Young v Parramatta City Council [2002] NSWLEC 240 | Case summary

Greg Young Applicant v Parramatta City Council Respondent EXTEMPORE JUDGMENT [No. 2] On preliminary questions of law HIS HONOUR: 1 The applicant has appealed under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the deemed refusal of his development application described as "[h]ousing for older people or people with a disability - in fill housing" and made pursuant to State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability, which I shall call hereafter "SEPP No. 5". 2 The applicant has sought the separate determination of a number of preliminary questions of law following the filing by the respondent, Parramatta City Council ("the council") of a draft statement of issues. The separate determination of any question is permitted by Pt 31 r 2 of the Supreme Court Rules 1970 which applies in this Court: see Pt 6 r 1 of the Land and Environment Court Rules 1996. If the questions raised by the applicant are answered favourably for him it will in turn dispose of many of the issues raised by the council. 3 It is convenient to consider each question raised by the applicant separately. Question 1: Whether housing for older people or people with a disability is complying development under the provisions of the Parramatta Local Environmental Plan 2001? 4 In answering this question it is necessary to have regard to the definition of complying development in s 4 of the EP& A Act. Complying development is defined as "development for which provision is made as referred to in s 76A(5)". 5 Section 76A(5) of the EP&A Act states: An environmental planning instrument may provide that local development that can be addressed by specified predetermined development standards is complying development. 6 It is an agreed fact that the proposed development here is local development. 7 It is submitted by Mr G Young, who appears for himself as an applicant, that the development standards contained in SEPP No. 5 are specified predetermined development standards for housing for older people or people with a disability and therefore satisfy the provisions of s 76A(5) of the EP&A Act as complying development. 8 As I have said, it is agreed that the proposed development is local development. The difficulty with the submission here is that by merely meeting the development standards specified in SEPP No. 5 one does not fully address the development. SEPP No. 5 contains a number of predetermined development standards within the meaning of s 76A(5) of the EP&A Act but it also goes on to set out a larger number of other requirements which are not development standards. This is the difficulty I have with the submission. The satisfaction of the development with the development standards specified in SEPP No. 5 does not mean that the development can, therefore, be automatically approved. 9 Mr A E Galasso, appearing for the respondent, has pointed out that development under SEPP No. 5 requires the consent of the relevant consent authority: see cl 11. This requires a consideration not only of the development standards but also of the other requirements in SEPP No. 5 which are not development standards: see in particular cl 25. 10 It follows in my opinion that question 1 must be answered in the negative. Question 2: Whether Parramatta City Council (the consent authority) is prohibited by the principle of issue estoppel from raising again in the current proceedings the same issues as determined by the Court in a previous appeal for the subject development site, namely, issues of amenity, streetscape, built form and driveway gradients that were decided adversely to the consent authority. 11 The current development application in terms of its appearance, building siting and form, building footprint, room layout, window orientation, patio orientation, boundary setbacks, bulk, scale, height, floor space ratio and building envelope is substantially the same as or identical to the proposal before the Court in proceedings No. 10971 of 1999. 12 Those proceedings concerned a deemed refusal of a dual occupancy development on the same site as the current development proposal. A commissioner of the Court, Commissioner Bly, dismissed the applicant's appeal in those proceedings. Whilst the proceedings were decided adversely to the applicant issues of neighbour amenity in terms of appearance, privacy and shadows were decided adversely to the respondent. In those circumstances it is submitted by Mr Young that an issue estoppel arises so as to prevent the council from raising the same issues again. 13 The position is governed by s 39(3) of the Land and Environment Court Act 1979. It provides: An appeal in respect of such decision shall be by way of re-hearing and fresh evidence or evidence in addition to or in substitution for the evidence given on the making of the decision may be given on the appeal. 14 That suggests strongly that principles such as issue estoppel do not apply in planning appeals. 15 In the present case, moreover, the previous application was determined under a different planning regime to that which applies here. The previous application was determined at a time when the current planning instrument, the Parramatta Local Environmental Plan 2001, was not in force. It was then a draft planning instrument. 16 The objectives of the relevant zone at that time of determination were different to those which apply now. Importantly, the present application is one which is made under SEPP No. 5. The application is for a different purpose and is one which gives rise to a different context. In particular cl 25 of SEPP No. 5 provides: 25 . Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the number of principles: ... Those "principles" are then set out. 17 As was pointed out by Mr Galasso, in Russo v Kogarah Municipal Council (1999) 105 LGERA 290 Davies AJ said (at 293): In the present case, the principle of res judicata did not apply because the application to the Land and Environment Court was brought from a fresh decision of the Kogarah Municipal Council. There was a new cause of action. The principle of issue estoppel is also difficult to apply in the field of town planning. In a case such as the present, it may be difficult to find a point of fact which should be determined once and for all. Circumstances change. The issue whether a development is consistent with a zoning may turn upon the facts as they exist when the issue comes to be decided. 18 Moreover, as Mr Galasso points out, other issues were determined by Commissioner Bly adversely to the applicant. If the question of issue estoppel were to apply here then it would equally apply to those other issues. 19 However, in my opinion questions of issue estoppel cannot apply in the light of s 39(3) of the Land and Environment Court Act to which I have referred. The present appeal is a hearing de novo. It is a hearing de novo in relation to a fresh application for a different purpose under a different planning instrument and under a different planning regime to that which applied previously. 20 Accordingly, question 2 must be answered in the negative. Question 3: Whether the applicant is required to provide a heritage impact statement under the provisions of cl 11(6)(a) and/or cl 14(2) of the Parramatta Local Environmental Plan 1996 (Heritage and Conservation). 21 It is submitted by Mr Young that there is neither an express requirement under the Parramatta Local Environmental Plan 1996 (Heritage and Conservation) ("the Parramatta Heritage LEP"), nor under SEPP No. 5, for a heritage impact statement to be furnished by the applicant. This is agreed. But this is not the real question. The question is whether or not the development application can be lawfully determined in the absence of a heritage impact statement. 22 Mr Young relies on the definition of "heritage impact statement" which is defined as follows in the dictionary to the Parramatta Heritage LEP: heritage impact statement means a statement demonstrating the significance of a heritage item, a property or a relic, an assessment of the impact that proposed development will have on that significance and the measures that are proposed to minimise that impact. 23 It is submitted that the subject building is not a heritage item. Heritage item is defined as "a building, work, relic, tree or place, or a component of a building, work, relic, tree, or place that is described in Schedule 1 or 2 and shown coloured yellow on the Heritage and Conservation Map". The subject property is not described in Schedule 1 or 2 or shown coloured yellow on the Heritage and Conservation Map of the Parramatta Heritage LEP. It is therefore not a "heritage item" as defined in the Parramatta Heritage LEP. 24 It is an agreed fact that the subject land is within the Wyralla Avenue conservation area as identified in Schedule 3 of the Parramatta Heritage LEP. The heritage conservation area is defined in that LEP as: "land described in Schedule 3 and shown edged heavy red on the heritage conservation map and includes buildings, works, relics, trees and places situated on or within that land". 25 It is submitted by Mr Young that the proposed development does not include a building as that word is defined. He refers to the definition of "building" in the EP&A Act. That definition excludes a manufactured home within the meaning of the Local Government Act 1993. Mr Young submits what we have here is a building that satisfies the description of a manufactured home within the meaning of the Local Government Act. 26 The provisions of the Parramatta Heritage LEP need to be briefly described. Clause 11(1) of the Parramatta Heritage LEP provides: 11 Protection of heritage items, heritage conservation areas and relics When is consent required? (1) The following development may be carried out only with development consent: … (f) erecting a building on, or subdividing, land on which a heritage item is located or which is within a heritage conservation area. 27 Clause 11(4) of the Parramatta Heritage LEP provides: What must be included in assessing a development application? (4) When determining a development application the consent authority must assess the extent to which the carrying out of the proposed development would affect the heritage significance of a heritage item or heritage conservation area concerned. 28 Clause 11(5) of the Parramatta Heritage LEP provides: (5) The assessment is to include (but is not limited to) consideration of: … (b) for a development that would be carried out in a heritage conservation area: (i) the heritage significance of the heritage conservation area and the contribution which any building, work, relic, tree or place affected by the proposed development makes to this heritage significance" (ii) the impact that the proposed development will have on the heritage significance of the heritage conservation area. 29 Clause 11(6) of the Parramatta Heritage LEP is then relevant. It provides: What extra documentation is needed? (6) When determining whether or not to grant a development consent required by this clause, the consent authority: (a) must not grant such consent until it has considered a heritage impact statement which includes an assessment of the matters raised in subclauses 5 (a) (i) - (v) or 5 (b) (i) -(vii), as the case may require, … 30 Clause 14 of the Parramatta Heritage LEP is headed "Development adversely affecting a heritage item or heritage conservation area". Clause 14(2) relevantly provides: (2) The consent authority may refuse to grant any such consent unless it has considered a heritage impact statement that will help it to assess the impact of the proposed development on the heritage significance, visual curtilage and setting of the heritage item or the heritage significant of the heritage conservation area. 31 I return now to the definition of heritage impact statement. In the Parramatta Heritage LEP it is defined to mean "a statement demonstrating the significance of a heritage item, a property or a relic, an assessment of the impact that proposed development will have on that significance and the measures that are proposed to minimise that impact". As I have said, the subject property is not a heritage item. It is in my opinion, however, a property. A "property" is not defined in either the Parramatta Heritage LEP or the EP&A Act. It follows then that the ordinary meaning of the word "property" applies. The property known as No. 43 Wyralla Avenue, Epping, is a property within the ordinary meaning of that word. A heritage impact statement, as I have said, means a statement demonstrating the significance of a heritage item, a property or a relic. It does not matter whether or not the property here includes a building as defined. It is a property, and it is therefore a matter to which a heritage impact statement applies. Moreover, cl 11(6) of the Parramatta Heritage LEP refers to a heritage impact statement which includes an assessment of the matters raised in, inter alia, sub-cl 5(b)(i) to (vii) inclusive as the case may require. Moreover, the consent authority must not grant consent until it has considered such a heritage impact statement. Although the instrument is silent as to who shall provide the heritage impact statement, the consent authority must have one before it can grant its consent. The heritage impact statement may be furnished by either the applicant or by the council. Clearly if the council chooses not to do so then the applicant must do so. In my opinion it follows that question 3 must be answered in the negative; namely, the applicant is not legally required to provide a heritage impact statement. But I should go on to observe that although the applicant is not required to provide a heritage impact statement, a heritage impact statement must be provided; and it may be provided by either the applicant or the respondent council. If the respondent council chooses not to provide it then it follows that the applicant should do so if the applicant wishes to have the development application determined. Absent any heritage impact statement, the development application simply cannot be determined. Question 4: Whether the provisions of cl 11(6)(a) and/or cl 14(2) of the Parramatta Local Environmental Plan 1996 (Heritage and Conservation) can be used as grounds for refusal of the subject development application. 32 The question turns upon whether or not those provisions are inconsistent with SEPP No. 5. If there is an inconsistency, then SEPP No. 5 prevails to the extent of the inconsistency. I have previously referred to what it is that cl 11(6)(a) and cl 14(2) of the Parramatta Heritage LEP provide. 33 The submission of the applicant is that there is an inconsistency, in that those provisions (cl 11(6)(a) and cl 14(2) of the Parramatta heritage LEP) are inconsistent in particular with cl 3(1) and cl 3(2) of SEPP No. 5 as well as inconsistent with cl 9 and cl 10 of SEPP No. 5. Clauses 9 and 10 appear in Pt 2 of SEPP No. 5 which is headed "DEVELOPMENT CRITERIA". 34 Part 3 of SEPP No. 5 is headed "DESIGN REQUIREMENTS". Clause 23, in particular, provides that: 23 . This Part requires certain design aspects to be taken into account when a consent authority considers an application for consent for the carrying out of development to which this Part applies. 35 Clause 25 of SEPP No. 5 is headed "Design of residential development". It provides: 25. Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: ( a) Neighbourhood amenity and streetscape: The proposed development should: … (ii) where possible retain, compliment and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan; …. 36 It seems to me that cl 11(5), cl 11(6) and cl 14 of the Parramatta Heritage LEP are provisions which are not necessarily inconsistent with cl 25(a)(ii) of SEPP No. 5. Those clauses of the Parramatta Heritage LEP, it seems to me, are complementary to the latter. If there is any inconsistency, then the latter prevails. But I do not think it can be said that the provisions to which I have referred in the Parramatta Heritage LEP are necessarily inconsistent with any provisions of SEPP No. 5. 37 A comparison may be made with cl 14 of the Parramatta Heritage LEP which provides: "The consent authority must not refuse consent to a development application under this part on the grounds of:". There are then set out a number of development standards. Clause 25 of SEPP No. 5, on the other hand, merely requires that "adequate regard" be given to the principles set out therein. Regard can be had to those principles and at the same time to the principles set out in cl 11(5), cl 11(6) and cl 14(2) of the Parramatta Heritage LEP without there necessarily being an inconsistency. Accordingly, I answer question 4 in the affirmative. Question 5: Whether the requirements to provide the services contained in cll 12(2A) and 12(3) of SEPP No. 5 are applicable to in-fill housing. 38 Clause 12(2A) of SEPP No. 5 provides: (2A) The consent authority must not consent to a development application made pursuant to this Part to carry out development on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to: (a) home delivered meals; and (b) personal care and home nursing; and (c) assistance with housework. 39 Clause 12(3) of SEPP No. 5 provides: (3) Availability of facilities and services The consent authority must be satisfied that any facility or service provided as a part of the development will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionately according to the number of residents in each stage. 40 The proposed development is, as previously noted, an "in-fill housing". Reverting again to the definition: in-fill housing means housing for older people or people with disabilities on land zoned primarily for urban purposes that consists of two or more self-contained dwellings where none of the following services are provided on site as part of the development: meals, cleaning services, personal care and nursing care. 41 The term "in-fill housing" appears to have been used only once throughout SEPP No. 5. It is used in cl 14(g), which refers to private open space requirements for in-fill housing. Nowhere else in SEPP No. 5 is there any reference to in-fill housing. 42 It seems to me that the definition of in-fill housing is there for the purpose of specifying the amount of private open space to be provided for such housing. Nevertheless it is submitted that cl 12(2A) does not apply to the subject development because none of the services described in that clause are to be provided as part of the development. That is to say no meals, cleaning services, personal care or nursing care are to be provided as part of the development. It is also submitted that cl 12(2A) does not apply because it only applies to development "on land that adjoins land zoned primarily for urban purposes". 43 It is an agreed fact that the subject land, No. 43 Wyralla Avenue, Epping, is land zoned primarily for urban purposes. It is also an agreed fact that land adjoining No. 43 Wyralla Avenue, Epping, is land zoned primarily for urban purposes. What cl 12(2A) does is simply to require the consent authority to be satisfied by written evidence that where the services described therein are not provided on site as part of the development, such services will be available in the sense that residents of the proposed development will have reasonable access to such services. 44 In the present case, in my opinion, cl 12(2A) applies. It applies because the subject development is not only on land zoned for urban purposes, but it is also on land that adjoins land zoned primarily for urban purposes. The consent authority must be satisfied by written evidence that residents of the proposed development will have reasonable access to the services described in the clause even though they are not provided on site as part of the development. 45 Clause 12(3) is not relevant, in my opinion. It only applies where facility or service is to be provided as part of the development. That is not the case here. 46 I, therefore, answer question 5 as follows: In the present case in relation to cl 12(2A) of SEPP No.5 the answer is in the affirmative. In relation to cl 12(3) the answer is in the negative. Question 6: Whether a site analysis plan is a mandatory provision of SEPP No. 5. 47 It is agreed that question 6 as framed is answered in the negative, being as to whether a site analysis plan is a mandatory requirement. Question 7: Whether the laundry facilities described in clause 13A(16) of SEPP No. 5 required to be contained in a separate room. 48 It is agreed by the parties that this question is answered in the negative. Question 8: Whether the provision of clause 14A(f) of SEPP No. 5 (preferably located at the rear of the site) is a development standard under the provisions of the Environmental Planning and Assessment Act 1979. 49 I note that it is agreed by the parties that the words "preferably located at the rear of the site" do not form part of the development standard prescribed by that clause. Question 9: Whether the provisions of cl 16(3) of the Parramatta Local Environmental Plan 2001 can be used as grounds for refusal of the subject development application. 50 Clause 16(3) of the Parramatta Local Environmental Plan 2001 provides: (3) Consent must not be granted to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is consistent with the objectives of the zone within which the development is proposed to be carried out. 51 The zoning table sets out the zoning objectives to the 2A Residential Zone within which the subject land is situated. Development in the 2A Residential Zone.

Zone objectives (a) to enhance the amenity and characteristics of the established residential area, and (b) to encourage redevelopment of low density housing forms, including dual occupancy development, where such redevelopment including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas, or the natural and cultural heritage of the area, and (c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment, and (d) to provide opportunities for people to carry out a reasonable range of activities from their homes where such activities will not adversely affect the amenity of the neighbourhood, and (e) to allow for a range of community facilities too be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 52 I note that housing for older people or people with a disability is expressly stated as being development which is permissible with consent within the zone. 53 The question is whether or not the zone objectives of the 2A Residential Zone are inconsistent with SEPP No. 5, in particular cl 25(a). In my opinion they are; for example, zone objective (c): "to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment". Clause 25(a) of SEPP No. 5 states, inter alia: "where possible, maintain reasonable neighbour amenity and appropriate residential character by…". In fact cl 25 uses the words "where possible" extensively, whereas the zone objectives use phrases such as "to ensure" or "to enhance". 54 In my opinion that is a sufficient inconsistency for the answer to question 9 to be in the negative. Question 10: Whether in-fill housing as contained within the provisions of SEPP No. 5 has to comply with clause 5.3 of the Parramatta Development Control Plan 2001. 55 Clause 5.3 of the Parramatta Development Control Plan 2001 ("the DCP") sets out the performance criteria and the design controls which relate to dual occupancy development. Consistent with cl 5 and cl 10 of the SEPP No. 5, if cl 5.3 of the DCP would have the effect of not allowing the development, then such provision cannot prevail or otherwise prevent the development if it is carried out in accordance with SEPP No. 5.

Young v Parramatta City Council

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