Botany Bay City Council v Botany Development Pty Ltd (No 2)

[2015] NSWLEC 55

Land and Environment Court

New South Wales

Medium Neutral Citation:

Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55

Hearing dates:

26 May 2014

Date of orders:

09 April 2015

Decision date:

09 April 2015

Jurisdiction:

Class 1

Before:

Sheahan J

Decision:

(1) The Council’s s 56A appeal is upheld.
(2) The Class 1 appeal is remitted for further hearing before Brown C, in order for him to determine it in light of these reasons, and the parties are to approach the Registrar within 7 days for a hearing date.
(3) Unless the Respondent by Notice of Motion filed within 14 days seeks a different order, the Respondent is to pay the Appellant’s costs of this appeal on a party-party basis, as agreed or assessed.
(4)The Appeal Book is returned to the Appellant.

Catchwords:

APPEAL: s 56A appeal from decision of Commissioner – whether Commissioner failed to take into account mandatory relevant consideration under s 79C (DCP) – whether unit sizes met minimums engaging ‘must not refuse’ clause in SEPP – interaction between SEPP and DCP – whether Commissioner misconstrued SEPP

Legislation Cited:

Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Land and Environment Court Act 1979
State Environmental Planning Policy No 65 (Design Quality of Residential Flat Development)
The City of Botany Bay Development Control Plan 2013

Cases Cited:

Agricultural Equity Investments Pty Limited v The Hon Chris Hatcher MP, Minister for Resources and Energy, Special Minister [2015] NSWLEC 23
Botany Development Pty Ltd v Council of the City of Botany Bay [2014] NSWLEC 1073
Botany Bay City Council v Marana Developments Pty Ltd [2012] NSWLEC 15
Botany Bay City Council v Minister for Planning and Infrastructure [2015] NSWLEC 12
Connecticut Fire Insurance Co v Kavanagh (1892) AC 473
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297
Davis v Gosford City Council [2013] NSWLEC 49
Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123
Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2014] NSWLEC 157
Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28; 194 CLR 355
Suttor v Gundowda Proprietary Limited [1950] HCA 35; 81 CLR 418
Svedas v Council of the City of Sydney [2011] NSWLEC 215

Category:

Principal judgment

Parties:

Botany Bay City Council (Appellant)
Botany Development Pty Ltd (Respondent)

Representation:

Counsel:

T Hale, SC (Appellant)
I Hemmings, SC (Respondent)

Solicitors:

Houston Dearn O’Connor (Appellant)
Hunt and Hunt (Respondent)

File Number(s):

10108 of 2014

 Decision under appeal 

Court or tribunal:

Land and Environment Court of NSW

Jurisdiction:

Class 1

Citation:

[2014] NSWLEC 1073

Date of Decision:

31 January 2014

Before:

Brown C

File Number(s):

10360 of 2013

Judgment

Introduction

1. This is an appeal brought under s 56A of the Land and Environment Court Act1979 (“the LEC Act”), from a decision of Commissioner Brown, handed down on 31 January 2014: Botany Development Pty Ltd v Council of the City of Botany Bay [2014] NSWLEC 1073.

2. The learned Commissioner made interim orders (at [105] – [106]), providing for consent to be granted for the demolition of all improvements on 72-86 Bay Street, Botany, and for the construction of a 3 – 6 storey residential development, containing 158 units with associated car parking, landscaping and ancillary works, once agreed amended plans and conditions, reflecting the findings he made in the judgment, had been filed.

3. Amended plans were filed, and final orders granting consent were entered, on 9 April 2014.

4. The Appellant Council contends that the Commissioner erred in determining that “unit size” was not a reason for refusing consent.

5. The principles governing s 56A appeals are well settled by the authorities, and have been summarized very well by Pepper J in a series of decisions. Her Honour decanted from the authorities four main principles:

1. the appeal is limited to a question of law, and not concerned with errors of fact;

2. the error of law must be identified by the Appellant, and shown to be of a sufficiently material character as to vitiate the entirety of the Commissioner’s decision;

3. the Commissioner’s reasons must be adequate, but should not be examined with a “fine tooth comb” in an endeavour to discover error; and

4. the Court is not to take an overly critical or “pernickety”, legalistic approach in examining the Commissioner’s decision, as if it were written by a lawyer.

(See Her Honour’s comments in Svedas v Council of the City of Sydney (“Svedas”) [2011] NSWLEC 215, at [20]; Davis V Gosford City Council [2013] NSWLEC 49, at [22]; Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123, at [5]; and Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2014] NSWLEC 157, at [31]; and the other cases to which Her Honour refers.)

6. It is relevant to note at the outset of this appeal judgment, that, although the Commissioner’s reasons were comprehensive and compelling, he should have been better assisted by the parties at the hearing before him.

7. As he was effectively led into error, I have concluded that this appeal should be upheld, and the matter remitted to him for re-determination, and my reasons follow.

The Issues in the Appeal

8. This appeal asserts that the Commissioner erred in granting consent for a development in which the unit sizes did not meet the minimums prescribed in The City of Botany Bay Development Control Plan 2013 (“the DCP”).

9. In his determination of the development application (“DA”), the Commissioner was bound to consider the DCP, by virtue of s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).

10. Clause 4C.5.1 of the DCP prescribes the following minimums:

C1   Dwellings within residential flat buildings must be designed to provide the following minimum internal areas:

• studio: 60m²

• 1 bedroom: 75m²

• 2 bedrooms: 100m²

• 3 bedrooms: 130m²

• 4 bedrooms: 160m²

Note: Dwelling size means the area inside the enclosing walls of a dwelling but excludes wall thickness, vents, ducts, staircases and lift wells.

11. It was common ground that the apartments do not meet these unit sizes (Tp6, LL34 – 40).

12. The development is comprised of 1 bedroom units of areas between 50.7m² and 67.5m², 2 bedroom units between 78.1m² and 93.8m², and 3 bedroom units that are between 98.1m² to 98.9m².

13. Clause 30A(1)(b) of the State Environmental Planning Policy No 65 (Design Quality of Residential Flat Development) (“the SEPP”) provides:

(1)   A consent authority must not refuse consent to a development application for the carrying out of residential flat development on any of the following grounds:

…

(b)   apartment area: if the proposed area for each apartment is equal to, or greater than, the recommended internal area and external area for the relevant apartment type set out in Part 3 of the Residential Flat Design Code [“RFD Code” – Appeal Book, Vol 1, tab 7D].

14. The Commissioner determined that (1) the apartment sizes met the recommended internal and external areas in the RFD Code; (2) therefore, the development could not be refused on the basis of unit size; and (3) DCP cl 4C.5.1 was irrelevant ([98] – [103]).

15. Council’s case on this appeal is that the Commissioner was incorrect in reaching this conclusion, and Council submits (a) that the Commissioner misconstrued cl 30A(1)(b), and (b) that, on the clause’s proper construction, the apartment sizes failed to meet the recommended areas in the RFD Code.

16. I will return to discuss the Code in greater depth ([32] below), but I note here that it addresses (at p69) the issue of unit sizes, specifying two different sets of sizes (see p75 of the exhibit) – there is a table (at the top of p69) which specifies internal and external areas for nine different apartment “types”, and there are “Rules of Thumb” (at the bottom of the page) which provide for the areas of 1, 2 and 3 bedroom apartments.

17. All the apartments in the present case exceed the areas identified in the Rules of Thumb, and only 63% meet those in the table (Tp6, LL34 – 40).

18. Therefore, if the Rules of Thumb areas are the “recommended ... areas”, to which cl 30A(1)(b) of the SEPP refers, cl 30A(1)(b) dictates that the development cannot be refused on the basis of unit size.

19. Conversely, if the areas in the table are to be the minimum areas, cl 30A(1)(b) is not engaged, and DCP 4C.5.1 is a relevant consideration, which should have been taken into account by the Commissioner (s 79C(1)(a)(iii)).

20. The Commissioner determined that the relevant minimums are those in the Rules of Thumb, and that he, therefore, could not refuse consent on the basis of unit size.

21. The Council submits that, on its proper construction, the “recommended areas” referred to in cl 30A(1)(b) are those in the table, not the Rules of Thumb.

22. Accordingly, the Council framed its grounds of appeal as follows (subs par 6):

(a) The Commissioner erred on a question of law, due to his failure to take into consideration a mandated matter under s79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (The EPA Act), namely cl 4C.5.1 of the DCP 2013, and in particular Control C1: Ground 1.

(b) The error of law arose due to [two further errors of law]:

(i)   the Commissioner’s error in misconstruing cl 6 in SEPP 65 and misdirecting himself as to its application to DCP 2013: Ground 2.

(ii)   the extent that he did consider cl 30A(1)(b) of SEPP 65, he misconstrued both it and the [RFD Code]: Ground 3

23. The issue of unit size was dealt with by the Commissioner, in his judgment, under its own sub-heading (at pars [98] – [103]), in these terms:

Unit size

98   Clause 4C.5.1 Dwelling Mix, Room Size and Layout of DCP 2013 relevantly states:

Controls

Apartment Size and Mix

C1 Dwellings within residential flat buildings must be designed to provide the following minimum internal areas:

Studio: 60m²

1 bedroom: 75m²

2 bedrooms: 100m²

3 bedrooms: 130m²

4 bedrooms: 160m²

Note: Dwelling size means the area inside the enclosing walls of a dwelling but excludes wall thickness, vents, ducts, staircases and lift wells.

99   The Rules of Thumb for Apartment Layout in the [RFD Code] (p 69) state:

If council chooses to standardise apartment sizes, a range of sizes that do not exclude affordable housing should be used As a guide, the Affordable Housing Service suggest the following minimum apartment sizes, which can contribute to housing affordability (apartment size is only one factor influencing affordability)

1 bedroom apartment 50m²

2 bedroom apartment 70m²

3 bedroom apartment 95m²

100   The Apartment Layout part of the [RFD Code] also provides a range of unit sizes for different number of bedrooms and configurations which are generally equal to or greater than the minimum sizes set out in the Rules of Thumb.

101   Unit size was not raised as a significant matter until final submissions. The experts paid little attention to this matter in their oral and written evidence although it was identified in the contentions. Mr Chambers states that the proposed development fails to comply with DCP 2013 and provides for 1 bedroom units that are between 50.7sq m to 67.5 sq m, 2 bedroom units that area between 78.1 sq m to 93.8 sq m and 3 bedroom units that are 98.1 sq m to 98.9 sq m.

102   Mr Chambers states however that cl 6 of SEPP 65 means that the minimum size of units in SEPP 65 prevails over the size of units in DCP 2013 and as such the proposed unit sizes are not matters that can support the refusal of the application.

103   I concur with the comments of Mr Chambers on this matter.

24. The Respondent conceded at the hearing of this appeal that the Commissioner’s reference to cl 6 of the SEPP was in error, but submitted that that error does not act to vitiate the Commissioner’s decision, and is, therefore, not a reason to set aside the decision and uphold this appeal (see par 21 of the Respondent’s subs, and Tp19, LL32 – 35). At the hearing, the Appellant agreed with that contention.

25. However, the Commissioner fell into error because he was misled as to the operation of cl 6 of the SEPP, and its relationship to the DCP.

26. Clause 6 of the SEPP provides:

In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

27. Section 4(1) of the EPA Act defines “environmental planning instrument” (“EPI”) in these terms (emphasis mine):

an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.

28. As the DCP is not an EPI, as defined, the Commissioner was in error in relying on cl 6 to give precedence to the SEPP.

29. However, this error proves to be of no consequence, as, if the Commissioner were correct in finding that the apartment sizes met the areas referred to in cl 30A(1)(b), apartment size could not be a reason for refusal, and DCP cl 4C.5.1 would be irrelevant, regardless of the application of SEPP cl 6.

30. Thus, the real question now before the Court is whether the Commissioner erred in determining that the unit sizes met the relevant minimums, or, more particularly, which statement of such minimums (Rules of Thumb, c.f. the table) is the correct one to apply.

31. Before canvassing the submissions of both parties, I turn now to discuss the relevant sections of the RFD Code which are called up for consideration here.

The Residential Flat Design Code

32. In its introduction, the RFD Code (Appeal Book, tab 7D) is described as (p1):

... a set of guidelines that provide benchmarks for better practice in the planning and design of residential flat buildings. The application of this code will help achieve:

•   environmental sustainability benefits through design including improved energy efficiency (p.93) and narrow building depths for natural ventilation (p.86) and daylight (p.84)

•   improved residential amenity such as greater ceiling heights (p. 73), better apartment layouts (p.67) and quality outdoor living spaces (pp. 46, 48)

•   higher design quality to improve the presentation of the building to the street ...

33. It is said (at p1) that it:

... supports the ten design quality principles identified in SEPP 65 (see Appendix 1) and give greater detail in how to achieve these principles in development proposals.

34. Under the heading “Relationship to SEPP 65”, it is said (on p2) that the RFD Code “provides additional detail and guidance for applying the design quality principles outlined in SEPP 65 to a specific locality”.

35. The Code itself is divided into three parts:

Part 1(“Local Context”), which “outlines the importance of the local context in shaping residential flat design”;

Part 2 (“Site Design”), which “addresses the residential flat development site and its relationship to the adjacent context”; and, finally,

Part 3 (“Building Design”).

36. As it is Part 3 which is engaged by cl 30A(1)(b), it is necessary to set out in full the following description provided (at p4):

This section addresses the residential flat development building. It provides design guidelines for improving building design. The guidelines focus on building performance/functionality, form, layout, sustainability and residential amenity.

The Design Code includes best practice benchmarks for sustainable design in parts 2 and 3. Planning NSW will be releasing the Building Sustainability Index (BASIX) in late 2002, which will provide more detailed technical information on these topics.

37. The final page of the Code’s introduction (p4) sets out instructions which assist readers in navigating the guidelines. That page identifies each section of the “information sheet”, and describes the intended effect of each section.

38. Relevantly, the instructions say (at p3):

1.   descriptive text defines the topic and explains why it is important

2.   objectives state what the resulting outcome should achieve

3.   directive text outlines better design practice guidelines and provides some possible design solutions for achieving the guidelines. The guidelines also provide support in assessing variations of the recommended standards

4.   rules of thumb recommend minimum standards as a guide for local decision making. Minimum standards may vary depending on local context issues and/or if development applicants are able to demonstrate that they have addressed the better design practice guidelines and achieved the stated objectives

39. That part of the Code which addresses unit sizes is found in Part 3, under the heading “Building Configuration (Apartment Layout)” (which begins at p67).

40. The objectives of the part are (p67):

To ensure the spatial arrangement of apartments is functional and well organised.

To ensure that apartment layouts provide high standards of residential amenity.

To maximise the environmental performance of apartments.

To accommodate a variety of household activities and occupants’ needs.

41. Relevantly, the front page provides that the part aims to achieve “Better Design Practice” by the following (p67):

•   Determine appropriate apartment sizes in relations to:

-   geographic location and market demands, for example, CBD and coastal areas have different market demands, areas near universities may require more studio apartments.

…

-   affordability; a range of apartment sizes provides more choice for more people.

And:

•   Ensure apartment layouts are resilient over time. Design issues to address may include:

…

-   Utilising flexible room sizes and proportions or open plans (see Flexibility)

42. This text is accompanied by a series of nine layout plans, providing examples of various types of apartment configuration (pp67 – 68).

43. The Code goes on (p69) to set out both the “table” and the “Rules of Thumb”, which provide the competing “recommended areas”, in dispute between the parties.

44. The table (at the top of p69) is reproduced here:

Apartment Type	Area	m²
03.01 Studio	Internal Area	38.5m²
External Area	6m²
03.02 One bedroom,	Internal Area	50m²
cross through	External Area	8m²
03.03 One bedroom	Internal Area	62m²
Masionette(sic)/loft	External Area	9.4m²
03.04 One bedroom	Internal Area	63.4m²
single aspect	External Area	10m²
03.05 Two bedroom	Internal Area	80m²
corner	External Area	11m²
03.06 Two bedroom	Internal Area	89m²
cross through	External Area	21m²
03.07 Two bedroom	Internal Area	90m²
cross-over	External Area	16m²
03.08 Two bedroom	Internal Area	121m²
corner with study	External Area	33m²
03.09 Three bedroom	Internal Area	124m²
External Area	24m²

45. A note at the foot of the table provides:

This table and the accompanying illustrations provide information on a variety of unit types. Dimensions, areas and furniture layouts are included. These examples are a comparative tool for recognising well-organised, functional, and high quality apartment layouts.

46. There are then set out (at the bottom of p69) five Rules of Thumb, namely:

Single-aspect apartments should be limited in depth to 8 metres from a window.

The back of a kitchen should be no more than 8 metres from a window.

The width of cross-over or cross-through apartments over 15 metres deep should be 4 metres or greater to avoid deep narrow apartment layouts.

Buildings not meeting the minimum standards listed above, must demonstrate how satisfactory daylighting and natural ventilation can be achieved, particularly in relation to habitable rooms (see Daylight Access and Natural Ventilation).

If council chooses to standardise apartment sizes, a range of sizes that do not exclude affordable housing should be used. As a guide, the Affordable Housing Service suggest the following minimum apartment sizes, which can contribute to housing affordability: (apartment size is only one factor influencing affordability)

-   1 bedroom apartment 50m²

-   2 bedroom apartment 70m²

-   3 bedroom apartment 95m²

47. It is also necessary that I set out here two additional Rules of Thumb articulated in the Code’s “Building Configuration (Balconies)” section (at p72, i.e. p78 of the exhibit), which state that relevant buildings must:

Provide primary balconies for all apartments with a minimum depth of 2 metres. Developments which seek to vary from the minimum standards must demonstrate that negative impacts from the context-noise, wind-can not be satisfactorily mitigated with design solutions.

Require scale plans of balcony with furniture layout to confirm adequate, useable space when an alternate balcony depth is proposed.

The Competing Submissions on the Appeal

The Council

48. The Council advanced the following arguments in support of the submission that the relevant minimums, referred to in cl 30A(1)(b), are those in the table, as opposed to those in the Rules of Thumb (subs par 24):

(a) “(T)he relevant apartment type set out in Part 3” [in cl 30A(1)(b) – see [13] above] is a clear reference to the nine apartment types. The three areas in the “Rules of Thumb” are merely suggestions from the Affordable Housing Service, to be used as a guide.

(b) The table refers to internal areas and external areas. The areas in the “Rules of Thumb” contain no break down between internal and external areas.

(c) The areas in the last dot point in the “Rules of Thumb” are to provide a guide “if Council chooses to standardise apartment sizes”. The last dot point is suggesting that if the Council chooses to do so “a range of sizes that do not exclude affordable housing should be used”. The last dot point is not suggesting that all apartments should be of the size appropriate for affordable housing. The apartment sizes in the last dot point are there purely as a guide to assist Council in determining the size of affordable housing units in a range of sizes, most of which will not be affordable housing.

(d) The fourth dot point [in the Rules of Thumb [(see [46] above)] makes provision for “buildings not meeting the minimum standards listed above,” that is the standards in the table. If those minimum standards are not met it must be demonstrated how satisfactory daylight and natural ventilation can be achieved. This is inconsistent with the lesser standards of affordable housing in the last dot point, being the recommended internal area and external area.

(e) To suggest that cl 30A(1)(b) should be construed as allowing Affordable Housing in all circumstances is a construction that is directly contrary to the aims and objectives of SEPP 65 Cl 2(1) which provides that:

“This Policy aims to improve the design quality of residential flat development in New South Wales”.

The Respondent

49. The Respondent submitted that the issue of apartment sizes was raised only during the very late stages of the primary hearing (subs 11-14), and accordingly, the Appellant should be bound by its conduct of the proceedings before the Commissioner (par 41), and so precluded from raising the issue before me.

50. The Respondent placed heavy reliance on Pain J’s decision in Botany Bay City Council v Marana Developments Pty Ltd (“Marana”) [2012] NSWLEC 15, in which, so the Respondent asserted (subs par 16), Her Honour “determined that the relevant [RFD Code] apartment size minimum was that set out in the Rules of Thumb”.

51. It was argued, in the Respondent’s written submissions before me, that, if I were not satisfied that Marana was determinative of the issue, the concept of relevant minimums in cl 30A(1)(b) should be interpreted as the Rules of Thumb for a number of reasons:

1. (At pars 34 – 36) the introduction of the RFD Code includes a section titled “Document Structure and Use”, which provides two examples of “information sheets” (set out above at [38]). The examples provide a brief explanation of the operation of the various components of the information sheets contained within the RFD Code.

2. Relevantly, Rules of Thumb are described as:

... recommend[ing] minimum standards as a guide for local decision making. Minimum standards may vary depending on local context issues and/or if development applicants are able to demonstrate that they have addressed the better design practice guidelines and achieved the stated objectives.

3. This clearly dictates that the relevant recommended minimum standards are contained in the Rules of Thumb.

4. (At pars 38 – 39) Ms Morrish, a town planner who provided expert evidence at the hearing before the Commissioner, and was on the drafting committee for the RFD Code, said in the Joint Expert Report (Appeal Book 2, tab 13, p23):

(i) The table within the [RFD Code] is simply a reference of some apartment sizes which were studied when preparing the Code. They illustrate the internal and external areas of the apartments, which are graphically illustrated on the opposite page. They are examples only.

(ii) In comparison the unit sizes that are considered appropriate as minimums are those contained in the Rules of Thumb at the bottom of page 69. ...

5. This is consistent with what is said of the residual text in the introduction (at p4 of the RFD Code, item 3):

... directive text outlines better design practice guidelines and provides some possible design solutions for achieving these guidelines. The guidelines also provide support in assessing variations of the recommended standards

6. (At pars 39 – 40) the construction advanced by the Appellant has the consequence that there are 9 different minimums, dependent on the type of apartment, and the number of bedrooms. Yet in the expert evidence of the Appellant at the primary hearing, there was no assessment of the unit sizes by reference to these nine minimums. In contrast, the Appellant conceded that the unit sizes comply with the Rules of Thumb (see Tp201, L49).

52. It is necessary for me to draw attention to a fourth reason, advanced by the Council in Mr Hemmings’s oral submissions at the hearing before me.

53. As noted above ([46]), there are five elements in the (primary) Rules of Thumb (i.e. those on p69 of the Code).

54. In disagreeing with Mr Hale, Mr Hemmings made the following comments regarding the fourth of the five Rules of Thumb (set out in [46] above), in its context as coming after the third (Tp23, L34 – p24, L2 – emphasis mine):

“The width of crossover or cross-through apartments over 15 metres deep should be four metres or greater to avoid deep, narrow apartment layout.” Now, it then tells us, “Buildings not meeting the minimum standards listed above.” Now, the council reads that as a reference to the table. That’s how I understand their 24D. With the greatest of respect, it’s patently wrong. “Buildings not meeting the minimum standards listed above must demonstrate how satisfactory daylighting and natural ventilation can be achieved,” particularly in relation to habitable rooms and then C, some other provisions.

So at the moment, properly understood, item 4, using the legend, is a rule of thumb that this instrument itself tells us identifies minimum standards. The first three are identifying minimum standards of depth of apartments and width of apartments so as to ensure that they receive adequate daylight and natural ventilation. But the fourth bullet point then identifies that you may want to depart from these things. What are they? They’re minimum standards. That’s entirely consistent with what the legend tells us that is in a rule of thumb. So we’ve got an entirely consistent approach to the interpretation of the rule of thumb so far, and then we get the relevant provision, apartment sizes.

Consideration

55. As the parties agree that my finding as to the proper construction of cl 30A(1)(b) will be determinative of the Appeal, I turn to consider the following three questions in turn:

1. Is the Appellant bound by its conduct of the proceedings below?

2. Is there legal authority determinative of what “minimums” are stipulated by or in cl 30A(1)(b)?

3. If not, what are the “minimums” referred to in cl 30A(1)(b)?

(a) Is the Appellant bound by its conduct of the proceedings below?

56. The Commissioner noted (at [101]):

Unit size was not raised as a significant matter until final submissions. The experts paid little attention to this matter in their oral and written evidence although it was identified in the contentions.

57. The Respondent submitted before me that the Appellant Council was not entitled to raise this issue on appeal because of the scant attention given to it before the Commissioner (see [23] above).

58. The High Court said in Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418, at 438:

The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. In Connecticut Fire Insurance Co. v. Kavanagh [[1982] AC 473], Lord Watson, delivering the judgment of the Privy Council, said, “When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea.

59. Therefore, I find that the Appellant is not precluded from raising this issue on appeal, and the answer to question (a) is NO.

(b) Is there legal authority determinative of what “minimums” are stipulated by or in cl 30A(1)(b)?

60. The Respondent submitted that Marana ([50] above) is authority for construing cl 30A(1)(b) as referring to the minimums in the “Rules of Thumb” (par 31).

61. Contrastingly, the Appellant submitted (Tp12, LL1 – 2, LL31 – 39) that, on a proper reading of Marana, it was supportive of the construction the Council favours, namely that the recommended areas are those contained in the table.

Marana

62. Marana was, like this case, a s 56A appeal. It challenged the approval at first instance of a modification application lodged by Marana, seeking to increase the number of units in a residential flat development from 76 to 102.

63. Relevantly, ground 6 of the Council’s appeal in Marana was set out by Her Honour (at [3]) as follows:

6. Whether:

(a)   on a proper construction of section 96(2), (3), (4) and section 79(1)(a)(i) of the Act and Clause 30A(1) of [SEPP 65] the Commissioner in considering whether to grant consent to the section 96(2) modification application must not refuse the modification application on the grounds in clause 30A(1)(b) of SEPP No 65.

(b)   on a proper construction of Clause 30A(1)(b) and Part 3 of the [RFD Code] there is a recommended internal area and external area and if so what those recommended areas are;

(c)   the Commissioner erred in her construction of the provisions referred to in (a) and (b).

(d)   the Commissioner erred in holding that the areas in the development as modified would comply with the "areas included in SEPP 65"; and

(e)   the Commissioner erred in holding that Control C6 in DCP 35 in respect of unit size was inconsistent with SEPP 65 and that therefore Control C6 was not required to be taken into consideration pursuant to section 79C(1)(iii) and section 96(3).

64. In Marana, the development complied with the minimums contained in both the table and the Rules of Thumb, so the actual issue in this present matter was not in point before Pain J: Her Honour did not need to determine whether one of those two sources provided the recommended areas referred to in cl 30A(1)(b), to the exclusion of the other.

65. Her Honour said (at [71]):

... Grounds 6(a) (b) (c) and (e) raise the issue of whether the Commissioner erred in not refusing the modification application under s 96(2) because she applied cl 30A(1)(b) (minimum apartment area) of SEPP 65. Within this context ground 6(b) raises specifically the construction of cl 30A(1)(b) of SEPP 65 and the [RFD Code] and whether a recommended internal and external area is identified in the [RFD Code]. Ground 6(d) appears to raise a separate allegation that the Commissioner erred in holding the areas proposed complied with SEPP 65. Ground 6(e) alleges a failure by the Commissioner to take into account DCP 35 cl 3.3.2 control C6 (dwelling sizes) because of an incorrect finding of inconsistency with SEPP 65. The Council's submissions did not address all of these grounds specifically. Ground 6 overlaps with ground 4(a).

66. Her Honour summarised (at [74]) the argument of the Council in relation to the construction of cl 30A(1)(b), as follows:

(ii) Misconstrued SEPP 65 cl 30A and [RFD Code] (ground 6 (b))

Alternatively, the Commissioner erred in her construction of SEPP 65 cl 30A(1)(b) and Pt 3 of the [RFD Code] in holding that the areas in the development as modified would comply with the "areas included in SEPP 65". Subclause 1(b) requires identification of the recommended internal and external area for the relevant apartment type. There are no such areas identified for the relevant apartment type in the [RFD Code]. The table and the "Rules of Thumb" section on p 69 of the [RFD Code] refer to "Building not meeting the minimum standards listed above" but does not refer to "recommended internal area". Clause 30A(1)(b) of the SEPP refers to Pt 3 of the [RFD Code] but is unintelligible. The meaning is unascertainable. It prescribes no restriction on a consent authority refusing a development application on the grounds of apartment size. Ground 6(c) is established in (a) and (b) are accepted.

67. Marana’s submission was summarised (at [76]) thus:

There is no failure to take DCP 35 into account and this ground overlaps with part of ground 4. In relation to ground 6(a), (b) and (e) the meaning and operation of SEPP 65 cl 30A is clear. It calls up recommended internal areas and external areas in the [RFD Code]. In [RFD Code] Pt 3, apartment layout is specified with a table (p 69) identifying "internal area" and "external area" figures for different apartment types. Properly understood this provision is called up by cl 30A. Section 96(3) calls up s 79C. SEPP 65 is therefore relevant together with the [RFD Code]. As it is relevant SEPP 65 can prevail as the Commissioner correctly held.

68. Her Honour found (at [77]):

It is useful to first consider ground 6(b) in relation to the construction of SEPP 65 cl 30A(1)(b) and Pt 3 of the [RFD Code]. The Council submits that these are unintelligible. It is a principle of statutory construction that a meaning which in accordance with the legislative intention produces a reasonable result be adopted, rather than reading a provision as having no practical effect: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320 - 321. Clause 30A(1)(b) of SEPP 65 requires reference to Pt 3 of the [RFD Code] which in turn identifies what are the recommended minimum internal and external areas. The [RFD Code] does not use the precise words of the SEPP, namely, "recommended internal and external area for the relevant apartment type", the nub of the criticism of the Council. When the table and "Rules of Thumb" section on p 69 of the [RFD Code] are read this clearly recommends internal and external areas for different apartment types as referred to in cl 30A(1)(b). The two instruments are clear when read together and there is no unintelligible connection between them. Ground 6(b) is not established.

69. I conclude that Her Honour was not determining whether it was the table or the “Rules of Thumb” which relevantly recommended the areas, but whether there were any discernible areas at all. She found that there were, and that they were contained in the table and the Rules of Thumb, when read together.

70. Accordingly, Marana is not determinative of the issue at the heart of the present matter, and the question of what minimums are in cl 30A(1)(b) of the SEPP falls for proper consideration here.

Botany v the Minister

71. On 10 February 2015, after this present judgment was reserved, Beech-Jones AJ handed down his judgment in Botany Bay City Council v Minister for Planning and Infrastructure (“Botany Bay v the Minister”) [2015] NSWLEC 12, which was heard shortly after I heard this appeal.

72. In that case the Council challenged the legality of an approval granted by the Planning Assessment Commission (“PAC”) for a mixed-use development containing a maximum of 405 residential units.

73. The proposal in that case was assessed pursuant to the regime prescribed by the then Part 3A of the EPA Act, which has now been repealed. Part 3A created a separate regime for approval of developments considered to be major infrastructure, or otherwise of “State or regional environmental planning significance”. Relevantly, “Nothing in Part 3A of the EPA Act required either the Director-General or the PAC to have regard to [SEPP 65]” (at [121]).

74. The proposed unit size was a matter of concern of the Council, which raised the fact that only 17% of the apartments comply with the “internal area requirements in the [RFD Code]” (those contained in the table). In contrast, the proponent submitted to the Director-General that “only 52 apartments will be below the minimum area for apartments as specified in the Affordable Housing SEPP, and, of these 52 apartments, 36 will be less than 1m² under size” (see [44] and [48]).

75. The Director-General did not agree with the Council on this issue stating in his/her report (see [52]):

Council is concerned that only 18% of units would meet the internal area requirements set out in the [RFD Code]. This calculation does not take into account minimum apartment sizes recommended by the Affordable Housing Service within the [RFD Code]

76. The report said (see [52]) that “in general, units should be designed to at least meet the minimum sizes set out in the [RFD Code] as being appropriate to contribute to housing affordability”, those “minimum sizes” being those contained in the Rules of Thumb. The majority of the 52 units which did not comply with the minimum sizes, nevertheless achieved sufficient amenity to justify the non-compliance. It recommended that only three south facing units, which “have neither solar access nor increased open space, should be amended to provide improved levels of amenity”.

77. The PAC granted the approval subject to condition B2 which stated (see [63]):

B2 Prior to the issue of the first Construction Certificate, plans and specifications demonstrating incorporation of the following modifications shall be submitted and approved by the Director General.

(a) Unit sizes shall be amended to meet the requirements of the [RFD Code];

78. This condition went beyond what was recommended in the Director-General’s report.

79. The parties were in dispute as to the proper construction of this condition, namely, whether the “requirements of the [RFD Code]” referred to the apartment sizes in the table, as contended for by the Council ([136]), or the condition referred to the sizes listed in the Rules of Thumb ([156]).

80. His Honour found that the “requirements of the [RFD Code]” in condition B2(a) referred to the sizes in the Rules of Thumb. His reasons for that construction were set out (at [144] – [145]) in these terms:

144 It was unfortunate that the condition B2(a) used the phrase “requirements of the [RFD Code]”. As noted the [RFD Code] does not of itself have the force of law. Moreover the language of the entire document is anything but prescriptive. Thus the [RFD Code] refers to the table in [129] and the apartment designs as merely “provid[ing] information” and as being only “examples” for use as a “comparative tool”. They are said to be useful for “recognising well-organised, functional and high quality apartment layouts”. It does not purport to suggest that the apartment types are mandatory or that the apartment areas listed represent some minimum standard. This is only reinforced by the introductory section of the [RFD Code] noted in [127] which describes the “directive text”, being the area that includes the table noted in [129], as only “outlin[ing] better design practice guidelines and provide[ing] some possible design solutions for achieving the guidelines.” The areas listed in the table noted in [129] simply cannot be described as “[u]nit size requirements”.

145 In general parlance “rules of thumb” do not constitute “requirements”. Instead they are guidelines that lack exactitude. Further the apartment areas listed in the last dot point in [131] are described as able to be used “as a guide” and the areas are ‘suggest[ed]” to be used. However they are far more easily characterised as “requirements” than the table noted in [129]. They are at least described as being “rules” (albeit “rules of thumb”) and are referred to as “minimum apartment sizes” (albeit to be used “as a guide”). Further the rules use more exhortatory language than the descriptive text in that they advise what “should be” done, as opposed to merely “provid[ing] information” and listing “examples” for use as a “comparative tool”. To some extent the description of the “rules of thumb” in [127] support this in that they reiterate their role in recommending “minimum standards” albeit as a “guide for local decision making.”

81. His Honour’s construction of B2(a) as referring to the Rules of Thumb has no direct bearing on the question before me in this case. As his decision dealt with an assessment of the proposal under Pt 3A, SEPP 65, and in particular the proper construction of cl 30A(1)(b), were not considered.

82. However, I agree with His Honour’s observations (at [144] – [145]) that statutory provisions are to be construed in their particular context, with precedence given to their precise wording.

83. I also observe that His Honour, in obiter dicta, discussed some provisions of SEPP 65, including cl 30A(1)(b), which were of tangential relevance to the issue before him. He said (at [123] – emphasis mine):

Part 4 of SEPP 65 is headed “Application of design quality principles”. Clause 28 within Part 4 requires a person who prepares any of an environmental planning instrument, a development control plan or a master plan (or similar plan) to, inter alia, “have regard to the publication Residential Flat Design Code (a publication of the Department of Planning, September 2002)”. Sub-clause 30(2)(c) imposes a similar requirement on the determination of a development application for consent to carry out a residential flat development. Subclause 30A(1)(b) of SEPP 65 precludes a consent authority from refusing development consent on the grounds, inter alia, of (too small) apartment area “if the proposed area for each apartment is equal to, or greater than, the minimum recommended internal area and external area of the relevant apartment type set out in Part 3 of the [RFD Code]”. This appears to be a reference to the table noted in [129] below

84. Although His Honour’s remarks in respect of cl 30A(1)(b) are not authority for the construction propounded by the Council, they suggest that he agrees with the construction of that clause propounded by it here.

Finding on (b)

85. I find, in answer to the second question before me ((b) in [55] above), that neither Marana, nor Botany Bay v the Minister, is determinative of the issue before me.

86. I have been neither taken to, nor successful in finding, any other authority on the point, and I, therefore, answer the question “No”.

87. I must, therefore, now address question (c), namely:

(c) What are the minimums referred to in cl 30A(1)(b)?

88. Specifically, the question is whether, on its proper construction, cl 30A(1)(b) refers to the minimum sizes contained in the table, or those in the Rules of Thumb.

89. In Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28; 194 CLR 355, the plurality (McHugh, Gummow, Kirby and Hayne JJ) said, at [78]:

The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction [56] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

90. In Agricultural Equity Investments Pty Limited v The Hon Chris Hatcher MP, Minister for Resources and Energy, Special Minister [2015] NSWLEC 23, at [34], Pepper J said:

As has been confirmed by a plethora of recent High Court decisions, the task of statutory interpretation begins and ends with a consideration of the text of the statute to be construed. The language must be considered, however, in its context. This includes ascertaining the objective intention, or purpose, of Parliament in enacting the legislation. The context may also include an examination of the legislative history of the statute and any relevant extrinsic materials, but these aids cannot displace the meaning of the text.

91. Clause 30A(1)(b) of the SEPP says:

(1)   A consent authority must not refuse consent to a development application for the carrying out of residential flat development on any of the following grounds:

…

(b)   apartment area: if the proposed area for each apartment is equal to, or greater than, the recommended internal area and external area for the relevant apartment type set out in Part 3 of the [RFD Code].

92. The Appellant submits that the wording of cl 30A(1)(b) dictates that the relevant minimums are those referred to in the table.

93. I agree with this submission for the following reasons.

94. Clause 30A(1)(b) refers to the recommended internal and external areas for the relevant apartment type set out in Part 3. Internal and external areas are set out only in the table. The Rules of Thumb do not delineate between internal and external areas.

95. Words must have import in their context, so cl 30A(1)(b) must be referring to the table, otherwise the reference to “internal and external areas” would make no sense.

96. Similarly, the term “relevant apartment type” clearly refers to the nine apartment types identified in the table (Tp8, LL20 – 26, and subs par 24).

97. The Respondent attempted to counter this argument by stating that the required minimums regarding external areas are dealt with on pages 77 – 78 of the Code (Tp25, LL29 – 35, and see above at [47]).

98. The “Rules of Thumb” on those pages provide that balconies must be provided for all apartments with a minimum depth of 2m, and that developments which depart from these minimums must demonstrate that negative impacts cannot be satisfactorily mitigated with design solutions. Thus, cl 30A(1)(b) is referring to the Rules of Thumb for both internal areas (p69), and for external areas (p72). In other words, when the sub-clause talks about recommended external area, “you need to look somewhere else to find the external minimums” (Tp27, LL18 – 20).

99. However, those “Rules of Thumb” to which counsel of the Respondent referred, provide only for a minimum “depth” for balconies, and say nothing in relation to minimum external area (see above at [47]). Therefore, this submission does not overcome the express wording of cl 30A(1)(b).

100. The crux of the Respondent’s submission was that the introductory information (on p4 of the Code) expressly provides that the Rules of Thumb should be read as providing the “recommended minimums” (see [38] above).

101. Whilst the document may have been drafted with the intention that the “recommended minimums” were those in the Rules of Thumb, the language of the provision to be interpreted must take priority. Clause 30A(1)(b) refers to internal and external areas; hence, the only possible construction available for those words is that they were referring to the table, and not the Rules of Thumb.

102. Similarly, the fact that the relevant “Rules of Thumb” itself refers to providing recommended minimums (Tp23, LL34 – 43) does not overcome the express wording of cl 30A(1)(b).

103. It was also argued that the construction favoured by the Respondent would mean that the “previous two pages” of the RFD Code, which provide information about appropriate design “would be of little or no relevance”, and would be contrary to the aims of the SEPP, namely, to provide quality design outcomes for residential flat buildings across the board. This is because (Tp9, LL20 – 31).

it would mean there would be no basis for refusing a development application for apartments if the apartment sizes were the very bare minimum of affordable housing. In other words, affordable housing standards were to be applied right across the board

104. I agree with that submission.

105. The Respondent referred to the evidence of Ms Morrish, who was on the drafting committee for the RFD Code (see [51] above), and the Council said in response (Tp15, LL16 – 26):

In my learned friend’s submissions, he makes reference to what Ms Morrish thought the code meant. That’s not to the point. It’s to be determined objectively. The intention of the decision maker and the clause is to be determined by reference to the words, not what some individual might think, even if that individual might have played some part. Similarly, nor is it relevant that at one earlier time, as Mr Hemmings refers to, some member of Council had adopted the erroneous construction for which the respondent contends

106. I also agree with this submission by the Council.

107. The intention of Parliament is to be construed objectively, with the precise wording of the statute at the forefront.

108. Although Ms Morrish played a role in the drafting of the RFD Code, her subjective view is, with all respect, irrelevant for the purpose of the Court’s construing SEPP 65. Similarly, the subjective views of relevant Council officers assessing the proposal, which may be influential in settling the assessment practices adopted by Council, cannot influence the correct construction of the SEPP.

109. For the above reasons, I conclude that the “recommended internal and external areas” referred to in cl 30A(1)(b) of the SEPP, are those contained in the table on p69 of the RFD Code.

Costs

110. The parties agreed that in this appeal costs should follow the event, but there was some argument late in the hearing that some of the matter’s history might suggest otherwise in the event of a particular outcome.

111. In those circumstances, I will make a “self-executing order” in favour of the successful Appellant, namely the Council.

Conclusion

112. I, therefore, make the following orders:

1. The Council’s s 56A appeal is upheld.

2. The Class 1 appeal is remitted for further hearing before Brown C, in order for him to determine it in light of these reasons, and the parties are to approach the Registrar within 7 days for a hearing date.

3. Unless the Respondent by Notice of Motion filed within 14 days seeks a different order, the Respondent is to pay the Appellant’s costs of this appeal on a party-party basis, as agreed or assessed.

4. The Appeal Book is returned to the Appellant.

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Decision last updated: 09 April 2015