of the council subdivide land to which the plan applied". Clause 16(1) provides that cl 16 applies to land in particular zones. Clauses 16(2) provides - "(2) The council shall not consent to the subdivision of land to which this clause applies unless each allotment of land to be created by the subdivision will have - (a) an area of not less than 40 hectares; and (b) where the allotment has frontage to a main road -- a frontage of not less than 200 metres . 28 Consequently his Honour Cripps J found that: °In my opinion, the effect of cl 16(3) is not to totally prohibit subdivision as `submitted. Its effect is to qualify the operation of cl 16(2). Clause 16(2) prevents the Council from granting consent unless certain development standards are met. Clause 16(3) allows the Council to grant development consent notwithstanding the provisions of cl 16(2) and thereby create an area of less than 40 hectares if it is satisfied conditions 16(3)(a) and 16(3)(b) are met. Clause 16(3) does not prohibit subdivision. It permits subdivision in certain circumstances notwithstanding non-compliance with cl 16(2)(a). The effect of cl 16(3) is that there is power in the Council to grant development consent for subdivision where the area subdivided will be less than 40 hectares without resort to State Environmental Planning Policy No 1 if the allotment will be used for certain purposes and will have a frontage to a main or arterial road of more than 200 metres. That is to say, development consent in such a case can be granted without a fording that the standard in cl 16(2) of the local environmental plan is unreasonable or unnecessary. 29 Following this authority and the principles stated in Poynting, I am satisfied that the zoning subscript in this current matter can be distinguished from the findings in Browning, particularly because there is no 'pre-condition' to development. Accordingly, this development is for a subdivision, which is permitted development according to the Section 9 Table. The provisions of clause 34 of the LEP then regulate the detail of any such subdivision, in a similar manner to the Bell finding, in my assessment. Findings 30 My findings on the applicant's questions are: .1) Clause 34.4(a) of the BMCC LEP is a development standard. .2) Clause 34.1(b) of the BMCC LEP is a development standard. .3) Not applicable because a SEPP 1 objection may be lodged in respect of any development standard, which can then be determined on its merits.

      R Hussey
      Commissioner of the Court
      ljr

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