Wollongong City Council v Vic Vellar Nominees Pty Limited

3 Four proceedings are pending in the Court relating to the Land. Two are Class 1 appeals by Vic Vellar against, respectively, the Council's 2009 refusal of a 2009 application to subdivide Lot 21 into two lots and the Council's 2010 refusal of a 2010 application to modify the Consent. The other two are Class 4 proceedings, one brought by the Council, the other by Vic Vellar. The Council's Class 4 proceeding seeks a declaration that the two partially constructed dwellings on Lot 21 are not "existing dwelling-houses" for the purposes of cl 13(2)(a) of the WLEP. Vic Vellar's Class 4 proceeding is a damages claim for breach of contract, negligence and misrepresentation which was commenced in the Supreme Court in 2010 and subsequently transferred to this Court. In that proceeding Vic Vellar alleges that the position and size of the two semicircular Zone 7(b) areas was not in accordance with an agreement between the parties for the sites of the two dwellings and that if the Council is successful in its Class 4 proceeding Vic Vellar will have suffered loss and damage.

4 The separate and preliminary questions now before the Court for determination are as follows: "(a) Whether each of the northern building and the southern building on Lot 21 in DP 838638 is not an "existing dwelling-house" for the purpose of cl 13(2) of the WLEP because of: (i) the reasons identified in paragraphs 24(a)-(c) of the Council's Second Further Amended Points of Claim in its Class 4 proceedings;

(ii) the reasons identified in paragraphs 25(a) - (c) of the Council's Second Further Amended Points of Claim in its Class 4 proceedings.

(b) On the assumption that the Council was to prove the matters identified in paragraphs 24(d) and 25(e) of the Council's Second Further Amended Points of Claim, whether each of the northern building and the southern building on Lot 21 in DP 838638 is not an "existing dwelling-house" for the purpose of cl 13(2) of the WLEP." The "northern building" and the "southern building" are the two partially constructed dwellings on Lot 21.

5 Accordingly, the Court must determine whether or not each of the northern building and the southern building is or is not an "existing dwelling-house" for the purposes of cl 13(2) of the WLEP.

BACKGROUND 6 On 23 November 1992, the Council received a development application from Vic Vellar for the construction of two dwelling-houses on the Land. The Land at that time was zoned 7(b) (Environmental Protection Conservation Zone) under the WLEP.

7 About that time, there were discussions between the Council and representatives of Vic Vellar about a concession which would enable two dwellings to be erected on part of the Land in exchange for the transfer of part of the Land to the Council for inclusion in the Illawarra Escarpment Conservation Area. These discussions were apparently based on the Council's "fair trading" policy.

8 To facilitate the transfer of the conservation land into the Illawarra Escarpment Conservation Area, the Council prepared two draft Local Environmental Plans that amended the WLEP.

9 The first was Wollongong LEP Amendment No 38 (Amendment 38), which was gazetted on 1 October 1993. Amendment 38 amended the LEP Zoning maps by introducing a 7(a) (Special Environmental Protection Zone) across a great many lands in the Illawarra Escarpment. The Land was rezoned 7(a) with the exception of two semicircular areas on the eastern boundary, which remained zoned 7(b) (Environmental Protection Conservation Zone). Dwelling-houses are prohibited in Zone 7(a) but are permissible with development consent in Zone 7(b). All the WLEP 7 Zones are environmental protection zones of one sort or another. 10 The other amendment to the WLEP was Wollongong LEP Amendment No 53 (Amendment 53), which was gazetted on 29 October 1993. Amendment 53 was a site specific amendment which stated that its objective was "to allow the erection of two dwellings on" the part of the Land still zoned 7(b). Amendment 53 inserted a clause into Schedule 2 of the WLEP which permitted, with development consent, subdivision of the Land into two lots with a specified common boundary "and the erection of two dwellings on" the said two Zone 7(b) areas. This was subject to the limitation that no "dwellings" shall be erected on the land within those 7(b) areas until the land within Zone 7(a) west of a specified line has been transferred to the Council. 11 On 3 November 1993, Council granted development consent D93/497 for the subdivision of the Land into two Lots (Subdivision Consent). On 15 June 1994, DP 838638 was registered creating Lots 21 and 22 in DP 838638. Lot 21 has an area of approximately 20.2 hectares and Lot 22 has an area of approximately 71.12 hectares.

12 On 4 November 1993, Council granted consent to development application D92/772 for two "dwellings" on the Land subject to conditions (Consent). A condition required that part of the Land west of the said specified line be transferred to Council in accordance with an agreement dated 22 April 1993 between Vic Vellar and the Council.

13 On 23 August 1994, Council granted Building Approval B797/94 (BA) for the construction of two "dwellings" on Lot 21.

14 Lot 22 was transferred to the Council on 26 August 1994 in accordance with the said agreement between Council and Vic Vellar. Lot 22 was later transferred by the Council to the National Parks and Wildlife Service.

15 Between about 1996 and 1999 two dwellings were partly constructed on Lot 21.

16 Survey plans prepared by the Council in 2010 show that the two dwellings as approved under the BA and as constructed are outside the two areas of Lot 21 zoned 7(b).

17 On 1 May 2009, the Council refused Vic Vellar's development application DA 2009/353 for the subdivision of Lot 21 into two lots. On each of the proposed lots there existed a partially constructed dwelling. The stated reason was that the proposed development did not comply with clause 13(2)(a) of the WLEP.

18 On 1 July 2009, Vic Vellar filed an appeal in this Court against the Council's refusal of the 2009 subdivision development application.

19 On 12 October 2009 a planner on behalf of Vic Vellar applied for a building certificate under s 149A of the Environmental Planning and Assessment Act 1979 (EPA Act) for the following on Lot 21: two dwellings under construction, a concrete driveway, three concrete water tanks, a stormwater detention basin, and an effluent disposal tank and associated disposal area.

20 On 6 November 2009 the Council commenced Class 4 proceedings seeking a declaration that the two partially constructed buildings on Lot 21 were not "existing dwelling-houses" for the purposes of cl 13(2)(a) of the WLEP.

21 On 29 March 2010, a planner on behalf of Vic Vellar lodged modification application No DA-1992/772/C under s 96 of the EPA Act seeking amendment of the conditions of the Consent and the BA.

22 On 21 May 2010 Vic Vellar filed an appeal against the Council's deemed refusal of the modification application.

23 On 2 July 2010 Vic Vellar commenced proceedings in the Supreme Court for damages for breach of contract, negligence and misrepresentation relating to the Land. On 1 September 2010 those proceedings were transferred to this Court.

CLAUSE 13(2)(a) WLEP 24 Clause 13(2)(a) of the WLEP provides as follows: "(2) The Council shall not consent to the subdivision of land within Zone No. 7(a), 7(b) or 7(d) unless: (a) each allotment of land to be created by the subdivision has an existing dwelling-house on it and no rights for additional dwellings are created,…" 25 "Dwelling-house" is defined in cl 6 of the WLEP as: "a building or buildings containing one but not more than one dwelling, on one allotment".

26 This definition, by its instruction that there should not be more than one dwelling in a building or buildings suggested to be a "dwelling-house", indicates a policy of limitation.

27 "Dwelling" is defined in cl 6 as: "dwelling means a room or number of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile, and includes a granny flat". 28 The definition of "dwelling" has two limbs. The first is concerned with actual occupation or use of a room or rooms as a separate domicile. The second is concerned with a hypothetical test of whether a room or rooms are "so constructed or adapted as to be capable of being occupied or used" as a separate domicile: Leichhardt Municipal Council v Mansfield (1985) 57 LGRA 214 at 221; Council of the Shire of Warringah v Jennings Group Ltd, unreported, NSWCA, 18 June 1992 at 9. 29 Clause 6(2)(a) provides: "a reference to a building or place used for a purpose includes a reference to a building or place intended to be used for the purpose."

30 In Lewin v End [1906] AC 299 at 304 Lord Atkinson said: "By a 'dwelling-house' I understand a house in which people actually live or which is physically capable of being used for human habitation". This, I think, is roughly reflected in the two parts of the WLEP definition of "dwelling", which is then incorporated into the definition of "dwelling-house".

31 The current usage of the term "dwelling-house" in a statute unassisted by any definition denotes premises which contain not only accommodation for sleeping but also kitchen, bathroom and lavatory facilities: Louinder v Stuckey [1984] 2 NSWLR 354 at 357 (CA). In Leichhardt Municipal Council v Mansfield, (above), the Court of Appeal held in the context of definitions of "dwellings" and "dwelling-house" similar to those in the present case (in the Environmental Planning and Assessment Model Provisions 1980), that the essential requirements of a separate "domicile" were not only accommodation for sleeping and living but also kitchen, bathroom and laundry facilities. I take it that "bathroom" here includes a lavatory. The absence of a kitchen, bathroom and laundry facilities has been held to not satisfy a definition of "dwelling" in essentially the same terms as the present case: Townsend v Lake Macquarie City Council [2004] NSWLEC 38 at [16]. In my view, a "dwelling" and a "dwelling-house" as defined in the WLEP also requires those facilities. The additional requirement in cl 13(2)(a) that the dwelling-house be "existing" emphasises that those facilities be actual rather than merely potential. The qualifying word "existing" in cl 13(2)(a) is an ordinary English word which I take to mean a building constructed to the point where it has the essential facilities of a dwelling-house.

32 "Domicile" is not defined in the WLEP but its meaning is not in issue. In this context, "domicile" embodies the idea of a permanent home or a significant degree of permanency of habitation or occupancy: Potter v Minahan (1908) 7 CLR 277 at 288; Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 at 153; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 537-538; MacKenzie v Warringah Council [2002] NSWLEC 246, 124 LGERA 208 at [25]; Peter Duffield and Associates Pty Ltd v Canada Bay City Council [2002] NSWLEC 168, 124 LGERA 349 at [41]; Foster v Sutherland Shire Council [2001] NSWLEC 89, 115 LGERA 130; KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218, 148 LGERA 117 at [8]-[18]; City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97, 158 LGERA 67 at [38]; Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, 165 LGERA 184 at [35] - [36]..

33 It is a question of fact whether a particular building falls within the term "existing dwelling-house" when properly construed: Townsend v Lake Macquarie City Council [2004] NSWLEC 38 at [19]; Wyong Shire Council v Ardi Pty Ltd [2000] NSWLEC 253, 112 LGERA 85 at [18].

FIRST SEPARATE QUESTION: EXISTING DWELLING-HOUSE 34 It is convenient at this point to restate the first separate question for determination: "(a) Whether each of the northern building and the southern building on Lot 21 in DP 838638 is not an 'existing dwelling-house' for the purpose of cl 13(2) of the WLEP because of: (i) the reasons identified in paragraphs 24(a)-(c) of the Council's Second Further Amended Points of Claim;

(ii) the reasons identified in paragraphs 25(a)-(c) of the Council's Second Further Amended Points of Claim." 35 Paragraphs 24(a)-(c) and 25(a)-(c) of the Council's Second Further Amended Points of Claim plead that the northern and southern buildings are not existing dwelling-houses because:

(a) they have never been occupied or used as dwellings; (b) they are not, and never have been, capable of being used as dwellings; (c) all of the essential pre-conditions to occupation in the Consent and the BA have not been satisfied, in particular Condition 10 of the Consent and Conditions 12, 14, 33 and 35 of the BA.

36 Condition 10 of the Consent provides: "The developer must obtain written verification from a suitably qualified civil engineer, prior to the occupation of the development, stating that all stormwater drainage and related work has been constructed in accordance with the approved plans. In addition, full works-as-executed plans, prepared and signed by a registered surveyor, must be submitted. These plans must include levels and location for all drainage structures and works, buildings (including floor levels) and finished ground and pavement surface levels."

37 Conditions 12, 14, 33 and 35 of the BA provide: "12. INSPECTIONS - at least 48 hours notice shall be given to Council to allow for the inspection and approval of:-

a The reinforcing steelwork when in position and before concrete is poured. b The framework including roof members when completed and prior to the fixing of any internal sheets. c The building or structure when completed and before occupation or use is commenced.

14. A Clearing Certificate to be furnished from an approved Consulting Design Structural and/or Geotechnical Engineer at the completion of building works and before occupation or use of the building stating that the work (the subject of his design) has been completed in accordance with the approved plans, specifications and appropriate Codes.

33. The developer must obtain written verification from a suitably qualified Civil Engineer prior to the occupation of the development, stating that all stormwater drainage and related work has been constructed in accordance with the approved plans. In addition, full works-as-executed plans, prepared and signed by a registered surveyor, must be submitted. These plans must include levels and location for all drainage structures and works, buildings (including floor levels) and finished ground and pavement surface levels.

35. Compliance with the Conditions of Development Consent D92/772." 38 The evidence establishes that these conditions have not been satisfied. Conditions 33 and 35 of the BA add nothing of substance because Condition 33 is in the same terms as Condition 10 of the Consent and Condition 35 relevantly requires Compliance with Condition 10 of the Consent.

39 The meaning of a provision in an environmental planning instrument has to be determined having regard to its context and purpose. The planning purpose is determined by reference to the language of the instrument considered in context: Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [7] - [9]; Wilson v State Rail Authority (NSW) [2010] NSWCA 198 at [12] - [13]. An evident object of cl 13(2)(a) of the WLEP is to protect certain environmental zones against urbanisation by prohibiting subdivision unless each lot to be created by the subdivision has an existing dwelling-house on it. 40 Clause 13(2) is concerned with an "existing dwelling-house" and requires attention to be given to the definitions of "dwelling-house" and "dwelling". The function of a definition is not to enact substantive law, but to provide aid in construing the statute. It defeats the legislative intention to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of the statute. If the definition applies, its words should be read into the substantive enactment which should then be construed in its context bearing in mind its purpose: Kelly v R [2004] HCA 12, 218 CLR 216 at [103]. Two dwellings on one lot 41 By virtue of amendment 53, the WLEP permits, with development consent, the subdivision of the Land into two lots and the erection of two "dwellings" on the Zone 7(b) part of Lot 21 retained by Vic Vellar: see [10] above.

42 The Council submits that as Schedule 2 of the WLEP says that two "dwellings", not two "dwelling-houses", are permitted to be erected on Lot 21, and as two dwellings on one allotment cannot be a "dwelling-house" as defined in cl 6 (see [10] and [25] above), then the two dwellings on the two lots to be created by the proposed subdivision cannot be "dwelling-houses" within the meaning of cl 13(2)(a) of the WLEP. That is, there is no "dwelling-house" at all on either of the two lots to be created. This construction is reinforced, the Council argues, by the fact that the Council resolution adopting the draft Amendment 53 to the LEP referred to "dwelling-houses" yet Amendment 53 as made referred to "dwellings", and subsequently the Consent was for two "dwellings" not two "dwelling-houses".

43 I do not accept the submission. On consideration, it becomes clear why Amendment 53 and the Consent permitted two "dwellings" and not two "dwelling-houses" on Lot 21. The WLEP definition of a "dwelling-house" is confined to one dwelling on one allotment. Vic Vellar retained only one allotment, Lot 21, following the agreed transfer of Lot 22 to the Council. Two dwellings erected on Lot 21 therefore could not meet the definition of "dwelling-house" but met the definition of "dwelling" in the WLEP. That explains why Schedule 2 permits the subdivision and erection of one "dwelling-house" per lot on certain other lands listed therein (subject to the transfer of Zone 7(a) Land) because in each such case the permitted subdivision creates more than two lots. Dwelling-house prior to subdivision 44 The Council submits that a "dwelling-house" has to exist on Lot 21 prior to the proposed subdivision in order to satisfy cl 13(2)(a).

45 I do not accept the submission. Relevantly, cl 13(2)(a) is concerned with whether each allotment of land proposed to be created by the subdivision of Lot 21 has an existing dwelling-house on it. A "dwelling-house" as defined in the WLEP is a building containing one dwelling on one allotment. Once the proposed subdivision of Lot 21 occurs, then each allotment to be created by that subdivision will have a dwelling-house on it if the other requirements of a dwelling-house are satisfied. It is irrelevant that before the proposed subdivision of Lot 21 occurs, the two dwellings on Lot 21 cannot meet the definition of "dwelling-house" because they are both on one allotment. Existing Dwelling-house 46 Vic Vellar submits that each building is an "existing dwelling-house" within the meaning of cl 13(2)(a) because it exists in that it is constructed and substantially complete, is a dwelling-house, and (see cl 6(2)) is intended to be used as a domicile.

47 I do not accept the submission. The phrase "existing dwelling-house" is a compound expression and should not be severed into several parts and construed only by the separate meaning of each severed part. To ascertain the meaning, the compound expression must be taken and not its disintegrated parts. In Lorimer v Smail (1911) 12 CLR 504 at 510 it was held, quoting Mersey Docks and Harbour Board v Henderson Bros (1888) L.R.13 App. Cas. 595 at 599 - 600: "It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed." 48 In similar vein, in R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244, Dixon J said: "The rules of interpretation require us to take expressions in their context, and to construe them with proper regard to the subject matter with which the instrument deals and the objects it seeks to achieve, so as to arrive at the meaning attached to them by those who use them. To ascertain this meaning the compound expression must be taken and not its disintegrated parts". 49 In Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 400 the High Court cited with approval Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119 at 144: "…I do not think that the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense."

50 A dwelling-house has to have not only accommodation for sleeping but kitchen, bathroom and lavatory facilities, if not also laundry facilities: see [31] above. The word "existing" before "dwelling-house" in cl 13(1)(a) means or emphasises that the dwelling-house must be constructed with those facilities, not partially constructed with some of the facilities missing as at the time of consideration of the subdivision application. There is an issue, discussed below, whether the partially constructed dwellings have those facilities. "Dwelling": first limb Intention to use 51 Clause 6(2)(a) of the WLEP provides that: "a reference to a building or place used for a purpose includes a reference to a building or place intended to be used for the purpose". Vic Vellar places heavy emphasis on cl 6(2)(a) in submitting that (a) the rooms in each building satisfy the first limb of the definition of "dwelling" because they are intended to be used as a separate domicile, and (b) each building is an "existing dwelling-house" because the building exists and is intended to be used for the purpose of a dwelling-house.

52 I do not accept the submission. The submission in effect says that the partly constructed state of the buildings is irrelevant thanks to cl 6(2). To apply cl 6(2)(a) in the manner contended for would deprive the second part of the definition of "dwelling" of meaning. The words "constructed or adapted as to be capable of being…used" would have no work to do if "used" is extended to mean "intended to be used". The definition requires a focus on the state of construction and consequential capability, which the submission ignores. Even if that is incorrect, the submission has no bearing on the ordinary and natural meaning of "existing dwelling-house" as that compound expression does not depend upon the purpose of a use, unlike the defined term "dwelling". The submission pays insufficient regard to the requirement of cl 13(2)(a) for the dwelling-house to be "existing". The essential facilities of a dwelling-house, kitchen, bathroom and lavatory, if not also laundry, as well as sleeping accommodation, must presently exist. "Dwelling" second limb: so constructed as to be capable 53 Vic Vellar submits that the buildings also meet the second limb of the "dwelling" definition "so constructed…as to be capable of being occupied or used as a separate domicile" because it does not have to be immediately capable of occupation and use and minor things that still need to be done are irrelevant.

54 In my view, the second limb of the definition captures the notion that the rooms are physically capable of being used for human habitation as a domicile: see [30] above. The focus here is upon the present state of the rooms. This construction is consistent with Townsend v Lake Macquarie City Council [2004] NSWLEC 38 at [22] where Bignold J considered a relevantly identical definition of "dwelling" in a local environmental plan which included provisions identical with cl 6(2) in the WLEP: "In my opinion, it is abundantly clear from the express terms of the statutory definition of 'dwelling' that the 'capability' of a building to be 'occupied or used as a separate domicile' is referable to the existing state of the construction and adaptation of the building and not to some other future possible state of construction or adaptation of that building. It is a modern day truism that most building types are capable of being re-constructed or re-adapted to some other type of building (eg a warehouse or industrial building being re-constructed or re-adapted for residential usage is nowadays commonplace)."

(emphasis in original) 55 Vic Vellar seeks to distinguish Townsend on its facts. The facts were different but that does not detract from the construction of "dwelling" advanced in the quoted passage.

56 In any case, the present state of the building is the relevant state by reason of the use of the word "existing" to describe the dwelling-house in cl 13(2)(a).

57 I accept a de minimis exception that minor things that still need to be done may be no impediment to a conclusion that rooms are a "dwelling" and that a building is an "existing dwelling-house". To that extent, the fact for determination involves a question of degree. The word "existing" qualifying "dwelling-house" in cl 13(2)(a) puts paid to any lingering notion that outstanding substantial works necessary to provide essential facilities can be put to one side. Physical state of the buildings 58 The construction of "existing dwelling-house" having been determined, it is a question of fact whether each of the subject buildings is an existing "dwelling-house". That is, are they so constructed as to be presently physically capable of being occupied or used as a separate dwelling?

59 There is a question whether, cl 13(2)(a) requires that assessment to be made as at the time construction ceased in 1999 or as at the present time. In my view the assessment should be made at the present time. However, notwithstanding that the buildings have been vandalised to some extent in the interim, I think that the differences in their physical state at the two points of time is not significant for present purposes.

60 The schedule to this judgment sets out the state of both buildings in 1999 when construction ceased and currently. Photographs in evidence illuminate understanding of the current state.

61 As cl 13(2)(a) prohibits consent to subdivision unless "each" allotment of land to be created by the subdivision has an existing dwelling-house on it, and as construction of the northern building is much more advanced than construction of the southern building, it is common ground that it is sufficient to determine whether the southern building is an existing dwelling-house.

62 The Council submits that the southern building is not habitable in its current form as it does not have kitchen, bathroom and lavatory facilities, is partly constructed and cannot be presently occupied.

63 It was agreed between the parties that the southern building does not have a kitchen sink, facilities for the preparation and cooking of food, a bath, shower, taps, toilet, washbasin or clothes washing facilities. Vic Vellar argues that the rooms were constructed so as to be capable of having these features installed.

64 In my opinion, that is not enough. To meet the definition of an "existing dwelling-house" the building must have existing kitchen, bathroom and lavatory facilities, if not also laundry facilities. Minor things that may still need to be done are not an impediment to a conclusion that a building is an "existing dwelling-house". However, the works necessary to complete the southern building do not fall under that category.

65 In addition to the lack of kitchen, bathroom, lavatory and laundry facilities, the southern building is missing external windows and doors, some parts of the roof are damaged and exposed, it has no down-pipes, the floors are concrete with no covering and it has no cabling or internal doors. Much more than minor work is required to make the building habitable.

66 Accordingly, the southern building is not an "existing dwelling-house" for the purpose of cl 13(2) of the WLEP.

Conditions 67 The remaining council contention concerns the non-satisfaction of the conditions of consent and BA referred to at [35(c)] - [38] above. I am inclined to think that there can be an "existing dwelling-house" within the meaning of cl 13(2) of the LEP notwithstanding that the formalities provided for in such conditions have not yet been complied with. I therefore do not accept this aspect of the Council's case.

SECOND SEPARATE QUESTION: LAWFULNESS 68 I turn to the second separate question, which it is convenient to restate: "(b) On the assumption that the Council was to prove the matters identified in paragraphs 24(d) and 25(e) of the Council's Second Further Amended Points of Claim, whether each of the northern building and the southern building on Lot 21 in DP 838638 is not an "existing dwelling-house" for the purpose of cl 13(2) of the WLEP." 69 Paragraphs 24(d) and 25(e) of the Second Further Amended Points of Claim plead that each building was constructed in breach of either s 76A or s 76B of the EPA Act in that, first, they were constructed partly on land zoned 7(a) in which dwelling-houses were a prohibited use, and/or secondly, they were not constructed in the location approved in either the Consent or the BA.

70 The BA is taken to be a development consent: cl 45 Environmental Planning and Assessment (Savings and Transitional) Regulation 1998.

71 Because this question requires an assumption to be made that those two matters will be proved, evidence as to whether or not they are the fact is irrelevant.

72 It may be accepted that the two assumed matters constitute a breach of ss 76A(1) and 76B of the EPA Act, which provide: "76A Development that needs consent

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.

If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land."

73 The Council submits that "existing dwelling-house" in cl 13(2)(a) implicitly means one that has been lawfully constructed and that if there is otherwise an existing dwelling-house (contrary to my conclusion), it was not lawfully constructed because of the two assumed facts.

74 Vic Vellar submits that this is to read into the clause a qualifying adjective which could and should have been included if such was the intention: Holden v Commissioner for Government Transport (1958) 59 SR (NSW) 331 (FC) at 333. I do not find that case helpful. It had nothing to do with a lawfulness implication and was concerned with the suggested implication of a word in an unrelated context.

75 There is a general rule that an interpretation of an Act or contract will not be adopted that will permit a person to take advantage of their own wrong, such as where a person seeks a benefit under a contract by reason of their own contractual default: TCN Channel Nine Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 147; Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006) at [2.37]; Green v Kogarah Municipal Council [1999] NSWLEC 256 at [32].

76 In Allen v Bega Valley Shire Council (1994) 85 LGERA 364 (CA) cl 7 of State Environmental Planning Policy No 21 provided that development consent was not required for the placement or use of moveable dwellings on a caravan park or camping ground "in existence" on the day the policy takes effect. The appellants operated a caravan park on certain land. In respect of one section of the land no development consent had been granted. The council obtained a declaration that the use of that part of the land was unlawful. An appeal was dismissed by the Court of Appeal which interpreted cl 7 as permitting the placement or use of moveable dwellings without development consent on caravan parks lawfully being operated at the date of promulgation of the policy. Clarke JA held at 369-370 (Kirby P and Meagher JA agreeing): "Clause 7 was designed, in my opinion, to permit the placement or use of moveable dwellings, without development consent, on lawful caravan parks and camping grounds in existence on 1 December 1986. [Counsel] has submitted that such an interpretation involves the unnecessary and wrongful injection of the word 'lawful' into the clause. He points out, quite correctly, that that word does not appear in cl 7(1) and contends that an intention can be discerned from its provisions to render lawful all caravan parks and camping grounds in existence on that day whether or not they had previously been lawful.

I do not agree. There is nothing in the objectives to support [counsel's] argument. On the contrary, the terms of cl (a) and cl (b) provide sound reasons for rejecting it. Those clauses convey an express appreciation of the fact that, prior to 1 December 1986, development of land for a caravan park may in some instances have required development consent and in others not have required such consent. This is clear from the words in parenthesis in cl (a). Clause (b) expresses the clear policy of requiring development consent in the future for the use of land for a caravan park or camping ground even where until that date development for those purposes had been permitted by an environmental planning instrument without the necessity for development consent. The fact that some instruments may have permitted development of the land for a caravan park without development consent meant that it was necessary for cl 7(1) to encompass caravan parks lawfully in existence whether or not development consent had been obtained for that use of the land. It was this factor, in my opinion, which led to the particular phraseology which appears in the clause.

In these circumstances it is not possible to discern from the absence of the words 'a caravan park for which development consent had been obtained' an implied intention to render lawful that which prior to 1 December 1986 had been unlawful. Furthermore [counsel's] construction of the instrument would give rise to absurd results. For instance, a person who had, prior to December 1986, blatantly set up a caravan park knowing that he or she did not have the necessary development consent could successfully resist legal proceedings that had been instituted by the local council to close down the park relying upon the terms of State Environmental Planning Policy 21. In my opinion, the drafter's intention upon which [counsel] relies would need to appear clearly from the terms of the instrument before a consequence as extreme as the one I have mentioned could be said truly to flow from it.

In addition, the submission is contrary to the established principle that, in the absence of a clear intention to the contrary, the legislature is to be presumed not to have intended that persons who are in breach would benefit from their illegality. A clear expression of the principle appears in the judgment of Owen J in Crozier v Tate (1946) 64 WN(NSW) 1 at 3; 16 LGR 57 at 61, which was quoted with approval in Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 at 570-571 and 580-581, 80 LGRA 323 at 330 and 340. His Honour said: 'It is, of course, an elementary principle of interpretation that words should be given their plain and ordinary meaning, but it is an equally sound rule that the legislature will be presumed, in the absence of some indication to the contrary, not to have intended that wrongdoers should benefit by their wrongdoing.'

There is no clear intention to be found in State Environmental Planning Policy 21 to the effect that a caravan park unlawfully carried out prior to December 1986 henceforth could be carried on without development consent. Accordingly I would interpret cl 7 as permitting the placement or use of moveable dwellings, without development consent, on caravan parks lawfully being operated at the date of the promulgation of State Environmental Planning Policy 21." 77 Allen is analogous and supports the conclusion that cl 13(2)(a) should be similarly construed as requiring the "existing dwelling-house" to have been lawfully constructed.

78 Consistently with Allen is the decision in Stephen Bowers Architects Pty Ltd v Waverley Council [2003] NSWLEC 16, 125 LGERA 292. In that case State Environmental Planning Policy No 10 provided a mechanism for the retention of low cost rental accommodation but excepted a building that comprised a single dwelling. "Dwelling" was defined as "a building or part of a building or a structure designed or used as a separate domicile". The subject building was presently used as a separate domicile, however that use was unlawful as development consent was required and had not been obtained. Lloyd J held that: "If it is necessary to rely upon a use which is unlawful then such use must be ignored" (at [25]).

79 An analogy is also provided by cases decided under s 95(4) of the EPA Act or equivalent earlier provisions which provided that development consent does not lapse if specified work commences before the date on which the consent would otherwise lapse. It has been held that the relevant work must be lawful: Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 at 135; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243 at [66], [97]; Green v Kogarah Municipal Council [1999] NSWLEC 256 at [32]; Green v Kogarah Municipal Council [2001] NSWCA 123, 115 LGERA 231 at [66] - [67]; Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125, 116 LGERA 158 at [38] - [59]; Besmaw Pty Ltd v Sutherland Shire Council [2003] NSWLEC 181, 127 LGERA 413 at [159] - [163]; Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404, 133 LGERA 1 at [44] - [46]. 80 Vic Vellar relies for the contrary conclusion on Wyong Shire Council v Ardi Pty Ltd [2000] NSWLEC 253, 112 LGERA 85. The issue in that case was whether a building was used as a "residential flat building" (a prohibited use), which was defined in the relevant local environmental plan as a building containing three or more dwellings. The issue turned upon the proper construction of the definition of "dwelling", which was relevantly identical with the WLEP definition of "dwelling" set out at [27] above. Ardi submitted that the upstairs section of each unit in the building was not "capable" of being occupied or used as a separate domicile because such use or occupancy would be illegal. Pearlman J did not accept the submission, at [21]: "However I do not accept this submission. It would require the word 'lawfully' to be inserted before the words 'occupied or used' in each place where they occur in the definition of 'dwelling', so that a 'dwelling' would be described by the definition only if the occupation or use of the room or number of rooms as a separate domicile was a lawful occupation or use. No such insertion is required in order to elicit the proper construction of the definition. The type of occupation or use which the definition of 'dwelling' contemplates is one which is 'as a separate domicile'. The definition qualifies 'occupation or use' only in that manner. Furthermore, the word 'capable' in the definition governs the words 'constructed or adapted'. For the reasons I have earlier outlined, those words indicate physical layout and they do not indicate any technical legal meaning. Finally, the context militates against the construction which [Ardi] espoused. The task is to construe a definition in an environmental planning instrument. The controls which that planning instrument imposes are not to be found in the definitions of terms used in the instrument; rather they are to be found in the particular clauses which apply depending upon the definition into which a particular development might fall."

81 Ardi is distinguishable on the basis that it was concerned with the insertion of the word "lawfully" into the definition of "dwelling" whereas here the words "lawfully constructed" are to be inserted not into that definition but, as in Allen, into a substantive provision, cl 13(2)(a). The concluding words quoted above from Ardi lend some support to that distinction. Ardi may also be distinguishable on the basis that it was concerned with whether a building was capable of being lawfully occupied. The present case, on the assumed facts, concerns an applicant taking advantage of its own unlawful conduct. The Council acknowledges that there is no issue of moral obloquy in this concept, which is one of statutory construction to avoid a result which would enable unlawful works to found the basis for reliance on cl 13(2)(a).

82 The decision in Stephen Bowers may be harmonised with Ardi on the basis that the conclusion in Stephen Bowers was intended to address not the definition (as in Ardi) but the substantive exception provision. 83 Assume, for instance, that no development consent at all had been sought or obtained for an existing dwelling-house which was fully constructed on land to which cl 13(2)(a) applied. The existing dwelling-house would have been unlawfully constructed. Would cl 13(2)(a) nevertheless be satisfied? Vic Vellar's response to this example in argument was that it would be satisfied and that any prohibition of development consent is not to be found by implying a lawfulness requirement into that provision but is to be found in s 80(2) of the EPA Act which provides: " 80 Determination … (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development." 84 I do not accept the submission. It is contrary to the approach of the Court of Appeal in Allen which injected the word "lawfully" into a provision of a state environmental planning policy. Even absent that authority, I do not see why in principle the question of a lawfulness requirement does not arise for consideration at the stage of construing an environmental planning instrument. There is also difficulty in saying that s 80(2) is engaged in the circumstances of the present case where it is not the subdivision of land that would, if carried out, result in the contravention of the Act; rather, it is the assumed existing dwelling-house that is unlawful and in contravention of the Act. If s 80(2) were engaged, as Vic Vellar seems to contend, it is then difficult to see why it would not be fatal to its pending Class 1 appeal against the Council's refusal of its Lot 21 subdivision application.

85 Vic Vellar points out that cl 14A of the WLEP provides: "Notwithstanding any other provision of this plan, the Council may consent to the erection of a dwelling-house (including the erection of a dwelling-house as a replacement for a dwelling-house that was lawfully constructed) on an allotment of land which is wholly within Zone No 7(a) provided that…" (emphasis added). Vic Vellar submits that as the word "lawfully" was used in this provision, it should be concluded that it was not intended to be used in cl 13(2)(a). The omission of the words "lawfully constructed" in cl 13(2)(a) is explicable on other bases, including inadvertence by the draughtsman. An analogy is to be found in the application of the maxim expressio unius est exclusio alterius (the express mention of one thing implies the exclusion of the other). The maxim is applied with extreme caution on the basis that it is a valuable servant but a dangerous master; it is not applied if it would bring about a result which the legislature is unlikely to have intended; and it does not exclude, for example, duties of fairness imposed by the general law: Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 at 94; Ainsworth v Criminal Justice Commission [1992] HCA 10, 175 CLR 564 at 575. In my opinion it is unlikely to have been intended that an unlawfully constructed dwelling-house would satisfy cl 13(2)(a). On the assumed facts, the subject buildings were unlawfully constructed and therefore do not satisfy cl 13(2)(a).

CONCLUSION 86 For these reasons, I answer the preliminary questions as follows:

(a) Each of the northern building and southern building on Lot 21 in DP 838638 is not an "existing dwelling-house" for the purpose of cl 13(2) of the Wollongong Local Environmental Plan 1990 because of (i) the reasons identified in paragraphs 24(a) and (b) of the Council's Second Further Amended Points of Claim in its Class 4 proceedings; (ii) the reasons identified in paragraph 25(a) and (b) of the Council's Second Further Amended Points of Claim in its Class 4 proceedings; (b) On the assumption that the Council was to prove the matters identified in paragraphs 24(d) and 25(e) of its Second Further Amended Points of Claim in its Class 4 proceedings, the northern building and the southern building on Lot 21 in DP 838638 are not "existing dwelling-houses" for the purpose of cl 13(2) of the Wollongong Local Environmental Plan 1990. 87 Vic Vellar is to pay the Council's costs of the preliminary questions. The exhibits may be returned. The parties are to promptly arrange for the proceedings to be listed before the List Judge for directions.

The southern building: state as at 1999 when construction ceased

Externally 1. Roof had been completed and was in good condition. 2. Tiling was complete, the sarking and lead flashing where the tiles abutted the walls had been installed, and the fascias, copper guttering and copper down pipes had been fitted. 3. The down pipes had been connected to the stormwater system. 4. There was a domed skylight at both the eastern end and the western end of the roof and these had been sheathed in copper. 5. The skylights had not yet been fitted with glass. 6. The brick walls had been completed and concrete rendered. 7. The door and window openings had been completed but the doors had not been installed and no glazing had been provided to the windows.

Internally 1. The cement floors and slabs had been completed and were in good condition. 2. The plumbing for the bathrooms, kitchen and laundry had been installed in the ground floor concrete slab. 3. The concrete stairs had been poured awaiting tiling. 4. The internal brick walls for rooms had been completed on the ground floor. 5. The electric wiring still needed to be chased into the walls and then covered in gyprock. 6. On the first floor the timber frames for the walls of each room were in good condition and ready for the electric wiring and gyprocking. 7. The timber framing for the ceiling to the first floor had been completed awaiting gyprocking. Services 1. The house was connected to an enviro-cycle pump. I accept the unchallenged evidence of Mr Corlett on this point notwithstanding some other inconsistent evidence. 2. A 20,000 litre water tank had been installed on the site and was connected to the house. 3. The house was connected to the gas line and a gas meter had been installed. 4. The house was connected to the electricity and telephone mains. 5. A stormwater system had been installed.

The northern building: state as at 1999 when construction ceased

Externally 1. The roof was completed. 2. The tiling was complete, the sarking and lead flashing where the tiles abutted the walls had been installed, and the fascias, copper guttering and copper down pipes had been fitted. 3. The down pipes had been connected to the stormwater system. 4. A glass atrium had been installed in the roof over the main entry to the house. 5. The brick walls had been completed and concrete rendered. 6. The balconies had been tiled. 7. The aluminium hand railings on each balcony had been installed. 8. All of the external doors and windows had been installed including the roller garage doors. 9. The stormwater system had been connected to a detention dam to the north of the house and the driveway was constructed to incorporate stormwater pits and earth swales to funnel stormwater into designated areas.

Internally 1. The walls, ceilings, cement floors and stairs had been completed and were in good condition. 2. The plumbing and facilities for the bathrooms, kitchen, and laundry had been installed. 3. The electrical wiring had been completed. 4. The internal doors had been fitted. 5. Lighting had been installed. 6. Reverse cycle air conditioning including central heating had been installed throughout the house. 7. A security alarm system had been installed. Services 1. The house was connected to an enviro-cycle pump and tank. 2. The house was connected to a 20,000 litre water tank and the electricity, gas and telephone mains.

Externally 1. Roof has been completed but some roof timbers are exposed, some roof tiles are missing and sarking is visible and damaged in places. The roof is covered in some places by tarpaulin. 2. Tiling is complete, the sarking and lead flashing where the tiles abut the walls have been installed, and the fascias and copper guttering exist but down pipes have been removed. 3. The down pipes have been disconnected from the stormwater system as they have been removed. 4. The brick walls have been completed and concrete rendered. 5. The door and window openings have been completed but the doors have not been installed, they are boarded up, and no glazing has been provided to the windows.

Internally 1. The cement floors and slabs have been completed but lack floor coverings. 2. The plumbing for the bathrooms, kitchen and laundry has been installed in the ground floor concrete slab. 3. The concrete stairs have been poured and await tiling. 4. The internal brick walls for rooms have been completed on the ground floor. 5. On the first floor the timber frames for the walls of each room are in deteriorated condition and without electric wiring. 6. The timber framing for the ceiling to the first floor has been completed but has not been gyprocked. 7. There is no kitchen sink, facilities for the preparation and cooking of food, bath, shower, taps, toilet, clothes washing facilities, closet pan or washbasin. However, plumbing is fitted for these purposes. 8. There is no cabling in the house. 9. The floors and ceilings of most rooms are concrete with no floor coverings. 10. There are no internal doors, architraves or skirtings. Services 1. The house is connected to an enviro-cycle pump. I accept the unchallenged evidence of Mr Corlett on this point notwithstanding some other inconsistent evidence. 2. A 20,000 litre water tank has been installed on the site and is connected to the house. I accept the unchallenged evidence of Mr Corlett on this point notwithstanding some inconsistent evidence. 3. The house is connected to the gas line and a gas meter had been installed. I accept the unchallenged evidence of Mr Corlett on this point notwithstanding some inconsistent evidence. 4. The house is connected to electricity. I accept the unchallenged evidence of Mr Corlett on this point. 5. A stormwater system is installed.

Externally 1. The roof is completed. 2. The tiling is complete, the sarking and lead flashing where the tiles abut the walls have been installed, and the fascias and copper guttering are fitted, but copper down pipes have been removed. 3. The down pipes have been disconnected from the stormwater system. 4. A glass atrium had been installed in the roof over the main entry to the house. 5. The brick walls have been completed and concrete rendered. 6. The aluminium hand railings on each balcony have been removed. 7. All of the external doors and windows have been installed including the roller garage doors, although some are now boarded up. 8. Stormwater system is connected to a detention dam to the north of the house in that the tank overflows onto the ground and flows naturally into the dam. 9. Driveway is in good condition. Internally 1. The walls, ceilings, cement floors and stairs have been completed and are in reasonable condition. 2. The plumbing and facilities for the bathrooms, kitchen, and laundry have been installed. 3. The electrical wiring has been completed, but is damaged and exposed in some areas. 4. The internal doors have been fitted. 5. Lighting has been installed. 6. Reverse cycle air conditioning including central heating is installed throughout the house. 7. A security alarm system has been installed. 8. No stove, oven, range hood or cooking facilities installed, although provision has been made for their installation. 9. Toilets, baths and showers are installed but there are no screens to shower alcoves. 10. There is some water damage and some broken windows. 11. No gutters or down pipes. Services

According to the council the house is not connected to an operational sewerage system or water supply.

According to Vic Vellar: 1. The house is connected to an enviro-cycle pump and tank. 2. The house is connected to a 20,000 litre water tank and the electricity, gas and telephone mains. 3. Lighting is operational and power outlets are installed.

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