Young v Parramatta City Council

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 ALR 297; Grant v Ku-ring-gai Council [2005] NSWLEC 1 ; Greg Young v Parramatta City Council [2006] NSWLEC 116; Kingston v Keprose (1987) 11 NSWLR 404; CASES CITED: Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179 ; Meriton Apartments Pty Limited v Parramatta City Council [2003] NSWLEC 309 ; Minister for Resources & Anor v Dover Fisheries Pty Ltd (1993) 116 ALR 54; Toon v Ku-ring-gai Council [2004] NSWLEC 173; Young v Parramatta City Council [2004] NSWLEC 245

APPLICANT Greg Young (Self-Represented) LEGAL REPRESENTATIVES: RESPONDENT Ian Woodward (Solicitor) SOLICITORS Storey & Gough Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Her Honour: This is a preliminary question of law raised in this Class 1 appeal. The development application in issue seeks subdivision of land the subject of a development consent granted by the Court in 2004 (Young v Parramatta City Council [2004] NSWLEC 245) ("Young 2004") pursuant to State Environmental Planning Policy No 5 - Housing for Older People with a Disability ("SEPP 5"). At issue is whether the Court has power to approve the application for subdivision until that development has been carried out. The question concerns the operation of cl 18 of SEPP 5.

2 The Applicant represented himself and the Council was represented by its solicitor. After the hearing I asked the parties for further submissions on additional issues and have prepared this judgment taking into account those additional submissions. Agreed facts 3 The parties agreed the following facts; on 24 May 2004, the Court in Young 2004 approved a development application for the "demolition of certain structures, for alterations and additions to the existing dwelling and for the construction of a new dwelling pursuant to State Environmental Planning Policy No 5 ("the SEPP 5 development"). 4 On 10 March 2006 a development application was lodged with the Council to "subdivide land … into two allotments. The proposed two lots to be adapted for separate occupation and disposition of the approved use. Young v Parramatta City Council [2004] NSWLEC 245." 5 This application is for the subdivision of the SEPP 5 development. No construction certificate has been issued in relation to the SEPP 5 development. No building or construction work has commenced for the development.

Relevant Legislation 6 The objects of SEPP 5 contained in cl 3(1) are as follows: (1) This Policy aims to encourage the provision of housing that will: (a) increase the supply and diversity of housing that meets the needs of older people or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. 7 Clause 5(2) provides: If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency. 8 Clause 18 of SEPP 5 states: Land on which development has been carried out under this Policy may be subdivided with the consent of the consent authority.

9 The definition of development in s 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") is as follows: "development" means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

10 "Subdivision" is defined under s 4B as: "subdivision of land" has the meaning given by section 4B.

"subdivision work" means any physical activity authorised to be carried out under the conditions of a development consent for the subdivision of land, as referred to in section 81A (3). Applicant's submissions 11 The Applicant made a number of submissions, not all of which were clear to me. His principal arguments as I understand them are as follows.

Subdivision already granted 12 The development consent granted in Young 2004 is a de facto approval of subdivision because it allows for the physical division of the land into two separate dwellings for occupation divided by a fence so that consent for subdivision has already been given as a practical matter. This is recognised by Commissioner Nott in [42] of the judgment in Young 2004. The current application for subdivision should therefore be allowed. Statutory interpretation 13 Clause 18 lacks parameters and is imprecise. The wording used is not the same as cl 13 and cl 13A of SEPP 5 which contain prohibitive language. It should therefore not be read as a prohibition on this development application. Various cases concerning statutory interpretation were relied on. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 ALR 297 was relied on as authority for the view that to gain a proper understanding of the provisions of a statutory instrument the provisions need to be viewed as a whole. Minister for Resources & Anor v Dover Fisheries Pty Ltd (1993) 116 ALR 54 was relied on as authority for the view that the courts should strive to avoid an irrational result in the exercise of statutory interpretation. Kingston v Keprose (1987) 11 NSWLR 404 was relied on as authority for the importance of a purposive approach to statutory interpretation to avoid an absurd result. These cases were said to support the Applicant's case.

Meaning of development 14 To have the meaning that the Council asserts is given by cl 18 (that the whole of the development must be finished before subdivision can occur), the word "development" in cl 18 would have to expressly exclude "subdivision". As subdivision is included in "development" it can be carried out. This argument of the Applicant is unclear to me.

Meaning of "carry out" 15 "Development" in cl 18 has the same meaning as under s 4 of the EP&A Act and therefore includes use of land. The grant of development consent by the Court is a use of land. In a late submission Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309 was relied on as authority that use of land does not require that there be building on land. "Carried out" means accomplished or completed according to ordinary usage. That has been achieved here by the grant of development consent and therefore cl 18 is satisfied. Application of other environmental planning instruments 16 The Applicant also argued that Parramatta LEP 2001 and LEP Heritage and Conservation apply where not inconsistent with SEPP 5. These provide that in the Residential 2A zone there can be subdivision and dual occupancy dwellings. The Court can determine this development application under these instruments. I note that SEPP 5 ss 5(2) clearly prevails over the other environmental planning instruments so this argument cannot succeed. Council's submissions Meaning of "carry out" 17 The Council argued that it, and now the Court, does not have the power to approve the development application for the subdivision until the development which is the subject of the SEPP 5 approval has been carried out. This is because cl 18 of SEPP 5 only allows for the subdivision of land if the development has already been carried out. The development pursuant to SEPP 5 granted by this Court has not been carried out prior to this application and therefore this subdivision application for that SEPP 5 development cannot be approved. "Carry out" is not satisfied by the grant of development consent. Statutory interpretation 18 Principles of statutory interpretation state that in construing a statute or planning instrument, the primary object is to review all the relevant provisions so that the interpretation of a provision is consistent with the language and purpose of all other provisions. To achieve this consistent interpretation, reference should be had to the instrument as a whole, to make sense of the language it employs. Applying this method of statutory interpretation to SEPP 5, the Council submitted that cl 18 of SEPP 5 requires that a subdivision cannot be consented to unless development for the whole of the SEPP 5 has been carried out on the land.

19 In particular, the Council referred the Court to clauses 9, 10, 11, 12, 13, 15 and 16 of the SEPP. Clause 9 contains the objectives of the SEPP, being to create "opportunities for the development of housing" for older and disabled people. Clause 10 states that such development is allowed "despite the provisions of any other planning instrument if the development is carried out in accordance with the policy". Clauses 12-16 all refer to the proposed development as a whole, that is, the development in its entirety, being development for housing specified in cl 9. In short, development is referred to throughout SEPP 5 on an "en globo basis".

20 Therefore, the underlying purpose of cl 18 when read in the context of the whole of SEPP 5 is that when the whole of the development has been carried out, namely, the development for which consent has been granted pursuant to SEPP 5, then and only then may the land be subdivided (with consent).

21 Section 33 of the Interpretation Act 1987 provides that regard is to be had to the purposes or objects of the Act when interpreting legislation. The Council argued that the underlying purpose of cl 18 must govern its construction. The intention of the clause is that a subdivision can only take place once the development approved under SEPP 5 has been fully carried out on the land. It would lead to an absurd result if a subdivision which did not comply with the Council's minimum allotment requirements and which was approved with the flexible controls of SEPP 5, was approved when the Applicant himself has conceded that the subdivision application is as a direct consequence of the SEPP 5 consent. The Applicant should not be able to gain approval for subdivision prior to his completing the SEPP 5 development, since he could effectively subdivide the land and not then carry out the approved development.

22 The Council stated that it is possible that if a subdivision consent is granted, the two consents could sit side by side. However, to adopt such an approach would be to contradict the purpose of the SEPP 5 instrument.

Additional issues 23 I also asked the parties to address me on whether a deferred commencement consent could be granted dependent on the construction of the SEPP 5 development the subject of another development approval and whether the Court or Council had issued SEPP 5 development approvals and subdivision approvals simultaneously in the past for the subdivision.

24 Much of the Applicant's additional submissions canvassed matters that should have been raised at the initial hearing and are not responsive to the additional issues. A number of the Applicant's submissions were difficult to follow. As I understand them they are:

(i) SEPP 5 cl 18 cannot regulate when a subdivision application is made because the EP&A Act provides that a development application can be made for a subdivision. I do not agree that SEPP 5 is so constrained by the Act.

(ii) Development can only be prohibited under s 76B of the EP&A Act and the Council's submission, if correct, would mean that under cl 18 subdivision of SEPP 5 development is prohibited. This is a misconstruction of the Council's argument as it does not so argue.

(iii) Clause 18 is a development standard and cannot therefore prohibit subdivision and if so interpreted operates outside the legislative powers. I do not agree that this argument is correct. Reliance on Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179 as support is misconceived.

Subdivision of SEPP 5 development 25 The Applicant made general submissions that the Court has granted consent to subdivision of a SEPP 5 development on many occasions and these had not been challenged before. There is no difference between a development consent to erect a building and a subdivision application made under SEPP 5 at the same time, as has occurred on numerous occasions in this Court according to the Applicant, and the situation here where the Applicant has obtained development consent but applied for subdivision approval later. 26 The Council argued what may have occurred in relation to councils and the Court granting development consent for subdivision and SEPP 5 at the same time is irrelevant. The provisions of SEPP 5 cl 18 need to be applied. Deferred commencement 27 The Applicant argued that a deferred commencement condition was not appropriate. The existing restriction as to use in condition 52 of the existing SEPP 5 consent could be applied so that a subdivision certificate would not be released until the User Restriction on the property title was registered. 28 The Council argued that there was no power to issue a deferred commencement condition under s 80(3) of the EP&A Act given the wording of cl 18 of SEPP 5. No subdivision application can be made until the SEPP 5 development has been completed.

Finding 29 I will briefly consider the arguments presented, not in exactly the order set out above.

Subdivision already granted? 30 The development consent granted by the Court on 24 May 2004 was pursuant to SEPP 5 and did not include a consent for subdivision, presumably because it was not applied for. In Greg Young v Parramatta City Council [2006] NSWLEC 116, Jagot J had before her a similar issue to the current one, involving the same applicant and the same development application. That case dealt with a s 96(2) modification application for subdivision of the same property the subject of this case, for which Commissioner Nott gave development consent in Young 2004. Before Jagot J, the applicant submitted that although his original development application did not seek consent for subdivision, the separate use and occupation or de facto partitioning of the property as considered by Commissioner Nott was an effective subdivision. Before Jagot J, and in the present case, Mr Young sought to rely on [42] of the Commissioner's reasons which stated] that:

…Of course, in the present case the application does not involve a formal subdivision, but there is a de facto subdivision inasmuch as the cottage and the proposed new house will each be on its own curtilage with a fence separating them… 31 The applicant argued before Jagot J that because the definition of subdivision in s 4B of the EP&A Act includes the division of land by any instrument, the reasons for Commissioner Nott's decision should be seen as an instrument which effectively subdivided the land. The applicant argued that "instrument", in the Macquarie Dictionary, meant "a thing with or by which something is effected" and this was that the s 96 modification application sought to make formal that which had already been effected in substance. This submission was rejected by Jagot J at [29], where her Honour stated: I do not accept the applicant's submission that the reasons for decision of Commissioner Nott effected a subdivision of the land. The Commissioner's reasons explained the grounds for the orders made… 32 The Applicant in these proceedings is in part seeking to rely on arguments which have already been rejected by Jagot J. The observations of the Commissioner in his judgment at [42] that the proposal is a de facto subdivision are just that - observations. They do not provide any basis for a legal argument that there was a de facto subdivision approval which this application seeks to formalise. This part of the Applicant's argument must fail.

33 The real issue in this matter is the meaning and operation of cl 18. The parties have not provided any cases where cl 18 of SEPP 5 has been considered before.

Application of other environmental planning instruments 34 Clause 18 of SEPP 5 takes precedence over any other planning instruments which would otherwise apply to this land by virtue of cl 5(2) of the SEPP. The fact that the Parramatta LEP allows subdivision and dual occupancy dwellings with development consent in this zone is irrelevant given that the development consent granted by this Court in Young 2004 was for a SEPP 5 development and this application for subdivision relates to that SEPP 5 development. I have already noted this argument of the Applicant's must fail (par 16). "Development" 35 Development is defined in s 4 of the EP&A Act and includes in subsection (f) any matter regulated by an environmental planning instrument such as SEPP 5. The Applicant's argument based on the general definition of development including subdivision in s 4 must fail.

Meaning of "carry out" 36 If "carried out" means "accomplished or completed" as the Council argued, that must be a reference to the development the subject of approval under SEPP 5, as provided for by s 4(f) in the definition of development in the EP&A Act. I do not consider that interpretation is absurd and fails to give effect to the objects of the Act as the Applicant submitted. 37 Further I do not consider "carry out" is satisfied by the grant of development consent alone. I reject the Applicant's argument to that effect. No relevant case law in support of this argument was produced. I observe that Meriton Apartments Pty Limited v Parramatta City Council [2003] NSWLEC 309 was relied on by the Applicant. This was a case relating to the classification of land for rating purposes under the Local Government Act 1993. I agree with the Council that it is not relevant to the context of this case.

Statutory interpretation 38 The Applicant's argument that cl 13 and cl 13A are worded in a more prohibitive way does not assist in the interpretation of cl 18. The fact that subdivision "may" be granted simply reflects the position that having completed a SEPP 5 development, development consent for subdivision can be applied for and may be granted. 39 I consider the statutory interpretation cases relied on by the Applicant (see par 13) support the Council's interpretation of cl 18 taken in the context of SEPP 5 as a whole, outlined above at par 18 - 19. I adopt the Council's interpretation and the reasons for that interpretation set out at par 18 - 21. Subdivision of SEPP 5 development 40 In relation to the additional issues raised by me and the parties' additional arguments identified at par 25 - 28. The Applicant sought to rely on two cases Toon v Ku-ring-gai Council [2004] NSWLEC 173 and Grant v Ku-ring-gai Council [2005] NSWLEC 1 where the Court has granted SEPP 5 developments and subdivision applications at the same time. It is unclear from these cases what development consent was applied for in relation to subdivision and I did not find them of any assistance. 41 I accept the Council's submissions that cl 18 has to be applied. 42 I will not determine finally here whether a deferred commencement condition is able to be granted as the Applicant does not press for that outcome. My preliminary view is that the Council's argument is correct. 43 It follows that in answer to the preliminary question I consider the Court does not have the power to consider this development application for subdivision of the SEPP 5 development granted in Young 2004.

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