Castle Constructions Pty Ltd v North Sydney Council - [2007] NSWLEC 459

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459

PARTIES:
APPLICANT:
Castle Constructions Pty Ltd
RESPONDENT:
North Sydney Council

FILE NUMBER(S): 41014 of 2006

CORAM: Biscoe J

KEY ISSUES: Judicial Review :- validity or effectiveness of development control plan or certain provisions thereof - whether invalid because did not achieve purpose of local environmental plan or because council did not form the opinion required by statute or because it was not reasonably open to council to form the opinion - whether certain controls in development control plan inconsistent with provisions of local environmental plan and therefore ineffective to extent of inconsistency - purposive construction

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 70, 74C(1)(a) and (5), 79C(1)(a)
Interpretation Act 1987 ss 8(b), 33
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002

CASES CITED: 7-Eleven Stores v Sydney City Council (2004) 138 LGERA 125;
Al-Kateb v Godwin (2004) 219 CLR 562;
Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229;
Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37;
Bropho v Western Australia (1990) 171 CLR 1;
Butler v Attorney-General (Vic) (1961) 106 CLR 268;
Cabell v Markham 148 F 2d 737 (1945);
Castle Constructions v North Sydney Council [2006] NSWLEC 5;
Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468;
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164;
Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324;
Edwards v Attorney General (2004) 60 NSWLR 667;
Franklins Ltd v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134;
GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116;
Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252;
King v Bathurst Regional Council (2006) 150 LGERA 362;
MCC Energy Pty Ltd v Wyong Shire Council and Others (2006) 149 LGERA 59;
Mills v Meeking (1990) 169 CLR 214;
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24;
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323;
Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559;
North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
Save Our Street Inc v Settree and Another (2006) 149 LGERA 30;
Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532;
Swan Hill Corporation v Bradbury (1937) 56 CLR 746;
Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396;
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797;
Williams v Melbourne Corporation (1933) 49 CLR 142 ;
Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508

DATES OF HEARING: 8, 26 February and 9, 14 August 2007

DATE OF JUDGMENT:
17 August 2007

LEGAL REPRESENTATIVES: APPLICANT:
Mr T F Robertson SC and Mr J Lazarus
SOLICITORS:
Aitken McLachlan Thorpe

RESPONDENT:
Mr M G Craig QC and Ms H P Irish
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

17 August 2007

41014 of 2006

CASTLE CONSTRUCTIONS PTY LTD v NORTH SYDNEY COUNCIL
JUDGMENT

1 HIS HONOUR: This is a challenge to the validity of a development control plan or, alternatively, to the validity or efficacy of some of its provisions. The challenge is mounted under s 74C(1)(a) and (5) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), which provides:

2 The applicable environmental planning instrument is the North Sydney Local Environmental Plan 2001 (LEP).

3 There are three alternative issues. The first issue is one of power. The applicant contends that the respondent, North Sydney Council, had no power to make amendments on 21 September 2006 (2006 Amending DCP) to the North Sydney Development Control Plan 2002 (DCP). The 2006 Amending DCP is attacked as ultra vires because s 74C(1)(a) of the EPA Act is not satisfied in the following respects:

(a) the height, massing and amalgamation controls therein do not achieve the purpose of the LEP. Alternatively, those controls are invalid under s 74C(1)(a) because the respondent took into account an irrelevant consideration, namely cl 30 of the LEP;
(c) council did not form the opinion required by s 74C(1)(a); and
(d) alternatively, if council formed that opinion, it was not reasonably open to it to have done so.

4 The second issue is one of inconsistency. The applicant contends that building height, massing, setback and amalgamation control provisions in the 2006 Amending DCP are inconsistent with provisions of the LEP and, therefore, to the extent of the inconsistency, are ineffective under s 74C(5)(b).

5 The third issue is one of duplication. The applicant contends alternatively that if the height controls provisions in the 2006 Amending DCP simply reflect the application of LEP controls, then they are the same or substantially the same as provisions of the LEP and therefore, to that extent, are ineffective under s 74C(5)(a).

6 The context for these issues is s 79C(1)(a) of the EPA Act which provides that council, in determining a development application, is to take into consideration, inter alia, relevant provisions of a local environmental plan and a development control plan.

THE RELATED MERITS APPEAL

7 In June 2005 the applicant, Castle Constructions Pty Ltd, lodged a development application with the respondent, North Sydney Council, to demolish the existing buildings and erect a 31 storey commercial/residential building comprising basement parking, a podium of five commercial floors and a tower of 26 residential floors, on land at 136 – 140 Walker Street, North Sydney (applicant’s land). The proposed building has a height of RL 162.5 m. The applicant’s land is on the western side of Walker Street, north of Berry Street, in the mixed use zone. The eastern side of Walker Street is a residential zone. South of Berry Street is the commercial zone. In August 2005, council determined the development application by refusing consent.

8 The applicant appealed on the merits to the Land and Environment Court in class 1 of the Court’s jurisdiction. The appeal was heard and dismissed by Senior Commissioner Roseth: Castle Constructions v North Sydney Council [2006] NSWLEC 5. The Senior Commissioner applied the building height plane control in cl 30 of Part 3 Division 5 of the LEP, which applied to part of the mixed use zone including where the applicant’s land is located. A diagram was included in his judgment which showed graphically that the cl 30 building height plane control effectively prevented a building on the applicant’s land rising more than 5 storeys above Walker Street. The building height plane control in cl 30 was thus most unfavourable to the applicant’s development application.

9 The applicant appealed on questions of law from that decision to a judge of this Court pursuant to s 56A of the Land and Environment Court Act 1979. The appeal was upheld by Talbot J in some respects but not in others, and the proceedings were remitted to a Commissioner for redetermination: Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468. The Chief Judge directed, pursuant to s 36 of the Land and Environment Court Act1979, that the remitted proceedings be heard by the Senior Commissioner. Pursuant to s 57(1) and 4(c) of the Land and Environment Court Act 1979, the applicant applied to the Court of Appeal for leave to appeal from the decision of Talbot J on what were said to be two questions of law that his Honour had decided in the negative, adversely to the applicant:

(a) whether cl 30 of the LEP is inconsistent with cl 28D so that by virtue of cl 28A, cl 28D must prevail over cl 30; and
(b) whether when ordering that the proceedings be remitted to a Commissioner for determination in accordance with his Honour’s reasons, his Honour ought to have also ordered that they be remitted to a Commissioner other than the Senior Commissioner, because of apprehended bias.

10 On 27 July 2007, the Court of Appeal by majority decided both questions in the affirmative and allowed the appeal: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164. As to the first question, the majority held that inconsistency existed because cl 28D provided an exhaustive statement on height and massing in the North Sydney Centre. The Court of Appeal ordered that the proceedings be remitted to a Commissioner other than the Senior Commissioner for determination in accordance with the reasons of Talbot J as varied by the reasons of the Court of Appeal to the effect that cl 30 of the LEP shall have no application to that determination.

11 The 2006 Amending DCP was adopted about a month after Talbot J’s judgment. Consequently, the ground has shifted in the merits appeal proceedings, which have not yet been redetermined. The applicant’s response to the 2006 Amending DCP was to commence these proceedings challenging its validity or the effectiveness of some of its provisions.

12 The Court of Appeal heard and determined the appeal from Talbot J after the trial of these proceedings. On the applicant’s application, I postponed finalising my judgment until after the parties had made submissions as to the effect of the Court of Appeal’s decision on the issues in these proceedings. The applicant also applied for and was granted leave to further amend its Points of Claim to give effect to the Court of Appeal’s judgment. The amendments deleted alleged grounds of invalidity or inefficacy based on inconsistency with cl 30 and other provisions of Division 5 of Part 3 of the LEP. The amendments also added as grounds of invalidity and inefficacy that council had wrongly taken cl 30 into account in fixing controls in the 2006 Amending DCP and that cl 28D of the LEP was an exhaustive and exclusive code in the North Sydney Centre.

13 The LEP was made on 1 June 2001. At that time, the area then known as the North Sydney Centre was excluded from the application of the LEP. That area remained governed by the provisions of the LEP’s predecessor, the North Sydney Local Environmental Plan 1989, until Amendment No 9 of the LEP came into force on 28 February 2003. The aims of Amendment No 9 were, relevantly, to amend the LEP:

North Sydney Centre

14 Amendment No 9 inserted cll 28A to 28F into Division 4 of Part 3 of the LEP. Division 4 of Part 3 deals exclusively with the “North Sydney Centre”. That term is defined in cl 28 as the land shown edged in black on Sheet 2 of the map marked “North Sydney Local Environmental Plan 2001 (Amendment No. 9) – North Sydney Centre”. Sheets 1 and 2 show that the applicant’s land is in the North Sydney Centre in the mixed use zone adjacent to land within a residential zone. Division 4 (cll 28 to 28F) of Part 3 makes provision for, inter alia, height and massing controls in respect of buildings in the North Sydney Centre. Division 5 (cll 29 to 32) of Part 3, which came into force before Division 4 on 1 June 2001, deals with building height controls within the mixed use zone throughout council’s local government area.

15 Clause 30, within Division 5 of Part 3, contains building height plane controls for land in the mixed use zone which adjoins or is adjacent to land within a residential or open space zone. Clause 30 therefore purports to apply to the applicant’s land.

16 By virtue of cl 28A of the LEP, the provisions of Division 4 of Part 3 prevail over all other provisions of the LEP to the extent of any inconsistency (except for the heritage provisions). Accordingly, the provisions of Division 4 of Part 3 have primacy over the provisions of Division 5 of Part 3.

17 Clauses 28B and 28D of the LEP form the main basis of the applicant’s case. They are in the following terms:

28B North Sydney Centre objectives

The specific objectives of this Division are as follows:

(f) to allow for 250,000 square metres (maximum) non-residential gross floor area in addition to the estimated existing (as at the commencement of this Division) 700,000 square metres non-residential gross floor area,

28D Building heights and massing

Building heights and massing objectives

The specific objectives of this clause are as follows:

(a) to achieve a transition of building heights generally from 100 Miller Street (Northpoint) and 79–81 Berry Street (being the location of the tallest buildings) stepping down towards the boundaries of the North Sydney Centre,

no adverse impact

North Sydney Local Environmental Plan 2001 (Amendment No 9)—North Sydney Centre

Building heights and massing controls

Consent must not be granted to the erection of a building within the North Sydney Centre, unless:

(a) the height of the building will not exceed RL 195 AHD, and

North Sydney Local Environmental Plan 2001 (Amendment No 9)—North Sydney Centre

(3) State Environmental Planning Policy No 1—Development Standards does not apply to a requirement made by subclause (2) (a), (b) or (c) (including a requirement varied under subclause (4)).

Minor variation of overshadowing controls

particular

Building design and public benefits

18 It is plain, in my view, that the maximum height control of RL 195 AHD in cl 28D(2)(a) must be read subject to the transition of building heights provision in cl 28D(1)(a). Only the tallest building in the centre can achieve that maximum height. Otherwise it is contemplated that there should be a transition generally of heights down towards the boundaries.

19 The maximum non-residential floor space growth objective in cl 28B(f) is qualified by cll 28B(b) and 28C of the LEP, which concern railway infrastructure. Clause 28B(b) requires arrangements for railway infrastructure to be in place before additional non-residential gross floor area is permissible in relation to any proposed development in the North Sydney Centre. Clause 28C provides:

28C Railway infrastructure

Railway infrastructure objective

The specific objective of this clause is to ensure there will be railway infrastructure to accommodate the growth of the North Sydney Centre in accordance with this Division.

Railway infrastructure control

Consent must not be granted to the carrying out of development on any land in the North Sydney Centre if the total non-residential gross floor area of buildings on the land after the development is carried out would exceed the total non-residential gross floor area of buildings lawfully existing on the land immediately before the development is carried out.

Exception railway infrastructure control

Despite subclause (2) but subject to subclause (5), consent may be granted to the carrying out of development on any land in the North Sydney Centre that would result in an increase in the total non-residential gross floor area of buildings lawfully existing on the land, but only if the Director-General has first certified, in writing to the consent authority, that satisfactory arrangements have been made for railway infrastructure that will provide for the increased demand for railway infrastructure generated by the development.

(5) Consent must not be granted in accordance with subclause (3) if the consent authority is satisfied that the increase in non-residential gross floor area authorised under the consent concerned when added to the increases (reduced by any decreases) in non-residential gross floor area authorised under all consents granted in relation to land in the North Sydney Centre since the commencement of this Division would exceed 250,000 square metres.

(6) The Council is to review this Division to determine whether the policy objectives of the Division remain valid and whether the terms of the Division remain appropriate for securing those objectives. The review is to be undertaken as soon as practicable after consent has been granted that would result in the sum of increases (reduced by any decreases) in the non-residential gross floor area authorised under all consents granted in relation to land in the North Sydney Centre since the commencement of this Division exceeding 200,000 square metres.

, non-residential gross floor area

20 Section 74C(1)(a) of the EPA Act refers to the “purpose” of an environmental planning instrument. An issue in the case is whether the purpose of the LEP is reflected in the general and specific aims of the LEP set out in cll 2 and 3 (in Part 1) or whether (as the applicant submitted) its purpose extends to objects and controls expressed in cll 28B and 28D of the LEP, or whether (as council submitted) its purpose should be formulated in some other way. Clauses 2 and 3 of the LEP provide:

2 General aims of this plan

The general aims of this plan are:
(a) promotion of ecologically sustainable development, and
(b) development that is appropriate to its context and enhances the amenity of the North Sydney community and environment, and
(c) enhancement of opportunities for public participation in environmental planning and assessment.

3 Specific aims of this plan
The specific aims of this plan are:
(a) in relation to the character of North Sydney’s neighbourhoods, to:
(i) promote the character of the neighbourhood and development which is compatible with neighbouring development in terms of bulk, scale and appearance, and
(ii) maintain a diversity of activities while protecting residential accommodation and local amenity, and
(iii) ensure that development on foreshore lands or land visible from the harbour or any public place does not adversely affect the appearance of that foreshore land, or the views of that land from the harbour or public place, and
(b) in relation to residential development, to:
(i) protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development, and
(ii) maintain and provide for an increase in dwelling stock, where appropriate, and
(iii) prevent the expansion of non-residential uses in residential neighbourhoods, and
(c) in relation to non-residential development, to:
(i) maintain a diversity of employment, services, cultural and recreational activities, and
(ii) ensure that non-residential development does not adversely affect the amenity of residential properties and public places, including adverse affectation by reason of the use, design, bulk, scale or appearance of the development, or the traffic generation and parking associated with the development, and
(iii) maintain waterfront activities and ensure that these activities do not adversely affect local amenity and environmental quality, and
(iv) minimise adverse effects of all permitted non-residential development and non-conforming uses or development, and
(d) in relation to environmental quality, to:
(i) maintain and protect natural landscape, topographic features and natural ground surfaces, and
(ii) improve soil quality and regulate the remediation and development of contaminated land, and
(iii) minimise storm water run-off and its adverse effects and improve the quality of local waterways, and
(iv) minimise atmospheric pollution and its adverse effects, and
(v) minimise noise emissions and their adverse effects, and
(vi) preserve and protect flora and fauna, and
(vii) promote the efficient use of energy and resources, and
(viii) minimise waste generation, including waste to landfill, and
(e) in relation to environmental heritage, to:
(i) identify and encourage the conservation of the heritage of North Sydney, including heritage items, heritage conservation areas, Aboriginal sites, bushland, parks, foreshores and trees, and
(ii) ensure that development does not adversely affect the significance of the heritage of North Sydney (including heritage items, heritage conservation areas, Aboriginal sites, bushland, parks, foreshores and trees), and
(f) in relation to community well-being, to:
(i) provide for the growth of a permanent resident population and encourage the provision of a full range of housing, including affordable housing, and
(ii) encourage the expression of community identity and cultural diversity, and
(iii) ensure the social and economic effects of development are appropriate, and
(iv) ensure good management of, and investment in, the community’s assets, and
(g) in relation to cultural resources, to:
(i) ensure that development does not adversely affect the quality, amenity and value of cultural resources, and
(ii) ensure that development does not impede access to cultural resources, and
(iii) ensure that development does not adversely affect the presentation to streets and other public places of cultural resources.
(h) in relation to the foreshore areas of North Sydney, to improve access by acquisition or dedication or by gaining rights of public access over foreshore land where it will not diminish the natural values of the foreshore.

THE DCP

21 The DCP was adopted by council on 18 February 2002. It came into force on 21 February 2002.

22 On 20 March 2003, council amended the DCP to include “character statements” for each of North Sydney’s neighbourhoods (DCP Character Statements). “Character statement” is defined in the LEP as follows:

character statement means a statement that:

(a) identifies the desired character for a neighbourhood within the North Sydney local government area described in the statement, and

23 “Character of a neighbourhood” is defined in the LEP as follows:

character of a neighbourhood within the North Sydney local government area means the combination of features (including environment, built form, landscape, community and function) that makes the neighbourhood distinctive.

24 There appears to be no requirement that a character statement adopted by a council must be incorporated in a development control plan, although that is what the respondent did.

25 Two of the DCP Character Statements apply to the applicant’s land. One is the character statement in respect of the whole of the North Sydney Centre Planning Area (NSCPA Character Statement). The North Sydney Centre identified in the LEP is within the North Sydney Centre Planning Area. The other is the more specific character statement which applies to the Central Business District (CBD) of North Sydney (CBD Character Statement). The CBD is identified in s 1.1 of the DCP Character Statements and is substantially the same area as the North Sydney Centre identified in the LEP.

26 The NSCPA Character Statement, under the heading “Quality Built Form”, states “Buildings are stepped down from Northpoint (100 Miller Street) and Shopping World (79-81 Berry Street) towards the boundaries of the Centre”. This is reflective of cl 28D(1)(a) of the LEP. Similarly, section 1.1.h.i of the CBD Character Statement states:

h. Skyline

27 Between 20 March 2003 and 21 September 2006, the CBD Character Statement in figures 1.1 and 1.2 contained two notional arcs or domes showing the stepping down of building heights along, respectively, Miller Street and Berry Street, from the tallest buildings (100 Miller Street and 79 – 81 Berry Street) towards the boundaries of the North Sydney Centre. This seems to have been an attempt to reflect the specific building height objective of Division 4 of Part 3 of the LEP stated in cl 28D(1)(a). Figures 1.1 and 1.2 also showed each existing building and, in light grey (barely discernible in the copy in evidence), its maximum increase in height to the point of the arc immediately above. Neither arc showed the applicant’s land. The nearest arc to the applicant’s land was that shown in figure 1.2 which appeared to show the profile of buildings on the southern side of Berry Street.

28 According to the DCP, its character statements are the “desired future outcomes” for each of North Sydney’s neighbourhoods. The CBD Character Statement states that “it is the desired future outcome specifically for development in the Central Business District (CBD) of North Sydney”. The introduction to the 2003 amendments to the DCP, under the heading “Relationship of Character Statements to other planning instruments”, states:

These character statements describe the character of neighbourhoods for the purposes of the LEP 2001 (LEP) and are to be used in conjunction with that plan and the DCP 2002 (DCP).

The character statements are development controls and do not have the same function of the statutory requirements in the LEP. They are applied in the same way as development controls in the DCP. The character statements describe the general characteristics of the desired future outcomes for each area.

Refer to the map provided for the planning area and character statement that applies to your property.

29 The role of the DCP Character Statements is also detailed in the following passage in the DCP:

Character statements have been developed to encourage development that is more appropriate to its context, the environment and more acceptable to the community

…
The North Sydney Development Control Plan 2002 is intended for use by property owners, developers and the community, and provides outcomes and minimum standards expected by Council.

- according to its merits

- in the context of the site and locality

- how it satisfies the objectives and provisions of the North Sydney Local Environmental Plan 2001

in addition to the objectives and provisions of the North Sydney Development Control Plan 2002.

…

The DCP provides objectives and controls for any development within the North Sydney Local Government Area. The provisions of the DCP will assist in achieving the desired character, urban design and community outcomes for the North Sydney Local Government Area.

…

THE 2006 AMENDING DCP

30 The 2006 Amending DCP was adopted by council on 11 September 2006. It made, inter alia, the following changes to the CBD Character Statement, which the applicant impugns.

31 First, it imposed new maximum building heights on all buildings in the CBD, as follows. It deleted the reference to figures 1.1 and 1.2 at the end of section 1.1.h.i (quoted above at [26]) of the CBD Character Statement and deleted those figures. In lieu, it introduced section 1.1.fa which provides:

fa. Building Heights

Building Height Map – North Sydney CBD

32 The Building Height Map shows the maximum building height for every building in the CBD, represented as reduced levels (RLs), most of which are less, and one of which is more, than the maximum height of RL 195 referred to in cl 28D(2)(a) of the LEP. The applicant contends that these maximum building heights, insofar as they are more or less than RL 195, fail to achieve the purpose of the LEP, and are inconsistent with the maximum height control of RL 195 in cl 28D(2)(a) and the transition of building heights objective in cl 28D(1)(a) of the LEP. The Building Height Map specifies a maximum building height of RL 103 for a building on a site comprising the applicant’s land and adjacent land immediately to the north.

33 Second, the 2006 Amending DCP amended section 1.1.k.iii of the CBD Character Statement, entitled “Setbacks”, as indicated in the following tracked changes:

k. Setbacks

…

~~Both sides of Walker Street maintain 5 m setback from kerb alignment;~~

The applicant’s land is on the western side of Walker Street, north of Berry Street, in the mixed use zone. Thus, the setback on the applicant’s land from the kerb alignment was increased from 5 metres to 7 metres.

34 Third, the 2006 Amending DCP introduced new massing provisions. The 2006 Amending DCP provided in section 1.1.oa of the CBD Character Statement:

Additional setbacks (for solar access, residential amenity and urban form)

Site 03 – 136 – 142 Walker Street

PLANNING REVIEW LEADING TO THE 2006 AMENDING DCP

35 The 2006 Amending DCP was a response by council to a review, initiated in June 2005, of the North Sydney Centre planning controls. The planning review included consultation, 3D modelling and a comprehensive review of previously modelled development potential.

36 On 8 May 2006 council received two reports dated 1 May 2006 from council officers. One recommended that council resolve to prepare a draft local environmental plan for the North Sydney Centre and to adopt the draft instrument attached for exhibition (May 2006 LEP report). The other recommended that council resolve to prepare a draft development control plan to amend the DCP and to adopt the draft instrument attached for exhibition (May 2006 DCP report). Incorporated in both reports were building height controls represented as reduced levels (RLs) for all properties in the North Sydney Centre.

37 The May 2006 LEP report stated:

1. To create greater certainty in the outcomes of the North Sydney Centre planning controls with respect to the:

a. built form of the fringe mixed use zones, and
b. the commercial potential of the central business district.

2. To facilitate built form outcomes that:

…

The anticipated outcomes arising from the planning review proposals do not greatly differ from the current planning controls. The current planning controls, specifically the building height plane and the composite shadow area, have been used to analyse and develop the proposed planning controls .

It is intended to ultimately remove the composite shadow area leaving building height determined by reduced levels (RLs) and built form defined by setbacks and separations and amalgamation criteria. The proposals will convey development certainty in a more direct manner.

…

The LEP allows for an additional 250,000 m2 of commercial floor space that will accommodate approximately 12,500 additional workers. The new floor space will be contained within the existing boundaries of the commercial area so there will be no expansion into surrounding residential areas or loss of residential accommodation.

The release of additional floor space in the Centre is predicated on an agreement with the State Government to upgrade North Sydney Station. Amendment No. 9 provides for satisfactory transport arrangements to be in place prior to Council being able to accept and consider a development application for additional commercial floor space in the Centre. The satisfactory arrangements refer to the upgrade of North Sydney Station. This upgrade has been negotiated with the State Government, through a signed deed of agreement (Railway Contributions Deed), and is to be implemented partially through developer contributions.
…

1. Building Height to be determined by RL height;

2. Removal of the composite shadow area and building height plane control;

3. Building height definition includes plant and lift overruns…

4. Reductions to the non-residential floor space ratio for mixed-use zones;

5. Removal of the minor variation clauses for the special area;

6. Expansion of commercial zoning into Miller and Berry Streets;

7. Strengthening of design quality and urban design provisions.

(emphasis added)

38 The May 2006 DCP report, which proposed amendments to the DCP Character Statements, stated:

The CBD review was initiated in June 2005, in response to concerns held regarding the development certainty in the fringe mixed areas on Pacific Highway and Walker Street, and also in respect of the development potential of North Sydney’s commercial core. The lack of certainty that the primary height controls provide (ie composite shadow area and special area controls), and the ability of these controls to achieve the 250,000 sqm of commercial development under LEP 2001 – Amendment No 9, have been cited as primary concerns by both the Department of Planning and the development industry.

It is considered that definitive planning controls that address acceptable built form would respond appropriately to the above concerns and provide certainty to the community.

…

CBD Heights and Setbacks
As an interim measure it is proposed to incorporate the proposed heights for the CBD in the DCP. These can then be relied on while the amendment is being processed. The proposed heights and setbacks are based on the existing controls, (composite shadow area, Building Height Plane, context and residential amenity) and therefore, are considered not to derogate the existing LEP controls.

…

Conclusion

39 The May 2006 DCP report commented on the specific amendments proposed for the DCP Character Statement. The comments in relation to the new section 1.1.fa relating to building heights and a Building Height Map use: “replaces dome controls” and “incorporates Draft LEP building heights”. The comments in relation to the new section 1.1.oa regarding setbacks were that it adds a “setback diagram” and “incorporates Draft LEP setbacks”. The comment in relation to the new section 1.1.faa concerning amalgamation criteria, which adds criteria to be considered to determine feasibility of amalgamation sites, was “supports floor plate objective and discourages orphaned sites”.

40 A memorandum of 8 May 2006 to all councillors from council’s Manager Strategic Planning in relation to the proposed maximum building heights in the DCP for all buildings in the North Sydney Centre, stated:

The building heights have been incorporated in the DDCP [draft DCP] as an interim measure. The reason for this is that it may take some time to get permission from the NSW Department of Planning to exhibit the DLEP [draft LEP], and then some time post exhibition for gazettal…While the DDCP heights will not have statutory weight, they will provide Council and the community with some certainty as to the development outcomes in the Centre…

It is important to remember that the building heights have been determined to approximate development outcomes that would be achievable under the current controls, as currently interpreted by Council’s Assessment Officers . These controls include the Composite Shadow Control, the Special Areas Shadow Control, the no loss of residential amenity control and the step down control that aims at achieving a relativity between the tallest development in the centre and the low scale development on the fringe of the centre. For this reason it is Council officers’ opinion that the incorporating [of] the building heights into the DDCP do not derogate from the current LEP and is justifiable.

41 A report to council of 31 August 2006, regarding proposed amendments to the DCP from council’s Strategic Planner and council’s Acting Manager Strategic Planning (August 2006 DCP report) noted that the two reports of 1 May 2006 had been considered by council at a meeting on 14 August 2006. It recommended that council approve the draft development control plan with alterations. Adoption of the draft development control plan by council occurred on 11 September 2006, to take effect on 21 September 2006. Some of the alterations adopted by council increased the building heights from that originally proposed. The August 2006 DCP report, consistently with the memorandum of 8 May 2006, stated:

The proposed heights were derived by Council officers – in consultation with Councillors – only after applying all relevant controls to each site – not just the composite shadow area. Council and Councillors see the controls and objectives to step down and provide relativity in scale as being of great importance at this commercial/residential interface. This a long established position.

The RL heights have been developed on the basis of compliance with the current planning controls

The objectives and controls included

· stepping down objectives in the LEP and DCP

· 28D Building heights and massing section

· Mixed use objectives

· Building height plane…

(emphasis added)

42 The reports and memorandum to which I have referred evidence an intention that the maximum heights in the 2006 Amending DCP represented the heights achievable after applying all relevant current planning controls with the object of providing the community and council with some certainty as to development outcomes.

43 Section 74C(1)(a) of the EPA Act provides:

(a) to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned.

44 The applicant attacks the 2006 Amending DCP as ultra vires because it does not satisfy s 74C(1)(a) in the following respects:

(a) building height, setback, massing and amalgamation controls in the 2006 Amending DCP do not achieve the purpose of the LEP. Alternatively, those controls are invalid because the respondent took into account an irrelevant consideration, namely cl 30 of the LEP;

(b) council did not form the opinion required by s 74C(1)(a); and

(c) alternatively, if council formed that opinion, it was not reasonably open to it to do so.

45 The fundamental question is whether the DCP is within the scope of what the legislature intended when enacting s 74C(1)(a), which empowers a relevant planning authority to make a development control plan. “In considering the validity of any provision adopted in the supposed exercise of a limited power of a legislative nature, the first and often the most decisive step is to ascertain the true scope of the measure impugned and the legal effect it would produce”: Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 756, cited in Winn v Director-General of National Parks and Wildlifeand Others (2001) 130 LGERA 508 at [35] (NSWCA).

46 As to the first respect, the applicant contends that the 2006 Amending DCP does not “achieve the purpose” of the LEP for the following reasons:

(a) the height controls in the 2006 Amending DCP are contrary to the building height controls in cl 28D(2) and (4) of the LEP.
(b) the reduction in building heights in the 2006 Amending DCP will not achieve the objective of Division 4 of Part 3 of the LEP stated in cl 28B(f), for an additional 250,000 square metres of non-residential gross floor area.
(c) the height controls in the 2006 Amending DCP are contrary to the objective of cl 28D of the LEP stated in cl 28D(1)(a), to achieve a transition of building heights from the tallest buildings stepping down towards the boundaries.
(d) the reduction in building heights in the 2006 Amending DCP is contrary to the specific objectives of Division 4 of Part 3 of the LEP stated in cl 28B(a), (b) (c), (h), (j), (k), (l), (m), (n) and (p) of the LEP.
(e) the height controls in the 2006 Amending DCP are based at least in part on the operation of cl 30 of the LEP, the building height plane provision, which the Court of Appeal has held is inapplicable.
(f) the effect of the massing provisions, height controls and section 1.1.oa of the 2006 Amending DCP (“ new amalgamation controls”) will be to require amalgamation of the applicant’s land with adjoining land and prevent erection of any building on the applicant’s land which does not include the adjoining land. This defeats the purpose of the building height provisions in cl 28D(1) of the LEP by rendering cl 28D of no utility.

47 The applicant pleaded, but did not press in submissions, that mere inconsistency between a particular provision of the 2006 Amending DCP and a particular provision of the LEP constitutes a breach of s 74C(1)(a). Such a proposition would not be sustainable. It is apparent from s 74C(5)(b) that where a provision of a development control plan is inconsistent with a provision of an applicable local environmental plan, the legislative response is not that the planning authority has acted without power or that the plan is invalid, but that the provision has no effect to the extent of the inconsistency. Therefore, inconsistency between a provision of a development control plan and a provision of an applicable local environmental plan cannot be the test of whether the prescribed purpose has been achieved under s 74C(1)(a).

48 Questions of construction arise in relation to whether the test posited by s 74C(1)(a) is objective or subjective and the meaning of the words “purpose” and “to achieve”.

49 The applicant submitted, first, that under s 74C(1)(a), the 2006 Amending DCP must be construed objectively, in the sense that it must achieve the purpose of the LEP to be valid; and, secondly, that the 2006 Amending DCP did not achieve the purpose of the LEP because a number of its provisions are contrary to, and defeat the purposes of, the LEP as stated in cll 28B and 28D.

50 Section 74C(1)(a) contains two chained limbs, both anchored to the chapeau. The first limb is “to make more detailed provision with respect to development” (the details limb). The second limb is to “to achieve the purpose of an environmental planning instrument applying to the land concerned” (the purpose limb). Both limbs are anchored to whether council “considers it necessary or desirable” to do that which they specify. The legislature has given to the relevant planning authority, not the Court, the task of forming a view as to whether it is necessary or desirable to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument. That is a subjective question. The existence of that mental state is an essential condition to the exercise of power to make a development control plan : Franklins Ltd v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134 at [28]; GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116 at [124]. The power is also limited by the two limbs.

51 Construction of the details limb is governed by the Court of Appeal’s decision in North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23. That case was concerned with the predecessor to s 74C, the former s 72, which relevantly provided that: “(1) Where a council considers it necessary or desirable to provide more detailed provisions than are contained in a local environmental plan…in respect of a part or parts of the land to which that plan…applies, it may prepare or cause to be prepared a development control plan…(3) Such a development control plan shall generally conform to the provisions of the local environmental plan…which applies to the land to which the development control plan applies”. The former s 72(1) was substantially to the same effect as the current s 74C(1)(a) except that it did not expressly include the purpose limb. The Court of Appeal held that a development control plan provision which restricted the height of residential flat buildings in a particular zone to three storeys, generally conformed to a local environmental plan that permitted (with consent) residential flat buildings within that zone. Cole JA (with whom Abadee AJA and Meagher JA agreed) held at 31:

A provision in a Development Control Plan which says that a consent may be granted only if certain conditions are satisfied, or a consent may not be granted if certain conditions are not satisfied, simply specifies more detailed criteria or provisions which must be met before the development which may be permitted with consent under the North Sydney Local Environmental Plan can be granted…I see no reason why a development control plan, in providing more detailed planning considerations may not, by imposing criteria by way of restriction or specification of necessary requirements to be met before the development consent contemplated by a North Sydney Local Environmental Plan is granted, should not be regarded as conforming with the wider North Sydney Local Environmental Plan. In my opinion that aspect of the decision in Guideline Drafting [ & Design v Marrickville Municipal Council (1988) 64 LGRA 275] should be regarded as wrongly decided…A detailed plan which contained a provision contrary to the wider plan would not be in conformity with it, but a provision which is restrictive or prohibitive unless certain conditions are met is not such a contrary provision.

Cole JA also said at 30:

Generally the development control plan must conform to the North Sydney Local Environmental Plan (s 72(3)). However that does not mean that where a use is permissible with consent under a North Sydney Local Environmental Plan, more detailed provisions regarded as desirable or necessary and specified in a development control plan may not regulate the circumstances in which a use is permissible with consent. There is no reason in principle why those provisions would not have the character either of a prohibition unless certain criteria are satisfied, or of a development standard , which permits a development only on satisfaction of certain criteria.

52 The Ligon test has been approved and applied as the appropriate test: 7-Eleven Stores v Sydney City Council (2004) 138 LGERA 125 at [25] and the cases there cited. The 7-Eleven case was concerned with a challenge to a provision of a development control plan under the former s 72 of the EPA Act. Convenience stores were a permissible use in the relevant area under the Central Sydney Local Environmental Plan 1996. The council adopted a development control plan, cl 4.2 of which restricted permissibility by prohibiting the location of a convenience store within 75 metres of another convenience store. Applying Ligon, Lloyd J held that cl 4.2 was valid.

53 The applicant does not suggest that the details limb of s 74C(1)(a) is not satisfied in the case of the 2006 Amending DCP. That limb , in my view, is satisfied, on the authority of Ligon and 7-Eleven.

54 The second form of limitation of power in s 74C(1)(a) involves purpose. If there is an exercise of power for a purpose outside s 74C(1)(a), it is ultra vires. In Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 82 Dixon J said:

Narma v. Bombay Municipal Commissioner

There are forms of legislative authority, such as in Clanricarde's Case (1914) 79 J.P.481; 31 T.L.R 120 and in Municipal Council of Sydney v. Campbell (1925) A.C. 338 where a given `purpose' is made an express condition of exercising the power. If that `purpose' is not pursued, the power is not exercisable, and therefore the facts are examinable in order to ascertain what purpose was in view

Jones v. Metropolitan Meat Industry Board

Werribee Council v. Kerr

Clanricarde's Case

Campbell's Case

55 The purpose limb in the current s 74C(1)(a) is said by the applicant to strengthen the requisite nexus between the DCP and the LEP. I am inclined to think that it makes explicit what was implicit in the former s 72(1), consistently with a purposive construction. In other words, the old s 72(1) did not authorise a council to provide more detailed provisions, which it considered necessary or desirable, in a development control plan if they could not reasonably be viewed as achieving the purpose of an applicable local environmental plan. Be that as it may, the purpose limb has to be addressed in the present case.

56 What is the purpose of the LEP, of which s 74C(1)(a) speaks? The singular “purpose” may be construed to include the plural “purposes”: s 8(b) Interpretation Act 1987 (NSW). The applicant submitted that purpose or purposes in s 74C(1)(a) means any of the stated purposes, objectives or controls of the LEP including the non-residential gross floor area objective of Division 4 of Part 3 expressed in cl 28B(f), the transition of building heights objective of cl 28D(1)(a), and the maximum height control in cl 28D(2)(a). The last is not expressed as an objective but as an exception to a prohibition. The applicant’s submission equates a stated “objective” of a particular Division or clause of the LEP, and even a stated control in an LEP, with the purpose of the LEP.

57 In contrast, council submitted that the general and specific aims in cll 2 and 3 of the LEP collectively permit an understanding of the purpose of the LEP, and that it is erroneous to express its purpose in terms of a specific object or control in cll 28B and 28D. Council submitted that the purpose of the LEP is to control the density and height of development in the North Sydney Centre, such that the development meets a balance between the maintenance of the Centre as a major commercial centre, whilst also addressing the impacts upon amenity of residents and office workers within the Centre, as well as addressing the impact upon adjoining areas, particularly those zoned for residential purposes.

58 In approaching the interpretation of s 74C(1)(a), there should be taken into account that it is couched in terms of some generality. It is concerned with a precondition to the power of a planning authority to prepare a development control plan. It directs attention to the purpose of an applicable environmental planning instrument, not to the purpose of a particular provision or provisions of an applicable environmental planning instrument. It stands in contrast to s 74C(5)(b) which is concerned with inconsistency between particular provisions.

59 Courts are familiar with the task of identifying the purpose of legislation when interpreting legislation. The importance of a purposive construction was vividly described by Justice Learned Hand in Cabell v Markham 148 F 2d 737 (1945) at 739:

…the decisions are legion in which [the courts] have refused to be bound by the letter, when it frustrates the patent purpose of the whole statute…As Holmes J said in a much-quoted passage from Johnson v United States 163 F. 30, 32, 18 L.R.A.N.S., 1194 : it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before… Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

60 The common law rule that legislation should be interpreted so as to achieve its underlying purpose is now reformulated in statutory form in all Australian jurisdictions: Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation Act 1987 (NSW) s 33; Interpretation of Legislation Act 1984 (VIC) s 35(a); Acts Interpretation Act 1954 (QLD) s 14A; Acts Interpretation Act 1915 (SA) s 22; Interpretation Act 1984 (WA) s 18; Acts Interpretation Act 1931 (TAS) s 8A; Legislation Act 2001 (ACT) s 139; Interpretation Act (NT) s 62A. Section 33 of the Interpretation Act 1987 (NSW) provides:

61 Thus, a court is required to choose a construction which, in its judgment, meets the underlying legislative purpose. Section 33 suggests that the underlying purpose and the underlying object are synonymous.

62 In the High Court today, legislation is construed to give effect, so far as its language permits, to its purpose: Al-Kateb v Godwin (2004) 219 CLR 562 at 622 per Kirby citing Bropho v Western Australia (1990) 171 CLR 1 at 20; and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 – 382. The interpretation legislation moves beyond the common law, which requires an ambiguity or inconsistency before a court can have regard to the purpose. The interpretation legislation requires the legislative purpose to be taken into account in construing legislative provisions, “not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open”: Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J. There is a limit because the interpretation legislation requires a court to construe legislation, not to rewrite it, in light of its purposes (ibid). Sometimes, however, it is “difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language”: Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 at 1804 per Heydon J (McHugh ACJ, Gummow, Kirby and Hayne JJ agreeing).

63 In applying a purposive approach, the legislative purpose must be identified. The purposive construction rule assumes that the purpose is identifiable. It is sometimes not easy to discern the purpose of legislation. The task is facilitated where the modern practice is followed of including in the legislation a statement of its purpose or purposes. Since 1985 the first section of each Victorian Act has contained a statement of the statutory purpose or purposes of the Act. In other jurisdictions a statement of the purpose or purposes is sometimes included in an Act. For example, in New South Wales, the “purposes” of the Local Government Act 1993 (NSW) are stated in s 7 and the “objects” of the EPA Act are stated in s 5. It appears that the word “purposes” in the former and the word “objects” in the latter are used synonymously. A purpose statement is a modern variant of the statutory preamble, which has fallen into disuse. The long title of legislation may also set out its purposes in whole or in part, in general terms: eg Criminal Procedure Act 1986 (NSW). Mr Francis Bennion, Statutory Interpretation, (3rd ed) 731 states that “the purpose or object of Parliament in passing an Act, other than a purely declaratory Act, is to provide an appropriate remedy to serve as a cure for the mischief with which the Act deals”. On this view, a purpose statement in legislation should state its purpose by identifying the mischief with which it deals and the remedy which it provides.

64 In the absence of an express, adequate statement of purpose, the purpose of legislation has to be deduced by a consideration of the provisions of the legislation: Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at 579.

65 The underlying purpose of a statute, however ascertained, is often broad, unlike the legislative intention in relation to a specific provision. An example of a particularly broadly stated statutory purpose appears in Edwards v Attorney General (2004) 60 NSWLR 667 at [76] – [77] where Young CJ in Eq (with whom Spigelman CJ and Mason P generally agreed) said:

The purpose of the Corporations Act and its predecessor was for permitting the economy to be advantaged by such entrepreneurial ventures with limited liability and to regulate the rights of members inter se, the rights between members and creditors of corporations.

66 The LEP contains no express reference to “purpose” or ”purposes” except in the irrelevant sense that Part 2 refers to the development which may be carried out in the various zones by using the prefatory words “Development for the purpose of…”. However, the LEP does refer to the “general aims of this plan” and the “specific aims of this plan” in cll 2 and 3 in Part 1, including in cl 3(a) in relation to the character of North Sydney’s neighbourhoods. Clauses 2 and 3 are set out above at [20].

67 Part 2 (cll 9 – 14) of the LEP is entitled “GeneralProvisions for the development of land” and refers, in relation to each zone, to the “particular objectives of this zone”. Part 3 (cll 15 to 42) of the LEP is entitled “Special provisions” and defines the “specific objectives” of various “controls”. They include, for example, subdivision controls, building height plane controls and landscaped area controls.

68 Division 4 (cll 28 to 28F) of Part 3 of the LEP is the main focus of the applicant’s case. Division 4 is entitled “North Sydney Centre”. The “specific objectives of this Division” are set out in cl 28B, quoted above at [17]. The succeeding clauses of Division 4 deal with discrete subjects, including railway infrastructure (cl 28C) and building heights and massing (cl 28D), and each refers to the “specific objectives of this clause”. Divisions 5 and 6 of Part 3 refer to the mixed use zone and the waterfront zone. Each of their clauses refers to the “specific objectives” of the specified “controls” in those zones.

69 Thus, it can be seen that the LEP contains general and specific aims of the LEP, objectives of zones, objectives of particular clauses and, in cl 28B, specific objectives of Division 4 of Part 3. The distinction between aims of the plan, objectives of zones and objectives of controls is acknowledged in cl 14 of the LEP:

14(1) When considering a development application, the consent authority must take into account the aims and objectives stated in this plan.

70 In my opinion, the purposes of the LEP are to be found in its general and specific aims stated in cll 2 and 3 of the LEP. They are the only clauses of the LEP that identify the aims, objects or purposes of the LEP per se. Section 74C(1)(a) of the EPA Act is expressly concerned with the purpose of an applicable “environmental planning instrument”, not with a more limited purpose or object of a particular provision or division of an environmental planning instrument, such as those in cll 28B or 28D(1) of the LEP. Nor is it expressed to be concerned with specific controls such as those in cl 28D(2) of the LEP. Such matters fall to be considered under s 74C(5)(b), if there is inconsistency.

71 This conclusion is fatal to the applicant’s invalidity case based on absence of power under s 74C(1)(a), except for the cl 30 or irrelevant consideration point. Except for that point, the applicant’s case assumes that the objects and controls referred to in cll 28B and 28D of the LEP are relevantly the purposes of the LEP referred to in s 74C(1)(a).

72 Leaving aside the cl 30 or irrelevant consideration point, to which I will return, the strongest aspect of the applicant’s purpose limb case that I have rejected is the proposition that a purpose of the LEP includes the objective of Division 4 of Part 3 stated in cl 28B(f). It is the strongest rejected aspect because cl 28B sets out the objectives of an entire Division of the LEP, Division 4 of Part 3, which is concerned with the North Sydney Centre. The other rejected aspects of the applicant’s purpose limb case are weaker because they equate a purpose of the LEP with an objective of a particular clause (particularly cl 28D(1)(a)) or merely with a specific control (particularly cl 28D(2)(a)). Because it is the strongest rejected aspect of the applicant’s case, I propose to address the applicant’s cl 28B(f) submission on the alternative basis that my conclusion is in error and that the purposes of the LEP include the objective of Division 4 of Part 3 expressed in cl 28B(f).

73 Clause 28B(f) provides:

28B The specific objectives of this Division are as follows:

74 The term “to allow for” in cl 28B(f), the applicant submitted, means “to make an allowance for”. I accept the submission. So this objective is to make an allowance for a maximum additional 250,000 square metres of non-residential floor space, subject to the qualifications in cl 28B(b) and cl 28C concerning railway infrastructure discussed earlier.

75 The applicant submitted that the controls in the 2006 Amending DCP, primarily the height controls, will prevent achievement of the additional 250,000 square metres maximum non-residential gross floor space objective in cl 28B(f) of the LEP, and that s 74C(1)(a) of the EPA Act was therefore breached because a purpose of the LEP was not achieved.

76 The applicant sought to demonstrate that it will not achieve that target by propounding in a lengthy, detailed and technical critique that there were errors in a study in a report before council by SJB Architects. They include alleged errors of judgment, such as whether sites referred to in the study are likely to be developed at all or to the extent estimated in the study. The SJB study was referred to in another report to council dated 1 May 2006 by Council's Strategic Senior Planner, adopted by council on 8 May 2006. That report refers to an accompanying “yield analysis [which] is vital to provide an indication as to the development potential available under the planning proposal”. This “yield analysis” was the SJB study. That was a study of 17 selected sites in the commercial core of the North Sydney Centre. The SJB study said that five of the sites “have development potential identified under the review, however such sites have not been included for development yield analysis”. The study concluded that the remaining 12 sites were expected to yield an additional commercial gross floor area of 337,353 square metres. If it be relevant, there was a peer review of the SJB study shortly after council made its decision, which slightly increased the estimated yield from the 12 commercial sites.

77 The applicant argued that correction of the alleged errors in the study reduces the total yield of those 12 sites to 93,936 square metres. The applicant then added the last-mentioned figure to the increase in commercial floorspace of 56,166 square metres actually achieved since gazettal of Amendment No 9 in 2003. By this process, the applicant arrived at the conclusion that the grand total which may be achieved is 150,102 square metres. Consequently, the applicant submitted, the controls in the 2006 Amending DCP do not achieve the object in cl 28B(f) of 250,000 square metres maximum of additional non-residential floor space.

78 I do not accept the applicant’s underlying submission for the following reasons. First, I do not accept the premise that cl 28B(f) mandates that the 2006 Amending DCP must provide for 250,000 square metres of such additional floorspace. That figure is expressed in cl 28B(f) as a maximum. It is not expressed as a mandatory outcome. The provision may be contrasted, for example, with cl 28B(c) which states that an objective is “to ensure” that railway infrastructure will encourage and enable specified outcomes. In my opinion, if the 2006 Amending DCP will achieve less than the prescribed maximum, it does not fail to achieve the objective in cl 28B(f).

79 Second and alternatively, the applicant’s lengthy critique goes to the merits of the SJB study and is highly argumentative. If relevant to these proceedings, which are not merits review proceedings, it is of a nature where it would ordinarily be expected that expert evidence, including from the proponent of the study, would be necessary in order for a court to reach a safe conclusion as to its reliability. Assuming that it is relevant to these proceedings, I am not satisfied that it represents more than a difference of opinion.

80 Third, on the alternative assumption that the applicant’s corrections are relevant and should be accepted, I am not satisfied that they factually establish that the additional 250,000 square metres is not achievable. The study stated that the “12 sites used for such analysis do not represent all the potential available under in the Centre the controls [sic: should be “available in the Centre under the controls”], but illustrate the primary area of benefit under the planning review”. Neither the study nor the applicant’s analysis touched upon the remaining potential. Consequently, in my view, it has not been proved that the maximum 250,000 square metres of additional non-residential floor area is not achievable when all available potential is taken into consideration.

81 The applicant submitted:

EPA Act.

82 The platform for these three submissions is the decision of the Court of Appeal in the related merits appeal proceedings that cl 30, the building height plane provision, of the LEP does not apply in the North Sydney Centre: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164. The height limits in part of the mixed use zone in the 2006 Amending DCP were purportedly determined by applying the existing LEP controls, including the building height plane in cl 30. This is clear from the reports and recommendation to council in the planning review leading to the 2006 Amending DCP, discussed above at [35] – [42]. Both parties’ submissions referred to the planning review documents. Council submitted that the 2006 Amending DCP height controls take into account all objectives or controls in the LEP, acknowledging that RL 195 is the high point. The applicant’s submission was to similar effect. That is how I construe the height controls in the 2006 Amending DCP.

83 Council fixed the building heights in part of the mixed use zone by applying, inter alia, cl 30 of the LEP. That was a mistake because, as the Court of Appeal has held, cl 30 is inapplicable in the North Sydney Centre. In my opinion the mistake meant that council, to that extent, did not pursue the purpose of the LEP when making the DCP. In Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252 at 263 – 264 Isaacs J (Knox CJ and Rich J agreeing) distinguished absence of good faith from the mistaken pursuit of a wrong purpose in the context of making delegated legislation:

It is wholly distinct from the notion of mistakenly pursuing a by-purpose. Such a pursuit may in this connection be honest or dishonest. The body pursuing it may genuinely avow it, thinking it permissible. There the action adopted may be ultra vires, but not mala fide.

84 Another way of looking at it is that the operation of the height controls in the 2006 Amending DCP do not respond to the purpose prescribed by s 74C(1)(a) and therefore are not sustained by the power in that provision: cf Williams v Melbourne Corporation (1933) 49 CLR 142 at 156 per Dixon J.

85 It has to be acknowledged that council’s intention to base the height controls in part of the mixed use zone on, inter alia, the building height plane controls in cl 30 does not appear to have been achieved in the case of one site, namely the site incorporating the applicant’s land, given the diagram in the judgment of the Senior Commissioner in the related merits appeal proceedings to which I have referred. Nevertheless, that was the intention of the height controls in the 2006 Amending DCP, the applicant’s land is only one site, and these proceedings are not confined to the applicant’s land.

86 Accordingly, in my opinion, the first of the applicant’s submissions should be accepted in relation to building heights; that is, the height controls in section 1.1.fa and the Building Height Map in the 2006 Amending DCP are invalid, subject to one further consideration. Clause 30 of the LEP only applies to part of the mixed use zone. Council presumably did not base building height controls outside that part of the mixed use zone on, inter alia, cl 30. Therefore, should the height controls applicable to buildings outside that part of the mixed use zone survive this attack? In my opinion, no because the Building Height Plan is not severable. It is, as its name suggests, one plan for the entire North Sydney Centre and I do not consider that a large part of it can be invalidated without invalidating all of it.

87 I do not entirely accept the applicant’s third submission, concerning section 1.1.oa and figure 20.3. Section 1.1.oa read in isolation from figure 20.3 refers only to setbacks and figure 20.3, in part, contains setbacks. There is nothing in the Court of Appeal judgment in Castle Constructions to suggest that cl 28D is an exhaustive code in respect of setbacks and, in my view, it is not. However, figure 20.3 also shows building heights and massing. The appropriate conclusion, in my view, is that section 1.1.oa and figure 20.3 insofar as they show building heights and massing (but not insofar as they show setbacks) are invalid.

88 It is unnecessary to decide the applicant’s discrete second submission based on taking into account an irrelevant consideration. That is a familiar ground of review of an administrative decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348 [74] and Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40. It may be doubted that it is available to mount an ultra vires claim in relation to the making of a subordinate instrument such as a development control plan.

89 The conclusion that I have reached is sufficient to dispose of the case in favour of the applicant. However, lest I am in error I will proceed to consider the other issues under s 74C(1)(a) and (5)(b)

Whether council formed the opinion

90 The applicant submitted that, even if the purpose limb would otherwise be satisfied, council did not in fact “consider[s] it necessary or desirable” to make more detailed provision etc. The applicant pointed out that council reports indicated that at the time when consideration was given to the drafting of the 2006 Amending DCP, it was contemplated that more detailed provision was to be supplied in an amendment to the LEP, yet a new LEP has not been adopted. However, the reports and memorandum of May 2006 and the subsequent report of 31 August 2006, referred to above at [36] to [41], contain advice to council that the building heights in the 2006 Amending DCP represented outcomes achievable under the current controls and would provide the council and the community with some certainty as to development outcomes. This suggests that council formed the opinion, and, in my view, it has not been proved that it did not.

Unreasonableness

91 The applicant submitted that if council formed the opinion required by s 74C(1)(a), then it was not reasonably open to it to have done so. Reference was made to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 which confirmed that a ground of judicial review of an administrative decision is that it is so unreasonable that no reasonable person could have come to it. The principles for review on that ground were reviewed in this Court in MCC Energy Pty Ltd v Wyong Shire Council and Others (2006) 149 LGERA 59 at [48] by Jagot J and in my judgments in Save Our Street Inc v Settree and Another (2006) 149 LGERA 30 at [27] – [31] and Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229. A challenge on this ground only occasionally succeeds. A recent example in this Court is King v Bathurst Regional Council (2006) 150 LGERA 362 at [84] – [85] (Jagot J). A question which has yet to be resolved in Australia is whether there is a sliding scale of judicial review, with the intensity of the review depending on the subject matter of the decision. That question was raised in Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396 at [66]-[67] by the Hong Kong Court of Final Appeal, (which included a former Chief Justice of Australia, Sir Anthony Mason).

92 Assuming that ground of review is available in a case such as the present, in my opinion, on the material before council when it made its decision, it was reasonably open to the council to form the view to which s 74C(1)(a) refers. The contrary is not established by the fact that cl 30 of the LEP was later held to be inapplicable in the North Sydney Centre by a majority of the Court of Appeal.

93 The applicant submitted that there is inconsistency between provisions of the 2006 Amending DCP and provisions of the LEP and that the former is therefore ineffective under s 74C(5)(b) of the EPA Act which provides:

94 Section 74C(5)(b) poses but does not answer the question of what inconsistency means. In my opinion, the term “inconsistent” in this context is to be given its ordinary and natural meaning: Coffs Harbour Environment Centre Inc v Minister for Planning & Another (1994) 84 LGERA 324 (CA) at 331, approved in Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 at [41], [107]. In Coffs Harbour at 331, Kirby P illuminated the ordinary and natural meaning of inconsistency as follows:

inconsistency

want of consistency or congruity

lack of accordance or harmony

incompatibility, contrariety, or opposition

95 In Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 Tobias JA (Bell J agreeing) held that the test of inconsistency for the purposes of cl 28A of the LEP was that formulated by Kirby P in Coffs Harbour and that the natural meaning of inconsistency included where a paramount provision was intended to be an exclusive code or exhaustive statement. Tobias JA held that cl 28D was an exclusive code or exhaustive statement in respect of building heights and massing within the North Sydney Centre: at [55(e) and (h)], [61]. Consequently cl 30 of the LEP was inconsistent with cl 28D. Therefore, cl 30 had no operation in respect of the mixed use zone in the North Sydney Centre because cl 28A gave paramountcy to the provisions of Division 4 of Part 3, in which cl 28D is found. The following passages from the judgment of Tobias JA are of particular relevance:

[48] …cl 30 relates exclusively to protecting amenity and applied an inflexible and mechanical standard which leaves no room, unlike cl 28D(5), to a balancing of the factors required by consent authority to be taken into consideration under that provision. In other words, the latter imposes qualitative standards whereas the BHP [building height plane] is a broad numerical or quantitative control, which is not only different but also incompatible, and lacking harmony with the nature of the control provided by cl 28D(5).
…
[55](e) …consideration of the detailed and quite complex provisions of cl 28D compared to the far more simple quantitative controls of cls 29 and 30, in my opinion, demonstrates that cl 28D was intended as an exclusive code in respect of building heights and massing of buildings within the Centre’s zones including its mixed use zone.
(f) …the differences between the complex controls in cl 28D governing building heights and massing of development within the Centre and the more blunt building height controls within the mixed use zones provided by cls 29 and 30, is indicative of there being an incompatibility between the controls in cl 28D on the one hand and those in cl 29 and, relevantly, cl 30 on the other. As was observed by Gummow and Hayne JJ in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at 138[18]; [2006] HCA 5 at [18], a case involving the implied repeal by a later statute of an earlier statute, inconsistency lay at the root of the principle of implied repeal and that deciding whether there is such inconsistency (‘contrariety’ or ‘repugnancy’) that the two cannot stand or live together (or cannot be ‘reconciled’) requires the construction of, and close attention to, the particular provisions in question.
…
(h) …Close attention to the particular and complex provisions of cl 28D indicate an appearance of exhaustiveness on the subject of building heights within the Centre thereby creating an incompatibility and inconsistency between it and cl 30. I do not think that one is departing from the ordinary natural meaning of inconsistency which, as Kirby P points out in Coffs Harbour , involves incongruity as well as incompatibility, by concluding that that incompatibility or incongruity or lack of harmony between the substance of the two provisions results not only from a comparison of the objectives and controls of each but also from the appearance of exhaustiveness on the same subject matter of cl 28D with respect to development within the Centre with the consequence, as mandated by cl 28A, that cl 28D prevails to the extent of the inconsistency over cl 30.
…
[61] Although it is true that the BHP prescribed by cl 30 imposes a specific control to be applied to the actual height of a specific building at the edges of the Centre, cl 28D also contains controls directed to that objective. Again I cannot with respect accept his Honour’s conclusion at [37] where he rejected the appellant’s argument that cl 28D provided an exhaustive statement on height, massing, overshadowing and building design within the Centre. The fact that cl 30 is consistent with a number of the objectives expressed in cl 28D masks the fact that there are also differences including, in particular, the significant differences between the nature of the controls in each provision designed to achieve those objectives.

[62] This is particularly apparent in the provisions of cl 28D(5) relating to building design and public benefits subparagraph (a) of which is directed generally to the same objectives as cl 30 in terms of the impact of development within the Centre upon lower scale residential development adjoining the Centre. The point, however, is that cl 28D adopts an entirely different approach to the response to that impact in terms of the manner of controlling it which is simply inconsistent with and in contradistinction to the blunt BHP control provided by cl 30.

96 Tobias JA held at [55(e)] that cl 28D was an exclusive code in respect of building heights and massing. At [61] his Honour did not accept the primary judge’s conclusion that cl 28D did not provide an exhaustive statement in respect of “height, massing, overshadowing and building design” within the North Sydney Centre. The applicant submitted, and the respondent contested, that his Honour thereby held that cl 28D was also an exhaustive statement in relation to building design and overshadowing. On the basis that it was an exhaustive statement in relation to building design, the applicant argued that even the provisions for setbacks in the 2006 Amending DCP were inconsistent with cl 28D. Tobias JA did not positively hold that cl 28D was an exhaustive control in relation to building design and overshadowing (although I think that it may be an exhaustive control in relation to overshadowing). I understand his Honour to have held in effect that it is not an exhaustive code in respect of building design because at [55(i)] his Honour said that there was no inconsistency between cl 28D and cll 31 and 32 of the LEP which are design provisions respectively concerned with floor space ratio controls and design of development in the mixed use zone.

97 Council submitted that the LEP and the 2006 Amending DCP are like two statutes of the same State legislature because council made the latter and formulated the former, albeit it was the Minister who made the former a statutory instrument. Therefore, council submitted that the following presumption should apply: “where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other”: Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276 per Fullager J; cited in Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 546- 547 by Gummow J. In my view, the analogy is not sufficiently strong as to give rise to such a presumption. In the first place, a council is not the master of the destiny of its draft local environmental plan and must bow to the will of the Minister as to whether it is made in the form in which it is drafted: s 70 EPA Act. Secondly, there are conditions precedent to power to make a development control plan in s 74C(1) of the EPA Act which have no equivalent in the context of power of a State legislature. Such considerations may explain why there was no suggestion of any such presumption in the Coffs Harbour case.

98 I propose to apply Kirby P’s test of inconsistency in Coffs Harbour to s 74C(5)(b) of the EPA Act and, following the Court of Appeal in Castle Constructions, I hold that cl 28D of the LEP provides an exhaustive statement on height and massing within the North Sydney Centre.

99 The applicant submitted that there is inconsistency under s 74C(5)(b) of the EPA Act in the following respects:

(a) inconsistency between the 2006 Amending DCP height controls and the LEP cl 28D controls;
(b) inconsistency between the 2006 Amending DCP massing and setback controls and the LEP cl 28D controls; and
(c) inconsistency between the 2006 Amending DCP amalgamation requirements in respect of the applicant’s land and LEP cl 28D controls.

Building heights

100 The applicant submitted that there is inconsistency between the 2006 Amending DCP height controls in section 1.1.fa and the Building Height Map, on the one hand, and the LEP controls in cl 28D, on the other. Clause 28D is set out above at [17].

101 In the CBD Character Statement in the 2006 Amending DCP, the former notional arcs or domes showing potential height increases in Walker and Berry Streets were deleted and a new height control section 1.1.fa was inserted, which relevantly provided:

fa. Building Heights

Building Height Map – North Sydney CBD

102 This Building Height Map specifies a maximum building height for every potential building in the CBD.

103 As discussed above at [82], the height controls in the 2006 Amending DCP were intended by council to be those achievable under the existing LEP controls, including the building height plane control in cl 30.

104 As the height controls in the 2006 Amending DCP, in the mixed use zone, are based in part on the building height plane control in cl 30 which the Court of Appeal has held to be inconsistent with cl 28D and to have no application, it follows that those height controls must be inconsistent with cl 28D of the LEP, which the Court of Appeal held to be exhaustive: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164.

105 Construing the 2006 Amending DCP height controls as I have indicated, I am of the opinion that they are inconsistent with cl 28D of the LEP because cl 28D contemplates that the appropriate height, subject to a limit of RL 195, can only be determined upon consideration of a particular development proposal and then with regard to the qualitative controls in cl 28D.

106 Some of the controls in cl 28D(2) are quantitative, such as the maximum height of RL 195 prescribed in paragraph (a), the overshadowing provisions in paragraphs (b) and (c), and the minimum site area in paragraph (e). However paragraph (d) and sub-clauses 28D(4)(a) and (b) and (5) also involve elements of qualitative or evaluative judgment. In the Court of Appeal in Castle Constructions at [48] Tobias JA (Bell J agreeing) described cl 28D(5)(d) as imposing “qualitative standards”. The maximum heights prescribed in the 2006 Amending DCP are numerical or quantitative controls different in nature and divorced from a qualitative consideration of a particular proposal and design of a building.

107 Furthermore, several provisions in cl 28D expressly require council to consider the actual development application before making a decision as to the appropriate height, or to consider matters relevant to assessment of the appropriate height at the time of determining whether or not to grant development consent. Thus, cl 28D(4) of the LEP permits council to vary, to a minor extent, the shadow controls in cl 28D(2)(b) and (c) in respect of a "particular" development application if it is satisfied as to the four matters in sub-clause (4)(a) to (d). The matter in subclause (4)(a) is if council is “satisfied that the variation is justified due to the merits of the development application and the public benefit to be gained”. Again, cl 28D(5) provides that “when determining whether or not to grant consent to a development application” the consent authority must consider “the impact of the proposed development in terms of scale, form and massing within the contexts of the locality and landform, the natural environment and neighbouring development”; whether it provides public benefits, and other matters.

108 Thus, cl 28D of the LEP does not fix building heights but lays down a method of determining them by the application of both quantitative and qualitative criteria in light of a particular development proposal. The full implications of a development proposal cannot be determined in advance. In my view, the building heights prescribed in section 1.1.fa, which is in mandatory terms, and the Building Height Map in the 2006 Amending DCP conflict with cl 28D because they impose rigid height restrictions on sites within the North Sydney Centre with no allowance for the qualitative elements detailed in cl 28D of the LEP and the merits of particular development application. Consequently, in my opinion, they are ineffective under s 74C(5)(b) of the EPA Act.

109 That is sufficient to dispose of the inconsistency issue in relation to height controls. However, for completeness, I will address the applicant’s other discrete inconsistency submissions relating to height controls.

110 The applicant submitted that, in any event, any maximum height that exceeds RL 195 in the 2006 Amending DCP is inconsistent with cl 28D(2)(a) and is ineffective. I agree. None of the heights for buildings permitted by the 2006 Amending DCP, in the Building Height Map, exceed RL 195, with one exception. The exception is a maximum height of RL 200 for one building. That exceeds by RL 5 the maximum height of RL 195 prescribed by cl 28D(2)(a) of the LEP. Therefore, to the extent of RL 5, it must be ineffective under s 74C(5)(b) of the EPA Act.

111 Next, the applicant submitted that subject to satisfying the overshadowing and minimum site area requirements of cl 28D(2)(b) to (e) inclusive, cl 28D(2)(a) permits buildings to be constructed on land up to a height of RL 195. Therefore, to the extent that the 2006 Amending DCP prescribes maximum heights that are less than RL 195, it is inconsistent and ineffective under s 74C(5)(b). I disagree. Clause 28D(2)(a) has to be read in conjunction with cl 28D(1)(a). Only the tallest buildings referred to in the latter provision can reach the maximum height of RL 195. Otherwise there has to be a transition of building heights generally stepping down towards the boundaries of the North Sydney Centre.

112 Next, the applicant submitted that there is conflict between the maximum heights in the 2006 Amending DCP and the transition stepping down provision in cl 28D(1)(a) because they do not necessarily step down progressively from the centre to the boundaries in all directions. The applicant submitted that this is illustrated by the following example of those maximum heights relating to four buildings, moving from the centre towards the eastern boundary of the CBD: 100 Miller Street RL 200, 155 Miller Street RL 80, 77 Berry Street RL 155, 110 Walker Street RL 175, and 146 – 150 Arthur Street RL 120. The applicant emphasised that 155 Miller Street is significantly less than the heights for 100 Miller Street and 77 Berry Street on each side and submitted that this is inconsistent with cl 28D(1)(a). The applicant may also be suggesting that likewise 77 Berry Street should be higher than 110 Walker Street.

113 I do not accept the submission. In my view, cl 28D(1)(a) does not require a uniform (or similar) arc of maximum building heights from the tallest buildings in the centre down towards the boundaries. The objective, as there expressed, is to achieve a “transition” of building heights “generally” from the tallest to those on the boundaries. There is no failure to achieve that general objective, nor is there inconsistency, if the transition in a particular direction includes a glitch such as that relating to 77 Berry Street in the above example.

Massing and Setbacks

114 The applicant submitted that there was inconsistency between setback and massing provisions in sections 1.1.k.iii and 1.1.oa and figure 20.3 of the 2006 Amending DCP, on the one hand, and cl 28D of the LEP, on the other hand. I do not accept the submission so far as it concerns setbacks. Clause 28D does not expressly address setbacks and the Court of Appeal in Castle Constructions did not suggest that it was an exhaustive code concerning setbacks. As discussed earlier, I do not accept, nor do I think that the Court of Appeal accepted, that cl 28D is an exhaustive code in respect of building design. Consequently, I do not accept the applicant’s submission that setbacks in the 2006 Amending DCP are inconsistent with cl 28D. Sections 1.1.k.iii and 1.1.oa and, in part, figure 20.3 are setback provisions. However figure 20.3 also shows massing and heights of buildings. The appropriate conclusion, in my view, is that figure 20.3, to the extent that it shows massing and heights of buildings, is inconsistent with cl 28D.

Amalgamation

115 The 2006 Amending DCP prescribes a maximum building height of RL 103 for a building on an amalgamated site comprising the applicant’s land and adjoining land: see section 1.1.oa and site O3 in figure 20.3. The applicant submitted that this is inconsistent with Division 4 of the LEP. As I have held that the maximum building heights in the DCP are invalid, it is unnecessary to consider this submission.

DUPLICATION

116 In view of my earlier findings, it is unnecessary to consider the duplication issue.

117 I propose the following orders to reflect my conclusions:

118 The matter will be listed before me at 9.30 am on 21 August 2007 for the purpose of making final orders. If either party wishes to submit that orders should differ from those proposed above, then by 4 pm on the preceding day they are to deliver to my chambers short minutes of proposed orders. The exhibits may be returned.

Citations

Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459

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CITATION:	Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459
PARTIES:	APPLICANT: Castle Constructions Pty Ltd RESPONDENT: North Sydney Council
FILE NUMBER(S):	41014 of 2006
CORAM:	Biscoe J
KEY ISSUES:	Judicial Review :- validity or effectiveness of development control plan or certain provisions thereof - whether invalid because did not achieve purpose of local environmental plan or because council did not form the opinion required by statute or because it was not reasonably open to council to form the opinion - whether certain controls in development control plan inconsistent with provisions of local environmental plan and therefore ineffective to extent of inconsistency - purposive construction
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 70, 74C(1)(a) and (5), 79C(1)(a) Interpretation Act 1987 ss 8(b), 33 North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002
CASES CITED:	7-Eleven Stores v Sydney City Council (2004) 138 LGERA 125; Al-Kateb v Godwin (2004) 219 CLR 562; Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229; Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37; Bropho v Western Australia (1990) 171 CLR 1; Butler v Attorney-General (Vic) (1961) 106 CLR 268; Cabell v Markham 148 F 2d 737 (1945); Castle Constructions v North Sydney Council [2006] NSWLEC 5; Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324; Edwards v Attorney General (2004) 60 NSWLR 667; Franklins Ltd v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134; GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116; Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252; King v Bathurst Regional Council (2006) 150 LGERA 362; MCC Energy Pty Ltd v Wyong Shire Council and Others (2006) 149 LGERA 59; Mills v Meeking (1990) 169 CLR 214; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559; North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Save Our Street Inc v Settree and Another (2006) 149 LGERA 30; Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532; Swan Hill Corporation v Bradbury (1937) 56 CLR 746; Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396; Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; Williams v Melbourne Corporation (1933) 49 CLR 142 ; Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508
DATES OF HEARING:	8, 26 February and 9, 14 August 2007
DATE OF JUDGMENT:	17 August 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr T F Robertson SC and Mr J Lazarus SOLICITORS: Aitken McLachlan Thorpe RESPONDENT: Mr M G Craig QC and Ms H P Irish SOLICITORS: Mallesons Stephen Jaques