Blue Mountains City Council v Laurence Browning Pty Ltd

[2006] NSWCA 331

Reported Decision: 150 LGERA 130

Court of Appeal

CITATION:	BLUE MOUNTAINS CITY COUNCIL v LAURENCE BROWNING PTY LTD [2006] NSWCA 331
HEARING DATE(S):	31 October 2006
JUDGMENT DATE:	27 November 2006
JUDGMENT OF:	Ipp JA at 1; Tobias JA at 28; Basten JA at 59
DECISION:	(1) Grant leave to Blue Mountains City Council to appeal from the judgment of the Land and Environment Court given on 27 February 2006; (2) Allow the appeal and set aside the judgment below; (3) In lieu thereof, answer the separate question as follows:; Question: Is clause 29.2 [of the Blue Mountains Local Environmental Plan 1991] a development standard as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) and thus amenable to the application of State Environmental Planning Policy No. 1 – Development Standards?; Answer: No; (4) Order the Opponent/Respondent, Laurence Browning Pty Ltd, to pay the Council’s costs of the proceedings in this Court; (5) Grant the Opponent/Respondent a certificate under the Suitor’s Fund Act 1951, if not disqualified pursuant to s 6(7) of that Act.
CATCHWORDS:	ENVIRONMENTAL PLANNING – definition of “development standards” – Environmental Planning and Assessment Act 1979 (NSW) s 4(1) – whether the zoning subscript, referred to as a consolidation requirement, in the local environment plan was a “development standard”. - STATUTORY CONSTRUCTION – “development standards” – application of definition to planning instruments via a planning policy.
LEGISLATION CITED:	Conveyancing Act 1919 (NSW), s 195 Environmental Planning and Assessment Act 1979 (NSW), ss 4, 4B, 25, 26, 76A, 79C, 85, 85A, 97, 121B, Schedule 6 Land and Environment Court Act 1979 (NSW), ss 57
CASES CITED:	Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Goodrich v Paisner (1957) AC 65 Lowy v Land and Environment Court (NSW) (2002) 123 LGERA 179 McCabe v Blue Mountains City Council [2006] 145 LGERA 86 North Sydney Municipal Council v P D Mayoh Pty Ltd [No. 2] (1990) 71 LGRA 222 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425 Woollahra Municipal Council v Carr (1987) 62 LGRA 263
PARTIES:	Blue Mountains City Council - Claimant Laurence Browning Pty Ltd - Opponent
FILE NUMBER(S):	CA 40143/06
COUNSEL:	I. Hemmings - Claimant M. Craig QC - Opponent
SOLICITORS:	McPhee Kelshaw, Springwood - Claimant Hannaford Lawyers, Sydney - Opponent
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 11227/05
LOWER COURT JUDICIAL OFFICER:	Jagot J
LOWER COURT DATE OF DECISION:	27 February 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74

CA 40143/06
LEC 11227/05

IPP JA
TOBIAS JA
BASTEN JA

27 November 2006

BLUE MOUNTAINS CITY COUNCIL v LAURENCE BROWNING PTY LTD

In October 2003, the Respondent, lodged a development application for the consolidation of lots and the erection of a dwelling house on each of the newly created lots on land at Wentworth Falls in the Blue Mountains. The Blue Mountains Local Environment Plan 1994 (the “LEP”) zoned the land subject to the application as “Bushland Conservation”. The subject land, together with some five or six additional lots, was part of a subdivision within an area of the map in the LEP which has a zone subscript referred to as a “Consolidation Requirement”: cl 29.2. The application did not comply with the consolidation requirement. The Council refused the development application, one reason being that not all lots in the application were consolidated.

The Respondent appealed to the Land and Environment Court. It argued that the consolidation requirement was a development standard. Under cl 6 of the State Environment Planning Policy No. 1 – Development Standards, such a requirement could be waived if, as occurred in this case, the development application was accompanied by an objection. The Council could, if satisfied the objection is well founded, and with the concurrence of the Director General of the Department, grant consent to the application.

The Land and Environment Court determined that the consolidation requirement was a development standard. The Council appealed from this determination.

The issue for the Court of Appeal is whether cl 29.2 constitutes a development standard, as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”).

Held:
By Ipp JA

According to the natural meaning of the words, a standard (used in the context of s 4(1)) is fundamentally different from a requirement. In this context, a standard is a benchmark. A requirement is a commandment. To define a standard as including a requirement according to its natural meaning (as authorities prescribe) is akin to defining a cat as including a dog: at [10].

The zoning criterion test provides a beacon of certainty and simplicity in the Wonderland of s 4(1), inhabited as it is by the shifting sands of words used contrary to their ordinary meaning, indeterminate abstract concepts and vague, complex notion that are incapable of ready resolution: at [20].

The consolidation requirement is a zoning criterion. Being a zoning criterion, it is not a development standard: at [25].

By Tobias JA

The question is whether cl 29.2 defined an essential element of the permissibility of development of land in respect of which a consolidation requirement was specified on the Map. The requirement that all adjoining lots within the relevant subscript shown edged an area within the heavy black line on the Map be consolidated into one lot is a characteristic of the land to which that subscript applies and which must be satisfied before any form of development is permissible with consent upon that land: at [47]–[48].

Woollahra Municipal Council v Carr (1985) 62 LGRA 263; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [36], applied

The concept of “aspects of the development” should not be extended to a requirement which is unrelated to the development proposed but is an attribute of the whole of the land within the area shown edged with a heavy black line on the Map and which engaged more than the land the subject of the application: at [53]

Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 discussed.

By Basten JA
(Ipp and Tobias JJA agreeing)

The requirement in the definition of development standards that they be “in respect of any aspect of that development” under s 4(1) of the EP & A Act provides the surest foundation for distinguishing development standards from other provisions. The words “in respect of” indicate a nexus or connection between the requirement or standard and the development: at [77].

Woollahra Municipal Council v Carr (1985) 62 LGRA 263 per McHugh JA at 269-270, applied.

A prohibition on a particular kind of development will not be a development standard if the characteristic or criterion engaging its operation is an essential element of the particular development, rather than a standard or requirement in respect of an aspect of the proposed development: at [77].

Lowy v Land and Environment Court (NSW) (2002) 123 LGERA 179 per Handley JA at [36], applied.

A zoning requirement is not a development standard. Thus, if an LEP prohibits a particular form of development in a particular zone, that provision will not generally be considered a development standard, whereas if a particular form of development is permitted with consent in the specified zone, but further and separately identified controls are imposed on such developments, the further controls may constitute development standards. The drafter of an LEP may be able to achieve the desired result either by a zoning provision, or by a development standard: the way in which it is done will be important because of the need to distinguish a development standard from other forms of prohibition. A legitimate concern about substance and form should not be allowed to blur the distinction between results and means: at [79].

Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 per Giles JA at [93], distinguished.

The approach required by the definition places considerable weight on the degree of specificity with which the proposed development is defined. If the proposed development is very broadly defined, even its “essential elements” will become external standards. On the other hand, to include within the identification of the proposed development all aspects of the proposed use of the land is likely to incorporate what should properly be seen as aspects regulated by development standards, because external to the essential elements of the development. The correct approach depends on the terms of the planning instrument in the particular case: at [80].

Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 per Giles JA at [36], applied.

Classifications required for the purposes of zoning define essential elements of the development. There may be other elements in the particular LEP which should properly be treated in the same way as the zoning table: at [81].

Lowy v Land and Environment Court (NSW) (2002) 123 LGERA 179 per Mason P at [2] and Giles JA at [123], applied.

The two stage approach adopted in Poynting causes difficulty. Identification of the development does not help with the construction of the planning instrument: it merely allows identification of the relevant provision in the planning instrument. Whether or not that provision constitutes a development standard must be determined as a matter of construction of the definition in the EP & A Act, and its application in to the particular provision: at [85].

Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 per Giles JA at [96]–[99], considered.

The consolidated requirement is imposed as part of the zoning under the LEP which precludes all forms of development, absent compliance with its terms. It requires a step to be taken which is not itself a form of development. It does not identify any aspect of a particular development and fix a standard or specify a requirement with respect to it. It applies, indiscriminately, to every permissible development within the area covered. It is thus incapable of falling within the definition of “development standard” in s 4(1) of the EP&A Act: at [93].

CA 40143/06
LEC 11227/05

IPP JA
TOBIAS JA
BASTEN JA

27 November 2006

BLUE MOUNTAINS CITY COUNCIL v LAURENCE BROWNING PTY LTD

Judgment

1 IPP JA: I have had the benefit of reading the reasons to be published by Tobias JA and Basten JA. The relevant facts and circumstances and the issue for determination appear from their Honours’ reasons.

2 Whether a particular provision of a planning instrument is a “development standard” as defined by s 4(1) of the Environmental Planning andAssessment Act 1979 (NSW) is inevitably a difficult question. It is a question that has spawned much litigation and many judicial opinions.

3 The difficulty stems from the words of s 4(1). The section relevantly reads:

“Development Standards means provisions of an Environmental Planning Instrument or the Regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development …”

4 The problem with the definition is that, although it purports to be a definition of standards, it defines standards as including “requirements” and no guidance is given as to what is meant by a requirement.

5 Development standards are important in this appeal by reason of cl 6 of State Environmental Planning Policy No 1 – Development Standards (“SEPP No 1”). Clause 6 provides:

“6. Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.”

6 The effect of cl 6 is that, where a requirement in an environmental planning instrument (or the relevant regulations) is a development standard, and the development does not comply with the requirement, the intended developer may, subject to cl 6, still make a development application.

7 Section 4(1), read with cl 6 of SEPP No. 1, is potentially misleading in two respects. Firstly, s 4(1) purports to be a definition of development standards and it is only on a closer reading, with knowledge of the authorities, that it becomes apparent that the section provides that standards include requirements, in the wide sense of the latter term. Secondly, s 4(1) read with cl 6 enables town-planning instruments to look as if they are laying down absolute standards and requirements (thereby affording some false comfort to uninitiated persons who desire that no changes be made) whereas in fact they can be overridden in individual cases.

8 These potentially misleading aspects of the section give rise to most of the problems in understanding what it means. To explain this it is necessary to focus, briefly, on the anomalies.

9 Uninstructed by authority, and applying the ordinary long-established canons of construction, I would have thought that “requirement” in s 4(1) would have to be construed by reference to “standard”, so that a requirement under s 4(1) would mean only a requirement that applies to the maintenance or application of a standard. Such a construction may have prevented the problems that have arisen or, at least, reduced the confusion. But the courts have long decided otherwise, and have laid down that requirement must be construed in accordance with its natural meaning and without reference to standard.

10 According to the natural meaning of the words, a standard (used in the context of s 4(1)) is fundamentally different from a requirement. A standard, in this context, is a benchmark. A requirement, according to its natural meaning in this context is a commandment. To define a standard as including a requirement according to its natural meaning (as the authorities prescribe) is akin to defining a cat as including a dog. The point being that, just as the characteristics of a cat – in such a definition – cast no light on what is meant by a dog, the characteristics of a standard – in such circumstances – cast no light on the meaning of a requirement. If one were unfortunate enough to have to construe a definition of a cat that included a dog, the fact that a particular animal looked like a dog, lifted its leg on lampposts, barked continuously, and had every other characteristic of a dog, would not mean (for the purposes of the definition) that it was not a cat.

11 The cases generally recognise that whatever “requirement” means, it cannot mean an outright prohibition. That would result in a planning instrument never being able absolutely to prohibit a particular development. It could not be inferred that the legislature would intend to tie its hands in such a way. So, some means has to be found whereby a distinction may be drawn between an outright prohibition and a requirement. The section affords no guide to this conundrum, which might confound etymologists and philosophers, let alone lawyers.

12 The difficulty is compounded by a series of cases that hold that in determining what is a requirement, one must eschew form and concentrate on substance. This means that the language used is not necessarily determinative and is seldom helpful in differentiating between an outright prohibition and a requirement. Take, for example, the admonitory statement, “No houses shall be painted purple”. This looks, in form, like a prohibition. But in substance it is just as likely to be a requirement. How one is to search, by rational means, for the substance and then identify it as providing the answer (but in doing so to discount the form of the language) is a mystery the answer to which is yet to be revealed.

13 Some of the cases attempt to find a path through this enigmatic quagmire by deploying the twin concepts of “essential elements” and “aspects” of a development. Thus, if a requirement is in respect of an essential element but not an aspect of a development then the requirement is not a development standard, and vice versa. This approach, however, simply substitutes one puzzle for another. Instead of having to resolve the difference between an outright prohibition and a requirement, one has to distinguish between essential elements and aspects of a development. The criteria by which this distinction is to be drawn are equally obscure. As Basten JA points out, much may depend on how the development is defined and, as this case shows, that – too – is a problem to which the legislation and the cases, understandably, provide no readily comprehensible answer. It is another issue of ticklish uncertainty productive of expensive litigation.

14 Another test that sometimes has been applied is distinguishing between requirements that are external to a development and those that are internal. But it may be difficult to decide whether a requirement is inside or outside a development. It may not infrequently be on the borderline. Moreover, yet again – as Basten JA shows - the answer will depend on the way in which the development is defined,

15 Yet another test, which may be described as the Development Standard Twostep, as Tobias JA points out has been applied several times. It is, however, no light fandango. The first step involves determining whether the provision being considered prohibits the proposed development. The second step is determining whether the provision specifies a requirement or a standard in relation to an aspect of the development.

16 Basten JA has drawn attention to inherent difficulties with this process. The authorities hold that, in determining whether a requirement is a development standard or a prohibition, one must first identify the development. The authorities hold, further, that a requirement relating to a development is a development standard unless it is a prohibition. If one, following this approach, identifies the development and decides that a requirement relating thereto is not a prohibition, the answer must inevitably be that the requirement is a development standard. On this scenario, there is no second step to complete.

17 The process also suffers from the basic problem that, once more, the way in which the development is described will determine the answer (and I have pointed out the uncertainties that this involves).

18 In Goodrich v Paisner (1957) AC 65 Lord Reid said at 88:

“No court is entitled to substitute its words for the words of the Act.
But a court can and must decide what is the appropriate test in a particular case and, when the Court of Appeal has laid down a test, that test ought to be followed in all cases which do not present substantial relevant differences … [T]hat does not mean that the words used by the Court of Appeal are to be treated as if they were words in an Act of Parliament. In substantially different circumstances they are only a guide, and not a rule.”

The circumstances in this case are substantially different to those considered in the cases where the Twostep has been applied.

19 Another test that has found favour depends on whether zoning criteria are applicable. If the relevant provision is a zoning criterion, and if the developer’s proposal contravenes that criterion (irrespective of how “development” is defined), the provision is regarded as an outright prohibition and not a standard. This, in essence, is the basis of the decision in Woollahra Municipal Council v Carr (1987) 62 LGRA 263 and is also the basis of the reasoning of Basten JA and (partly) that of Tobias JA in this case.

20 The zoning criterion test is a beacon of certainty and simplicity in the Wonderland of s 4(1), inhabited as it is by the shifting sands of words used contrary to their ordinary meaning, indeterminate abstract concepts and vague, complex notions that are incapable of ready resolution.

21 The zoning criterion test can easily be applied in this case. The reasoning process is brief and straightforward.

22 Clause 29.2 of the Blue Mountains Local Environmental Plan 1991 (“the LEP”) provides:

“29.2 Where a Consolidation Requirement is shown on the Map, development (other than an existing use or for the purpose of bushfire hazard reduction) is prohibited unless all adjoining lots with this subscript which are shown edged with a heavy black line on the Map have been consolidated into one lot.”

23 Basten JA points out that, subject to minor exceptions which are not presently applicable:

“[Clause 29.2] imposes a prohibition on all development within areas identified on the Map to which the clause applies, absent consolidation into one lot. The manner in which this is achieved is by what is described as a ‘zone subscript’.”

24 Tobias JA points out:

“[T]he LEP Map not only divided the land to which the LEP applied into various zones but also imposed over those zones or parts thereof what are referred to in cl 8 as zone subscript . One of those subscripts is referred to as a ‘Consolidation Requirement’. That Requirement identified the areas to which it applied with a heavy black line – the intention being that the land edged with that heavy black line (which by definition comprised a number of lots) was to be consolidated into one lot.”

His Honour notes:

“Consolidation was required because the site was within an area edged with a heavy black line on the Map and contained the subscript ‘Consolidated Requirement’. However, there were approximately six lots within the edged area which were not included as part of the site.”

25 The point is that the Consolidation Requirement is a zoning criterion; it is a “zoning subscript”. Being a zoning criterion, it is not a Development Standard.

26 The zoning subscript required the development to relate to the whole of the land shown edged with a heavy black line on the Map, and the land had to be consolidated into one lot. The respondent’s application did not comply with the zoning subscript. It was prohibited by the subscript and cl 6 did not apply to it.

27 Thus, the appeal should be upheld in accordance with the orders proposed by Basten JA.

28 TOBIAS JA: The issue for determination in this appeal is whether cl.29.2 of Blue Mountains Local Environmental Plan 1991 (the LEP) is a “development standard” within the meaning of that expression as defined in s.4(1) of the Environmental Planning and Assessment Act 1979 (the Act). Jagot J, the primary judge, answered the question posed by that issue in the affirmative. The claimant, Blue Mountains City Council (the Council), seeks the leave of this Court to appeal against that determination, the substantive appeal being heard at the same time as the application for leave.

29 The land the subject of the opponent’s development application (the application) comprised 84 lots in Deposited Plan No.7988 (the site) which, as pointed out by Basten JA in his judgment, were subdivided in 1914 and zoned “Bushland Conservation” under the LEP. One of the objectives of that zone (cl.6.2(a)) is to conserve the natural bushland character of the landscape surrounding existing urban areas of the City. Another (cl.6.2(d)) is to provide only for development that utilises and retains the natural bushland on the site as an important feature of the development.

30 To give effect to these objectives the LEP Map not only divided the land to which the LEP applied into various zones but also imposed over those zones or parts thereof what are referred to in cl.8 as Zone Subscripts. One of those subscripts is referred to as a “Consolidation Requirement”. That requirement identified the areas to which it applied with a heavy black line – the intention being that the land edged with that heavy black line (which by definition comprised a number of lots) was to be consolidated into one lot.

31 As I have indicated, the site comprised 84 lots. The application was to consolidate those 84 lots into 14 lots and to erect a dwelling house on each of the consolidated lots. Consolidation was required because the site was within an area edged with a heavy black line on the Map and contained the subscript “Consolidation Requirement”. However, there were approximately six lots within the edged area which were not included as part of the site.

32 Clause 29 of the LEP was contained in that part headed “SPECIAL PROVISIONS”. Clause 29 was headed “MINIMUM AREA AND CONSOLIDATION REQUIREMENTS”. Its provisions were as follows:

“29.1 Where a Minimum Area Requirement is specified on the Map for any land, the Council shall not consent to development (other than for the purpose of bushfire hazard reduction) on a lot of that land unless the lot contains land within the Bushland Conservation zone or Residential Bushland Conservation zone equal to or greater than the Minimum Area Requirement.
29.2 Where a Consolidation Requirement is shown on the Map, development (other than an existing use or for the purpose of bushfire hazard reduction) is prohibited unless all adjoining lots with this subscript which are shown edged with a heavy black line on the Map have been consolidated into one lot.”

33 In the present case the Court is concerned only with cl.29.2. The only basis upon which development consent could be granted to the application would be if that clause was a development standard to which an objection could be made pursuant to the provisions of Statement Environmental Planning Policy No.1 (SEPP 1). Although such an objection was lodged, the Council rejected both the objection and the application upon the basis that cl.29.2 was not a development standard but prohibited any development on the site under any circumstances.

34 The reasons behind this proposition were first that the requirement that all adjoining lots within the land shown edged with a heavy black line were required to be consolidated into one lot and not 14 lots and second, that it was impossible for such a consolidation to be achieved given that the site did not relate to the whole of the land so edged.

35 The relevant principles for determining whether a particular provision of an LEP is or is not a development standard have been authoritatively stated by Giles JA, with whom Heydon JA and Young CJ in Eq agreed, in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 and by Giles JA, with whom Mason P agreed, in Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179. The principles to be derived from those authorities were accurately summarised by the primary judge in [26] of her judgment and neither party in the present case took issue with them. The difficulty lies in the application of those principles to a particular provision such as cl.29.2.

36 Her Honour properly adopted, as she no doubt felt bound to do, the two-step approach endorsed by Giles JA in Poynting, namely

(1) Is the development proposed in respect of the site prohibited in any circumstances by cl.29.2 construed in the context of the LEP as a whole; and

(2) If it is not so prohibited, does cl.29.2 relevantly specify a requirement in respect of any aspect of the proposed development?

Her Honour answered the first question in the negative and the second in the affirmative.

37 In answering the first question in the negative, her Honour rejected the Council’s submission that the proposed development was prohibited under any circumstances because cl.29.2 expressly stated that “development … is prohibited” unless and until the relevant land within the heavy black line was consolidated into one lot. In the context of the instrument as a whole, her Honour (at [35]) considered that the proposed development (which she identified as the erection of dwelling houses) to be permissible albeit only upon compliance with the consolidation requirements identified in cl.29.2. The fact that dwelling houses could only be erected upon the site if the consolidation requirement was complied with did not mean that it was a form of development which was prohibited under any circumstances.

38 Having determined the first step in favour of the opponent, her Honour then applied what she referred to as the “wider view” adopted in Poynting with respect to the second step, namely, was cl.29.2 relevantly a provision by or under which a requirement was specified in respect of an aspect of the proposed development? Her conclusions with respect to this question are encapsulated in the following paragraphs of her judgment:

“39. The consolidation of lots with adjoining lots describes an action that results in the creation of a parcel of land of certain dimensions and area. In substance, that requirement is analogous to a provision relating to the prescribed area and shape of a parcel of land on which development may be carried out, as referred to in sub-para (a) of the definition in s 4(1). Requiring the consolidation of lots appears to me to be a means of reaching an end similar to the provision considered in Poynting – that is, for development to be carried out on land of a certain area and configuration. If substance and not form is to govern (as it must in this context), then I again consider that the words “…have been consolidated…” in cl 29.2 cannot bear the significance which I understand the Council places upon them for resolution of the second step required by the reasoning in Poynting and Lowy .
40. The provision refers to both the land on which the development is proposed and land adjoining that land. The clause requires that the adjoining land be consolidated with the land on which the development is proposed. The provision should be understood as defining permissibility by reference to the attributes of the land on which the development is proposed (namely, whether that land has been consolidated with other land). The provision does not, in my opinion, define permissibility by reference to the attributes of adjoining land as in Mayoh .
41. Having regard to these considerations, and in particular the “wider” view of the concept of “aspects of the development” recognised in Poynting , I consider that the arrangement of land on which the development may be carried out as required by cl 29.2 is an aspect of the development, being development which is otherwise permissible .”

39 The Council submitted that the opponent did not pass the first step in the two-step approach articulated in Poynting. It submitted that the matter could be tested by asking whether the erection of a single dwelling house was permissible with consent upon the site. The answer, so it was contended, was in the negative as the site could not be consolidated into one lot in accordance with the Consolidation Requirement that applied to the area within which the site was contained. This was because the site did not comprise the whole of the land shown edged with a heavy black line on the Map.

40 Accordingly, the effect of cl.29.2 in the present case was that all development (with immaterial exceptions) was prohibited unless the site was consolidated with other land to form one lot.

41 Alternatively, it was submitted that the requirement that all adjoining lots within the relevant subscript as shown edged with a heavy black line on the Map be consolidated into one lot was not a requirement specified in respect of any aspect of the development of the site with one or, for that matter, 14 dwelling houses. That was the only development proposed as it was common ground that the consolidation of the 84 lots into 14 lots by registration of a plan of consolidation within the meaning of s.195 of the Conveyancing Act 1919 did not fall within the definition of “subdivision of land” in s.4B of the Act and was thus not “development” within the meaning of that word as defined in s.4(1).

42 The Council further submitted that although within the Bushland Conservation zone, erection of a dwelling house was permissible with consent by virtue of cl.9.1 of the LEP and the Table to that provision, that permissibility was subject to cl.9.2 which provided that except as permitted by cl.9.1

“or by some other specific provision of this plan, the carrying out of development is prohibited.”

One such provision was cl.29.2.

43 The Council therefore submitted that the permissibility of the erection of one or more dwelling houses upon the site under what, in effect, was a zoning table, was subject to the restrictions contained in cl.29.2. That provision constituted an exception to cl.9.1 and the Table resulting in the prohibition of the erection of a dwelling house upon the site unless the land upon which the dwelling house was to be erected, comprising all of the land shown edged with a heavy black line on the Map, had been consolidated into one lot by registration of a plan of consolidation.

44 Accordingly, cl.29.2 constituted, in effect, a zoning requirement which, in a manner analogous to the definition of “professional consulting rooms” the subject of the decision of this Court in Woollahra Municipal Council v Carr (1987) 62 LGERA 263, prohibited the erection of any development, including one or more dwelling houses, upon the site given that it did not include all of the land shown edged with a heavy black line on the Map and, therefore, could not be consolidated into one lot in accordance with the Consolidation Requirement. In other words, the Council submitted that cl.29.2 was, essentially, a zoning provision rather than a provision which, in respect of development which was otherwise permitted with consent, separately identified a control to be imposed on such permitted development.

45 In Carr the relevant land could be used for “professional consulting rooms” with consent but otherwise only for dwelling houses. The expression “Professional consulting rooms” was defined as a professional practice not employing more than three employees. McHugh JA considered that the limiting of the number of employees was not a requirement in respect of an aspect of the development and so a development standard, but rather was an essential element of the form of development which made it permissible with consent. Absent that element, the development as proposed was prohibited.

46 As Giles JA observed in Poynting (at 328 [36]):

“McHugh JA meant, it seems to me, that the limitation to three employees was not an aspect of the development, the development being the use of the land for professional consulting rooms, susceptible of a requirement or standard ... but by virtue of the definition of professional consulting rooms, it was an essential element of the permitted use, and not an aspect of the development in relation to which the definition stated a requirement or standard: so also, the two storeys of the duplex building … were not relevantly aspects of the development of erection of a duplex building.”

47 So far as the first step of the two-step approach is concerned, the question in my opinion is whether cl.29.2 defined as an essential element of the permissibility of development of land in respect of which a Consolidation Requirement was specified on the Map, that all adjoining lots within the relevant subscript shown edged with a heavy black line had been consolidated into one lot.

48 Although the matter is not free from difficulty, I have come to the conclusion that the answer to the question so posed is in the affirmative. The requirement that all adjoining lots within the relevant subscript shown edged with an area within the heavy black line on the Map have been consolidated into one lot is a characteristic of the land to which that subscript applies and which must be satisfied before any form of development is permissible with consent upon that land.

49 Although the opponent submitted that the effect of cl.29.2 was merely to provide a conditional prohibition rather than an absolute prohibition, the same assertion could be made with respect to the definition of “professional consulting rooms” in Carr. In other words, professional consulting rooms were permissible with consent if they employed no more than three employees; or, to put the matter in the negative, professional consulting rooms was a prohibited use unless there were no more than three employees employed therein.

50 If, as Giles JA emphasised in Poynting, substance is not to be trumped by form, then the fact that cl.29.2 is a separate and independent provision to what is permissible within the Bushland Conservation zone in accordance with the Table to cl.9.1, then all development is prohibited within so much of that zone as is subject to a Consolidation Requirement as subscripted on the Map unless that development is proposed on the whole of the land shown edged with a the heavy black line which has been consolidated into one lot.

51 As Basten JA observes in [93] of his judgment, cl.29.2 requires a step to be taken (namely consolidation of lots) which is not in itself a form of development as a precondition to any permissible development within the area the subject of the subscript. Accordingly, in my opinion, her Honour ought to have answered the first step of the enquiry in a manner favourable to the Council.

52 Even if her Honour was correct in finding that cl.29.2 did not prohibit the erection of 14 dwelling houses upon the site in any circumstances, I am unable to agree with her characterisation of the requirement for consolidation as constituting an aspect of that development. The basis of her Honour’s reasoning with respect to the second step of the two-step approach was that the consolidation requirement was analogous to a provision relating to the prescribed area and shape of a parcel of land on which development may be carried out as referred to in subparagraph (a) of the definition of “development standards” in s.4(1): see [39].

53 As her Honour observed in [40] of her judgment, cl.29.2 should be understood as defining permissibility by reference to the attributes of the land on which the development is proposed (namely, whether the site has been consolidated with other land into one lot). Even accepting the “wider view” of the concept of “aspects of the development” advocated in Poynting, I would not be prepared to extend that concept to a requirement which is unrelated to the development proposed but is an attribute of the whole of the land within the area shown edged with a heavy black line on the Map and which engages more than the land the subject of the application.

54 In other words, even accepting the “wider view”, I do not regard the consolidation requirement in cl.29.2 as being equivalent or analogous to a provision that a dwelling house shall not be erected upon an allotment of less than a specified area. The two requirements in my opinion are essentially different. Although one is a requirement with respect to an aspect of the proposed development, the other is not. The latter, as is implicit in the reasons of Basten JA, is an “essential element” to the permissibility as a matter of zoning (in the wider sense referred to by his Honour) of the proposed development and not an aspect of that development which is external to that element.

55 In my view the present case has many of the features of McCabe v Blue Mountains City Council [2006] 145 LGERA 86 where her Honour held, correctly in my opinion, that cl.34.4(c)(i) of the LEP was not a development standard upon the basis that it prohibited the proposed development (the division of one lot into two lots) under any circumstances. That provision provided that

“The Council may only consent to subdivision of land shown RES-BC(NS) … if:

(i) it is for a boundary adjustment where no additional lots are created.”

56 Her Honour considered (at 106 [78]) that the phrase “subdivision of land … for a boundary adjustment” described the character or essence of the form of subdivision and the only form of subdivision which was permissible with consent within the relevant zone, whereas the proposed subdivision could not be so described.

57 In the present case, the only form of development permissible with consent was one which related to the whole of the land shown edged with a heavy black line on the Map which had been consolidated into one lot. In McCabe the proposed development was not for a boundary adjustment where no additional lots were created. In the present case, the development is not proposed upon the whole of the land shown edged with a heavy black line on the Map which has been consolidated into one lot. I do not, with respect, see that there is any difference in substance between the two controls.

58 Accordingly, for the foregoing reasons I would agree with the orders proposed by Basten JA.

59 BASTEN JA: Laurence Browning Pty Ltd is the proposed developer of land to the east of the township of Wentworth Falls in the Blue Mountains. The land comprises a large part, but not all, of a subdivision undertaken in 1914 and recorded in deposited plan 7988. Although the development application was not before this Court, in the Land and Environment Court Jagot J described the proposed development as the consolidation of 84 lots into 14 lots and the erection of a dwelling house on each of the newly created lots. The development application was apparently lodged on or about 24 October 2003: Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 at [2].

60 The environmental planning instrument covering this land was Blue Mountains Local Environmental Plan 1991 (“the LEP”). It placed a substantial obstacle in the way of the proposed development. Part of the LEP is a map which identifies the land to which the LEP applies and its relevant zoning. The land the subject of the application is zoned “Bushland Conservation”. In addition to zones, the map shows what are described in clause 8 of the LEP as “zone subscripts”. There are six zone subscripts, including one entitled “Consolidation Requirement”. The key provision in the LEP, which deals with this zone subscript, is cl 29.2, which reads as follows:

“29.2 Where a Consolidation Requirement is shown on the Map, development (other than an existing use or for the purpose of bushfire hazard reduction) is prohibited unless all adjoining lots with this subscript which are shown edged with a heavy black line on the Map have been consolidated into one lot.”

61 The whole of the area the subject of the application, together with some five or six additional lots, which were part of the subdivision but which are not covered by the application, are within the area edged with a heavy black line on the map and are subject to a consolidation requirement. There is no suggestion of compliance with the consolidation requirement; indeed, non-compliance is the premise of the present proceedings. Accordingly, subject to the argument discussed below, the development proposed in the application is prohibited.

62 The proponent of the application sought to avoid this conclusion by calling in aid the overriding provisions of State Environmental Planning Policy No. 1 – Development Standards (“SEPP No. 1”). Clause 6 of that planning instrument provides:

6 Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.

63 According to written submissions filed in this Court, the development application was accompanied by such an objection, although the document was not in the material before this Court, nor was it referred to by Jagot J. It is convenient to assume its existence for present purposes. Where such an objection is lodged, the Council, if satisfied that the objection is well-founded, and with the concurrence of the Director-General of the Department, may consider, and if thought appropriate, grant consent to the application: SEPP No. 1, cl 7.

64 Whether SEPP No. 1 can be relied upon in the present case depends upon whether cl 29.2 of the LEP, as set out above, is a “development standard”. How the Council dealt with the application is not entirely clear. Her Honour stated at [3]:

“The Council refused the development application on 20 July 2005. One of the grounds of refusal stated that the development was ‘contrary to cl 29.2 of Local Environmental Plan 1991 in that development is prohibited unless all lots are consolidated into one’.”

65 A right of appeal to the Land and Environment Court is granted to “an applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application”: Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”), s 97(1). The notice of appeal was not before this Court. However, it was agreed between the parties that the appeal would fail (so that the refusal of the development application must be upheld) unless cl 29.2 constituted a development standard. The parties therefore joined in requesting the Land and Environment Court to determine, as a preliminary matter, the following question:

“Is cl 29.2 a development standard as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 and thus amenable to the application of State Environmental Planning Policy No. 1 – Development Standards?”

66 The Land and Environment Court agreed to consider that as a separate question, and answered it “Yes”. From that judgment, the Council appeals. The sole issue before this Court is whether her Honour’s conclusion was correct or not. The conclusion reached below being an interlocutory order or decision, leave to appeal is required from this Court: see Land and Environment Court Act 1979 (NSW), s 57(4) if the matter arose in class 1, 2 or 3 proceedings and s 58(3) if it arose in class 4 proceedings. Submissions with respect to the leave application and the proposed appeal were heard together.

67 For the reasons set out below, it will be apparent that the question raised is one of some importance for the operation of planning controls in New South Wales. There are no disputed issues of fact and the Court is assisted by a succinct and clearly reasoned judgment in the Land and Environment Court. Accordingly, leave to appeal should be granted. Because, in my view, the conclusion reached in the Court below was wrong, the appeal should be allowed.

Legal principles:
Identification of a development standard

68 As noted above, the key issue for determination is whether or not cl 29.2 constitutes a development standard, as defined in s 4(1) of the EP&A Act. The relevant definition reads as follows:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

(b) the proportion or percentage of the area of a site which a building or work may occupy,

(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,

(d) the cubic content or floor space of a building,

(e) the intensity or density of the use of any land, building or work,

(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,

(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,

(h) the volume, nature and type of traffic generated by the development,

(i) road patterns,

(j) drainage,

(k) the carrying out of earthworks,

(l) the effects of development on patterns of wind, sunlight, daylight or shadows,

(m) the provision of services, facilities and amenities demanded by development,

(n) the emission of pollution and means for its prevention or control or mitigation, and

(o) such other matters as may be prescribed.

69 This definition includes a number of separately defined terms. These include the following, in s 4(1):

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 … .
environmental planning instrument means a State environmental planning policy, a regional environmental plan, or a local environmental plan … .

It follows that both SEPP No. 1 and the LEP are environmental planning instruments for the purposes of the EP&A Act.

70 An environmental planning instrument is required to state its aims, objectives, policies and strategies and where a provision of the instrument is “genuinely capable of different interpretations” the interpretation which best meets those aims, objectives, policies and strategies is to be preferred: s 25.

71 In earlier cases it was noted that the term “development standards” was only to be found in s 26(1)(b) of the EP&A Act, which provided that an instrument may make provision for “controlling (whether by the imposing of development standards or otherwise) development”: see, eg, Woollahra Municipal Council v Carr (1985) 62 LGRA 263 at 266 (Priestley JA). As will be seen below, that is no longer the case, although it is fair to say that none of the other provisions of the Act in which the term is used provides assistance in relation to its scope of operation: see ss 76A(5), 79C(2) and (3); Part 4, Div 3, Note; 85, 85A(3) and (7); 121B (item 13) and Schedule 6; cf Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [30]. On the other hand, the use of the term in s 26, as a means of exercising control, invites attention to the broad definition of that term in s 4(1) of the EP&A Act:

control , in relation to development or any other act, matter or thing, means:

(a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions … .

(See North Sydney Municipal Council v P D Mayoh Pty Ltd [No. 2] (1990) 71 LGRA 222 at 226 (Kirby P).

72 The procedures for development requiring consent are set out in Part 4, Division 2 of the EP&A Act. Of particular relevance is s 79C which identifies the matters to be taken into consideration by a consent authority in determining a development application. Subsection 79C(3) provides:

(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:
…
(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

…

(6) Definitions

In this section:

(a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and
(b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

73 Clause 5 of SEPP No. 1 provides that it “prevails over any inconsistency between it and any other environmental planning instrument, whenever made”. That SEPP No. 1 was engaged in the present case, if cl 29.2 was a “development standard”, was not in dispute. Nor was there any suggestion but that, if SEPP No. 1 were engaged, the Council was obliged to, and would, consider its operation in relation to the proposed development. It was also accepted in the course of argument that s 79C(3) would require or permit a similar result. A “non-discretionary development standard” would appear to be one expressed in mandatory terms, and not merely one expressly bearing the label “non-discretionary development standard”. Accordingly, s 79C(3) would apply to cl 29.2, if it were a development standard.

74 More than 25 years after its introduction, the concept of “development standards”, as defined in s 4(1) of the EP&A Act, continues to produce conflicting views, not only as to the proper outcome in a particular situation, but also as to the appropriate articulation of the principles to be applied. The significant expenditure of public and private resources, without settled principles emerging, seems unfortunate. In North Sydney Municipal Council v P D Mayoh Pty Ltd [No. 2] (1990) 71 LGRA 222 at 224, Kirby P pronounced that “[i]nflexible administrative law is a bane of the age”. It appears that his Honour was referring to inflexible rules governing administrative decision-making. That is supposedly because such rules will not allow for the variability of circumstances to which they must be applied. On the other hand, clear, if rigid, principles can provide greater certainty, and minimise litigation. If a person purchases particular land, knowing it is only capable of specified developments in specified circumstances, no great injustice is done by an application of those restrictions. In any event, there is no great merit in the application of “flexible standards” when their operation is itself manifestly uncertain.

75 The list of matters which may constitute development standards, contained in paragraphs (a)-(n) of the definition provides a helpful indication of the scope of the concept being defined, but they are expressly stated not to be limiting, nor are they determinative in relation to a particular form of regulation: see Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [56]-[58], [99] and [103] (Giles JA, Heydon JA agreeing). A second proposition which flows from the language of the definition, taken as a whole, is that the use of the word “standards” should not be given too much weight. Thus the defined term applies to provisions of an environmental planning instrument by which “requirements are specified or standards are fixed”. Again, that language provides an indication of the breadth of the concept, but is unlikely to be determinative in relation to the classification of particular provisions.

76 A third aspect of the definition may carry more weight. Thus it applies to provisions “in relation to the carrying out of development”, a concept which has been said to be inconsistent with a provision which prohibits development. However, as will be seen, there is little land on which no development of any kind can take place and accordingly a provision which prohibits some, even many, forms of development may be said to constitute a standard or requirement, if the particular development is identified in sufficiently imprecise terms.

77 The language of the definition which provides the surest foundation for distinguishing development standards from other provisions is found in the requirement that they be “in respect of any aspect of that development”. Two important elements of the definition can be derived from that language, albeit read within its statutory context. First, the words “in respect of” indicate a nexus or connection between, on the one hand, the requirement or standard and, on the other hand, the development. As explained by McHugh JA in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 at 269-270, such language not only must be premised on that dichotomy, but also, and importantly, requires the development and its aspects to be defined, before the test can be applied: see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at, eg, 242 (Dawson J). Thus a prohibition on a particular kind of development will not be a development standard if the characteristic or criterion engaging its operation is an essential element of the particular development, rather than a standard or requirement in respect of an aspect of the proposed development: see Lowy v Land and Environment Court (NSW) (2002) 123 LGERA 179 at [36] (Handley JA). In Lowy, his Honour continued at [37], discussing the facts of Carr:

“The number of employees who could be employed in the dental practice was not a standard external to the proposed development because development for professional consulting rooms as defined, which was permissible with consent, incorporated the restriction in the number of employees. In the language of Reynolds JA that restriction was not an external standard against which the proposed development could be measured, it was an integral part of the only permissible development. McHugh JA recognised that the distinction between a standard in the definition of permissible development, and an external standard, was one of form rather than substance, but this could not affect the result.”

(The reference to the language of Reynolds JA is a reference to Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425 at 432, quoted in Lowy at [34].)

78 In other cases, statements are to be found as to the importance of preferring substance to form. However, those statements should be read in their context, which is usually concerned with the difficulty in distinguishing conditional prohibition from regulation. Thus in Poynting, at [93], Giles JA noted:

“Care must be taken lest form govern rather than substance. A provision in the form ‘A building may be erected on land in a particular zone if the land has an area greater than a particular area’ appears regulatory, whereas a provision in the form ‘A building must not be erected on land if the land has an area less than a particular area’ appears prohibitory, but the substance is the same.”

79 This concern rests on attempts to distinguish a prohibition from regulation. However, in the abstract, that distinction is unhelpful in this, as in many other contexts, as recognised by Handley JA in Lowy at [32]-[33]. On the other hand, a particular result may be achieved in different ways and, for relevant legal purposes, the means adopted may be important. Thus, in the present context, it was not suggested that the principles espoused by McHugh JA in Carr were wrong, no doubt because they have been widely affirmed: see, eg, Poynting at [97] (Giles JA). Furthermore, those principles appear to underlie the broadly accepted distinction, not challenged by the parties in the present proceedings, that a zoning requirement was not a development standard: see Lowy at [58] and [62] where the term “a zoning function” was used by Handley JA. Thus, if an LEP prohibits a particular form of development in a particular zone, that provision will not generally be considered a development standard, whereas if a particular form of development is permitted with consent in the specified zone, but further and separately identified controls are imposed on such developments, the further controls may constitute development standards. Self-evidently, the drafter of an LEP may be able to achieve the desired result either by a zoning provision, or by a development standard: the way in which it is done will be important, because of the need to distinguish a development standard from other forms of prohibition. A legitimate concern about substance and form should not be allowed to blur the distinction between result and means.

80 The approach required by the definition, so understood, places considerable weight on the degree of specificity with which the proposed development is defined. If the proposed development is very broadly defined, even its essential elements will become external standards. On the other hand, to include within the identification of the proposed development all aspects of the proposed use of the land is likely to incorporate what should properly be seen as aspects regulated by development standards, because external to the essential elements of the development. The correct approach depends on the terms of the planning instrument in the particular case. Thus, if an LEP distinguishes by zoning between residential flats and dwelling houses, an application to erect a block of flats should not be treated simply as an application to erect a building, or an essential distinction between a dwelling house and a block of flats will be obscured. The reason why that distinction is important (on the present hypothesis) is that the relevant LEP distinguishes between a dwelling house and residential flats for zoning purposes.

81 The appropriate course is said to depend on what are the essential elements of a development. The use of the (non-statutory) phrase “essential element” seems to have gained acceptance as a reflection of the principle set out above: see Poynting at [36] (Giles JA). So understood, it is a convenient label. It is not disputed that classifications required for the purposes of zoning define essential elements of the development. However, it does not follow that only those elements which are included in the zoning table and map which form part of the usual LEP, are to be included as essential elements of the development. There may be other elements in a particular LEP which should properly be treated in the same way as the zoning table. Whether a particular requirement will so qualify in a particular case will depend not only on the nature of the requirement, but also on the drafting of the LEP. That proposition was expressly accepted by the majority in Lowy: see Mason P at [2] and by Giles JA at [123].

82 Before applying these principles to the present case, it is necessary to note a final aspect of the approach which has found favour in this area, namely that it be undertaken in two steps. As will be seen, the adoption of a staged approach was critical to the reasoning in the Court below. In Poynting, at [96], Giles JA identified the first step in the following terms:

“A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of ‘development’ in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No. 1 will fail at the first step.”

83 His Honour continued, at [97]:

“Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour’s reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of ‘development standards’, there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.”

84 His Honour continued at [99]:

“In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development.”

85 There are two aspects of this approach which cause difficulty, at least in the present circumstances. First, there appear to be two categories of provisions controlling development, namely a prohibition on the development proposed and a standard or requirement controlling the carrying out of the development. If a control falls into the former category, it will not be a development standard: if it falls into the latter category it will be. The cases do not demonstrate the existence of a third category: if a provision does not fall within one category, it will fall within the other. Accordingly, the idea of a two stage process seems inappropriate. Secondly, it is curious that Carr’s case is invoked at the “second step”, rather than the first. McHugh JA in Carr held that the development must be identified in order to determine whether it was, in its terms, a permissible development under the relevant instrument. Because the permissible use was “professional consulting rooms”, defined as a use involving less than a specified number of employees, a development seeking to use premises for a greater number was not a permissible development. That conclusion involved an application of the instrument, in its terms, to the development as proposed. Identification of the development does not help with the construction of the planning instrument: it merely allows identification of the relevant provision in the planning instrument. Whether or not that provision constitutes a development standard must be determined as a matter of construction of the definition in the EP&A Act, and its application to the particular provision.

Application of principles

86 The development in question in the present case involves the construction of 14 dwelling houses on separate lots, with appropriate roadways and other services. The consolidation of 84 lots into 14 lots by registering a plan under s 195 of the Conveyancing Act 1919 (NSW) does not constitute “development” for the purposes of the EP&A Act, as her Honour held at [2], a conclusion not challenged in the present proceedings. Accordingly the development may sufficiently be identified as the erection of 14 dwelling houses on each of the 14 lots.

87 The LEP provides for the general control of development by zoning land covered by the LEP, in accordance with lines drawn on a map. For each zone there is a table indicating which of approximately 80 defined categories of development are permitted, with consent, in each of the zones.

88 The land the subject of the present proposal is zoned “Bushland Conservation”. As is not uncommon with planning instruments, zones are given attractive names which do not necessarily reveal with clarity the scope of the development permitted within them. Thus, approximately half of the available categories of development are permitted within the zone Bushland Conservation. The development identified as “dwelling house” is a permitted development, with consent. “Dwelling house” is a defined term and means “a building containing one, but not more than one, dwelling”. The term “dwelling” is also a defined term and means “a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile”. It is not in dispute in the present proceedings that the development proposal conforms to this use.

89 However, the zoning requirements are not restricted to the map and the table. As noted above, effect is given to the table pursuant to cl 9.1 of the LEP. Clause 9.2 provides:

“9.2 Except as permitted by clause 9.1 or by some other specific provision of this plan, the carrying out of development is prohibited.”

The table itself refers to restrictions contained in cl 9.4, which is expressed to operate, in relation to identified areas, “notwithstanding clause 9.1”. The effect of these restrictions need not, however, be further considered for present purposes.

90 Clause 10 of the LEP deals with “Development Criteria - General” and cl 11 with “Development Criteria - Protected Areas”.

91 There is then a section of the LEP headed “Special provisions” which includes clauses 12-35, being the remainder of the LEP, other than the schedules. Many of the clauses in this section deal with specific classes of development, as identified in the table and as defined in Schedule 4. Whether the controls upon development of a particular kind specified in these provisions are development standards or not need not be determined for present purposes. There are other provisions, however, albeit dealt with alphabetically, which fall into a different category. Thus, cl 16 is headed “Bush rock” and imposes a prohibition on removal of bush rock from land; cl 19 is headed “Definitions” and merely provides that Schedule 4 has effect. Of present relevance is cl 29, headed “Minimum area and consolidation requirements”. The key provision in this case is cl 29.2, which is set out at [60] above. As the map indicates, a consolidation requirement is shown by the symbol “(CONS)” in relation to an area, as provided in cl 29.2, “edged with a heavy black line” on the map.

92 Subject to two minor exceptions which do not affect the nature of the prohibition, cl 29.2 imposes a prohibition on all development within areas identified on the map to which the clause applies, absent consolidation into one lot. The manner in which this is achieved is by what is described as a “zone subscript”.

93 The fact that a consolidation requirement is imposed as part of the zoning under the LEP is significant. Indeed, it is not even a provision identifying which kinds of development are permissible and which are prohibited, but rather it is a provision which precludes all forms of development, absent compliance with its terms. It requires a step to be taken (namely consolidation of lots) which is not itself a form of development, as a precondition to any permissible development. It does not identify any aspect of a particular development and fix a standard or specify a requirement with respect to it. It applies, indiscriminately, to every permissible development within the area covered. It is thus incapable of falling within the definition of “development standard” in s 4(1) of the EP&A Act.

94 The proposed development fails to comply with cl 29.2 in two respects. First, it involves a consolidation into 14 lots, not one lot, of the area proposed to be developed. Secondly, it does not include five or six of the lots contained within the boundary shown on the map.

95 There was an argument, somewhat faintly put, that the term “all adjoining lots” could be limited, by the proposed development, to a subset of the lots contained within the area edged with a heavy black line on the map. This construction is not tenable: the clause does not permit the division of the area into separate categories of lots, so that some can be said not to be “adjoining lots”, although they share boundaries with others that are. If it be the fact that the proposed developer does not own all the lots, and does not have the consent to the development of the owner, that may render compliance with cl 29.2 impossible in the present circumstances, but the reason for the exclusion from the proposed development of the lots in the south-east corner of the area subject to the consolidation requirement is irrelevant.

96 Because cl 29.2 is not a development standard, it was not open to the company to lodge an objection pursuant to SEPP No. 1, that Policy having no application in relation to cl 29.2.

97 It remains to note that the primary judge reached a different conclusion. First, her Honour identified the nature of the proposed development: [2006] NSWLEC 74 at [32]. At [33]-[36], her Honour considered whether the development, as identified, “is prohibited under any circumstances”. That was said to be “the first step” identified in Poynting at [96] and [98]: see [26](4) of her Honour’s judgment. Her Honour then noted that, because a dwelling house is a permissible development on the land if consolidation is achieved, it therefore cannot be said that the development is prohibited under all circumstances.

98 Her Honour then identified a “more difficult issue”, being “the second step” which she identified, as the question whether cl 29.2 was a provision “by or under which the requirements are specified or standards are fixed in respect of any aspect of the proposed development”: at [37]. At [39] she reasoned as follows:

“The consolidation of lots with adjoining lots describes an action that results in the creation of a parcel of land of certain dimensions and area. In substance, that requirement is analogous to a provision relating to the prescribed area and shape of a parcel of land on which development may be carried out, as referred to in sub-para (a) of the definition in s 4(1). Requiring the consolidation of lots appears to me to be a means of reaching an end similar to the provision considered in Poynting – that is, for development to be carried out on land of a certain area and configuration.”

99 Because of the clarity with which her Honour set out her reasoning process, it is possible to identify more readily than might otherwise be the case the error which underlies it. Reliance was placed on a ‘two step’ approach. As the first step she concluded that consolidation achieves a parcel of land of “certain dimensions and area”. That was said to be analogous to a requirement in relation to a provision prescribing an area of land on which development may be carried out. However, the description is misleading and the analogy false. Every block of land, once identified, will have a “certain”, in the sense of identifiable, area. That area may be 0.5 hectare, 10 hectares or 100 hectares. But cl 29.2 is indifferent, in its terms, to the actual area achieved. It is therefore not relevantly analogous to a provision which prescribes a minimum or maximum area for development.

100 Her Honour then considered, as the second step, the statutory question of what “aspect of that development” the consolidation requirement regulated. She held, at [41] “that the arrangement of land on which the development may be carried out as required by cl 29.2 is an aspect of the development, being development which is otherwise permissible”. However, this conclusion failed to recognise that the requirement would regulate any permissible development on the land, whether it be the erection of an advertising sign, a communications facility or a high-technology industry (all being permissible uses). This renders it unnecessary to identify the particular development proposed. Something which is common to every permissible development does not readily fall within the concept of “an aspect of that development”. Furthermore, to describe “the arrangement of land” on which the development is to be carried out as an aspect of the development, whatever the development may be, is to invite the conclusion that every aspect of a valid planning instrument will be a development standard. The distinction between controls which constitute development standards and those which do not, which has been accepted as inherent in the definition in the EP&A Act, is in danger of being lost. That may be because the division of the reasoning process into two steps can distract attention from the exercise required by the statute.

101 However, the critical error arose before the ‘two step’ approach was addressed. Her Honour commenced by identifying the development. She described the proposed development as “the erection of dwelling houses on land zoned Bushland Conservation under the LEP”. That description was provided without reference to the terms of the LEP and without discussion as to why that description was adopted. What followed in the reasoning, at least in part, flowed from that identification of the development.

102 Part of that identification should have included reference to the zoning criteria for the land on which the proposed development is to take place. That is because the particular zoning criteria are essential considerations in determining whether the development is permissible. It is clear that, had the erection of dwelling houses been proposed with respect to land on which such a development was not permitted, the decision would have been different. If the consolidation requirement were understood to be a part of the zoning of the land, on the same logic the result would have been different. The lacuna in her Honour’s reasoning is the failure to consider whether the consolidation requirement, identified as a “zoning subscript”, should properly have been incorporated into the identification of the development. If it had been, the development should properly have been described, adopting her Honour’s language, as “the erection of dwelling houses on 14 lots, on land zoned bushland conservation and comprising part only of an area subject to a consolidation requirement”: see [85] above. If that had been the description of the development, no doubt her Honour would have reached a different result.

103 On one view it may be thought that there is an element of circularity in this approach, because the decision to include an element of the provision in question into the description of the development will dictate the answer to the ultimate question, namely whether that provision is a development standard or not; failure to include the element taken from the relevant provision will dictate the contrary conclusion. What the approach in fact demonstrates is not circularity, but the danger of dividing the statutory question into two or three stages, to be addressed sequentially. Her Honour reached the wrong conclusion because she derived, from existing authority, a sequential approach based on two steps which was at least conducive to error, because it distracted attention from the critical question. That question involved defining the elements of the proposed development which were essential elements in the context of the LEP.

Conclusion

104 In my view the following orders should be made:

(1) Grant leave to Blue Mountains City Council to appeal from the judgment of the Land and Environment Court given on 27 February 2006.

(2) Allow the appeal and set aside the judgment below.

(3) In lieu thereof, answer the separate question as follows:

Question: Is clause 29.2 [of the Blue Mountains Local Environmental Plan 1991] a development standard as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) and thus amenable to the application of State Environmental Planning Policy No. 1 – Development Standards?

Answer: No.


(4) Order the Opponent/Respondent, Laurence Browning Pty Ltd, to pay the Council’s costs of the proceedings in this Court.

(5) Grant the Opponent/Respondent a certificate under the Suitor’s Fund Act 1951, if not disqualified pursuant to s 6(7) of that Act.

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