Christodoulou v Blacktown City Council

[2017] NSWLEC 1554

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Christodoulou v Blacktown City Council [2017] NSWLEC 1554
Hearing dates:	29 August 2017, written submissions on 5, 13 and 19 September 2017
Date of orders:	04 October 2017
Decision date:	04 October 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application DA-16-04297 for the subdivision of Lot 74 DP5027, known as 24 Plumpton Road, Plumpton into two Torrens title lots of 435 square metres, subject to the conditions in Annexure A. (3) Exhibit 1 is returned.
Catchwords:	APPEAL – development appeal – Torrens title subdivision – detached dual occupancy – less than minimum lot size - whether provision of LEP prohibition or development standard – whether cl 4.6 request to vary standard should be granted – unique circumstances – two dwellings disparate in age and appearance – variation not discernible – whether there will be an undesirable precedent
Legislation Cited:	Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 ss 4, 76B, 79C, 97 Interpretation Act 1987 ss 34, 35 Land and Environment Court Act 1979 ss 34AA, 39
Cases Cited:	Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Laurence Browning v Blue Mountains City Council [2006] NSWLEC 74 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189
Category:	Principal judgment
Parties:	Evan Christodoulou (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: Ms N Hammond (Applicant) Mr D Loether, solicitor (Respondent)   Solicitors: Hills Family Lawyers (Applicant) Bartier Perry (Respondent)
File Number(s):	2017/133274

Judgment

1. COMMISSIONER: Situated at 24 and 24A Plumpton Road, Plumpton, are two dwellings that together comprise a detached dual occupancy on Lot 74 in DP5027. Mr Christodoulou seeks development consent for the subdivision of the lot into two Torrens title lots, with one dwelling on each resulting lot and each with a proposed lot size of 435m2. No construction or building works are proposed. He appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the determination by Blacktown City Council (“the Council”) to refuse consent for the subdivision.

2. The appeal was subject to mandatory conciliation on 29 August 2017 pursuant to s34AA of the Land and Environment Court Act 1979 (“Court Act”). An agreement between the parties was not reached and the conciliation was terminated. Pursuant to s34AA(2)(b)(i), the appeal then proceeded to a hearing forthwith, which was conducted at the Council’s chambers with the consent of both parties. At the hearing, expert evidence was given concurrently by Mr Haskew and Mr Galea, both of whom are town planners and had previously conferred and filed a joint report in the proceedings. After hearing the evidence, it was agreed that closing submissions should be made in writing, and directions were made for written submissions to be filed accordingly.

3. The Council opposes the grant of development consent principally on the basis that the subdivision of a dual occupancy in the circumstances is prohibited by cl 4.1C of the Blacktown Local Environmental Plan 2015 (“BLEP 2015”). The Council secondly contends that even if cl 4.1C is not a prohibition, the application should nonetheless be refused on the basis that the minimum lot size is 450m2 and the request to vary the minimum lot size does not provide adequate justification for the variation. The Council thirdly contends that the subdivision is not in the public interest and would set an undesirable precedent in the locality where the Council has a history of maintaining the sanctity of the minimum lot size control.

4. Three issues therefore arise for my determination:

1. Whether the subdivision of the dual occupancy is prohibited by cl 4.1C of the BLEP 2015;

2. If it is not prohibited, whether the cl 4.6 request to vary the minimum lot size should be granted; and

3. Whether the subdivision would create an undesirable precedent in the locality and therefore be against the public interest.

5. For the reasons set out below I have determined that cl 4.1C is not a prohibition. I have also determined that the request to vary the minimum lot size should be granted as the application is consistent with the zone objectives and the objectives of the minimum lot size, and because the cl 4.6 request adequately establishes that compliance is ‘unreasonable or unnecessary’ and that there are sufficient ‘environmental planning grounds’ to justify the variation. The particular circumstances that lead to such a determination and relied upon by Mr Christodoulou in the request are firstly that there is in existence two detached dwellings that comprise the dual occupancy that will each be located on the separate resulting lots, secondly the two dwellings are disparate in age and design, and thirdly the difference between the proposed lot size and the minimum lot size is only 15m2 and therefore not discernible when compared to both the current character and future density. Mr Christodoulou’s request also demonstrated a higher than average demand for owner occupied dwellings in the Plumpton area. Whilst each of these factors independently may not be sufficient to warrant departure from the development standard, taken together and relied upon by Mr Christodoulou in the request they are sufficient to enable the request to be granted. Further, because of these unique circumstances, I am satisfied that to grant consent would not cause an undesirable precedent.

The site and its context

6. The subject site is known as Lot 24 in Deposited Plan 5027, and has a total area of 870.02m2. The single-storey dwelling to the western side of the site, number 24, was constructed in the late 1960s. The two-storey dwelling on the eastern side, number 24A, was the subject of development consent in 2006 with construction completed in January 2009. An aerial photograph and Google street view of the site are provided below.

7. The surrounding area is predominantly residential, comprising a mix of single dwelling houses and dual occupancies. The experts agree that the locality is characterised by a variety of dwelling types, ages of construction and lot sizes. The neighbourhood is bounded by the M7 motorway approximately 50m to the east of the subject site. Some non-residential uses are located to the west on Rooty Hill Road North, including shops, a child-care centre and a tavern.

The planning controls

8. Section 79C(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 79C(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

9. The site is in the R2 Low Density Residential zone under the BLEP 2015. Clause 2.6(1) provides that land to which the BLEP 2015 applies can be subdivided with development consent. Clause 2.3(2) requires the Court to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

“• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.”

10. Clause 2.6 of the BLEP 2015 permits the subdivision of land with development consent. It provides:

“2.6 Subdivision—consent requirements

(1) Land to which this Plan applies may be subdivided, but only with development consent.

(2) Development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land.”

11. Clause 4.1 of the BLEP 2015 establishes a minimum lot size for land to which the plan applies, and provides as follows (insofar as it is relevant):

“4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows:

(a) to establish minimum lot sizes for residential development,

(b) to ensure that new residential development is compatible with the existing character of the surrounding residential area.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

…

(4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.”

12. The applicable minimum lot size for the site is 450m2, whereas the proposed lot size for each of the resulting subdivided lots is 435m2.

13. However, cl 4.1C also applies, which says:

“4.1C Subdivision of dual occupancies prohibited

(1) Development consent must not be granted for a subdivision that would create separate titles for each of the 2 dwellings comprising a dual occupancy unless:

(a) the frontage of each dwelling comprising the dual occupancy is a corner lot, and

(b) the size of each lot resulting from the subdivision is not less than 300 square metres.

(2) Nothing in this clause or any other provision of this Plan prevents a subdivision that would create separate titles for each of the 2 dwellings comprising a dual occupancy of a detached dual occupancy development if the 2 resulting lots would meet the minimum size shown on the Lot Size Map in relation to that land.”

14. It is common ground that the frontage of each dwelling is not a corner lot and therefore the subdivision cannot comply with cl 4.1C(1)(a).

15. Clause 4.6 allows a variation to development standards to be permitted, and provides as follows:

“4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

…”

16. Parts A and C of the Blacktown Development Control Plan 2015 (“BDCP 2015”) apply to the proposed subdivision. Clause 2.4.1 of the BDCP 2015 establishes that residential allotments should have a minimum width of 12m at the building line, with which the proposed subdivided lots comply.

Oral evidence given on site

17. As the hearing was not conducted in a court room, it is appropriate to provide a summary of the oral evidence given at the hearing. Mr Galea for the Council gave oral evidence that there are two separate requirements in cl 4.1C with separate key criteria, so that the sub-division of dual occupancy is prohibited unless either subclause (1) or subclause (2) are met. He was of the view that cl 4.1C is poorly worded but that it was the Council’s intention for it to be a prohibition.

18. In giving his evidence, Mr Galea was of the view that cl 4.1C(1) meant that if both dwellings had frontage to a corner the subdivision could be approved if the resulting lots were not less than 300m2, despite not complying with the minimum lot size prescribed for the land.

19. Whilst Mr Galea accepted in his evidence that the subdivision of this land would not have any adverse impacts on privacy, and that there is no discernible difference between a complying development and the proposed development in which the extent of the non-compliance on each lot is 15m2, he questioned whether “that is something that really needs to be considered”. In that regard, Mr Galea’s evidence is that, in respect of cl 4.1 and cl 4.1C, Council’s primary concern is that deviation from the 450m2 minimum lot size would “undermine the sanctity of that control” and lead to the construction of dwellings inconsistent with the existing character of the low density zone. His evidence is that this would create a precedential effect that would result in higher densities in the area, such as those seen in other areas with smaller minimum lot sizes. He indicated that there was no floor space ratio control that applied to the site, but that there was no difference between the setback controls in the BDCP that apply to lots greater than 450m2 and those smaller than 450m2.

20. Mr Galea also gave evidence that since the introduction of the BLEP 2015, no variation to the minimum lot size had been permitted. He agreed that there might be a situation where a variation was appropriate, that every case should be considered on its merits and that there must be particular circumstances. Mr Galea agreed that his reference to ‘small lot housing’ in the joint report was not a term contained in the BLEP 2015 but considered that anything below the minimum lot size to be small lot housing.

21. Mr Haskew gave oral evidence that the proposed development is rare in the R2 zone due to the existing dwellings already on site and the fact that they are very different in their presentation to the street. Therefore, Mr Haskew opined that the development will not result in a precedent able to be repeated by many other owners. In particular, Mr Haskew gave evidence that a detached dual occupancy is rare, they do not dominate and are probably less than 10% of the total residential lots in the area, and this particular situation with the disparate dwellings is even rarer. Mr Haskew also gave evidence that there is a large variety in lot sizes in the area given that the area developed naturally rather than being the subject of a masterplan.

22. When asked whether he had considered precedent impacts in the rest of the street, Mr Haskew replied that he had and that there were five similar sized lots with houses that were nearing the end of their economic life expectancy. Each of those lots could be developed with a detached dual occupancy. Even though Mr Haskew considered that the subdivision of those hypothetical future developments would be unlikely to offend the objectives of the zone, his opinion was that if the hypothetical detached dual occupancy was developed it was likely that there would be sufficient reasons to retain a single ownership in order to apply a common maintenance schedule over the two dwellings that comprise the dual occupancy. Mr Haskew’s evidence was that given that the site contains two disparate dwellings, there is a distinction between the proposed development and those hypothetical future developments. That distinction means that there is less utility in strictly observing the subdivision standard for the subject site than there would be for hypothetical future developments on other sites in the street.

23. Mr Haskew’s evidence was also that the proposed development does not offend the zone or the zone objectives, and that he is a “long way from the conclusion that [the proposal] is anything other than compatible with the character of the area.”

Does clause 4.1C prohibit the development?

24. The parties agree that the ability to grant development consent is only enlivened if cl 4.1C is a development standard and not a prohibition. The question of whether a provision is a development standard or a prohibition has been the subject of much judicial discourse. Helpfully, Robson J recently considered the history relevant to that question in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153. Central to that consideration was the two step approach of Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270. The first step requires determination of whether the proposed development is prohibited under any circumstances by the relevant provision, where that provision is construed in the context of the LEP as a whole. The second step requires determination of whether the provision specifies a requirement or fixes a standard in relation to an aspect of the proposed development. Both parties agree that the decision of Robson J provides a helpful summary of the history and the relevant principles. However, they disagree as to how those principles should apply to the construction of cl 4.1C.

The Council submits that cl 4.1C is a prohibition

25. The Council submits that the intention of cl 4.1C is to be a prohibition on the subdivision of dual occupancies except if the criteria in either subclauses (1) or (2) are met. That is, given that the proposed subdivision seeks development approval for a subdivision that would create separate titles for each of the two dwellings comprising a dual occupancy, cl 4.1C of the BLEP 2015 expressly prohibits subdivision of dual occupancies unless the application satisfies subclauses (1)(a) and (b), or sub-clause (2). In circumstances where the proposal does not comprise frontages of dwellings that are corner lots, the applicant cannot rely on clause 4.1C(1) of the BLEP 2015. The Council submits that, further, the two resulting lots do not meet the minimum size of 450m2 and therefore the applicant cannot rely on clause 4.1C(2). The Council submits that on that basis, cl 4.1C is a prohibition, and it is not open to the court to otherwise consider it as a development standard for which a variation could be considered, irrespective of whether cl 4.1C is expressly listed in cl 4.6(8) of the BLEP 2015, which lists development standards to which a variation cannot be given.

26. In applying the first step of the two step test, considering whether the proposed development is prohibited under any circumstances pursuant to that clause, the Council submits that there can be no doubt that cl 4.1C expressly provides circumstances within which the proposed development may be prohibited. The Council submits that the title of the clause, "Subdivision of Dual Occupancies Prohibited” makes it clear that its intention is to prohibit forms of development as detailed therein. In that respect, the Council submits that it is distinguishable from the other leading case authorities, which make no specific reference to a prohibition.

25. The Council submits that there can be no doubt as to the intention of clause 4.1C which, on any reading, and when considered in context and as a whole acts as a prohibition on subdivision of dual occupancies unless the subdivision otherwise satisfies the matters contained in clause 4.1C (1) or (2)

26. The Council also submits that the presence of the prohibition within that part of the BLEP 2015 that is titled 'Principal Development Standards’ has no bearing or consequence on the determination as to whether it acts as a prohibition. Further, the Council says that the reference in cl 4.1C(2) to the minimum lot size in cl 4.1, which the Council agrees is a development standard, does not open cl 4.1C to being a development standard. In support of these submissions the Council relies on the evidence of Mr Galea, who is not only the town planner who gave expert evidence at the hearing, but who was a council officer at the time that the LEP was gazetted. His evidence is that "Clause 4.1C directly addresses the permissibility of a land use, being the subdivision of a dual occupancy” and that the intention of cl 4.1C was to prohibit the subdivision of dual occupancies unless sub-clause (1) or (2) are met.

27. The Council therefore submits that it is not necessary to give consideration to the second step of the two step approach, being to consider whether clause 4.1C relevantly specifies the requirement or fixes a standard in relation to an aspect of the proposed development. The Council submits that the clause expressly seeks to forbid something, rather than specifying a requirement or fixing a standard.

28. The Council says that cl 4.1C can be distinguished from the clause considered by Robson J in Principal Healthcare, as the clause considered in those proceedings related to location and access to facilities for a given seniors living housing application made pursuant to the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (NSW) (“SEPP (HSPD)”). His Honour found that the clause did not act to prohibit developments, but rather permits them when certain criteria are met, which was consistent with the purpose of the instrument as a whole to permit seniors living to be developed in accordance with that instrument. The Council says that this is distinct from the clause under consideration in the present proceedings, which expressly prohibits the subdivision unless the criteria are met.

29. The Council submits that this prohibition is similar to that which was the subject of the decision of the Court of Appeal in Agostino v Penrith City Council, in which it was determined that a fruit shop that did not meet the criteria of having a maximum area of 150m2 was prohibited.

Mr Christodoulou submits that cl 4.1C is a development standard

32. Mr Christodoulou submits that cl 4.1C can be distinguished from Agostino v Penrith City Council because, whereas in Agostino the development was prohibited in the zone and was only permissible if the criteria were met, in the present proceedings the subdivision of land is permissible with development consent. Mr Christodoulou submits that whilst when cl 4.1C is read in isolation the words "development consent must not be granted...unless..." in subclause (1) have the flavour of prohibition, consistent with the decision of Robson J in Principal Healthcare, this is not determinative. Further, Mr Christodoulou submits that form must not govern substance, as per the decision in Strathfield Municipal Council v Poynting.

33. Further, Mr Christodoulou submits that the language of prohibition is in cl 4.1C(1), which does not apply to the proposed development because the dwellings do not satisfy cl 4.1C(1)(a). However, the language of cl 4.1C(2), which does apply, is not framed as a prohibition, rather, it echoes the language of the development standard in cl 4.1.

34. Mr Christodoulou submits that cl 4.1C sits within Part 4 which sets out the primary development standards for the BLEP 2015, and cl 4.1C(2) mirrors cl 4.1, which sets out the minimum subdivision lot size standard. In this regard, Mr Christodoulou relies on the fact that Council's town planner accepts that cl 4.1 is a development standard.

35. Mr Christodoulou submits that the minimum lot size in cl 4.1C (and cl 4.1) meets the definition of "development standards" in the EPA Act, as it defines the area of land and fixes a requirement or standard with respect to an aspect of permissible development. While this is not determinative, it is persuasive as per the decision of Robson J in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (at [56]). Mr Christodoulou therefore submits that both clauses 4.1 and 4.1C are development standards that are amenable to a clause 4.6 request.

36. Mr Haskew’s opinion is that the objective of cl 4.1C is to prevent subdivision of a dual occupancy under any other form of subdivision than Torrens title. The work which cl 4.1C does, in his opinion, is to regulate subdivision of dual occupancy development which is not otherwise regulated by cl 4.1. That is, it prevents community title, strata title and company title subdivision of dual occupancy developments.

37. In oral evidence, Mr Galea considered that cl 4.1C has been poorly drafted and does not reflect Council’s intention for it to be a prohibition unless the criteria of either sub-clause are met.

The application of the Interpretation Act

38. Submissions were also made by both parties on the application of the Interpretation Act 1987 in the interpretation of cl 4.1C. Mr Christodoulou submits that pursuant to s 35 of the Interpretation Act, the Court should give no weight to the title of the clause “Subdivision of Dual Occupancies Prohibited”. Section 35 provides:

“35 Headings etc

(1) Headings to provisions of an Act or instrument, being headings to:

(a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or

(b) Schedules to the Act or instrument,

shall be taken to be part of the Act or instrument.

(2) Except as provided by subsections (3) and (4):

(a) a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)),

(b) matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or

(c) a marginal note, footnote or endnote in an Act or instrument,

shall be taken not to be part of the Act or instrument.

(3) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)) shall be taken to be part of the Act or instrument if, immediately before 1 February 1981 (being the date on which section 3 of the Interpretation (Amendment) Act 1980 commenced), it was part of the Act or instrument.

(4) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), or a marginal note, footnote or endnote in an Act or instrument, shall be taken to be part of the Act or instrument if:

(a) it is referred to expressly, otherwise than by means of matter within some other provision of the Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of the firstmentioned provision) or by means of a symbol, in some other part of the Act or instrument, or

(b) not being so referred to, it is a heading, marginal note, footnote or endnote to a table or form in the Act or instrument.

(4A) The number of a section, subsection, clause or subclause of an Act or instrument is taken to be part of the Act or instrument even though it appears in a heading to the section, subsection, clause or subclause.

(5) This section does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which the heading, marginal note, footnote or endnote relates.”

39. Mr Christodoulou submits that, applying s 35(1), the heading in the LEP “Part 4 Principle development standards” forms part of the LEP, but that, pursuant to s 35(2)(a), the heading to cl 4.1C does not.

40. The Council submits that the structure of clauses 4.1 and 4.1C of the LEP are not inconsistent with section 35(4)(a) of the Interpretation Act. The Council submits that if the Court finds that the heading is not part of the instrument pursuant to section 35(2), the heading remains relevant to the interpretation of the provision, and should be considered, pursuant to section 35(5).

41. Section 35(5) refers to section 34, which provides:

“34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.”

42. I find that s 35(4) does not apply to cl 4.1C, and that therefore the heading does not form part of the instrument. However, I accept that the heading can be used to assist in my interpretation of the clause if the circumstances of s 34 permit, which I discuss below.

Clause 4.1C is a development standard

43. The task of determining whether cl 4.1C is a prohibition or a development standard is one of statutory construction, where the clause must be considered in the context of the instrument as a whole. As Robson J observed in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde at [35] (citing the decision of the Court of Appeal in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189), “whilst environmental planning instruments should be construed in a practical manner, rather than undertaking a meticulous examination of its terms, this does not override the basic principles of statutory construction which require that the Court pay attention to the language of the instrument and its apparent purpose.”

44. As such, whether cl 4.1C is a prohibition or a development standard is not within the realm of expert opinion evidence but rather is a matter for legal submission and judicial determination. Neither evidence that the Council has been applying the provision as a prohibition, nor evidence of a council officer that his opinion was that the intention of the provision was to be a prohibition, is persuasive in construing statutory provisions, which must start with the text of the instrument.

45. In the interpretation of a local environmental plan, Pain J considered in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 that (at [43]) “a purposive approach to construction is to be preferred to the extent such an approach can assist”. At [44], Her Honour states:

“While the principles of statutory construction referred to immediately above apply, the instrument should also be read in a practical manner, as identified in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54] by Leeming JA citing Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183. Importantly, a LEP must be construed as a whole so that the context for the provisions in issue is understood per McColl JA in Cranbrook at [36].”

46. My analysis of cl 4.1C therefore starts with understanding the text of the provision. Consistent with the decision of Giles JA in Strathfield Municipal Council v Poynting, who found that the provision must be “seen as part of the environmental planning instrument as a whole” (at [94]), I then consider how the provision sits within the context of the BLEP 2015. In doing so, I address the two step approach and whether the provision falls within the definition of a ‘development standards’.

47. Dealing first with the text of the provision, I note that the language of cl 4.1C(1) and the heading ‘prohibition’, clearly gives cl 4.1C “the flavour of prohibition” (to use the words of Robson J in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde). However, this is not determinative. As in Strathfield Municipal Council v Poynting, care must be taken that form does not trump substance, as a provision expressed in the negative appears prohibitory but has the same substance if it is expressed in the affirmative, such as “a subdivision may be granted if…”.

48. Notwithstanding that the provision is expressed in the negative, I find that the structure and language of cl 4.1C suggest the imposition of standards on or criteria for the subdivision of dual occupancies. The clause clearly establishes that the subdivision can be carried out if the criteria in cl 4.1C(1) or cl 4.1C(2) are met. Consistent with the decision in Strathfield Municipal Council v Poynting, anything less than complete prohibition means that the development can take place. At [98]:

“Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard.”

49. This is distinguishable from the provision considered by the Court of Appeal in Agostino v Penrith City Council, which provision characterised the permissible development by reference to a minimum area where that development was otherwise a prohibited use in the zone. The task before the Court of Appeal was concerned with identifying the essential conditions that determined “whether the particular development proposed is permissible” (Tobias JA, at [46]).

50. The second aspect of the text of the provision that favours its interpretation as a development standard is the exception to cl 4.1C(1) that is provided in sub-clause (2). If either cl 4.1C(1)(a) or (b) are not met, sub-clause (2) confirms that sub-clause (1) does not act to restrict the subdivision of detached dual occupancies that meet the minimum lot size development standard. I am therefore of the view that cl 4.1C is facultative in that it provides the criteria in which subdivision can be considered.

51. In discussing the text, I also note that the wording of cl 4.1C is not sufficiently specific to support Mr Haskew’s suggested interpretation, that the clause operates to prevent community title, strata title and company title subdivision of dual occupancy developments. The clause refers to subdivision in the collective sense, as something that creates “separate titles”, which in my view includes Torrens title.

52. Third, turning to the heading to cl 4.1C, I am of the view that it does not assist in understanding the provision, as it remains unclear how the supposed “prohibition” operates at all. The Council has tried to resolve this by proffering an interpretation that the prohibition applies unless either of the sub-clauses is satisfied. However, that interpretation is not supported by the wording of the clause, especially when you must consider, as I do, that pursuant to s35 of the Interpretation Act the heading is not part of the instrument. In this sense, I do not accept that the heading “is capable of assisting in the ascertainment of the meaning of the provision” pursuant to s34 of the Interpretation Act, as it is an additional source of confusion as to how the clause operates and how it interacts with clauses 2.3 and 4.1, as set out below. What is difficult about the clause is how it interacts with those other clauses within the context of the instrument, and that is not resolved by reference to the heading.

53. Fourth, in considering the clause in the context of the instrument as a whole, cl 4.1C is facultative in operating together with cl 2.6, which makes subdivision permissible with consent, and cl 4.1, which sets a minimum lot size for subdivision. There is nothing in cl 4.1C(1) or within the clause generally that suggests it operates despite the provisions of cl 2.6 and cl 4.1. Similarly, unlike other specified subdivisions, there is nothing in cl 2.6 or cl 4.1 that excludes their application to dual occupancies. Whereas cl 2.6(2) makes it clear that there is a qualification on the permissibility of subdivision such that development consent cannot be given for the subdivision of a secondary dwelling unless it meets the minimum lot size, there is no such provision in cl 2.6 for dual occupancies. Similarly, in cl 4.1(4) there is a specific reference that “[t]his clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme”. Again, there is no such provision that excludes the application of cl 4.1 to dual occupancies.

54. This is clearly distinguishable from the circumstances before the Court of Appeal in Agostino v Penrith City Council, where the Court was considering a development that was prohibited in the zone and only permissible if the specified criteria were met. Instead, in the present circumstances, cl 2.6(1) makes it clear that the subdivision is permissible with development consent, and clauses 4.1 and 4.1C set out how that development is to be controlled.

55. In constructing this clause in the context of the instrument as a whole, I find that cl 4.1C(1) is facultative in that it provides criteria in which subdivision can be considered. This is because, but for cl 4.1C(1), the only standard that regulates the subdivision is the minimum lot size, which for many zones is larger than the 300m2 required by cl 4.1C(1)(b). However, cl 4.1C(1) provides additional criteria in which a subdivision of a dual occupancy can be granted. Clause 4.1C(2) then confirms that, in relation to detached dual occupancies, the minimum lot size development standard applies even if the criteria of cl 4.1C(1) are not met.

56. This interpretation is supported by the placement of cl 4.1C in the “Principal development standards” part of the BLEP 2015, and by its omission from cl 4.6(8). Clause 4.6 applies only to development standards, and cl 4.6(8) sets out the list of provisions to which cl 4.6 does not apply. The omission of cl 4.1C from this list in cl 4.6(8) is therefore indicative that cl 4.6 does apply and cl 4.1C is not a prohibition. Although these factors alone are not determinative, they support the conclusions that I make above.

57. Therefore, in considering the clause “as a part of the environmental planning instrument as a whole” (Strathfield Municipal Council v Poynting at [94]) and in its wider context by reference “to its own structure and provisions” (Laurence Browning v Blue Mountains City Council [2006] NSWLEC 74 at [26]), I am of the view that despite the heading and the language of cl 4.1C(1), cl 4.1C does not act to prohibit subdivision, but rather permits the subdivision of dual occupancies when either the criteria of cl 4.1C(1) or (2) are met.

58. Fifth, it remains essential that I consider whether the clause falls within the definition of ‘development standards’. A development standard is defined in section 4 of the EPA Act as follows (insofar as relevant):

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

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

…

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

...”

59. I consider that cl 4.1C is clearly in relation to the carrying out of development, specifically the carrying out of the subdivision of dual occupancies. Sub-clause (1) sets requirements or fixes standards for that subdivision, and sub-clause (2) operates such that even if the requirements of (1) are not met, detached dual occupancies may be subdivided if they meet the minimum lot size development standard. The provision falls within sub-paragraphs (a) and (c) of the definition, which is not determinative, but demonstrates that it is fixing requirements or standards in respect of an aspect of the development (Strathfield Municipal Council v Poynting at [58]).

60. I am therefore of the view that cl 4.1C meets the definition of “development standards”. The question then to consider is whether, the proposed subdivision not meeting cl 4.1C(1) or the minimum lot size referred to in cl 4.1C(2), a variation to the development standard should be granted pursuant to cl 4.6.

Clause 4.6 request

61. Clause 4.6 is a standard clause included in local environmental plans. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston J, Chief Judge, held that the power to allow an exception to a development standard pursuant to cl 4.6 can be exercised where the Commissioner is satisfied that:

1. the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)) (at [7]),

2. the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)) (at [7]),

3. the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) (at [38]), and

4. the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) (at [38]).

In outlining (3) and (4) above, His Honour stated that the Court need not be directly satisfied that compliance is unreasonable or unnecessary and sufficient environmental planning grounds exist, but rather “only indirectly by being satisfied that the applicant’s written request has adequately addressed” those matters.

The applicant’s clause 4.6 request

62. Mr Christodoulou’s amended written request is dated August 2017 and was provided to the Court at the hearing. It outlines five reasons why compliance with the standard is unreasonable or unnecessary, which can be summarised as follows:

• The proposed subdivision does not derogate from the provision of housing needs of the community (the objective of the zone) because the subdivision will not change the number of dwellings on the site. Rather, it affects the possible housing tenure outcomes, as both dwellings could be owned. This is consistent with the housing needs of the community as, based on census data, ownership in Plumpton is favoured over rental accommodation. In particular, Mr Haskew points to the census data showing that owner occupier dwellings represent 76.5% of Plumpton’s housing supply, compared with 65.2% in the Blacktown local government area.

• The departure is very minor, being 15m2 or 3.33%. There will be no practical difference in terms of amenity and no streetscape issues.

• The subdivision will not have any effect on the character of the surrounding residential area (the objective of cl 4.1). Whereas most dual occupancy developments are carried out at the same time, which produces a need to maintain common ownership for the commonality in maintenance and management, the subject site has dwellings that are starkly different in age, size and visual appearance.

• Approval would not derogate from the intended outcomes of cl 4.1C – the implied purpose being to prevent dual occupancies from being subdivided into lots of less than 450m2 under title systems other than Torrens title.

• The proposal will not introduce any incongruity with the prevailing subdivision pattern.

63. In the cl 4.6 request Mr Haskew considers that the following three “environmental planning grounds” justify contravening the standards:

• The site already contains two disparate dwellings, therefore there is no opportunity to retain common ownership in order to retain consistency in maintenance and streetscape appearance. This is a particular characteristic of this site that may not be present for other subdivision proposals.

• The proposal is consistent with the community’s demand for owner-occupier tenure compared with Blacktown LGA as a whole.

• The proposed subdivision will not result in any impacts under s 79C(1)(b) when compared with the existing situation.

64. Clause 4.1C(2) is the standard that is sought to be varied by the request. Given that this sub-clause relates to the minimum lot size, the appropriate objectives to consider are those of the minimum lot size established by cl 4.1. They are:

“(a) to establish minimum lot sizes for residential development,

(b) to ensure that new residential development is compatible with the existing character of the surrounding residential area.”

The Council’s response to the cl 4.6 request

65. The Council submits that it has not been satisfactorily demonstrated that the objectives of the development standard are achieved notwithstanding non-compliance. The Council submits that it has always applied the minimum lot size of 450m2 under the now repealed Blacktown Local Environmental Plan 1988 and that it has carried this minimum lot size into the BLEP 2015 for residential land in older established areas of the Blacktown Local Government Area. It relies on the evidence of Mr Galea that the Council has maintained the minimum lot size development standard and has not abandoned the control by granting consent to subdivisions that depart from the standard, and that the minimum lot size acts as a density control and variations to the minimum lot sizes results in an increase in density in the area. The Council also submits that it has not been demonstrated that the subdivision will not have adverse impacts on the environment, built form and public as increased density has the potential to have negative impacts on matters such as privacy, solar access aesthetics, acoustics and streetscape.

66. In relation to the environmental planning grounds identified in the cl 4.6 request, the Council submits that:

• The fact that the site already contains two dwellings provides no basis for the submission that there is no opportunity to retain common ownership in order to retain consistency in maintenance of streetscape appearance,

• There is a demand for rental housing, which is consistent with the zone objectives to provide a variety of housing, and

• There are impacts associated with an increase in density which will occur if the subdivision is approved.

67. In support of these submissions, the Council relies on the evidence of Mr Galea in relation to potential impacts on the environment, built form and public interest as a result of increased density. Mr Galea’s evidence is also that the provision of rental housing is consistent with the zone objectives.

The clause 4.6 request should be allowed

68. Firstly, I am satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The subdivision provides for the housing needs of the community by providing separate titles to two dwellings that are disparate in age and design, in an area where there is a higher than average demand for owner-occupier tenure. The fact that the size of the lots is 15m2 smaller than the minimum lot size does not affect the amenity of the neighbourhood, as the dwellings are already erected, and I accept the evidence that the difference between the proposed lot size and the minimum lot size is not discernible. Further, any future dwellings will either have to comply with the relevant planning instrument (for complying development) or be considered as a development application. Mr Galea accepted that there were no privacy or amenity impacts identified as resulting from the proposal.

69. Secondly, I accept that the proposed development is consistent with the objectives of the standard (cl 4.6(4)(a)(ii)). I accept Mr Haskew’s evidence that it is compatible with the existing character of the surrounding residential area as the dwellings already form part of the existing character, the existing character has a large variety in lot sizes, and the difference between the density resulting from the proposed lot size and the minimum lot size is not discernible.

70. Thirdly, the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The only way that compliance can be achieved is by not allowing the subdivision, because it is physically impossible to subdivide the land in a way that achieves the standard. I accept that the request adequately establishes that to retain common ownership is unreasonable or unnecessary because it will not change the number of dwellings on the land, the housing needs of Plumpton support ownership rather than rental housing, the subdivision will not introduce incongruity in the subdivision pattern, the departure is very minor, and the dwellings are different in age, size and appearance.

71. Finally, I accept that the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). In particular, the written request shows a demand for owner occupied dwellings and demonstrates that because of the disparate age and appearance of the dwellings, there is no need to maintain common ownership.

72. I am therefore satisfied that, in the circumstances of the present application, it is appropriate to grant the request to vary the development standard. However, the Council maintains that the proposal is not in the public interest.

Public interest

73. The Council submits that the proposal is not in the public interest and should be refused as it would set an undesirable precedent in the locality. The Council submits that the precedential impact of development consent is a relevant consideration in determining whether consent should be granted. In support, the Council directs the Court to the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. In this decision, Lloyd J, in considering appeals made under section 56A of the Court Act, considered whether the then Senior Commissioner erred in law by taking into account an irrelevant consideration, namely whether the approval of the applications would be a precedent leading inexorably to further applications over time in an otherwise undeveloped area. Lloyd J found that there was no error and said (at [34]):

“It was a relevant consideration on the facts and circumstances of the case as found by the Senior Commissioner, namely: that the proposed developments were not themselves unobjectionable, having, as the Senior Commissioner found, an undesirable visual impact on a largely undeveloped shoreline; and that there was more than a mere chance or possibility that there may be later undistinguishable development applications of the same class – or, as the Senior Commissioner found, “would lead inexorably to a further three over time” and “pressure to achieve a further 13 shoreline facilities” – also described by the Senior Commissioner as “likely to be an inevitable consequence”.”

74. There are two elements to the Council’s submission that the subdivision would set an undesirable precedent. The first is that the Council is concerned about the precedential effect that a smaller lot subdivision will have on the density of the surrounding area. The second is that the Council does not want the sanctity of the control to be undermined.

75. In support of this submission, the Council relies on the evidence of Mr Galea that the control has been consistently applied since the BLEP 2015 commenced. Mr Galea’s opinion is that allowing lot sizes that are less than the minimum lot size will result in increased density, such as that seen in areas where a smaller minimum lot size applies. This is supported by the fact that there is no floor space ratio control.

76. The other submission made by the Council in relation to public interest is that there is a public interest in maintaining the prohibition on the subdivision of dual occupancies. This is supported by Mr Galea’s evidence that the prohibition was carefully considered, and that there were very few submissions when the LEP was exhibited, indicating public acceptance of the provision. Given my earlier finding that the proposed subdivision is not prohibited, I do not accept and need not deal with this submission.

77. Mr Christodoulou submits that the proposed development is in the public interest and is consistent with s 79C(1)(e) of the EPA Act as there is no public benefit in maintaining the minimum lot size standard (and no environmental impact as a result of varying the standard) because there is an existing dual occupancy development, and the proposed subdivision will not manifest any physical differences compared with the existing situation. Mr Christodoulou relies on Mr Haskew’s evidence that the subdivision will have no discernible impact on residential densities. The evidence of Mr Haskew is that the current density is lower than the planned density, and there is no discernible difference between a density with lot sizes of 450m2 and those with lot sizes of 435m2.

78. Mr Haskew’s evidence is also that although there are five other sites in the area and on Plumpton Road that are of a size that may result in smaller lots than the minimum lot size if subdivided, those sites would have to first undergo dual occupancy development. Mr Haskew is of the opinion that if they did so, there would be a benefit in maintaining single ownership over the dual occupancy to facilitate common management and a common maintenance schedule. However, such benefit does not arise in the circumstances of the present application. As a result, Mr Haskew opines that there is no likelihood that the proposed development will set an undesirable precedent that could be widely applied.

The subdivision will not create an undesirable precedent

79. I find that the approval of the subdivision the subject of the present application will not establish an undesirable precedent for the following three reasons.

80. Firstly, the precedent for smaller lot sizes has been created by past approvals. There are already two lots on Plumpton Road that are less than 450m2 in size. Although the subdivision that created those lots was approved under a former instrument, they nonetheless form part of the character of the area. In this respect the circumstances of this case, where the Court is considering an established and developed area, are clearly distinguishable from those in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995, in which the Court was considering a proposal in an undeveloped shoreline.

81. Secondly, I do not accept that allowing the subdivision will cause an increased density that is not consistent with the zone. The increased density that the Council is concerned about is consistent with the planning density reflected in the minimum lot size of 450m2. The lot sizes on Plumpton Road vary from 435m2 to 2078m2, with many of those on the northern side greater than 900m2 and able to be subdivided whilst also complying with the minimum lot size. The increased density is therefore consistent with the planned density reflected in the minimum lot size. In that respect, I prefer the evidence of Mr Haskew that the difference between a compliant subdivision and the present subdivision will have no discernible impact on density.

82. Similarly, I accept Mr Haskew’s evidence that the subdivision will have no discernible impact on the existing residential density, as there are a variety of lot sizes and the dwellings that comprise the dual occupancy are already part of that density.

83. Thirdly, as to maintaining the sanctity of the control, there is no basis upon which there should be blind adherence to a control. Clause 4.6 has a clear objective to allow a variation in the application of a control if it is warranted in the circumstances. The unique circumstances of this proposal are that there are already existing two dwellings on the lot, the dwellings to be located on the two resulting lots are disparate in age and design, and the difference in the proposed lot size and the minimum lot size is only 15m2. I accept the evidence of Mr Haskew that these characteristics distinguish the site from almost all other sites within the locality, which will mean that only sites with those same unique characteristics will benefit from the precedent of the subdivision of this site. I accept the evidence of Mr Haskew that such an outcome would be a desirable precedent for those sites that share all those characteristics.

84. There being no other basis to refuse the development application, it is appropriate that consent be given subject to the conditions of consent proposed by the Council.

85. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA-16-04297 for the subdivision of Lot 74 DP5027, known as 24 Plumpton Road, Plumpton into two Torrens title lots of 435 square metres, subject to the conditions in Annexure A.

3. Exhibit 1 is returned.

………………………………………

Commissioner Gray

Annexure A (152 KB, pdf)

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Amendments

04 October 2017 - Correction made in paragraph 5; 'Punchbowl' replaced with 'Plumpton'

Decision last updated: 04 October 2017