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[2014] NSWLEC 12
Land and Environment Court (NSW)
2013-04-17
Pepper J
Original judgment source is linked above.
Wilson Parking Seeks to Use a Vacant Site as a Temporary Public Car Park 1This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 ("the LEC Act") against a decision of Brown C, dismissing the applicant's, Wilson Parking Australia 1992 Pty Ltd ("Wilson"), appeal against the Council of the City of Sydney's ("the council") decision to refuse its development application ("the DA") to use an existing vacant site at 4-6 York St, Sydney ("the site"), as a temporary public car park (Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1319). 2The site is zoned City Centre under the Sydney Local Environmental Plan 2005 ("the LEP") within the Wynyard Park/Lane Park Special Area identified in Sch 6 of the LEP. The Character Statement for this Special Area describes the Area as being "distinguished as a major public transport hub". The site had been operating as a temporary public car park without approval for a number of years. 3The DA proposed that the public car park would operate for five years; provide 15 car parking spaces on both a self-park and valet-parking basis; and would operate from 9.30am to 6pm during weekdays. 4Clause 66 of the LEP governed the hearing at first instance and the present appeal. It provides (emphasis added): 66 Public car parking restrictions (1) Restrictions that apply in all cases Before granting consent to development for the purpose of any public car parking, the consent authority must be satisfied that the public car parking: (a) will not prejudice attaining the objectives of this Part, and (b) will not encourage commuter car parking nor reduce the proportion of public transport users travelling to the city each day, and (c) will be used for short-stay public car parking only that is regulated by a restriction in opening hours or fee structure, or both, and (d) will be located underground, and (e) will be included for the purpose of calculating floor space ratio in the floor space area of the building in which it is situated, and (f) will be consistent with, and does not compromise, high quality urban design of buildings on the land and adjacent to the land on which it is situated, and (g) is not likely to cause or increase adverse pedestrian impacts or local or city-wide vehicular traffic impacts, and (h) in the opinion of the consent authority, is not likely to cause or contribute to an unacceptable level of vehicle saturation of intersections in the vicinity, or an unacceptable reduction of environmental capacity of roads in the vicinity, of the public car park. (2) New public car parks Consent may be granted to development for the purpose of public car parking on land where no public car parking already exists, but only where the consent authority is satisfied that the public car parking directly services major retail, cultural, recreational or entertainment uses which, in the opinion of the consent authority, are not reasonably or adequately serviced by either: (a) public transport (either existing or planned), or (b) existing public car parking. 5At the heart of this appeal, and the proceeding before the Commissioner, is the operation of cl 66(2) of the LEP. It was not a matter of dispute that there was non-compliance with the clause.
The Commissioner's Reasons for Dismissing the Appeal 6At issue before the Commissioner was (at [2]):
Issues for Determination 15The summons listed two appeal grounds: (a)first, that the Commissioner erred in law in finding that cl 66(2) of the LEP was a prohibition and not a development standard; and (b)second, "and in the alternative", the Commissioner erred in law in failing to uphold the objection to a development standard, namely, cl 66(2) of the LEP under SEPP 1. 16From the outset, it should be observed that, as a matter of logic, if Wilson does not succeed on the first ground of appeal, this will terminate the appeal in the council's favour. Wilson cannot succeed in the appeal by enjoying success only in their "alternative" ground of appeal. 17The council argued, however, that Wilson must succeed on both grounds of appeal in order for the appeal to be upheld given that the Commissioner additionally rejected the SEPP 1 objection. This was a separate and stand alone reason for dismissing Wilson's claim. 18Relying on Wade v Burns [1966] ALR 1137; (1966) 115 CLR 537 Wilson submitted that the part of the Commissioner's decision dealing with the SEPP 1 objection was anticipatory or obiter dicta and therefore of no weight. In Burns a mining warden found that he had no power to issue an authority to enter land, but said that even if he did, he would have refused the application on discretionary grounds. It was argued that if the warden had erred, it would nevertheless be futile to remit the matter for proper determination according to law because he would in any event have refused the application. The High Court held that the power was available. It remitted the matter on the basis that it was not known whether the mining warden would have exercised the discretion in the same way had he not erred (at 568). The decision in Wade was followed and applied to same effect in Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140. 19Although valiant attempts were made by the council to distinguish Wade and Samad, the underlying logic of both decisions is applicable to the present appeal. That is to say, if Wilson succeeds on its first ground of appeal, the appropriate remedy is to remit the matter to the Commissioner for redetermination. This is because it could not be stated with any confidence that the Commissioner's decision on whether the SEPP 1 objection was well founded was unaffected by any error in determining whether or not cl 66(2) of the LEP was a development standard.
Legal Principles to be Applied in a s 56A Appeal 20The applicable legal principles to be applied in an appeal pursuant to s 56A of the LEC Act are well known and need not be repeated here (see the recent discussion in S J Connelly CPP Pty Ltd v Byron Shire Council [2014] NSWLEC 2 at [18] - [23]). For present purposes it should simply be noted that the appeal must be from the decision of the Commissioner on a question of law.
Does Clause 66(2) Engage SEPP 1? 21The council argued, as a preliminary but potentially determinative submission, that cl 66(2) of the LEP did not, by its terms, engage SEPP 1 at any stage because the clause controls development by requiring as a precondition to the exercise of the power to grant consent a requisite state of satisfaction and the formation of a requisite opinion. 22The power to dispense with SEPP 1 only operates through the vehicle of cl 6 of the SEPP. It provides as follows (emphasis added): 6 Making of applications Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection. 23The council submitted that where the requirements of cl 66(2) are not met, the development cannot be carried out because of a state of dissatisfaction, or alternatively, an absence of the requisite opinion by the consent authority as stipulated in cl 66(2) of the LEP, and not by reason of the existence of a development standard. Accordingly, in these circumstances, cl 6 is not engaged and SEPP 1 is not enlivened. 24In reply, Wilson submitted that a development standard did not cease to be a standard merely because its operation was dependent upon a condition, namely, in the present case, the council's opinion or state of satisfaction under cl 66(2). It noted that "in a practical sense" all development standards were dependent upon the opinion of the consent authority for their application when determining a development application. Instead, the standard or requirement operates as such upon the existence of an event such as the performance of a condition or the attainment of satisfaction by a consent authority. 25Leaving aside the inherent circularity in this argument, it is apparent from the text and context of cl 6 of the SEPP 1 that the clause defines the circumstances by which it makes available the discretionary powers to overcome a prohibition, viz, that the development could, but for any development standard, be carried out. This may be contrasted with the language and structure of cl 66(2), which constrains the granting of consent to a development for the purpose of a new public car park not by reason of a development standard, but instead by reason of the mental state of the consent authority as to matters referred to in that clause. In other words, cl 66(2) of the LEP is a precondition to the exercise of power to grant consent. It may or may not be fulfilled as a matter of fact for reasons that are wholly independent from any characterisation of the clause as a development standard. For example, the dissatisfaction or absence of opinion may have arisen due to inadequate evidence enabling the necessary mental state or opinion to be formed. 26While it is unarguable that a development standard does not cease to be a standard merely because its application depends upon a state of satisfaction or opinion, it does not axiomatically follow that the standard is the reason for any inability to carry out the development. Rather, compliance with the development standard is substituted with the need for satisfaction or the formation of the requisite opinion. Moreover, as the council correctly submitted, a development standard cannot operate to control development irrespective of the performance of a condition, whether it be the attainment of a state of satisfaction or the formation of an opinion. To the contrary, it is the performance of that condition that will enable the development to proceed (in addition to whatever other standards and requirements are mandated). The tail cannot wag the dog. 27Given that, as stated above, there was non-compliance with cl 66(2) insofar as the Commissioner (as the consent authority) failed to be satisfied that the proposed car park would directly service major retail, cultural, recreational or entertainment uses; that the site was reasonably or adequately serviced by existing public transport; or that the site was reasonably or adequately serviced by existing public car parking (at [13]), it followed that consent could not be granted under cl 66(2) of the LEP irrespective of whether or not that clause was a development standard. SEPP 1 therefore not being engaged, the discretionary power to dispense with any development standard was not available. Having failed to fulfil a precondition to the consent authority's exercise of power to grant consent for the development, the appeal must fail at this preliminary juncture. Assuming for present purposes, however, that this conclusion may not be correct, I shall proceed to determine the remaining issues raised by the appeal.
What is the Correct Approach to Determining Whether Clause 66(2) is a Prohibition or a Development Standard? 28Wilson submitted that the Commissioner erred in finding that cl 66(2) was a prohibition and not a development standard that was capable of relaxation under SEPP 1. 29There was controversy between the parties as to the proper test to be adopted in determining whether cl 66(2) of the LEP was a development standard or prohibition. Given the inconsistent approaches followed in the case law on this vexed issue, this was understandable. 30In particular, Wilson criticised the Commissioner for adopting the two-step approach in Poynting, quoted above. That approach requires, first, a consideration of whether the proposed development is prohibited under any circumstances under cl 66(2) where that provision is construed in the context of the LEP as a whole. And second, if it is not so prohibited, whether cl 66(2) relevantly specifies a requirement or fixes a standard in relation to an aspect of the proposed development. 31The two-step test has subsequently been endorsed by this and other courts (Lowy v Land and Environment Court of New South Wales [2002] NSWCA 353; (2002) 123 LGERA 179 at [117], Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 at [61], Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 67 NSWLR 672 per Tobias JA at [35] and Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 at [21], undisturbed on appeal: Huang v Hurstville City Council [2012] NSWCA 177 at [12] and [15]). 32In Chase the Court adopted Jagot J's "accurate summary" of the principles articulated in Poynting in the first instance decision of Laurence Browning (Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 at [26]-[31]) (at [61]): 61 It is convenient to set out the following propositions adopted by her Honour as I regard them as accurately summarising the principles articulated by Giles JA in Poynting: "(1) The provision in question must be "seen as part of the environmental planning instrument as a whole" (Poynting at 342 [94]). The "wider context" of the provision, as part of the instrument overall, should be considered in construing the provision (Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182-183 [2] per Mason P). (2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of "development standard", that fact alone does not mean that the provision is thereby a development standard. The provision must be "in relation to the carrying out of development" and must fix requirements or standards in respect of an aspect of the development (Poynting at 333-334 [58]). (3) Although [there is a distinction] between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between "regulation" and "prohibition" cannot replace the definition in the EPA Act. As this conceptual division "will bring finely divided decisions", "care must be taken lest form govern rather than substance" (Poynting at 342 [93]). (4) A provision that prohibits the development under any circumstances controls development, but is not a development standard (Poynting at 343 [96] and [98]). (5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then "in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development". Hence: Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard. (Poynting at 343 [98]). (6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 at 269-270 per McHugh JA and Poynting at 343 [97]). (7) An essential condition of the definition of "development standard" is that the "requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development" (Carr at 269-270 per McHugh JA). (8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of "development standard" shows that "a broad view of what is an aspect of a development should be taken" (Poynting at 343 [99])." 33Nevertheless, more recently the two-stage approach has been the subject of rebuke. In the Court of Appeal Laurence Browning Ipp JA described the approach as "no light fandango" and commented on the "inherent difficulties" of a methodology that suffered from the "basic problem that...the way in which the development is described will determine the answer" (at [15], [16] and [17] respectively). 34In the same case Basten JA opined as follows (at [100]-[103], and see similarly Ipp JA at [85]): 100 Her Honour then considered, as the second step, the statutory question of what "aspect of that development" the consolidation requirement regulated. She held (at [41]) "that the arrangement of land on which the development may be carried out as required by cl 29.2 is an aspect of the development, being development which is otherwise permissible". However, this conclusion failed to recognise that the requirement would regulate any permissible development on the land, whether it be the erection of an advertising sign, a communications facility or a high-technology industry (all being permissible uses). This renders it unnecessary to identify the particular development proposed. Something which is common to every permissible development does not readily fall within the concept of "an aspect of that development". Furthermore, to describe "the arrangement of land" on which the development is to be carried out as an aspect of the development, whatever the development may be, is to invite the conclusion that every aspect of a valid planning instrument will be a development standard. The distinction between controls which constitute development standards and those which do not, which has been accepted as inherent in the definition in the Environmental Planning and Assessment Act, is in danger of being lost. That may be because the division of the reasoning process into two steps can distract attention from the exercise required by the statute. 101 However, the critical error arose before the "two step" approach was addressed. Her Honour commenced by identifying the development. She described the proposed development as "the erection of dwelling houses on land zoned Bushland Conservation under the LEP". That description was provided without reference to the terms of the LEP and without discussion as to why that description was adopted. What followed in the reasoning, at least in part, flowed from that identification of the development. 102 Part of that identification should have included reference to the zoning criteria for the land on which the proposed development is to take place. That is because the particular zoning criteria are essential considerations in determining whether the development is permissible. It is clear that, had the erection of dwelling houses been proposed with respect to land on which such a development was not permitted, the decision would have been different. If the consolidation requirement were understood to be a part of the zoning of the land, on the same logic the result would have been different. The lacuna in her Honour's reasoning is the failure to consider whether the consolidation requirement, identified as a "zoning subscript", should properly have been incorporated into the identification of the development. If it had been, the development should properly have been described, adopting her Honour's language, as "the erection of dwelling houses on 14 lots, on land zoned bushland conservation and comprising part only of an area subject to a consolidation requirement" (see at 689 [85] supra). If that had been the description of the development, no doubt her Honour would have reached a different result. 103 On one view it may be thought that there is an element of circularity in this approach, because the decision to include an element of the provision in question into the description of the development will dictate the answer to the ultimate question, namely whether that provision is a development standard or not; failure to include the element taken from the relevant provision will dictate the contrary conclusion. What the approach in fact demonstrates is not circularity, but the danger of dividing the statutory question into two or three stages, to be addressed sequentially. Her Honour reached the wrong conclusion because she derived, from existing authority, a sequential approach based on two steps which was at least conducive to error, because it distracted attention from the critical question. That question involved defining the elements of the proposed development which were essential elements in the context of the LEP. 35Thus if the provision is a zoning criterion, and if the developer's proposal contravenes that criterion, the provision should be regarded as an outright prohibition and not a development standard. This was essentially the basis of the decision in Woollahra Municipal Council v Carr (1985) 62 LGRA 263. 36In Laurence Browning Ipp JA enthusiastically endorsed the zoning criterion test (at [20]): 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. 37However, in Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 McClellan CJ at CL, while endorsing Basten JA's criticisms (at [71]), nevertheless expressed the view that his Honour's approach in Laurence Browning lacked "clarity" (at [70]) and elected not to follow it. According to McClellan J, "the only question which must be answered is whether the relevant provision comes within the definition of development standard, which requires consideration of the definition and particular provision. ... By asking first whether the control operates as a prohibition is to ask the wrong question" (at [71]). 38But the statements made by his Honour in Agostino were those expressed in dissent. The majority of the Court of Appeal (Tobias JA, with whom Giles JA agreed: at [1]) adverted to the "difficulties" associated with the resolution of whether or not a provision of an LEP was a development standard (at [26]) and observed that the preferred approach by Basten JA in Laurence Browning in essence depended upon the terms and structure of the particular planning instrument under consideration, which was not inconsistent with the observations made by Giles JA in Lowy when his Honour stated that (at [116]): ...It has been said many times that whether a provision is a development standard depends on the particular provision seen as part of the planning instrument as a whole. Rather than be caught up in a raft of decision on their own facts and fine distinctions, I consider it better to address the LEP by regard to principle and it won structure and provisions. 39It was the view of Tobias JA that Basten JA's approach simply required a determination of the essential elements of the permissible development. That is to say, if the criterion engaging the operation of a prohibition on a particular development was an essential element of that development, rather than a standard or requirement in respect of an aspect of the development, then the provision was not a development standard (at [30]). 40Where does this unhelpful divergence in methodology leave the present appeal? 41In my opinion, until such time as the Court of Appeal clarifies the position, I propose to adopt the approach employed by Pain J in Huang (No 2), which was essentially to follow the test in Poynting, as refined in Chase (at [61], quoted above). My reasons for doing so are three-fold: first, Huang (No 2) is the most recent articulation of the test in this Court; second, her Honour's use of the Poynting test is not, in my opinion, plainly wrong and as a matter of judicial comity should be followed (Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [278]-[282]); and third, her Honour's decision was upheld on appeal. 42What is not controversial, irrespective of whatever test is used, is the need to properly construe cl 66(2) of the LEP in context in order to discern the intention of the instrument (indeed so much so is enshrined in cl 4 of the LEP). When undertaking this exercise, the authorities emphasise that care must be taken not to elevate form over substance. 43The provision the subject of this appeal is located in Pt 5 of Ch 2 of the LEP. Chapter 2 is headed "Central Sydney", the objectives of which are set out in Pt 1. 44Clause 9 in Ch 1 deals with the relationship of the LEP to other environmental planning instruments, including SEPP 1. It states that SEPP 1 does not apply to a development standard that sets "a maximum amount of vehicle parking" on land within Central Sydney (cl 9(3)(c)). 45Clause 11 sets out the aims and strategies of the LEP. The means of achieving the aims of the LEP and the principles to be followed in implementing the strategies are found in cls 12 and 13. There is nothing in those clauses that materially assists with the characterisation of cl 66(2) as either a prohibition or development standard. 46Part 2 of Ch 2 is entitled "Zoning". It should be noted from the outset that the fact that cl 66(2) is not contained within this Part does not, of itself, mean that cl 66(2) is a development standard (see, for example, North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 or Huang (No 2), discussed further below). 47Clause 36 in Div 2 of Pt 2 of Ch 2 outlines the objectives of the City Centre zone, which includes (at (h)) the recognition and enhancement of the character of Special Areas. 48Development within the City Centre zone is regulated by cl 37, which provides that: 37 Development within the City Centre zone (1) Development may be carried out without consent within the City Centre zone if it is exempt development. (2) Within the City Centre zone, any other development (including use of land for the purpose of advertisements or advertising structures, a new use of a building for the purpose of a duty free store and temporary uses) may be carried out, but only with development consent. (3) However, in the area bounded by King, Elizabeth, Market and George Streets: (a) development at ground floor level may be carried out only for the purpose of shops, refreshment rooms and access to other uses on other levels, and (b) development for the purpose of brothels is prohibited. 49Car parking is dealt with in Pt 5 of Ch 2, which contains cl 66 quoted above. 50The term "public car parking" is defined in the Dictionary to the LEP to mean in Central Sydney "any land or space in a building used for accommodating parked vehicles on payment of a fee, but does not include" a "pay parking space" or "tenant car parking". 51The underlying objectives for cl 66 are found in cl 64, which specifically concern car parking controls: 64 Objectives for car parking controls The objectives of the car parking controls of this Part are: (a) to acknowledge that public transport is the most important and efficient means of moving people to and within Central Sydney, and (b) to encourage commuting by public transport to Central Sydney in order to reduce the number of motor vehicles travelling through and to Central Sydney, and to improve overall environmental quality and pedestrian amenity, and (c) to improve the attractiveness and competitiveness of Central Sydney for retail and commercial activities by providing a reasonable level of tenant and short-stay public car parking whilst discouraging commuter car parking, and (d) to encourage residential development in Central Sydney, and (e) to minimise adverse urban design impacts, in particular by discouraging the provision of above ground parking, and (f) to minimise adverse traffic impacts, in particular conflicts between pedestrian and vehicular traffic, and (g) to discourage the provision of public car parking, and (h) to ensure that tenant car parks are not occupied by persons other than occupiers of the building or land on which the car park is situated. 52Construed in the context of both cl 66 and the LEP, cl 66(2) establishes a prohibition on the use of the land by stipulating the essential criteria that "must" be met in order to grant consent for the particular purpose of public car parking. This is evident from the plain and unambiguous language of the provision and is, in my view, in conformity with the objectives contained in cl 64. 53Wilson submitted, however, that when regard is had to cl 37, it is only within the retail centre of the City Centre that particular development is prohibited or excluded, and all other development within that zone may be carried out with development consent subject to compliance with any applicable development standards (unless it is exempt development). It noted that unlike other zoning provisions contained in the LEP (for example, cl 43(6) concerned with development within the Maritime and Transport zone), there was no subjection of cl 37 to other provisions of the LEP. 54Wilson therefore contended that because the council retained a discretion to determine whether or not to grant development consent it could not be said at any point prior to lodging a development application that the development was prohibited. The LEP was hence not an instrument that proceeded by way of prohibition. On the contrary, the LEP allowed all development, including the proposed public car park, because the measurement of a particular development proposal against the criteria in the LEP, including the criteria in cl 66(2), was only undertaken upon lodgement of a development application. Thus the development, initially permissible with consent, could only be defeated at a later stage upon the council forming a stipulated opinion. 55This more "nuanced" analysis, Wilson submitted, is consistent with the need to resolve competing demands with respect to land use in the City Centre, as reflected in the various objectives stipulated in the LEP. 56In my opinion, cl 37 is of limited assistance to Wilson. This is because, first, it cannot be assumed that the zoning table provides an exclusive code for land use (Mayoh (No 2) at 235). Second, cl 37 states that public car parking may be carried out but only with development consent. It is therefore not accurate to say, as Wilson does, that the development is allowed under the LEP. It is, but, to reiterate, only with consent. Third, the language of cl 37 is consistent with the text of cl 66(2) of the LEP. In both, development consent is required, unless exempt. Clause 66(2) merely stipulates the essential criteria that must be met in order for consent to be granted. 57Although described as "public car parking restrictions", properly construed, cl 66(2) prohibits the use of the land as a public car park and does not prescribe what is to occur in the carrying out of the development. The provision should be characterised as a control by complete prohibition. 58Alternatively, by identifying the development that may be permitted, it is plain that it is an above-ground public car park. Clause 66(2) does not specify requirements or standards that are external to this development, as stated above. Instead, it provides the circumstances governing whether the development is permissible at all, which depend on establishing a need for it. The state of satisfaction the consent authority must achieve is the essential element of the particular development and governs whether a new public car park may be brought into existence at all. There is a prohibition on the development in any circumstance where the consent authority does not reach the necessary state of satisfaction or form the relevant opinion. 59Wilson further argued that the objectives of cl 64 were consistent with the proposed development because that clause encourages private car use insofar as that form of transport is essential for improving the attractiveness and competitiveness of the Centre (cl 64(c)) and because at its highest cl 64 merely discourages the provision of above ground car parking (cl 64(g)). I cannot agree. Overwhelmingly, cl 64 is antithetical to the mooted public car park given its emphasis on public transport, its desire to reduce vehicular traffic, and its stated aim of expressly 'discouraging' above ground and public car parking. 60To construe cl 66(2) as a prohibition is, contrary to the submission of Wilson, not to misunderstand the structure and intention of the LEP. There is nothing inconsistent with the promotion of the City Centre as a commercial and retail centre and the discouragement of car use by controlling the availability of public car parking. The existence of a development standard is not necessary to resolve any purported conflict between these two objectives, which are in any event, in my view, not incompatible. 61The present case is similar to the decision in Mayoh (No 2). In that case, cl 14A(1)(a) of the North Sydney Local Environmental Plan 1989 provided that a residential flat building "shall not be erected on land zoned 2(c) if any principal building on adjoining land is less than three storeys measured vertically above any point on natural ground level". At issue was whether the provision was a development standard within the meaning of SEPP 1. The Court (Mahoney and Clark JJA, Kirby P in dissent) held that it was not, because the provision prohibited the erection of the relevant kind of building, rather than making provision for the carrying out of development of that kind (at 234 and 236, respectively). 62In doing so the Court distinguished between "a provision which in form provides: 'on land of characteristic X no development may be carried out' and a provision which in form provides: 'on such land development may be carried out in a particular way or to a particular extent'" (at 234, also applied in Huang (No 2) at [25]). Clause 14A(1)(a) was held to be of the former kind. 63A similar result was achieved in Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399; (1999) 105 LGERA 370 where cl 45 of the Byron Local Environmental Plan 1988 stated: The Council shall not consent to the carrying out of a development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land. 64And likewise in Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436; (2004) 136 LGERA 356 where cl 25(2) of the Woollahra Local Environmental Plan 1995 provided: 25 Water, wastewater and stormwater systems ... (2) The Council must not grant consent to the carrying out of development on land or the subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop. 65In Huang (No 2) the Court was concerned with cl 16A of the Hurstville Local Environmental Plan 1994. Clause 16A(2) of that Plan stated as follows: (2) Despite any other provision of this plan, the council may grant consent to the carrying out of development for the purposes of sex services premises only if: (a) the council is satisfied that the premises will not be near, or within view of, any educational establishment, place of public worship or hospital or any place frequented by children, and (b) the premises will not be located within 100 metres of: (i) land within Zone No 2, or (ii) land within Zone No 5 (a) used for the purposes of an educational establishment, place of public worship or hospital, or (iii) land used for residential purposes, and (c) the premises will not be located within 200 metres of the boundary of any land on which there is one or more than one sex services premises lawfully operating, and (d) the council is satisfied that the premises will not contain more than five rooms used, or capable of being used, for the purposes of sex services. 66The proposed development was for the purposes of sex premises and was to be located in Zone No 4 (Light Industrial). Development for the purposes of sex premises was listed neither in item 1 as exempt development which did not need development consent, nor in item 3 as prohibited development. It fell within item 2 which permitted development for any purpose other than a purpose included in item 1 or 3. The Court held that cl 16A(2) was not a development standard because it was an exception to the permissible use. It specified a condition precedent which had to be satisfied of whether the land met the essential condition of not being near, or within view of any of, the other stated uses referred to in the provision. Only upon the attainment by the council of the necessary state of satisfaction could development consent be granted for sex service premises (at [23] and [24]). Her Honour held that the provision was concerned with land use insofar as it prohibited the use of land enjoying the specified character for the named purpose (at [24]). It did not matter that cl 16A was contained in Pt 3 of the relevant LEP, which was headed "Special Provisions" and which contained provisions relating to lot sizes and floor space ratios and which would ordinarily be construed as development standards. 67Clause 16A(2) and cl 66(2) are, in my view, relevantly analogous. Just as cl 16A in Huang (No 2) was held to be a clause providing that 'on land of characteristic X no development may be carried out', and therefore, a prohibition (at [25] and [26]), so too is cl 66(2). 68Wilson also submitted that the inclusion of cl 66(2) in Pt 5 (which deals specifically with "car parking", both tenant car parking and public car parking), rather than Pt 2 (which is general in character, allowing development, including a car park, with consent), strongly suggested that the clause was a development standard. However, in Mayoh (No 2), a development standard and a prohibition that otherwise controlled development were contained within the one provision and this did not mandate the characterisation of the provision as a development standard. 69If anything, in circumstances where there is a provision of a general nature such as that found in cl 66(1) (development in a zone) that precedes a provision of a specific nature such as that found in cl 66(2) (development for the purposes of public car parking on land that is subject to certain criteria), the general provision often gives way to the specific (under the grammatical aid to construction, generalia specialibus non derogant: Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 per Dixon J at 29). Viewed in this way, cl 66(2) is an exception to the permissible use. 70Having regard to the language of cl 66(2) itself, it is clear, in my opinion, that cl 66(2) of the LEP is a precondition to the permissibility of the use of the land for new public car parking. In short, there is to be no public car parking on land on which there is no existing public car parking, unless it directly services major uses (excluding residential or office) which are not adequately serviced by public transport or other public car parking. In this regard, therefore, cl 66(2) has a permissibility or zoning characteristic that renders it inapposite to be a development standard. 71Further, the fact that cl 66(1) also uses the word "satisfied" is, in my opinion, immaterial. The structure and text of cl 66(2) is very different from that of cl 66(1). The consent authority may grant consent only where it is satisfied of certain matters, those matters being essential elements of the development. Unlike cl 66(1), there is not discretion vested in the consent authority to grant approval absent the stipulated criteria having been met. 72Finally, Wilson argued that because cl 66 also contains development standards, such as cl 66(1)(d), this established that cl 66(2) was a development standard. In my opinion, however, there is nothing of assistance in the resolution of the present case in the decisions of either Bly C in Wilson Parking Australia 1992 Pty Limited v City of Sydney Council [2010] NSWLEC 1029 or Sheahan J in Council of the City of Sydney v Wilson Parking Australia 1992 Pty Limited [2011] NSWLEC 97; (2011) 183 LGERA 287. Both are distinguishable insofar as the cases concerned only the operation of cl 66(1)(d) of the LEP and neither addressed the argument put above by the council. 73It follows therefore that cl 66(2) falls within the first limb of the two step Poynting approach.
Does Clause 66(2) Impose a Development Standard Within the Meaning of the EPAA? 74In the alternative, the council argued that cl 66(2) did not impose a development standard within the meaning of that term contained in s 4 of the EPAA because it was not a provision "in relation to the carrying out of development" insofar as the clause related to a pre-existing state of affairs and not to what occurs in the carrying out of development or "whether, when it is being carried out, particular things are required to be done or particular standards to be observed" (Mayoh (No 2) at 232). 75I do not understand how cl 66(2) is not, on any construction, a provision in relation to the carrying out of development; in this case, the creation of a new public car park. True it is that the preconditions listed in subclauses (a) and (b) of the provision relate to a prior state of affairs that must be satisfied before the consent may be granted, but this does not, however, preclude the clause from relating to the carrying out of the establishment of a public car park, that is to say, the development. Rather, the preconditions merely operate to delimit the circumstances in which the development will be carried out.
Does Clause 66(2) Specify a Requirement or Fix a Standard in Respect of Any Aspect of the Development? 76Turning to the second step of the Poynting approach, namely, whether the provision specifies a requirement or fixes a standard, it must be recognised that the matters identified in (a)-(n) of the definition of "development standard" in s 4 of the EPAA are not exhaustive and that it is appropriate, given the language of the definition (for example, "any aspect"), to take a generous view of what constitutes an aspect of development. Each of the aspects of development listed in the definition of "development standards" describe the attributes or details of the particular development. But having said this, it is apparent that, perhaps with the exception of those aspects listed in (f), (g) and (m) of the definition, the examples given do not fit easily with the criteria set out in cl 66(2) of the LEP. 77Wilson submitted that the provision was a requirement, because whether the need which had been identified for public car parking was satisfied by the particular development had been expressed as a precondition to the granting of consent to that development. Thus the criteria in cl 66(2) operated as a requirement upon the existence of an event, namely, the performance of the preconditions, which was sufficient for the criteria to operate as a control on development. 78As the council observed, however, this is "to put the cart before the horse" (quoting Agostino per Tobias JA at [50]) because the existence of the event is wholly dependent on an evaluative process and not the application of any objective criteria to the proposed development. 79As to whether the requirement was fixed in respect of any aspect of the development, Wilson submitted that the requirement that the development (public car parking) should service a particular use clearly related to an aspect of the development insofar as the operation of a commercial enterprise was relevant to the market in which its services were supplied. The marketing of the service of car parking was therefore an aspect of the use of the land because it was an essential element of the definition of the development that it involved the payment of a fee (see the definition of "public car parking" in the LEP quoted above). 80In my opinion, the marketing of the service of car parking is not a detail or attribute of the development that can be conceivably contemplated as satisfying the definition of "development standard" in s 4. It is too general and too distant from the carrying out of the development. As the Commissioner correctly concluded (at [25]), the criteria in cl 66(2) of the LEP are concerned with whether there is a need for the development and not particular aspects of the development itself. Thus the provision does not specify a requirement in relation to that development and falls outside the purview of a "development standard" in s 4 of the EPAA. 81Put another way, even taking a generous construction of what is an aspect of the development, the operative words of cl 66(2) stipulate that there must be a pre-existing need (particular parking and public transport deprived land uses) which the proposed use will service. This is not a requirement generated by the development. Rather, it relates to a requirement generated by the land upon which the development will take place. It is not an aspect of the development itself. There is no aspect of the proposed development - the creation of a new public car park - that can therefore be modified, altered, deleted, changed or excused by the operation of SEPP 1. 82It follows that cl 66(2) of the LEP is not a development standard which is capable of relaxation under SEPP 1. 83It further follows that the Commissioner having made no error in making this finding of law, the first ground of appeal must be dismissed. This is sufficient to dispose of the appeal.
Should the SEPP 1 Objection Have Been Upheld? 84Assuming for present purposes that I am wrong in my conclusion that cl 66(2) is not a development standard, it is necessary to next consider the second ground of appeal, namely, whether the Commissioner erred by failing to uphold the SEPP 1 objection. 85From the outset Wilson faces the insuperable hurdle that the Commissioner's decision rejecting the SEPP 1 objection was primarily a finding of fact, not reviewable on this appeal. 86Leaving this obstacle to one side, Wilson submitted that there were three reasons why the Commissioner's "approach to the SEPP 1 objection" was "unsustainable": (a)first, he failed to take into account the objectives of the public car parking restrictions underlying cl 66(2) in cl 64 of the LEP that encouraged the use of private cars for retail, commercial, residential and entertainment purposes (cl 64(c)); (b)second, he erred in holding that because the requirements in cl 66(2) had not been met, the SEPP 1 objection must inevitably fail; and (c)third, by reason of his failure to properly apply the objectives of the public car parking restrictions provided for in cl 66(2) referred to above, his consideration of whether it was reasonable or unnecessary to comply with the standard by asking whether the objectives of the standard had been attained by other means, was flawed. According to Wilson, compliance with a development standard could be both unreasonable and unnecessary despite the standard not achieving its objectives in some other way. 87All three arguments must be rejected. First, I do not accept that the Commissioner failed to take into account the objectives of the public car parking restrictions in cl 64. On the contrary, much discussion was devoted by the Commissioner to these objectives in his reasons (at [30] -[35]). To the extent that Wilson specifically complains about the Commissioner's failure to consider cl 64(c) of the LEP, although Mr John Coady (Wilson's traffic expert) referred to cl 64(c) as a relevant objective in his written evidence, a review of the transcript put before the Court (see T 02/10/12 5.39 and T 05/11/12 7.26-7.39) and Wilson's outline of submissions before the Commissioner (at paragraph [49]) did not. Rather, as was reflected in the Commissioner's judgment, before the Court particular emphasis was placed on cl 64(a), (b), (d) and (g) by the parties. If by their conduct the parties did not make cl 64(c) an issue, the Commissioner cannot be criticised for failing to refer to the objective (Davis v Gosford City Council [2013] NSWLEC 49 at [75] and the authorities referred to thereat). 88In any event, as discussed above, on any reading of cl 64, it is plain that the central objectives of cl 64 are to foster public transport and to discourage private motor vehicle use through the creation of new public car parking. As was evident from his reasons, the Commissioner accepted the importance of these principal objectives. Thus, even if, which I do not accept, the Commissioner failed to take the particular objective into account as alleged, the error was, particularly given the way in which the parties presented their case before him (Davis at [22(d)]), immaterial. 89In order to understand the basis of Wilson's second submission it is necessary to analyse the Commissioner's reasons for not upholding the SEPP 1 objection. After discussing Wehbe, the Commissioner outlined the three matters he was required to be satisfied of before he could uphold the objection (at [29]): (1) the court must be satisfied that "the objection is well founded" (cl 7 of SEPP 1). (2) the court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (cl 7 of SEPP 1). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and coordination of the orderly and economic use of developed land. (3) the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: The matters in clause 8(a) and (b) are: (a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument. 90The Commissioner went on to note that the experts had adopted the first test in Wehbe for demonstrating whether compliance with a development standard was unreasonable or unnecessary. That is to say, examining whether the objectives of the development standard could be achieved notwithstanding non-compliance with the standard (at [30] and [28]). This was therefore the test that the Commissioner applied. There is no suggestion from Wilson that in selecting this test the Commissioner erred. 91The Commissioner proceeded to summarise the position of the parties, and in particular the contention of Wilson as follows (at [31]): 31. In terms of the first objective, Mr Clay states that the proposed development satisfies the objective by way of the late opening time and fee structure. It encourages commuting by public transport because the car park does not open before normal working hours and the fee structure makes it exorbitant for commuting to the city. For the second objective, Mr Clay states that this objective cannot be used, in itself, as an objective to be met notwithstanding compliance with a development standard as it becomes a self-fulfilling prophecy. The objective needs to be balanced with other matters, such as the small size of the car park, the hours of operation and the interim use of the site. The latter could be regarded as the orderly and economic use of the land. For these reasons, the SEPP 1 objection is well founded. 92He noted that the council adopted the objectives found in cl 64(a), (b) and (g) (at [32]), and he then gave his reasons for rejecting the SEPP 1 objections (at [33]-[36]): 33. These objectives do not differ in any material way from those relied upon by Mr Clay, however the question of whether the relevant objectives are achieved must be answered in the negative. The objectives in cl 64 recognises that public transport is the most important and efficient means of travel for the majority of trips into and out of the CBD. Commuting by public transport, in this wider sense, is encouraged to "reduce the number of the motor vehicles travelling through to Central Sydney". Any focus on the reduction in operating times in the morning peak period does not establish consistency with the relevant objectives in cl 64. 34. In considering the different positions taken by the parties, I agree with the conclusions of Mr Kirk. The relevant objectives in cl 64 encourage the use of public transport within the Central Sydney (cl 64(a)) and at the same time, discourage the provision of public car parking (cl 64(g)). The intent of these objectives needs to be read in the context of LEP 1995 were public car parking is permissible but only where the specific requirements in 66(2) are satisfied. 35. I do not accept that the proposed development achieves the relevant objectives in cl 64 given that the specific demand and location requirements in cl 66(2) are not satisfied. As Mr Kirk stated, it is not a question of whether the approach adopted by the council in LEP 1995 is reasonable or unreasonable, but only when the proposed development satisfies the outcomes objectives anticipated by this planning instrument. In my view, it clearly does not. The matters raised by the applicant over the small size of the car park, its temporary use and the supposed economic and orderly use of the land are not matters that can reasonably be seen to be consistent with the relevant objectives, given the specific strategic direction in LEP 1995. 36. For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP 1 objection is not consistent with the aims of SEPP 1. Also, strict compliance with the development standard, in this case, is not unreasonable and unnecessary, tends to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Act and there is a significant public benefit in maintaining the planning controls adopted by the environmental planning instrument. Consequently, the SEPP 1 objection is not well founded. 93Wilson is correct in its submission that the fact that the standard cannot be complied with does not mean that the objectives underlying the standard cannot be attained (see the first sentence of [35] of the Commissioner's reasons). But read in context, rather than in isolation, it becomes apparent that no error is disclosed by the Commissioner's reasoning in paragraph [35]. 94Applying the first test in Wehbe, the Commissioner examined whether the objectives of the development standard in cl 66(2), as set out in cl 64, could be achieved. He found, as a matter of fact, that they could not. This is unsurprising when regard is had to cl 64(a), (b), (d) and (g), which, as stated above, had been put forward by the parties as the most apt objectives governing the proposed development. This conclusion was reinforced by Wilson's own expert, Mr Coady, who in cross-examination, accepted that the presence of the proposed public car park would not encourage commuting by public transport into the city (objectives (g) and (d)) (T 02/10/12 40.10 and 40.14). 95Notwithstanding the infelicitous language employed in the first sentence in paragraph [35], the conclusion that the Commissioner came to in paragraph [36] was premised on an entirely orthodox application of the first test in Wehbe and was, as the council submitted, "inescapable" in light of the objectives to which the Court's attention was directed and that the Court was told were appropriate for that purpose. 96If by the third complaint Wilson is suggesting that the Commissioner erred by failing to consider whether there was another way cl 66(2) could satisfy SEPP 1, the contention cannot be seriously entertained because Wilson agreed that this was the appropriate test to adopt. Rather, the argument appears to be that the Commissioner failed to consider whether, if the proposed development had a de minimus impact on the objectives, the SEPP 1 objection should be upheld. 97There are three reasons why this submission must be rejected. First, it is not the way Wilson put its case to the Commissioner. Second, it is not a test recognised by Wehbe. And third, and as the council properly observed, it advocates an objection that is a means "to effect general planning changes throughout a local government area" (Wehbe at [51]). 98The second ground of appeal must therefore be rejected. 99Having failed in respect of both grounds of appeal, the appeal must be dismissed.
Costs 100This being an appeal in Class 1 of the Court's jurisdiction, r 3.7 of the Land and Environment Court Rules 2007 provides that the Court must not make an order for costs unless it is fair and reasonable to do so in the circumstances. The Court not having been presented with any evidence or argument as to why the presumptive rule against an award of costs should not apply, therefore makes no order as to costs. However, because the parties made no submissions on the question of costs to the Court during the course of the appeal, the Court is willing to allow the parties time to consider their position and make an application to seek an alternative costs order.
Orders 101The formal orders of the Court are that the appeal is dismissed with no order as to costs. The exhibits are to be returned. Any party seeking a different costs order is to apply to the Court for such an order by way of notice of motion, together with accompanying affidavit in support, within 14 days.
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 February 2014
Wilson Parking Australia 1992 Pty Ltd
Council of the City of Sydney
(2010) 172 LGERA 380
(2004) 136 LGERA 356
(2006) 67 NSWLR 672
(1999) 105 LGERA 370
(2011) 183 LGERA 287
(2013) 195 LGERA 229
(2002) 123 LGERA 179
(1948) 77 CLR 1
(2006) 149 LGERA 360
(2002) 209 CLR 140
(2001) 116 LGERA 319
(1966) 115 CLR 537
(2007) 156 LGERA 446
[2002] HCA 24