Belle Design Group Pty Limited v Woollahra Municipal Council
[2004] NSWLEC 284
•06/04/2004
Reported Decision: 136LGERA 1
Land and Environment Court
of New South Wales
CITATION: Belle Design Group Pty Limited v Woollahra Municipal Council [2004] NSWLEC 284 PARTIES: APPLICANT:
RESPONDENT
Belle Design Group Pty Limited
Woollahra Municipal CouncilFILE NUMBER(S): 11172 of 2003 CORAM: Bignold J KEY ISSUES: Development Application :- Demolition of existing dwelling-house-whether prohibited development under LEP in planning merits-impact of demolition of dwelling-house on heritage conservation area-heritage significance. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 34, and s 97
Interpretation Act 1987, s 11 and s 32CASES CITED: Birch v Allen (1942) 65 CLR 621;
Gosford City Council v Aliton Pty Ltd and Anor [2002] NSWLEC 138;
Harbour Port Constructions Pty Ltd v Woollahra Municipal Council (2004) NSWLEC;
J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223;
Kostrzewa v South Electric Authority of Queensland (1970) 120 CLR 653;
Leichhardt Municipal Council v Fridrich Constructions Pty Ltd (1984) 54 LGRA 82DATES OF HEARING: 5, 6, 13/02/2004 DATE OF JUDGMENT: 06/04/2004 LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr T Hale SC
SOLICITORS
Freidman Reeves
Ms M Hawley, Solicitor
SOLICITORS
Phillips Fox
JUDGMENT:
IN THE LAND AND Matter No:
11172 of 2003
ENVIRONMENT COURT Coram
: Bignold J
OF NEW SOUTH WALES
4 June 2004
BELLE DESIGN GROUP PTY LTD
Applicant
v
WOOLLAHRA MUNICIPAL COUNCIL
Respondent
JUDGMENT
A. INTRODUCTION
1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council’s refusal of the Applicant’s development application to demolish an existing dwelling-house situate at No 54 Fletcher Street, Woollahra.
2. The appeal was, by consent, heard concurrently with another appeal pursuant to the EP&A Act, s 97 in respect of the Council’s deemed refusal of another development application made by a different Applicant in respect of the same property for the demolition of the same existing dwelling-house and the erection of a new replacement dwelling-house (Proceedings No 11193 of 2003). Delivery of judgment in that proceeding is given contemporaneously with this judgment.
3. The Council’s refusal of the development application to demolish the existing dwelling-house was based upon the following reasons (as notified to the Applicant in the Notice given pursuant to the EP&A Act, s 81(1)(a))—
- 1. The proposed demolition of the subject site is not supported on conservation grounds as the subject house is considered to be a good example of a late Victorian weatherboard cottage which contributes to the Conservation area.
2. The proposed demolition does not comply with the objectives of the Local Environmental Plan, 1995 with respect to heritage conservation, as the demolition would not protect and enhance the heritage conservation area.
3. The proposed demolition of the dwelling house is prohibited development in 2(b) zone.
4. The proposal is not in the public interest.
4. In the Council’s Statement of Issues filed in the proceedings these grounds for refusal were restated in an amplified fashion. Four of the five stated issues are common to the issues raised by the Council in proceedings No 11193 of 2003, the only difference being that in the present case the relevant “development” for which development consent is sought is the demolition of the existing dwelling-house whereas in the other proceeding the relevant development is the demolition of the existing dwelling-house and the erection of a new replacement dwelling-house. (Whether this more extensive development is a compound development comprising both elements ie (i) the demolition; and (ii) the erection of a replacement dwelling-house or two separate (but related) developments was not expressly debated at the hearing, but the manner in which the competing cases were conducted was more closely aligned to the notion of two separate (but related) developments rather than a compound development). The practical effect of this state of affairs is that planning merit issues raised by the demolition aspect of that case and by the present case are indistinguishable.)
5. However, in addition to these common issues raised by the Council in both proceedings, the Council has raised but only in the present appeal the legal question whether demolition simpliciter is a prohibited development in terms of the EP&A Act, and the Woollahra Local Environmental Plan 1995 (the LEP) and I propose to first consider that legal question which is of some general significance to planning law. If it is answered favourably to the Council it is agreed that the present appeal must be dismissed. If it is answered favourably to the Applicant, the appeal must be determined on the planning merits. In this latter respect, it is common ground that the planning merits are identical to the planning merits concerning the demolition component of the other proceedings and the parties’ competing cases on the planning merits have been presented without distinguishing between the two proposed developments, and accordingly, the planning evaluation will be common to both cases.
B. THE LEGAL QUESTION—IS DEMOLITION OF THE EXISTING DWELLING-HOUSE A PROHIBITED DEVELOPMENT?
6. The Council submits that the question should be answered in the affirmative and the Applicant submits that it should be answered in the negative.
7. The competing arguments principally derive from the meaning to be given to the word “development” where appearing in Part 2 of the LEP and in particular in the context of cl 8, which gives effect in the conventional manner to the development control table, by providing as follows:
- 8. Development control tables
(1) The following development control tables set out the zones applying to the land to which this plan applies.
(2) Each development control table identifies the manner in which a zone is shown on the land use map, describes the zone, states the objectives of the zone, identifies development which may be carried out without or only with the consent of the Council, identifies development which is prohibited and makes reference to related provisions.
(3) Land is within a zone described in a development control table if it is shown on the land use map in the manner specified under the heading Zone identification on the land use map for that table.
(4) The development control table for each zone must be read subject to the special provisions and heritage provisions in Parts 3 and 4 of this plan, respectively. In the event of an inconsistency between a provision of a development control table relating to a zone and a special provision or a heritage provision in Part 4 and 5 of this plan, the special provision or heritage provision shall prevail.
(5) The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development.
8. It is common ground that the development site is included in the Residential 2(b) Zone created by the LEP in respect of which Zone the Development Control Table includes the following relevant provisions controlling development:
- 4. Development which may be carried out without development consent
- Development for the purpose of:
- Drainage; home occupations carried on in dwelling-houses; roads.
- Development for the purpose of:
- Bed and breakfast accommodation; boarding houses; child care centres; dwelling-houses; home industries; home occupations carried on in residential flat buildings; hospitals; parks and gardens; medical consulting rooms; residential flat buildings; utility installations (other than gas holders or generating works); works to enable public pedestrian access to and along Sydney Harbour foreshore.
- Any development other than development included in Item 4 or 5.
- Parts 3 and 4 of, and Schedules 2 and 3 to, this plan must be read in conjunction with this development control table as they also affect the nature of development which can be carried out.
9. The Council argues that the word “development” appearing in cl 8 (which is not defined by the LEP) has the meaning ascribed to it by the definition contained in the EP&A Act, s 4(1) that was inserted by the Environmental Planning and Assessment (Amendment) Act 1997 (which came into force on 1 July 1998). That definition which replaced the definition of the word “development” that was included in the EP&A Act as originally enacted includes within its ambit or scope “the demolition of a building”. The replaced definition did not include within its ambit “the demolition of a building” and it was that definition which was in force when the LEP was made in 1995.
10. The Council’s argument that the term “development” where employed in the LEP bears the same meaning as is given to that term in the EP&A Act is not contestable as a general proposition of statutory interpretation because it accords with the effect of the EP&A Act, s 34(1) which provides as follows—
- Expressions used in an environmental planning instrument shall, unless the contrary intention appears, have the same meanings respectively as they have in this Act.
11. Section 34(1) is to similar effect as the Interpretation Act 1987, s 11 which provides as follows:
- Words etc in instruments under an Act have same meanings as in the Act
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.
12. But what is contested by the Applicant is the Council’s argument that it is the current definition of “development” (as inserted into the Act by the 1997 Amendment Act) that applies to the LEP which pre-existed the 1997 Amendment Act. Of course, the LEP continues in existence to the present day, but it has not been relevantly amended since the 1997 Amendment Act came into force by applying the current definition of “development” contained in the EP&A Act to its operative provisions relating to the control of development which provisions pre-existed the 1997 Amendment Act. Accordingly, the Applicant’s competing argument is that the LEP’s employment of the word “development” (particularly in the context of cl 8) imports the meaning of that word given by the Act at the time the LEP was made in 1995.
13. The competing arguments cited two decisions of the High Court of Australia (Birch v Allen (1942) 65 CLR 621 and Kostrzewa v South Electric Authority of Queensland (1970) 120 CLR 653) which are discussed at pars 6.23 and 6.24 in “Statutory Interpretation in Australia’ 4th ed by Pearce and Geddes. The discussion of the cases occurs in Chapter 6 “Interpretation Acts and Sections” under the sub-heading “Meaning of expressions in regulations” where the learned authors aptly articulate the interpretive problem that is raised in the present case, in the following passage at par 6.23:
- Another referential provision of some importance that is common to all Interpretation Acts in Australia provides that when an Act confers upon any authority power to make regulations, etc, expressions used in the regulations are, unless the contrary intention appears, to have the same meaning as in the Act conferring the power. The purpose of this provision is to avoid the need to go through the process of redefining in regulations the expressions used in the Act under which the regulations are made. There is, however, one important matter with which the provision does not deal. An expression used in the regulations could have the same meaning as in the Act at one of two points of time—either at the date when the regulations were made or at the date when the meaning of the regulations is under discussion. If the former is to be the date, it will be necessary to look at the Act as it stood when the regulations were made. The expression as then used will determine the meaning of the expression in the regulations unless the regulations are amended to change it. If the second alternative is to be followed, the expression as used in the regulations will change whenever the expression in the parent Act is changed.
14. Immediately following this passage, it is stated that the issue has come before the High Court on two occasions (in the two cited decisions) “and differing answers seem to have been given” (par 6.23). Later, in their discussion (par 6.24), the learned authors opine that the two decisions “seem irreconcilable” and suggest that the views in Birch v Allen “are to be preferred”.
15. In Birch v Allen the High Court had to determine the meaning of the expression “the war” appearing in the National Security (General) Regulations made under the National Security Act 1939. The Regulations, when originally made in 1939, defined “war” as “the present war”. The Act was amended in 1940 and the long title of the Act was changed by omitting the words “the present state of war” and by inserting instead the words “any war in which His Majesty is or may be engaged”. At the same time, the Regulations were also amended by altering the definition of “the Act” from “the National Security Act 1939” to “the National Security Act 1939 as amended from time to time”, but the Regulations maintained their original definition of “the war”.
16. In rejecting the defendant’s contention that the defined term “the war” meant the present war at the time that the Regulations came into force and not the more extensive war that later developed and existed at the date of the alleged offence (involving a breach of the Regulations in respect of the war against Japan) Latham CJ (with whose judgement all other members of the High Court agreed), stated at 626 that it was the duty of the Court to construe the Regulations “in their legal setting as it exists”. The Chief Justice continued at 626:
- What is that legal setting? The regulations refer to the National Security Act as amended from time to time. That Act has been amended, and the regulations must, in my opinion, be regarded as regulations which are made under and by virtue of the Act as amended and not merely by virtue of the original Act. Any other view would lead to a possible diversity of interpretation of identical words or phrases in the different regulations and would also produce difficulties as to the period during which the regulations would remain in force.
17. In Kostrzewa, an injured worker sued the owner of land upon which certain building work involving the use of scaffolding was being undertaken, alleging that the defendant was relevantly the “owner” within the meaning of regulation 16 of the Regulations made under the Inspection of Scaffolding Act 1915 to 1966.
18. In the courts below the case had been decided against the worker on the ground that the defendant was not relevantly the “owner” for the purposes of the Regulations by reference to the current statutory definition of “owner” contained in the parent Act (which had replaced the original definition which had applied when the Regulations were made).
19. Barwick CJ, who gave the principal judgment, held that the courts below had erred in applying the current definition of “owner”. His Honour’s reasons for so concluding are stated in the following separate passages at 656 and 657 respectively:
- Both the primary judge and the Full Court have dealt with this matter on the footing that the definition of owner as it appears now in The Inspection of Scaffolding Acts was applicable in the present case. That course would seem to have been unwarranted as it now appears that the Regulation upon which the appellant as his case is pleaded must necessarily rely is a regulation which was made in 1915 under The Inspection of Scaffolding Acts as they then stood. Thus it is to the Acts in their 1915 form that one must look for the interpretation of the Regulation as well as for its validity if that comes in issue. (656)
…………
…………
…………
The question which is central to this appeal and to the fate of the appellant’s cause of action is the meaning of the word owner in the sub-regulation I have quoted. Although the sub-regulation has been amended in the course of the years succeeding its original promulgation it has never been remade; thus its meaning will be the same as that which it had in 1915 except to the extent to which any amendment may have altered it. The only amendment has been the addition of the word structure where it now appears. The addition of that word did not affect the meaning of the sub-regulation so far as the present matter is concerned.
It is to the definitions as they stood in the Acts of 1915 that one must turn in order to determine the meaning of the word owner in the sub-regulation. (657)
20. Windeyer J in a separate judgment expresses similar views in the following passage at 658:
- The question in this case turns upon the meaning of the word owner in reg. 16 (iii) made under The Inspection of Scaffolding Acts , 1915 to 1966 (Q.). The word owner is defined in the Act; and the statutory definition is to be applied in the interpretation of the Regulations unless the context otherwise requires. From time to time since 1915 the definition has been altered by amendments to the Act. I do not find it necessary to approach the case by the path which the Supreme Court took. Moreover I doubt whether it is, in the circumstances, the proper path to take. When the legislature amends a statutory definition, and thereby alters or enlarges the meaning of a word in the statute, then no doubt the provisions of the statute can take on a different operation in relation to matters arising thereafter: but matters which arose and were complete theretofore are governed by the meaning the language had before it was amended. The Regulation in question in this case was made under the Act as it stood in 1915. Its words then took their meaning from that Act. That the giving of a new meaning to words in the Act, without more, can give a new meaning to Regulations which were made under the Act, before it was amended, seems to me a questionable proposition.
21. The issue in contest in the present case is in my opinion aptly encapsulated in the last sentence of the recited passage from the judgment of Windeyer J in Kostrzewa. Like his Honour, I too would regard the proposition advanced in the present case by the Council to be questionable. Moreover, in my opinion, the questionableness of the proposition is heightened to an intolerable degree if the question of validity (in addition to the question of interpretation) of the LEP is brought into play (as suggested in the judgment of Barwick CJ).
22. It is not in contest in the present case that when the LEP was made in 1995 and which by cl 8 imposed controls on the carrying out of development (see the EP&A Act, s 26(b)) those controls were necessarily confined to the limits of the then defined meaning of the term “development” contained in the EP&A Act (which limits did not include “the demolition of a building”).
23. The Council’s argument urging the adoption by the LEP of the wider current meaning of the term “development” necessarily raises a question of validity of the LEP, in which case, the Interpretation Act 1987, s 32(1) would apply by providing as follows:
- (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.
24. The application of this provision would in the present case justify the conclusion that it is the definition of “development” as in force when the LEP was made which provides the meaning of the term “development” where employed in the LEP (and especially in cl 8 imposing the development control tables).
25. Two alternative routes to the same conclusion are suggested in the recited passage from the judgment of Windeyer J, which I would respectfully adopt and apply in the present case—namely (i) the context and subject matter of the LEP and cl 8 in particular, otherwise requires the adoption of the definition of “development” contained in the EP&A Act when the LEP was made in 1995 in preference to the later amended definition; and (ii) the form and content of the LEP (as in force immediately before the 1997 Amendment took effect) are a completed action which are governed by the meaning and language of the EP&A Act before it was amended by the 1997 Amendment Act.
26. Moreover, consideration of the transitional provisions that were made by, or pursuant to, the 1997 Amendment Act strongly suggests that there was no legislative intention that the extended definition of “development’ introduced into the EP&A Act automatically extend or expand the reach and operation of existing controls on the carrying out of development that were contained in the multitude of pre-existing environmental planning instruments. (There is no doubt that the existing instruments could be amended by reference to the expanded definition of “development” so as to extend their controls over the carrying out of development, but that is an entirely different matter from the proposition of automatic transmission which lies at the heart of the Council’s argument.)
27. I refer in particular to the introduction into Schedule 6 of the EP&A Act (“Savings, transitional and other provisions”) of cl 18 which provides as follows:
- 18 General saving
(1) If anything done or commenced under a provision of this or any other Act that is amended or repealed by the Environmental Planning and Assessment Amendment Act 1997 has effect or is not completed immediately before the amendment or repeal of the provision and could have been done or commenced under a provision of such an Act if the provision had been in force when the thing was done or commenced:
- (a) the thing continues to have effect, or
(b) the thing commenced may be completed.
28. Additionally, I refer to the provisions of Part 3 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 which contain savings and transitional provisions arising from the 1997 Amendment Act. In particular, cl 29 (which operated until 1 July 2001) and which specified in subclause (3) that certain development (namely (i) a “prescribed activity” which included the demolition of a building (vide Item 2 of Part A of the Table to the Local Government Act 1993, s 68); and (ii) a “subdivision of land”) may not be carried out without development consent.
29. Importantly, cl 29(7) provided that the provision had effect “despite the existing provisions of an existing environmental planning instrument” (ie an instrument in force when the 1997 Amendment Act came into force) but “subject to the provisions of any new environmental planning instrument and to any new provisions of an existing environmental planning instrument” (where “new” relevantly means occurring at a date after the 1997 Amendment Act had come into force).
30. Clause 29 is, in my opinion, a clear legislative indication that it was not intended that pre-existing environmental planning instruments automatically have an expanded operation merely by virtue of the introduction into the EP&A Act of the expanded definition of “development”. Rather, it evinces the intention that new provisions or instruments be made in order to exercise the expanded power conferred by the amended EP&A Act but that as a transitional device (with temporary effect) the Regulations would bridge any gap created by the 1997 Amendment Act in the controls on development operating by virtue of existing planning instruments.
31. It is for all the foregoing reasons that I would respectfully adopt the approach taken by the High Court in Kostrzewa in preference to the approach taken in Birch. In this respect, I must respectfully disagree with the views of the learned authors of “Statutory Interpretation in Australia” that the two High Court decisions are irreconcilable and that the approach in Birch is to be preferred.
32. In my respectful opinion, Birch’s case depends much upon its own peculiar facts (including the most important fact that at the time that the parent Act was materially amended, so was the Regulation (albeit not as clearly drafted as it could have been) and the matters discussed in Kostrzewa in the passages recited from the judgments of the Chief Justice and Windeyer J involve matters of principle going both to questions of interpretation and validity of delegated legislation where the parent Act has been materially amended, but the delegated legislation has not been correspondingly amended. In my respectful opinion, these principles are more fundamental to the present case than is the application of the practical consideration emphasised in Birch of avoiding the potential inconvenience and difficulty of the same word “development” bearing different meanings in an environmental planning instrument according to the date when such provisions are made (by reference to the date when the 1997 Amendment Act came into force).
33. It is somewhat surprising that the important question raised in the present case has not previously been the subject of judicial decision because of the general significance of the amendments made by the 1997 Amendment Act to the key concept of “development” contained in the EP&A Act and because of the multitude of pre-existing environmental planning instruments controlling development which provisions constitute the cornerstone of the regime imposed by Part 4 of the EP&A Act—see in particular ss 76, 76A and 76B. (The present case demonstrates how the question is apt to arise nearly six years after the date that the 1997 Amendment Act came into force because of the continuing operation of the multitude of planning instruments which were made before that date.)
34. A similar question was alluded to, but not decided, by the Court of Appeal in J & J O’Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223 where the argument was advanced that the expanded definition of “development” did not apply to pre-existing environmental planning instruments when the 1997 Amendment Act came into force on 1 July 1998: see par 30 of the judgment of Stein JA (with which the other members of the Court agreed).
35. Because Stein JA upheld the respondent’s notice of contention that the relevant activity fell within the ambit of the relevant control operating under the EP&A Act, s 26(f) in combination with the operation of s 75, it was not necessary for the Court to determine the argument that the expanded definition of “development” did not apply to the pre-existent environmental planning instrument.
36. Nonetheless, Stein JA at 230 made the following observations against the argument—
- [36] The parties are in dispute as to whether the LEP operates in an ambulatory fashion. The appellant submits that the words in the instrument must have the meaning that they were intended to have at the time the LEP was made. It is submitted that to hold otherwise would defeat the consultation and public participation processes inherent in the making of the LEP. Those provisions in the Act would, in effect, be bypassed.
[37] There are two answers to this proposition. First, while the public consultation process is important, the process is not, as Mr Ayling notes, sacrosanct. For example, an LEP may be substantially affected by a decision of the Minister. Moreover, State Environmental Planning Policies, the highest form of planning instruments, do not have to be preceded by any public participation.
[38] The second answer is one of manifest inconvenience. If the appellant's submission is correct, then in order to facilitate the amendments made to the Act, many hundreds of LEPs would have to be amended.
[39] However, because of the view I take as to the effect of s 75(1) of the unamended Act and subpar (f) of the definition of development in the amended Act, it is unnecessary to determine the ambulatory nature of the LEP and the application of Birch v Allen (1942) 65 CLR 621.
37. It is to be noted that the two reasons advanced by his Honour related to his rejection of the specific argument based upon the importance of the public participation processes of the EP&A Act. (Significantly, no question of the validity of the instrument had been raised—see at par 29). Moreover, the argument from inconvenience is only compelling if it is first decided that the legislative intention was for effect to be given in existing planning instruments to the expanded definition of “development” contained in the EP&A Act and in this sense, the argument is question begging.
38. Stein JA’s observations do not directly address the arguments that have been advanced in the present case, and in my judgment, they do not undermine my conclusion in the present case or the reasons for it.
39. Finally, I would note that a similar question to that raised in the present case had been encountered in the much earlier decision of the Court of Appeal in Leichhardt Municipal Council v Fridrich Constructions Pty Ltd (1984) 54 LGRA 82. In that case it had been argued that the definition of “development” contained in the EP&A Act as originally enacted was automatically transmitted to an interim development order, being a species of a former planning instrument that was given continuing effect by being translated into a “deemed environmental planning instrument” under the EP&A Act by virtue of the provisions of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, which was cognate to the EP&A Act and contained detailed provisions for the continuance under the EP&A Act of planning instruments and decisions that had been made under the former legislative regime provided by Part XIIA of the Local Government Act 1919 which was repealed upon the commencement of the EP&A Act.
40. The Court of Appeal rejected the argument holding that the content and scope of the former planning instrument (which was governed by the then relevant statutory definition of “development’ which was narrower than the definition of the same term contained in the EP&A Act) was not expanded by virtue of the specific savings and transitional provisions giving that instrument continuing force under the EP&A Act as a deemed environmental planning instrument.
41. Although not addressing precisely the same question as is raised in the present case, the reasoning of the judgment of Mahoney JA (with which the other members of the Court agreed), which is elaborated at pp 86 to 88 inclusive, is in my respectful opinion both helpful and relevant, by analogy, to providing the answer required of the similar question raised in the present case.
42. Since I have concluded that the meaning of the term “development” where employed by the LEP (and cl 8 in particular) is that contained in the EP&A Act at the time that the LEP was made in 1995 it follows that the disputed question should be answered in the negative, it being accepted that unless the expanded definition is applicable, there is nothing in cl 8 of the LEP that prohibits the demolition of a building.
43. This conclusion means that it is not strictly necessary to determine other matters argued on the assumption that the expanded definition of “development” applies to the LEP and to cl 8 in particular.
44. However, for completeness, I should briefly consider these alternative arguments. The first argument is that the development control table applies subject to the heritage provisions contained in Part 4 of the LEP: see cl 8(4).
45. In respect of the heritage provisions of the LEP, it is common ground that the development site is included in a heritage conservation area designated by the LEP and that the provisions of Part 4 of the LEP include the following provision:
- 28. Heritage conservation areas
(1) A person shall not, in respect of a heritage conservation area:
- (a) demolish or alter a building or work within the area,
(b) damage or move a relic, or excavate for the purpose of exposing or removing a relic, within the area,
(c) damage or despoil a place within the area, or
- except with the consent of the Council.
46. Similar controls are imposed by cl 26 of the LEP in respect of “heritage items” or an “item that is part of a heritage item group”.
47. It is clear that cl 28(1)(a) of the LEP operates in the present case to prohibit the demolition of the existing dwelling-house erected on the development site “except with the consent of the Council”.
48. In my opinion, that provision relevantly would be inconsistent with the operation of the development control table prohibiting demolition on the assumption that the Council’s argument is correct that the expanded definition of “development” applies to cl 8 of the LEP. In resolution of this inconsistency, cl 8(4) of the LEP expressly provides that the heritage provision shall prevail over the relevant inconsistency in a provision of the development control table.
49. The Council seeks to avoid the operation of cl 8(4) of the LEP by submitting that cl 28(1)(a) of the LEP “does not make the proposed development permissible with consent—rather it imposes a requirement for the consent of Council to be obtained for demolition of a building or work within a conservation area, if that demolition is permitted or permissible with consent pursuant to the development control table”.
50. In my view, this submission is founded upon an unsustainable construction of cl 28 and of cl 8(4) of the LEP.
51. If, by assumption, the development control table relevantly prohibits the demolition of a building, that provision is relevantly inconsistent with cl 28(1)(a) of the LEP which relevantly prohibits “except with the consent of the Council” the demolition of a building situate within a heritage conservation area. It simply cannot be gainsaid that a relevant absolute prohibition on the demolition of a building is inconsistent with a relevant conditional permissibility for the demolition of a building.
52. Faced with such an inconsistency, cl 8(4) of the LEP provides for its resolution by assigning prevailing force to the latter heritage provision.
53. Accordingly, even if, contrary to my holding, cl 8 of the LEP operates upon the basis of the expanded definition of “development”, the demolition of the existing dwelling-house erected on the development site would not be absolutely prohibited (as the Council’s argument would have cl 8 to so operate) but would, instead, be governed by the prevailing provision of cl 28(1)(a) of the LEP overriding that absolute prohibition.
54. For these additional reasons, the question of law raised in these proceedings should be answered in the negative (even if it be assumed, contrary to my holding, that the expanded definition of “development” applies to cl 8 of the LEP).
55. The final alternative argument concerns the effect of cl 8 on the double assumption (i) that the expanded definition of “development” applies to it; and (ii) that cl 28(1)(a) is not relevantly to prevail over the effect of the inconsistent provision of the development control table.
56. Based on these assumptions, the Council’s argument is to the effect since “development” includes “the demolition of a building” and since the proposed development in the present case is demolition simpliciter in that it does not include any other development for a permitted or permissible purpose, it follows that the proposed development is absolutely prohibited development in that it must be characterised as “any development other than development include in Item 4 or 5” within the meaning of Item 6 to the development control table as it applies to the Residential 2(b) Zone.
57. In support of this argument, the Council relies upon the decision of Lloyd J in Gosford City Council v Aliton Pty Ltd and Anor [2002] NSWLEC 138. That case involved the prosecution of two persons for an offence against s 125 of the EP&A Act arising from a breach of s 76A of the Act (carrying out development without the requisite development consent) in circumstances where the defendants had demolished an existing cottage.
58. The defendants submitted that there was no case to answer because it was argued that the demolition of the building was not development that might be carried out with development consent. Rather, it was submitted that it was prohibited development.
59. In upholding the defendants’ no-case to answer submission Lloyd J reasoned as follows at pars 15 to 17 inclusive:
- 15. It is submitted on behalf of the defendants that “demolition” per se is not listed in any of the categories of development in item 2 of the zoning table under zone 2(a) and must, therefore, fall within item 3 ( “prohibited development” ). That is to say, there has been a breach of s 76B of the EP&A Act, not s 76A of the Act, so that it is said the charges in the present case disclose no offence.
16. It is submitted on behalf of Gosford City Council (“the council”) that what has occurred is demolition of a dwelling house which was done for the purpose to erect another dwelling house in its place. As I understand the submission, the demolition was for a purpose. I confess that I have particular difficulty with the submission in the case of the charge against Aliton Pty Ltd. It could not be said that Aliton Pty Ltd was demolishing the dwelling house for the purpose of erecting another dwelling house. Both charges, as I have noted, are the same in each case: identical charges against separate defendants for identical breaches of identical provisions of the same Act. What has occurred is merely the demolition of a dwelling house. If it could be said that the demolition was for another purpose or was part of another purpose, such as the erection of another dwelling in its place, or for some other form of re-development, then s 76A of the EP&A Act may apply.
17. In the present case, however, there is, as far as I am aware, no current proposal for the erection of another dwelling house on the land. There is no evidence to suggest that there is a current proposal for the erection of another dwelling house. There is, however, evidence that the dwelling house that was demolished was riddled with termites. Both the flooring and the walls were riddled with termites. There may well have been good reason simply to demolish the dwelling house. In my opinion, the second limb of the “no case to answer” submission has been made out. What has occurred is an offence against a provision and against which these defendants have not been charged.
60. In my respectful judgment, the decision of Lloyd J, properly analysed, was essentially a decision of fact in that his Honour found that what had occurred was the mere demolition of a dwelling-house without there being any evidence of a current proposal to erect a replacement dwelling-house. Moreover, in respect of this factual finding, it should be noted that Aliton was a criminal prosecution in which the prosecution bore the onus of establishing beyond reasonable doubt the factual elements of the offence charged and in particular that the demolition was for the purpose of carrying out some other permissible development.
61. The decision in my respectful opinion is not authority for the proposition that the mere demolition of an existing building cannot be regarded as being for some other purpose eg erecting another building in its stead.
62. In the present case, although the proposed development is simply for the demolition of the existing dwelling-house that fact does not foreclose the question whether the demolition is for a purpose of permissible development eg the erection of another dwelling-house.
63. It is hardly to be inferred that in the present case in the absence of any evidence of a current development proposal that the demolition of the existing cottage is not “for the purpose of” some of the nominated permissible purposes of development within the Residential 2(b) zone. It is most improbable that the purpose of the demolition is to leave vacant a valuable and readily useable parcel of residentially zoned land within the suburb of Woollahra.
64. In any event, the fact that the present proceedings have been heard with the other class 1 proceeding which seeks development consent for the erection of a new replacement dwelling-house provides sufficient evidence of the purpose for which the demolition is proposed.
65. In the circumstances of this case to hold that the demolition of the existing dwelling-house is “purposeless” (except for the purpose of demolishing the existing dwelling-house) would be totally unrealistic.
66. Accordingly, for these additional reasons, I would hold that the proposed demolition of the existing house is not prohibited development within the meaning of cl 8 of the LEP.
67. It may be convenient if I summarise the somewhat elaborate reasons for my conclusion that the proposed development, being the demolition of the existing dwelling-house erected on the development site is not prohibited development. My reasons are as follows:
(i) Clause 8 of the LEP employs the term “ development ” according to the defined meaning of that term that was contained in the EP&A at the time that the LEP was made in 1995 and not according to the current and expanded meaning of that term. Accordingly, cl 8 of the LEP does not prohibit the demolition of a building. Indeed, it does not impose any control on the demolition of a building.
(ii) Alternatively, and assuming contrary to my holding in (i) that the current or expanded definition of “development” applies to the controls on development imposed by cl 8 of the LEP, cl 8 does not prohibit the proposed demolition because—
(a) Clause 8 is subject to the heritage provisions contained in Part 4 of the LEP, cl 28(1)(a) of which, contains an inconsistent provision to the development control table and by force of cl 8(4) that inconsistent heritage provision prevails; and
(b) Clause 8 permits with development consent the demolition of a building for a permissible purpose of development and the proposed demolition in the present case is for the purpose of carrying out permissible development (ie the erection of a replacement dwelling-house on the development site after the existing dwelling-house has been demolished).
68. This conclusion means that it is necessary to evaluate the proposed development on the planning merits, conformably to the duty imposed by EP&A Act, s 79C.
C. PLANNING EVALUATION OF THE PROPOSED DEVELOPMENT
69. My planning evaluation of the proposed development and the demolition component of the other proposed development for the development site which is the subject of the other proceedings heard concurrently with the present appeal, is that development consent should be refused to the demolition of the existing dwelling-house because of the adverse impact on the heritage conservation area in which the development site is situate and the inconsistency with the relevant heritage conservation objectives expressed in the LEP.
70. My reasons for so concluding are fully detailed in my judgment delivered contemporaneously with my judgment in the present proceedings: see Harbour Port Constructions Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 283.
71. For the reasons therein expressed, I have concluded that the present appeal must be dismissed and development consent refused.
D. ORDERS
72. For all the foregoing reasons, I make the following orders—
1. Appeal be dismissed.
2. Development consent be refused.
3. Exhibits be returned.
4. No order as to costs.
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I HEREBY CERTIFY THAT THE PRECEDING 72 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.
Associate
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