Barana Properties (No. 1) Pty Ltd v Sydney City Council & Anor
[2007] NSWLEC 812
•6 December 2007
Land and Environment Court
of New South Wales
CITATION: Barana Properties (No. 1) Pty Ltd v Sydney City Council & Anor [2007] NSWLEC 812 PARTIES: APPLICANT
Barana Properties (No. 1) Pty Ltd (ACN 102 704 674)FIRST RESPONDENT
SECOND RESPONDENT
Sydney City Council
A.D.C. Buildings Pty Limited (ACN 000 285 218)FILE NUMBER(S): 40936 of 2007 CORAM: Jagot J KEY ISSUES: Construction and Interpretation :- local environmental plan - statutory amendments - whether cross-reference in local environmental plan to provision of statute extended to amended provisions - whether development consent was a staged development consent within meaning of savings provision in local environmental plan - declaration LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Interpretation Act 1987
State Environmental Planning Policy No 1 - Development Standards
Central Sydney Local Environmental Plan 1996
Sydney Local Environmental Plan 2005CASES CITED: Calleja v Botany Bay City Council (2005) 142 LGERA 104 ;
Commissioner for Railways v Agalianos (1955) 92 CLR 390 ;
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 ;
Hill v Blacktown City Council (2007) 154 LGERA 418;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ;
Woolworths Ltd v Lister [2004] NSWCA 292DATES OF HEARING: 6 December 2007 EX TEMPORE JUDGMENT DATE: 6 December 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr C W McEwen SC
SOLICITORS
Lindsay Taylor LawyersFIRST RESPONDENT
SECOND RESPONDENT
Mr M Astill, solicitor
SOLICITORS
Blake Dawson Waldron
Mr I J Hemmings
SOLICITORS
Mr G M Nicholls
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
6 December 2007
40936 of 2007
BARANA PROPERTIES (No. 1) PTY LTD (ACN 102 704 674)
ApplicantSYDNEY CITY COUNCIL
First RespondentJUDGMENTA.D.C. BUILDINGS PTY LIMITED (ACN 000 285 218)
Second Respondent
1 The applicant (Barana Properties (No 1) Pty Ltd) applied for the following declarations:
1 A declaration that, upon the proper construction of cl 14 of Sydney Local Environmental Plan 2005, development consent D/205/1123, granted 26 June 2006 in respect of premises known as 189 -197 Kent Street, Sydney, is a ‘staged development consent’ to a development application referred to in cl 14(1)(a). 2 Further, or in the alternative, a declaration that despite the provisions of the Sydney Local Environmental Plan 2005, the first respondent may lawfully determine, by approval, a stage 2 development application that is consistent with development consent D/2005/1123, granted 26 June 2006 in respect of premises known as 189 -197 Kent Street, Sydney whilst such consent remains in force.
2 The first respondent is the Council. The second respondent is the tenant of the building at 189 – 197 Kent Street, Sydney (the land) as referred to in the declarations sought. The applicant and the Council were largely at one concerning the Council’s capacity to deal with a stage 2 development application for the land, albeit for different reasons in part. The second respondent opposed the making of any declaration. To understand the debate it is necessary to identify the relevant provisions of various environmental planning instruments and the Environmental Planning and Assessment Act 1979 (the EPA Act) (before and after various amendments), and to describe a development application and development consent with respect to the land granted in the course of those amendments being made. For this purpose I treat the Council’s submissions as submissions also made in the applicant’s case.
Background
3 On or about 18 July 2005 the applicant lodged a development application described as a stage 1 development application for consent to certain on-site demolition and a development plan building envelope for a residential building on the land.
4 As at 18 July 2005, the Central Sydney Local Environmental Plan 1996 (the 1996 LEP) was the relevant environmental planning instrument in force with respect to the land.
5 Insofar as relevant, cl 28B of the 1996 LEP provided as follows:
(1) This clause applies to the following development:
(a) any development comprising the erection of a building exceeding 55 metres in height, or
(2) Except as provided by subclauses (4) and (5) and clause 28C(5), consent must not be granted for development to which this clause applies unless:…
(a) a development plan is in force for the land on which the development is proposed to be carried out, and
(b) the consent authority is satisfied that the development is consistent with that development plan.
…
…(4) The consent authority may waive compliance with the requirements of subclause (2):
(e) for any other development for which the consent authority considers there are sufficient reasons to waive compliance with those requirements.
(5) In the case of staged development for which consent has been granted in accordance with section 80 (4) of the Act (being development the subject of a development application that addresses the matters set out in clause 28C (2)):
(a) a development plan is not required for the development, and
(b) the consent for the development is taken to be a development plan.
6 Section 80 of the EPA Act, at all material times until 30 September 2005 (and the coming into force of certain provisions of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005) (the 2005 amending Act), provided as follows:
(1)
A consent authority is to determine a development application by:
…(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.
(4) A development consent may be granted:
(5) A development consent referred to in subsection (4) may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent.
(a) for the development for which the consent is sought, or
(b) for that development, except for a specified part or aspect of that development, or
(c) for a specified part or aspect of that development.
7 On 30 September 2005 the 2005 amending Act amended s 80 of the EPA Act and introduced new provisions relating to staged development in Div 2A of Pt 4.
8 Sch 3 to the 2005 amending Act (development consent amendments) provided as follows:
…
[3] Section 80 (5)[2] Section 80 Determination
Omit the heading to section 80 (4). Insert instead:
(4) Total or partial consent
Omit the subsection. Insert instead:
Note . See also Division 2A for special procedures concerning staged development applications.(5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.
9 Clause 4 in Sch 3 of the 2005 amending Act provided that:
[4] Part 4, Division 2A
Insert after Division 2 of Part 4:83B Staged development applicationsDivision 2A Special procedures concerning staged development applications
83A Application of this Division
This Division applies to staged development applications and to consents granted on the determination of those applications.
(1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.
(3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:(2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.
(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or
(b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.
(4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3).83C Staged development applications as alternative to dcp required by environmental planning instruments
(1) An environmental planning instrument cannot require the making of a staged development application before development is carried out.(2) However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land.
Note . Section 74D (5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan.
(3) Any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.
83D Status of staged development applications and consents
(1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application.Note . Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105.
(2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent.
Note . See section 95(2) which prevents a reduction in the 5 year period of a development consent.(3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application.
10 On 9 December 2005 the Sydney Local Environmental Plan 2005 (the 2005 LEP) came into force. Clause 9(2) of the 2005 LEP amended the 1996 LEP by omitting all provisions except clauses 1, 2 and 10.
11 Clause 9(3) of the 2005 LEP regulates the application of State Environmental Planning Policy No 1 - Development Standards as follows:
(3) State Environmental Planning Policy No 1 - Development Standards does not apply to a development standard that sets:
(a) a maximum height for a building, or
(b) a maximum floor space ratio for a building, or
(c) a maximum amount of vehicle parking,
on land within Central Sydney, or on land within Ultimo-Pyrmont that is not in a master plan area.
12 Clause 10(2)(b) of the 2005 LEP provides that:
(2) A consent may be granted pursuant to this clause only if the building concerned:
(a) …, and
(b) does not contravene the maximum floor space ratio for the building set for the building by Chapter 2 or 3 by more than 10% of that maximum floor space ratio or the proportion of the floor space ratio of the building attributable to one floor in the building, whichever is the greater, and
(c) ….
13 Clause 14 of the 2005 LEP is as follows:
(1) The 1996 LEP, Central Sydney Heritage Local Environmental Plan 2000 and Sydney Regional Environmental Plan No 26—City West, as in force immediately before the commencement of this plan, apply to and in respect of the following, as if this plan had not been made:
(a) a development application (whether or not for a staged development consent):
(i) that was lodged but was not finally determined before the commencement of this plan, and
(b) a development application (other than an application to which paragraph (a) applies and whether or not for a staged development consent):
(ii) that could have been consented to under the 1996 plan without any need for a related development plan being adopted under the 1996 LEP either because clause 28B of that plan did not apply to the proposed development or because of clause 28B (4) or (5) (a) or 28C (5) of that plan, and(i) that was lodged (but was not finally determined) before, or is lodged after, the commencement of this plan, and
(c) a development application lodged after that commencement that is substantially in accordance with either a staged development consent granted before that commencement or a staged development consent granted after that commencement to a development application referred to in paragraph (a) or (b), and
(ii) that is substantially in accordance with a development plan that was adopted under the 1996 LEP before that commencement or a development plan that was lodged before that commencement for adoption under the 1996 LEP and has been adopted under the 1996 LEP after that commencement because paragraph (d) applies, and
(d) a development plan lodged for adoption under Central Sydney Local Environmental Plan 1996, but not adopted, before that commencement.
(2) In this clause:
the 1996 LEP means Central Sydney Local Environmental Plan 1996 as in force immediately before the commencement of this plan.staged development consent means a development consent subject to a condition imposed under section 80(5) of the Act.
14 On 26 June 2006 the Council granted development consent to the development application lodged by the applicant on 18 July 2005 for development described as:
Stage 1 DA for conversion from commercial to residential (with lower level retail/commercial), additional six levels and basement carpark. A maximum height of 76.16m above Kent Street (RL 94.30) and 80m (RL 92.26) above Jenkins Lane. FSR 15.82:1…
15 Condition 1(c) of the development consent provides that no construction shall commence in relation to the stage 1 development application until a stage 2 development application is approved and a construction certificate issued in respect of the substantive building.
16 Condition 4 of the development consent requires a competitive design process/design competition prior to the lodgement of a stage 2 development application in accordance with Pt 5 of the 2005 LEP and the City of Sydney Development Control Plan 1996. The competitive design process and preparation of a stage 2 development application will cost an estimated $1.5 million.
17 Under cl 54 of the 2005 LEP the maximum floor space ratio for a mixed use development would be 10.93:1. In the Dictionary to the 2005 LEP, mixed-use development means a building, or buildings, in which two or more uses are carried out. Hence, a development with a floor space ratio of 15.82:1 as referred to in the stage 1 development consent would be prohibited development under the 2005 LEP.
18 Subject to an additional argument raised by the applicant and the Council about s 109B of the EPA Act and an argument raised by the Council about the relationship between Divs 1 and 2A of Pt 4 of the EPA Act, if cl 14 of the 2005 LEP does not apply to the stage 1 development consent further development in reliance thereon will be prohibited development and not capable of the grant of consent. Accordingly, it is appropriate to deal with the arguments with respect to cl 14 of the 2005 LEP first.
Submissions
19 The applicant said that the making of declarations as sought has utility because the applicant will otherwise be exposed to a significant expenditure on preparing a stage 2 development application which, but for the application of cl 14, would be an application for prohibited development. Further, a lease between the applicant and second respondent turns on the purposes for which the land could be used. The second respondent said that the declarations have no utility and involve judicial advice, given that the satisfaction of the requirements of cl 14 depend on the form and substance of a development application not yet lodged.
20 The applicant said that all pre-conditions to the application of cl 14 are satisfied or capable of being satisfied by reference to cl 14(1)(c) in that:
(2) The development consent granted on 26 June 2006 is a staged development consent granted after that commencement (that is, after 9 December 2005) to a development application referred to in paragraph (a) of cl 14(1).(1) Any stage 2 development application will be lodged after the commencement of the 2005 LEP (which commenced on 9 December 2005).
21 Specifically, the applicant submitted that the definition of “staged development consent” in cl 14(2) of the 2005 LEP cannot be read literally because the 2005 amending Act amended s 80(5) of the EPA Act before the 2005 LEP came into force and s 80(5) no longer contains any reference to the imposing of a condition of consent. In other words, the cross-reference is an obvious mistake. Hence, the applicant submitted that the reference to s 80(5) must be understood as a reference either to a condition that could have been imposed under that section had it remained in force or to the equivalent provision inserted by the 2005 amending Act (namely, s 83B(4)). The second respondent said that the provision must be read literally and is intended to refer only to a consent granted subject to a condition under the EPA Act in its form before amendment by the 2005 amending Act.
22 The applicant submitted that the development consent granted on 26 June 2006 is a consent referred to in cl 14(1)(a) as the development application was lodged but not finally determined before the commencement of the 2005 LEP (which is agreed) and could have been consented to under the 1996 LEP without any need for a related development plan for one of the nominated reasons in that:
(1) Clause 28B(1) did not apply because the development the subject of the development application and consent was not “any development comprising the erection of a building exceeding 55 metres in height” (the only potentially applicable sub clause of cl 28B(1)). The development the subject of the development application and consent, the applicant submitted, did not involve the erection of any building as it was a consent for nothing more than the use of the land in accordance with a prescribed building envelope (with the development comprising the erection of any building being deferred to stage 2).
(2) The stage 1 development application could have been consented to under the 1996 LEP without any need for a related development plan being adopted because of cl 28B(4)(e) of the 1996 LEP. The word “could” has the meaning as described in Hill v Blacktown City Council (2007) 154 LGERA 418 at [37] of potential or possibility.
(4) Either way the development in the stage 1 development application could have been consented to under the 1996 LEP without any need for a related development plan for one or more of the nominated reasons in cl 14(1)(a)(ii).(3) Clause 28B(5) applied to all stage 1 development consents so that such consents did not require a development plan if the development application addressed the matters in cl 28C(2). The consent to any such development application would then be taken to be a development plan.
23 The second respondent submitted, to the contrary, that:
(2) If the applicant’s submissions about cl 28B(4)(e) were to be accepted then cl 14(1)(a)(ii) would never have any work to do. The answer to the inquiry under that section would always be “yes”. Hence, cl 14(1)(a)(ii) needed to be read down. The only possible reading down available was to construe the reference to cl 28B(4) therein as excluding cl 28B(4)(e). In this regard, the second respondent disavowed any suggestion that the word “could” took a different meaning from that proposed by the applicant (such as “was”). It is relevant in relation to any such alternative meaning to note that the 26 June 2006 consent was granted by the Council on the basis that a development plan was not required by operation of cl 28B(5).(1) The focus of cl 28B(1) was that which the development comprised not that for which consent was sought. Clause 28B(1) was descriptive not permissive. The development comprised the erection of a building exceeding 55m in height.
(3) Clause 28B(5), properly construed, exempted a stage 2 (not a stage 1) development application from the requirement for a development plan. This is the function of the words “for which consent has been granted” when construed in context. The necessary steps in the process, according to the second respondent, were development plan, stage 1 consent, then stage 2 consent. The stage 1 consent when granted became a development plan and hence the stage 2 consent (but not the stage 1 consent) was exempt from any requirement for a development plan.
Discussion
24 Although the second respondent’s submissions about the aspects of cl 14 dependent on future action carry weight, I am satisfied that the clause partly involves existing factual circumstances. The contingent application of the clause presents a justiciable dispute capable of and appropriate for resolution by the making of a declaration. Specifically, if there is no staged development consent granted after the commencement of the 2005 LEP as referred to in paragraph (a) of cl 14(1) then cl 14 can never apply. However, if there is such a consent then the clause is capable of applying depending on whether a development application is lodged in the future substantially in accordance with that staged development consent. Accordingly, the question whether there is or is not such a staged development consent in existence is a matter in dispute between the applicant and second respondent and is ripe for determination. Without such determination now, the applicant will either have to forego the potential offered by the stage 1 development consent granted on 26 June 2006 or will be exposed to substantial costs in preparing the stage 2 development application that may prove fruitless. A declaration is an available and appropriate tool to ensure the presently justiciable dispute between the applicant and second respondent is resolved.
25 The first issue is the meaning of “staged development consent” in cl 14 of the 2005 LEP (as defined in cl 14(2)). I am satisfied that the apparent problem presented by the reference to s 80(5) of the EPA Act is resolved by the provisions of the Interpretation Act 1987 so that the reference is to be read as extending to the corresponding provision in the EPA Act as amended by the 2005 amending Act. Various provisions of the Interpretation Act assist in enabling this conclusion to be reached.
26 Under s 5(2) of the Interpretation Act, the Act applies to an Act or instrument except insofar as the contrary intention appears in the Act or in the Act or instrument concerned.
27 Section 5(3) provides that:
(3) Wherever appropriate, this Act applies to a portion of an Act or instrument in the same way as it applies to the whole of an Act or instrument.
28 Section 11 of the Interpretation Act specifies that:
Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made.
29 The words “amend” and “repeal” are both broadly defined in s 21 of the Interpretation Act.
30 Section 68 provides as follows:
(2) Subsection (1) applies to a reference to an Act or instrument:
(1) In any Act or instrument, a reference to some other Act or instrument extends to the other Act or instrument, as in force for the time being.
- (a) whether or not the reference includes a reference to subsequent amendments of the Act or instrument, and
(b) whether or not the reference is to a mode of citation that includes 2 calendar years.
(3) Notwithstanding subsection (1), in any Act or instrument:
- (a) a reference to an Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act, as in force for the time being, and
(b) a reference to an instrument that has been repealed and re-made, with or without modification, extends to the re-made instrument, as in force for the time being,
and a reference to a provision of the repealed Act or instrument extends to the corresponding provision of the re-enacted Act or the re-made instrument, as the case may be.
31 Section 68(4)(b) of the Interpretation Act makes clear that, in s 68, a reference to an instrument includes a reference to an instrument made under such an Act or Ordinance.
32 Sections 80(4) and (5) of the EPA Act are part of a series of provisions regulating the capacity of a consent authority to determine development applications. The principal power is in s 80(1):
A consent authority is to determine a development application by:
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.
33 The balance of the provisions in s 80 concern particular ways in which such consents may be granted. Section 80(4) was and remains a method to grant consent to the whole or part of a proposed development. Before the 2005 amending Act s 80(5) provided a power to impose a condition on a consent granted under s 80(4) requiring, in effect, a further consent to be obtained. The 2005 amending Act removed (or repealed) that provision and replaced it with a provision to the effect that the consent authority need not refuse consent to the part or aspect of the development not dealt with under s 80(4) but may grant a subsequent consent for that deferred matter. Importantly, s 80(4) remains as an express power to grant consent to part only of a development application.
34 Div 2A of Pt 4 (inserted by the 2005 amending Act) was part of a series of provisions that, amongst other things, changed the title of s 80(4) from “staged development” to “total or partial consent”. Div 2A itself is headed “special procedures concerning staged development applications”. Section 83B(1) defines a staged development application as a “development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications”. Section 83B(3) provides that consent to such an application does not authorise the carrying out of development on any part of the site concerned unless: - (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. Section 83B(4) then says that the terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3). Importantly, no part of Div 2A provides a power to determine staged development applications. The power remains in s 80 and, more precisely, s 80(4) for any staged development application that does not provide “requisite details of the development on that part of the site” (see s 83B(3)(b). Any such development application, by definition, will be for a concept only and thus any consent to such a development application will necessarily be on terms that reflect s 83B(3)(a).
35 Within these schemes (before and after the 2005 amending Act) s 80(5) (before the amendment) performed a similar function to s 83B(4). Both provisions are intended to ensure that any consent to a part of a development application effectively regulates the manner in which the deferred balance will be dealt with in the future. Hence, s 80(5) and s 83B(4) are corresponding provisions within the meaning of s 68 of the Interpretation Act (see also s 5(3) with respect to the Act applying to portions of Acts in the same way as it applies to Acts, where appropriate).
36 In Woolworths Ltd v Lister [2004] NSWCA 292 the Court of Appeal observed as follows at [9] to [11]:
9 When the focus is on a particular provision of the repealed Act, especially one which created or affected rights and obligations, the question whether a provision in the re-enacted Act in different terms is a "corresponding provision" will require close analysis. Although both provisions may deal with the same subject matter, the new provision may have such a different operation in creating or affecting rights and obligations that it cannot properly be characterised as a corresponding provision.
10 This question has been considered in New Zealand. In Winter v Ministry of Transport [1972] NZLR 539 Turner J giving the judgment of the Court of Appeal, referred to counsel's argument and at 541 continued:
"He confined his argument exclusively to the submission that the sections were not `corresponding' sections. This submission was founded upon the proposition that the 1970 provisions, taken as a whole were different from those of 1968. But this must be so whenever a new statutory provision is substituted for an old one. We read `corresponding' ... as including a new section dealing with the same subject matter as the old one, in a manner or with a result not so far different from the old as to strain the accepted meaning of the word `corresponding' as given in the Shorter Oxford English Dictionary - `answering to in character and function; similar to'. The new [section] answers to the old one ... in character and function; it is similar in purpose, prescribes the same thing to be done, and is designed to produce the same result. We hold it to be a `corresponding section'."
11 This passage was expressly approved by Lord Walker delivering the judgment of the Privy Council in Vela Fishing Ltd v Commissioner of Inland Revenue [2004] 1 NZLR 313, 324.
37 Given the broad definitions of “amend” and “repeal” in s 21 of the Interpretation Act I am satisfied that s 80(5) was repealed by its omission from the EPA Act and re-enacted as part of Div 2A of Pt 4 (namely, s 83B(4)). Having regard to s 5(3) of the Interpretation Act (that is, the provision providing that wherever appropriate the Interpretation Act applies to a portion of an Act or instrument in the same way as it applies to the whole of an Act or instrument) s 68 applies. Section 83B(4) is a corresponding provision to s 80(5) (in its form prior to the 2005 amending Act).
38 This reading of the two sections as corresponding provisions also ensures that the EPA Act itself operates sensibly. It is notable that when s 80(5) was repealed and Div 2A of Pt 4 enacted it was not seen to be necessary to amend the cross-reference to s 80(5) in s 80A(1)(h). Section 68 fills the legislative oversight by ensuring that this cross-reference can be read as extending to the corresponding provision in s 83B(4).
39 Similarly, the extended reference functions for cl 14 of the 2005 LEP, particularly cl 14(1)(c). That clause has two temporal aspects (consents granted before and after 9 December 2005). The reference to s 80(5) is necessary for all staged development consents granted before 30 September 2005 and the commencement of the 2005 amending Act. The extension of that reference to s 83B(4) of the EPA Act is necessary for all staged development consents granted after 30 September 2005. This is the function that s 68 of the Interpretation Act performs.
40 Alternatively, I am satisfied that the applicant’s submissions about the reference to s 80(5) in cl 14(2) of the 2005 LEP should be accepted. That is, when cl 14 is construed in context the reference to s 80(5) must be understood as extending to the equivalent provision in the 2005 amending Act (s 83B(4)). If it were otherwise the words “for a staged development consent granted after that commencement” in cl 14(1)(c) could never operate given that the 2005 LEP was made after the commencement of the 2005 amending Act.
41 In this case, the development consent granted by the Council on 26 June 2006 included condition 1(c) about the need to obtain approval to a stage 2 development application. This refects the requirements of s 83B(3)(a) and the condition thus fulfils the requirements of s 83B(4). Hence, the 26 June 2006 development consent is a staged development consent within the meaning of cl 14(2) of the 2005 LEP because the reference to a condition imposed under s 80(5) of the EPA Act is to be read as extending to a condition imposed to satisfy s 83B(4) of the EPA Act for the reasons given above.
42 The second issue is whether the 26 June 2006 consent was granted to a development application referred to in cl 14(1)(a) of the 2005 LEP. I accept each of the applicant’s submissions about the reasons why it was such a development application.
43 With respect to the question whether cl 28B applied to the proposed development, the answer is it did not apply because the criterion of reference is the “proposed development” (that is, the development proposed in the development application lodged on 18 July 2005). The definition of “development” in s 4(1) of the EPA Act contemplates separate classes of activities including the use of land and the erection of buildings. The development application lodged on 18 July 2005 did not propose development comprising the erection of any building. Hence, cl 28B(1) (agreed to be the only potentially applicable provision) did not apply to the development application.
44 With respect to cl 28B(4), once it is accepted that “could” takes its ordinary meaning (as the second respondent accepted) then there is no warrant for reading the reference to cl 28B(4) in cl 14(1)(a) as if it said “excluding cl 28B(4)(e)”. The fact that the exemption available within cl 28B(4)(e) means that the answer to the question posed by cl 14(1)(a)(ii) will always be “yes” (subject, however, to there having been a competent development application of the relevant description and, perhaps, considerations of Wednesbury unreasonableness) is an insufficient reason to read the reference to cl 28B(4) as excluding one of its subclauses. There is no reason to assume that cl 14 is a less generous savings provision than it appears on its face to be. Subject to the other requirements of cl 14 being satisfied, cl 14(1)(a) adopts each and every one of the possible exceptions applying in cl 28B and provides the benefit of the savings provision where any one of those exceptions could have applied (whether or not the exception in fact was applied by the consent authority).
45 With respect to cl 28B(5), there is greater ambiguity. Read in context, however, the meaning for which the Council contended is to be preferred. The clause uses the phrase “for which consent has been granted” because its intended operation was both at the time of the grant of consent (that is, a development plan is not required at that time) and in the future (that is, the consent so granted is thereafter taken to be a development plan). The reasons for this are:
(1) Clause 28B(5) is an exception to cl 28B(2).
(3) If the second respondent were correct then that purpose would not be achieved because a development plan would always be necessary as the first step in the process. This gives cl 28B(5)(a) no work to do. If the stage 1 development consent is taken to be a development plan that deeming provision will operate for the stage 2 consent irrespective of cl 28B(5)(a).(2) The essential purpose of the exception is not to require a development plan in certain circumstances.
(4) The reason both subclauses (a) and (b) appear is because of the dual temporal operation of cl 28B(5). Subclause (a) works to ensure that any development application for a staged development that addresses the cl 28C(2) matters may be granted consent without a development plan. Subclause (b) works to deem that consent to be a development plan for any future staged consents. The clause chooses the reference “for which consent has been granted” because it is only development applications granted consent that obtain the benefit of paragraph (b).
46 This construction of cl 28B(5) best accords with the words of the whole provision construed in context and by reference to established principles, namely:
(1) Environmental planning instruments “are a species of delegated legislation, a statutory instrument … and should be interpreted in accordance with the general principles of statutory interpretation”. Hence, a “construction should be preferred that is consistent with the language and purpose of all of the provisions of such instruments” ( Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [36], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [78]).
(2) Although an attempt “to always find planning logic in planning instruments is generally a barren exercise” ( Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25], meaning must be given to all of the provisions of the LEP having regard to “its policy and purpose” ( Cranbrook School at [46]). Ultimately, “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed” ( Cranbrook School at [63] citing Commissioner for Railways v Agalianos (1955) 92 CLR 390 at 397).
47 No other impediments to the contingent application of cl 14(1)(c) of the 2005 LEP were raised. It follows that it is not necessary to consider the argument about s 109 of the EPA Act or the Council’s alternative submission based on the relationship between Divs 1 and 2A of Pt 4 of the EPA Act.
48 The applicant, by the affidavits and agreed facts, has established that the development consent granted on 26 June 2006 is a staged development consent granted after the commencement of the 2005 LEP to a development application referred to in cl 14(1)(a) of that LEP. The making of a declaration to this effect has obvious utility as it enables the applicant to prepare a development application for the stage 2 development on the basis that cl 14 applies. Further, there is a justiciable controversy between the applicant as the owner of the building on the land and the second respondent as the tenant about the contingent application of cl 14 of the 2005 LEP that the making of a declaration will resolve. The actual application of that clause, however, must remain contingent upon the lodgement of a further development application “substantially in accordance with” the 26 June 2006 consent. With these matters in mind I consider that a suitable form of declaration would be as follows:
Declare that development consent D/2005/1123 granted on 26 June 2006 in respect of premises known as 189 – 197 Kent Street, Sydney, is a staged development consent granted after the commencement of the Sydney Local Environmental Plan 2005 (the 2005 LEP) to a development application referred to in cl 14(1)(a) of the 2005 LEP, within the meaning of cl 14(1)(c) of that LEP.
[Counsel addressed on the form of declaration and costs]
The Court declares that :
1 Development consent D/2005/1123 granted on 26 June 2006 in respect of premises known as 189 – 197 Kent Street, Sydney, is a staged development consent granted after the commencement of the Sydney Local Environmental Plan 2005 (the 2005 LEP) to a development application referred to in cl 14(1)(a) of the 2005 LEP, within the meaning of cl 14(1)(c) of that LEP.
The Court orders that :
3 Each party is to pay its own costs of the proceedings.2 The exhibits are returned.
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