Wingecarribee Shire Council v Pancho Properties Pty Ltd

CITATION : Wingecarribee Shire Council v Pancho Properties Pty Ltd [2001] NSWCA 271 FILE NUMBER(S) : CA 40897/99; 40898/99; 40899/99 HEARING DATE(S) : 14 June 2001 JUDGMENT DATE : 8 November 2001

PARTIES : Wingecarribee Shire Council - Appellant Pancho Properties Pty Ltd - Respondent JUDGMENT OF : Giles JA at 1; Heydon JA at 60; Young CJ in Eq at 61

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 10072/78 FILE NUMBER(S) : LOWER COURT Talbot J JUDICIAL OFFICER :

COUNSEL : B J Preston SC & S E Pritchard - Appellant I J Hemmings - Respondent SOLICITORS : B Bilinsky & Co, Bowral - Appellant Gadens - Respondent CATCHWORDS : PLANING LAW - rural property - consent to erection of replacement dwelling on condition existing dwelling be removed - replacement dwelling erected - existing dwelling not removed - whether applicant could appeal to Land and Environment Court as "dissatisfied" with the condition when it had erected the replacement dwelling - held yes - whether applicant could appeal as "dissatisfied" with the condition when the consent was granted under a provision of the LEP permitting consent to dwellings replacing existing dwellings - held yes - whether applicant's application for consent to use the existing dwelling as a manager's residence or rural worker's dwelling was contrary to law or doomed to fail because of the unfulfilled condition - held no - whether area requirement for erection of a second dwelling was a development standard - held yes. D ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67; Auburn Council v Nehme (1999) 106 LGERA 19; Bryson Industries Ltd v Sydney City Council (1963) 8 LGERA 395; Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103; Helton v Allen (1940) 63 CLR 691; Laidlaw Pty Ltd v Cleverley (1972) 25 LGRA 196; Mason Architects v North Sydney Council (1999) NSWLEC 176; Naylor v Bankstown City Council [1980] 2 NSWLR 629; CASES CITED: North Sydney Municipal Council v P D Mayoh (No 2) (1990) 71 LGA 222; Parramatta City Council v Travenol Laboratories Ltd (1978) 35 LGRA 368; Rutland v Shoalhaven City Council (1997) 94 LGERA 370; Strathfield Municipal Council v Poynting (2001) NSWCA 270; Swadling v Sutherland Shire Council (1994) 82 LGERA 431; Troja v Troja (1994) 33 NSWLR 269; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; Waters v Hurstville City Council (1991) 77 LGRA 19. DECISION : (1) appeal allowed in part; (2) Vary the answer to question (e) by the addition at its commencement of the words, "As to cl 13(4) so far as it requires that the land to which it applies have an area of not less than 40 hectares,"; (3) Appeal otherwise dismissed; (4) Appellant to pay the respondent's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40897/99 40898/99 40899/99 LEC 10071/98 10072/98 10138/99 GILES JA HEYDON JA YOUNG CJ in EQ

WINGECARRIBEE SHIRE COUNCIL v PANCHO PROPERTIES PTY LTD

JUDGMENT 1 GILES JA: The respondent ("the applicant") is the owner of Springfield Farm at Sheepwash Road, Avoca ("the land"). The land is within the local government area of the appellant ("the council"). At stake in these proceedings is whether the applicant can have two dwellings on the land.

The proceedings 2 The land is within Zone 7(b) Environmental Protection (Landscape Conservation) under the Wingecarribee Local Environmental Plan 1989 ("the LEP"). 3 By cl 9 of the LEP and the Table thereto a dwelling may be erected on land so zoned, but only with development consent. With the qualifications next noted, at relevant times cl 13 of the LEP, applying inter alia to land within Zone 7(b), provided so far as material - "(3) Subject to subclause 4, a dwelling-house may, with the consent of the council, be erected on land to which this clause applies, but only if the land - (a) has an area of not less than 40 hectares; or … (4) Not more than two additional dwelling-houses may, with the consent of the council, be erected on land to which this clause applies which has an area of not less than 40 hectares, if the council is satisfied that each additional dwelling-house - (a) will be occupied by a person employed or engaged by the owner of the land in the use, for the purpose of agriculture, of that land or of land belonging to the owner which adjoins or is adjacent to that land; and

(b) will be located on the same allotment of land as the main dwelling-house." 4 The words "Not more than" were added to cl 13(4) in April 1997 and, as later indicated, the numeration of the provisions was altered. These qualifications are of no significance in the proceedings. 5 Clause 23 of the LEP, relating to the whole of the Wingecarribee Shire, provides - "23. A dwelling-house may, with the consent of the council, be erected on an allotment of land on which another dwelling-house is erected if the firstmentioned dwelling-house is intended to wholly replace the secondmentioned dwelling-house."

6 A dwelling stood on the land when the applicant became its owner in June 1996. The land has an area of 8.1 hectares. Because the area is less than 40 hectares, under the LEP consent can be given to erection of a replacement dwelling (cl 23 qualifying cl 13(3)), but not to the erection of a second dwelling (cl 13(4)). 7 On 30 October 1996 the applicant applied for consent to the erection of a "new residence". On 7 November 1996 the council refused the application on the ground that it was contrary to cl 13(3) and cl 13(4) of the LEP (at the time cll 13(2) and 13(3), but in the same terms). 8 On 17 January 1997 the applicant applied for consent to the erection of a "replacement dwelling". On 5 February 1997 the council approved the application on conditions which included that the existing dwelling was to be removed upon completion of the replacement dwelling ("condition 3"): specifically - "3. This consent is issued in accordance with clause 23 of Wingecarribee Local Environmental Plan 1989, and Council advises that upon completion of the replacement dwelling, the original dwelling must be removed from the site." 9 The conditions also required that a building application be submitted, and that was done. The plans submitted with the application contained a note, "Existing cottage to be de-commissioned". Condition 32 of the building approval, which was issued on 3 June 1997, read - "32. Removal of Original Dwelling In accordance with Condition 3 of the Development Consent DA 13/97, the original dwelling must be removed from the site upon completion of the replacement dwelling."

10 The applicant commenced erection of the replacement dwelling in June 1997. Erection was complete by December 1997 ("the new dwelling"). The applicant entered into occupation. 11 On 13 October 1997 the applicant applied for consent to use the existing dwelling as a "manager's residence". The application was accompanied by an objection under State Environmental Planning Policy No 1 - Development Standards ("SEPP 1"). On 19 December 1997 the council refused the application on grounds which included that the land did not have the minimum area of 40 hectares required under cl 13(4) of the LEP. 12 On 4 February 1998 the applicant commenced two proceedings in the Land and Environment Court. In one proceeding it appealed against condition 3 in the consent granted to the erection of the new dwelling. In the other proceeding it appealed against the refusal of consent to use the existing dwelling as a manager's residence. 13 On or about 7 December 1998 the applicant applied for consent to use the existing dwelling as a "rural worker's dwelling". It is unclear whether the application was accompanied by an objection under SEPP 1. It bore a note, "This is not an application for section [sic] 13(4) approval". The council did not determine the application, whereby it was deemed to have been refused. 14 On 16 December 1998 the council issued a building certificate for the new dwelling. 15 On 3 March 1999 the applicant commenced a third proceeding in the Land and Environment Court, in which it appealed against the deemed refusal of consent to use the existing dwelling as a rural worker's dwelling.

Separate questions in the proceedings 16 The council raised a number of separate questions in the three proceedings. Talbot J stated the questions as - "(a) Is the council estopped from raising the issue of the competency of the application in the manager's residence proceedings? (b) Whether an application to use the existing dwelling is competent.

(d) Whether, having regard to cl 23 of the LEP, the applicant cannot seek approval to amend the consent by deleting Condition 3.

(e) Whether cl 13(3) and cl 13(4) of the LEP contain a development standard or a prohibition.

(f) Whether cl 13(3) and cl 13(4) of the LEP apply to a rural worker's dwelling." 17 There was no challenge to the refusal of consent to the erection of a new residence. The proceedings were all brought after the new dwelling had been erected on the land. They were directed to retention of the existing dwelling notwithstanding condition 3 requiring its removal. To this end, they sought to do away with condition 3 (one proceeding of February 1998), or in some manner to nullify its effect through obtaining consent to use the existing dwelling as a manager's residence or a rural worker's dwelling (the other proceeding of February 1998 and the proceeding of March 1999). 18 The rationale for the separate questions appears to have been -

(i) if the applicant is unable to appeal against condition 3, so far as the proceedings are directed to doing away with condition 3 they must fail (questions (c) and (d);

(ii) if the applicant is unable to appeal against the refusal of consent to use the existing dwelling as a manager's residence or a rural worker's dwelling, so far as the proceedings are directed to obtaining consent to such uses they must fail (questions (a) and (b)); and

(iii) if there is an absolute bar to consent to use the existing dwelling as a manager's residence or a rural worker's dwelling because of the area of the land, so far as the proceedings are directed to obtaining consent to such uses they must fail (questions (e) and (f)). 19 In reasons delivered on 29 October 1999 his Honour determined the questions in favour of the applicant. 20 The council appeals to this Court, by leave granted on 28 August 2000, against the determination of questions (b), (c), (d) and (e). Its acceptance of the answers to questions (a) and (f) leaves intact the apparent rationale for questions (b), (c) and (d), but as later explained appears to make question (e) of no significance in the proceedings.

Question (c): Is the applicant relevantly dissatisfied? 21 Talbot J answered the question "yes". By s 97 of the Act there may be an appeal to the Land and Environment court by "[a]n applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application." The council submitted that, having taken the benefit of condition 3 by erecting the new dwelling pursuant to the consent of which it was a condition, the applicant can not be regarded as dissatisfied: thus it is unable to appeal against condition 3. The argument was put in a number of ways: as a matter of construction of s 97, with reference to estoppel, waiver, and election, and perhaps as a straightforward matter of fact. 22 Talbot J's reasons include - "68. Although by 17 June 1997 construction of the new dwelling had commenced following the issue of a building approval on 3 June 1997, the applicant has since then persistently made representation to the council for retention of the original dwelling. Condition 3 did not operate until "completion of the replacement dwelling" . The applicant had well and truly made it clear to council by the date of completion that it was not satisfied with Condition 3. The first formal step in seeking to regularise the retention of the first dwelling was taken when land use application 476/97 was presented to council in October 1997. There is no direct evidence that suggests the applicant ever acquiesced in Condition 3. That position was maintained until the date when the appeal was lodged, namely on 4 February 1998.

69. In all of the above circumstances, the Court is satisfied that the applicant, Pancho Properties Pty Ltd, is relevantly dissatisfied with the provisions of Condition 3 and entitled to appeal against that condition." 23 This is a finding of fact. The appeal to this Court is only on a question of law ( Land and Environment Court Act 1979 s 57(1)). I doubt that the time of operation of condition 3 matters for s 97 of the Act, the dissatisfaction being necessary at the time of the appeal. Whether or not that be so, unless the finding of fact is denied to the applicant on legal grounds the determination of the question in favour of the applicant must be upheld. 24 The council argued that s 97 should be read as subject to a limitation to the effect that the right of appeal must be exercised before the determination of the consent authority "has ceased to be a mere determination and has become the foundation of other rights and liabilities". Referring to s 95(4) of the Act and Auburn Council v Nehme (1999) 106 LGERA 19 at 24-5, it said that by force of s 95 of the Act substantial commencement of a development changes the character of the consent in that it can not then lapse or be abandoned and gives rise to rights and obligations, and that the right of appeal should be exercised before that change in character occurs. There is nothing in s 97 to support the argument, and I do not think it can be limited in that way. 25 Going to estoppel, waiver and election, each requires inconsistency between the applicant's conduct in erecting the new dwelling and dissatisfaction with condition 3. 26 In principle, a person who receives development consent subject to a condition that he do something after he has acted on the consent may both act on the consent and object to the condition. If the objection is successful and the condition is removed, then it is not necessary to do what the condition had required. If the objection is unsuccessful and the condition remains, then the person must do what the condition requires. 27 The position in principle is affected by s 83(2) and (3) of the Act, whereby on the bringing of an appeal under s 97 the consent "ceases to be, or does not become effective" until determination of the appeal and, depending on the result, either "becomes effective and operates" from the date of determination or "is void and is taken never to have been granted". The consent continues to exist pending the determination of the appeal, but in a state of suspension such that carrying out the development to which it relates is not authorised ( Swadling v Sutherland Shire Council (1994) 82 LGERA 431). Until the appeal is brought, however, carrying out the development is authorised, and until that time the person abovementioned may still act on the consent while objecting to the condition. If the appeal is successful and the condition is removed, then it is not necessary to do what the condition had required. If the condition remains, then the person must either remove the works or comply with the condition. The court addresses the matter afresh as the consent authority (eg Naylor v Bankstown City Council [1980] 2 NSWLR 629), and there is, of course, a possibility that consent will be wholly denied, in which case the works must be removed. 28 That was and is the position in the present case, and it should be noted that Talbot J recorded that the applicant "has indicated that if it is unsuccessful in having the condition deleted or modified on appeal, then it will comply with the condition in its original form". There is not the necessary inconsistency. 29 The council relied on Bryson Industries Limited v Sydney City Council (1963) 8 LGERA 395 (Hardie J) and Waters v Hurstville City Council (1991) 77 LGRA 19 (Bannon J). 30 In the first of these cases development consent was granted on condition that a deed of release be executed. The deed was executed, and thereafter an appeal was brought against the condition requiring the execution of the deed. It was held that compliance with the condition precluded appeal, the basis for the decision being (at 399) - "Whether or not the execution of the deed disentitled the appellant to be classified as a person dissatisfied with the condition or effectively terminated the condition as an appealable one, I am quite satisfied that the execution of the deed and the carrying out of the work created a situation in which the appellant was deprived of any pre-existing right to ask for a review by this Court of the council's decision." 31 This did not necessarily hold that the appellant could not be regarded as dissatisfied, but in any event the facts were quite different from those in the present case, in which the applicant has not complied with condition 3. 32 Bryson Industries Limited v Sydney City Council was distinguished by Waddell J in Parramatta City Council v Travenol Laboratories Ltd (1978) 35 LGRA 368, in which it was held that construction and occupation of a factory and warehouse did not result in the appellant losing its right of appeal as a person dissatisfied with a condition that certain roadworks be constructed. Taking advantage of the consent was not regarded as precluding the exercise of the right of appeal by waiver, election or estoppel. His Honour said (at 377) that, as the condition had not been performed, it was open to consider whether its imposition was justified, and - "There must be many cases, where the imposition of a condition is all that is in contest between an applicant and a council, in which the proper and convenient course to follow would be to permit the development in question to proceed immediately and leave the justification for the condition to be determined later on appeal. To follow such a course would often prevent financial loss to the landowner, be in the public interest, and be a responsible exercise of local government powers." 33 In Waters v Hurstville City Council building approval was granted subject to conditions which included that an existing dwelling be demolished within twelve months and a bank guarantee be lodged as surety for the demolition. The guarantee was lodged and the building was substantially commenced. An appeal could be brought by a person aggrieved, and either contemporaneously or at a later time an appeal was brought in relation to the condition. An estoppel operating against the appellants was rejected, but it was said that their election to give the guarantee and substantially commence the building was consistent only with exercising their rights under the approval and that they had elected to exercise rights inconsistent with the right to appeal as aggrieved persons. Hence it was held that there had been an election to accept the benefit of the approval, that the appellants "should not be heard to allege they are aggrieved", and that the appeal was incompetent. 34 So far as appears Parramatta City Council v Travenol Laboratories Ltd was not cited to the court. With respect, in my opinion the decision in Waters v Hurstville City Council was incorrect. There must be election between inconsistent rights. Consistency with exercising rights under an approval is not the same as inconsistency with exercising the right of appeal in relation to the condition of the approval, at least for a condition such as the condition required demolition of the dwelling. The giving of the guarantee was ancillary to the condition requiring demolition of the dwelling, and did not independently give rise to inconsistency. 35 In my opinion, Talbot J's answer to this question is correct.

Question (d): Whether, having regard to cl 23 of the LEP the applicant cannot seek approval to amend the consent by deleting condition 3 36 Talbot J answered the question, "Clause 23 does not amount to an insurmountable hurdle to the consideration and determination of the appeal against the imposition of Condition 3". The council submitted that the applicant can not be said "in law" to be dissatisfied when the consent to the erection of the new dwelling was granted in the terms sought, that is, for a replacement dwelling. 37 The council's argument was to the effect that applying for consent for a replacement dwelling pursuant to cl 23 of the LEP necessarily connotes that the dwelling it replaces will be removed, so there can not be dissatisfaction with a requirement to remove that dwelling. I do not think that is so. Clause 23 refers to an intention that one dwelling "wholly replace" the other. Erection of the new dwelling was and is consistent with the structure of the existing dwelling remaining, although it can not be used as a dwelling. Removal of the existing dwelling would not have been a necessary consequence of the consent in the absence of condition 3. 38 In my opinion, the question could have been simply answered in the negative. Talbot J's answer was in substance in the negative, and it is not necessary to go into why it might have been expressed as it was. It was not suggested that the expression of the answer was itself erroneous, and it should not be disturbed.

Question (b): Whether an application to use the existing dwelling is competent 39 Talbot J answered the question "yes". The council submitted that it is not open to the applicant to apply to use the existing dwelling as a manager's residence or a rural worker's dwelling because condition 3 obliged it to remove the existing dwelling. It accepted that a successful appeal whereby condition 3 is removed would take away the ground for its submission. 40 The council argued that the retention of the existing dwelling is contrary to law, and that so long as the existing dwelling remains on the land the applicant is committing a continuing breach of the Act. Therefore, it said, the applications to use the existing dwelling sought the court's approval to illegal conduct on the applicant's part, and in accordance with the principle that the law will not enforce rights directing resulting to a person asserting them from the crime of that person (see Helton v Allen (1940) 63 CLR 691 at 709; Troja v Troja (1994) 33 NSWLR 269 at 194-5) the approval can not be given. (Although it may be semantics, if the argument were accepted I doubt the description of the applications as incompetent. They are competent, but destined to fail.) 41 I do not think that the retention of the existing dwelling involves taking advantage of criminality within this principle. I will assume the breach of the Act on which the council relied, see however the applicant's counter-arguments mentioned below. Subject to a successful appeal in relation to condition 3, the applicant is in breach of the Act in that it has failed to comply with a condition on which the consent to the erection of the new dwelling was granted (see s 122(a)(i), (b)(iii)). The applicant may be ordered to remedy the breach (ss 123, 124). Whether or not its breach is an offence against the Act (see the prescription of offences in s 125), an order that a breach of the Act be remedied is ultimately discretionary (see for example Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67). The law recognises that failure to comply with the condition does not inevitably mean that one or other of the existing dwelling and the new dwelling must be removed. Moreover, to ascribe to the applicant's breach such criminality as to preclude it from appealing in order to get itself out of a position of breach would be a distortion of the principle. 42 The council's argument included what I think is a separate argument, that the applications could not be approved because approvals would conflict with condition 3, a condition of which the applicant had taken the benefit by erecting the new dwelling pursuant to the consent of which it was a condition. It was said that the reasoning in Rutland v Shoalhaven City Council (1997) 94 LGERA 370 (Bignold J) and Mason Architects v North Sydney Council (1999) NSWLEC 176 (Lloyd J) was applicable and correct, and should be adopted. 43 In Rutland v Shoalhaven City Council consent to the subdivision of land was granted on conditions which included that a restriction as to user should be created whereby further subdivision of one of the lots was forbidden. An application was then made for consent to subdivide that lot. It was held that the consent could not be granted, first because s 91(2) of the Act required that it be refused, and in any event because (at 375) - " … the proposed development would, by virtue of the direct conflict with the development consent, not be legally capable of receiving development consent granted under the EP & A Act for reasons similar to the principles propounded by Hope J (as he then was) in Laidlaw Pty Ltd v Cleverley (1972) 25 LGRA 196 at 205 and 206 and by Mason J (as he then was) in Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 146; 28 LGRA 410 at 417."

44 Section 91(2) of the Act is concerned with subdivision and is not presently relevant. What appear to be the relevant passages in Laidlaw Pty Ltd v Cleverley and Woollahra Municipal Council v Banool Developments Pty Ltd are to the effect that consent can not be given to a development which would be contrary to an environmental planning instrument. With respect, there is not a necessary transmission to conflict with a condition of an earlier development consent, and I do not think these cases provided a sound basis for the decision in Rutland v Shoalhaven City Council . 45 In Mason Architects v North Sydney Council development consent had been granted on conditions which included that a restriction as to user be created limiting dwelling size on some of the lots to be developed. Application was then made for consent to development whereby the dwelling size would be greater than earlier stated. It was held that the judgment in Rutland v Shoalhaven City Council was determinative and that the application could not be approved. 46 Talbot J clearly enough doubted the correctness of these decisions, but distinguished them on the ground that there could not at the time of the hearing be conflict in the present case because the appeal in relation to condition 3 suspended its effect. I have some difficulty with this distinction. If the appeal against the refusal of consent to use the existing dwelling as a manager's residence were allowed, and the appeal in relation to condition 3 were then dismissed, where would that leave the consent to use the existing dwelling as a manager's residence? 47 In my opinion, however, condition 3 does not preclude consent to a use of the existing dwelling whereby it does not have to be removed from the land. Condition 3 is, of course, a very relevant matter in considering whether or not one or other of the applications should be granted, but it would be possible for consent to use the existing dwelling as a manager's residence or as a rural worker's dwelling to be granted on condition that the consent to the erection of the new dwelling be modified or surrendered (s 80A(1)(b) of the Act) or on condition that the new dwelling be removed (s 80A(1)(c)). That is sufficient to determine the separate question. However unlikely the grant of consent may be, it can not be said that the applications must fail. In the language of the question, they are competent. 48 It is not necessary to consider the applicant's counter-arguments so far as it said (a) that it was not in breach of the Act while the consent to the erection of the new dwelling was in suspense pending the determination of the appeal (see s 83(2) referred to above) and (b) that the building certificate issued in December 1998 absolved it of any relevant breach. 49 In my opinion, Talbot J's answer to the question is correct.

Question (e): Whether cl 13(3) and cl 13(4) of the LEP contain a development standard or a prohibition 50 Talbot J answered the question, "A development standard". In Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103 Lloyd J had held that cl 13(3) and cl 13(4) of the LEP are not development standards. Talbot J was of a different view. He considered that they were development standards, with such persuasion that he also considered that he should depart from judicial comity and not follow the decision of Lloyd J. 51 Talbot J's answer to question (f) was - "The subclauses only apply where the rural worker's dwelling is a dwelling house. Furthermore, they only apply, where erection of a rural worker's dwelling is proposed. They have no direct application to a change of use that does not necessitate erection of a building." 52 The impediment to erection of a second dwelling on the land is cl 13(4), not cl 13(3). Even as to cl 13(4), the question should be limited to the 40 hectare requirement, because the refusal of consent was not because cl 13(4) was otherwise not satisfied. Further, as a result of the answer to question (f) neither the application to use the existing dwelling as a manager's residence nor the application to use the existing dwelling as a rural worker's dwelling is impeded by that provision. Whether cl 13(4) is a development standard therefore does not seem to arise in the proceedings. There was no SEPP 1 objection in relation to the application for a replacement dwelling, and the other applications did not propose erection of a dwelling. 53 The parties nonetheless addressed question (e), and neither suggested that it does not arise in the proceedings. It became apparent that the application to use the existing dwelling as a manager's residence proposed expenditure of some $75,000 on the dwelling, and the applicant characterised the application as "relevantly" for the erection of a dwelling. The council did not dissent from this. The vice of separate questions which do not appropriately dispose of proceedings or turn out to be of no significance in the proceedings is well known, and seems to afflict proceedings in the Land and Environment Court with some frequency. It may well have afflicted these proceedings, but in the circumstances I will put aside my doubts and deal with question (e), limited to cl 13(4) so far as it states the 40 hectare requirement. 54 The hearing of the appeal to this Court immediately followed the hearing of the appeal in Strathfield Municipal Council v Poynting (2001) NSWCA 270, in which the principal question was whether an area requirement in the Strathfield Planning Scheme Ordinance is a development standard. The bench was the same in both cases. The same senior and junior counsel appeared for the appellants in both cases and junior counsel for the respondent in Strathfield Municipal Council v Poynting was counsel for the respondent in the present case. The arguments in relation to development standards in the present case drew upon and to a considerable extent simply took up the arguments in the preceding appeal. 55 I have discussed development standards, and the arguments put in that case, in my reasons in Strathfield Municipal Council v Poynting , and will not repeat what I there said. The discussion should be incorporated in these reasons. 56 The council submitted that cl 13(4) concerns whether or not development may be carried out at all. Its effect, it said, is that the council has power to consent to additional dwellings on the land only if the land has the requisite minimum area and the other criteria as to use of the additional dwellings are satisfied. So it is of the kind referred to by Mahoney JA in North Sydney Municipal Council v P D Mayoh (No 2) (1990) 71 LGRA 222, "On land of characteristic X no development may be carried out", and the council adopted the analysis by Lloyd J in Dixson v Wingecarribee Shire Council (103 LGERA 103) at 111 - "Subclauses 13(3) and (4) are as much concerned with land use as clause 9. They prohibit the use of land having the specified characteristics for the named purpose. They qualify clause 9 because they prohibit the use of particular land for development which would otherwise be permissible under the zoning table and supplement clause 9 by making further provision in respect of land within nominated non-urban zones. The zoning provisions and subclauses 13(3) and (4) operate in conjunction. These sub-clauses lay down absolute prohibitions against the development of certain land within the relevant zones. A development standard, on the other hand, lays down standards or requirements which a proposed development must meet in the carrying out of that development. As Mahoney JA said in Mayoh , the distinction is 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 standard'. In the present case subclauses 13(3) and (4) are of the former kind and thus are prohibitions, whereas a provision of the latter kind is a development standard."

57 The applicant submitted that the status of cl 13(4) as a development standard was determined by applying the definition of "development standards" in s 4(1) of the Act. It was said that it accepted - "embraced"- the authority of North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) , but that the case was decided on the ground that cl 14A(1)(a) was not a provision in relation to the carrying out of development and that once that part of the definition was satisfied it was sufficient that the provision fell within one of the paragraphs of the definition. (This appears to have been a modification of the respondent's submission in Strathfield Municipal Council v Poynting ). Although prohibitory, it said, cl 13(4) was regulatory of permitted development, and relevant aspects of the development were found in paras (a), (c) and (e) in the definition. 58 I refer to the discussion in Strathfield Municipal Council v Poynting , and take up the reasoning for the conclusion as to cl 41(2) of the Ordinance. Erection under the LEP of dwellings on land within Zone 7(b) is generally permissible with consent. Clause 13(4) imposes a requirement where one or two additional dwellings are to be erected additional to a main dwelling, relevantly that the particular land have an area of not less than 40 hectares. On the wider view adopted in Strathfield Municipal Council v Poynting , this is an aspect of the development, and it is within paragraph (a) in the definition. Limited in the manner I have described, Talbot J's answer to question (e) should be upheld.

Disposal of the appeal 59 The answer to question (e) should be varied, but otherwise the appeal should be dismissed with costs. I propose the following orders -

1. Appeal allowed in part. 2. Vary the answer to question (e) by the addition at its commencement of the words, "As to cl 13(4) so far as it requires that the land to which it applies have an area of not less than 40 hectares,". 3. Appeal otherwise dismissed. 4. Appellant to pay the respondent's costs of the appeal. 60 HEYDON JA: I agree with Giles JA. 61 YOUNG CJ in Eq: I also agree with Giles JA.

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