Colonial State Properties Pty Ltd v Ku-ring-gai Council

[2002] NSWLEC 179

Land and Environment Court

of New South Wales

CITATION:	Colonial State Properties Pty Ltd v Ku-ring-gai Council [2002] NSWLEC 179
PARTIES:	APPLICANT Colonial State Properties Pty Ltd RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	(1)0208 of 2002
CORAM:	Talbot J
KEY ISSUES:	Development Application :- whether Planning Scheme Ordinance permits dwelling house where State Environmental Planning Policy No. 1 objection required
LEGISLATION CITED:	State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 53 Ku-ring-gai Planning Scheme Ordinance 1971
CASES CITED:	Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95; Porfiri v Ku-ring-gai Council [2002] NSWLEC 136, unreported; Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86
DATES OF HEARING:	03/10/2002
DATE OF JUDGMENT:	10/10/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr P R Clay (Barrister) SOLICITORS McKees Legal Solutions RESPONDENT Mr C J Leggat (Barrister) SOLICITORS Phillips Fox

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0208 of 2002

Talbot J

10 October 2002

Colonial State Properties Pty Ltd

Applicant
v

Ku-ring-gai Council

Respondent

Judgment

Introduction

1 The applicant is seeking development consent for a subdivision of land in Kenthurst Road, St Ives into four allotments with two dwellings to be built on each of two hatchet-shaped lots, pursuant to dual occupancy provisions.

2 The land is in zone 2(c) under the Ku-ring-gai Planning Scheme Ordinance 1971 (“the PSO”). Clause 43(3)(d) provides that a dwelling house shall not be erected in zone 2(c) on any hatchet-shaped allotment which has an area of less than 14,000 square feet exclusive of the area of the access corridor which shall have a width of not less than 15 feet. The area standard will be satisfied in the application but neither access corridor has a width of 15 feet.

3 Part 3 of State Environmental Planning Policy No. 53 (“SEPP 53”) creates opportunities for two dwellings to be developed on a single allotment of land. Clause 17 of SEPP 53 provides as follows:-

This part allows development that results in two dwellings being located on the one allotment of land if another environmental planning instrument permits a dwelling-house to be erected on that allotment and the development is carried out in accordance with this Part and Part 5.

4 The preliminary issue that arises for determination is whether the PSO permits a dwelling house to be erected on either of the hatchet-shaped allotments. It is common ground that cl 43(3) is a development standard and, accordingly, is susceptible to an application made pursuant to State Environmental Planning Policy No. 1 (“SEPP 1”).

5 Mr Clay argues, on behalf of the applicant, that as the land is within the Residential 2(c) zone under the PSO, the environmental planning instrument permits a dwelling house to be erected on the allotments and, accordingly, cl 17 of SEPP 53 applies. Furthermore, he says the effect of SEPP 1 is to allow the general provisions of the PSO to operate without being subject to the restriction imposed by the development standard. Mr Clay puts it simply that by operation of SEPP 1, the PSO permits the erection of a dwelling house which does not comply with the development standard.

6 The applicant’s argument misconstrues the effect of SEPP 1. It does not, through its terms, permit anything other than the opportunity to make a written objection to the application of a development standard. If the objection is upheld then development consent may be granted notwithstanding non-compliance with the development standard. In the absence of a successful SEPP 1 objection, development otherwise than in accordance with the development standard is prohibited on the subject allotments.

7 Clause 17 of SEPP 53 refers only to another environmental planning instrument that “permits a dwelling-house to be erected on that allotment”. A consideration of the aims and objectives of SEPP 53 does not enable the Court to construe cl 17 in a way that will allow it to operate outside the ordinary meanings of the words used.

8 The facilitative provisions of SEPP 1 do not permit development to be carried out. They merely provide the mechanism for dispensing with the prohibiting effect of the relevant development standard to enable a development application to be considered on its merits. This is a separate and distinct matter to that of permitting development (Porfiri v Ku-ring-gai Council [2002] NSWLEC 136, unreported). I can detect no demonstrable error in the reasoning by Cowdroy J in Porfiri that would persuade the Court to consider reaching a contrary conclusion. The approach is consistent with established authority (Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86 and Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95).

9 In the circumstances, the Court answers the question of whether the PSO permits a dwelling house to be erected on the hatchet-shaped allotments in the negative. It follows that the proposed development is not allowed by dint of cl 17 of SEPP 53.

10 The exhibits may be returned.

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