Daly v Manly Municipal Council

[1988] NSWLEC 151

Land and Environment Court

of New South Wales

CITATION:	Daly v Manly Municipal Council [1988] NSWLEC 151
PARTIES:	APPLICANT Michael Daly RESPONDENT Manly Municipal Council
FILE NUMBER(S):	10599/87; 20371 of 1988
CORAM:	Holland J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmnetal Planning And Assessment Act 1979 Interpretation Act 1987 Local Government Act 1919 Manly Local Environmental Plan 1988
CASES CITED:	Cogan v. Lane Cove Municipal Council (1960)
DATES OF HEARING:
DATE OF JUDGMENT:	12/06/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: These are two appeals by Michael Daly, applicant, against the Manly Municipal Council, respondent. The first, No. 10599/87, is a Class l appeal against the Council's refusal to consent to a development application made under the Environmental Planning and Assessment Act, 1979. The second, No. 20371/88, is a Class 2 appeal on the ground of the Council's failure to determine within 40 days an application under Part ll of the Local Government Act, 1919 for approval of alterations and additions to a building.

The property in question is No. 3 Linkmead Avenue, Clontarf. It is a residential site of 2,010m2 on which stands a two storey brick and tile residence and a separate 2 storey brick and tile garage built in a style similar to that of the residence only on a much smaller scale. The bottom level of this second building is designed to provide a garage and storage space and the upper level is designed to provide a garage, boat shed and workshop. The slope and levels of the land are such that there is vehicle access to both levels of the garage building.

The applications under appeal were for approval of a proposal to convert the existing 2 storey garage building to "dual occupancy". The plans provided for conversion of the upper level from garage, boat shed and workshop to living quarters consisting of a bedroom, living/dining room with cooking, bathroom and toliet facilities and access from the bottom level by a spiral staircase. The plans proposed principally internal works with only minor variations to externally visible parts of the building and no variation of the existing main structure, its height or general appearance.

The Council refused the development application on the ground that it failed to comply with cl.ll(l) of Sydney Regional Environmental Plan No. 12 - Dual Occupancy. As will be seen later, that provision restricts the height of a second dwelling house to 3.6 metres. Before the Court the application for development consent was accompanied by a written objection made by the applicant to the Council in terms of clause 6 of State Environmental Planning Policy No. 1 to the effect that this height limitation was a development standard that was unreasonable or unnecessary in the circumstances of the case and a claim that consent to the application should be given notwithstanding non-compliance therewith.

The Council dealt with the building application by notifying the Court that it considered that it was unable to deal with it because of the fact that the development consent was the subject of an appeal and the applicant had given the Council notice of intention to have both matters heard by the Court. The Council advised the Court as follows:-

"(2) That if the Court finds in favour of the appellant on the development consent, that the building application be approved subject to the following conditions:-

(a) The plans being notated to show provisions for clothes washing facilities to accord with clause 46.4(l)(c) of Ordinance 70.

(b) Manufacturers specifications being submitted in respect of the proposed spiral staircase."

As the case turns upon the proper construction of the relevant planning instruments, the material provisions thereof need to be quoted.

"MANLY LOCAL ENVIRONMENTAL PLAN 1988

(Government Gazette 16 September 1988)

Aims and objectives

3.(1) The general aims and objectives of this plan are -

....

(b) to give the council greater responsibility for environmental planning by creating only broad controls in this plan and leaving more detailed local environmental planning provisions in the development control plans provided by the council;

....

(e) to increase the availability and variety of dwellings to enable population growth without having adverse effects on the character and amenity of the Municipality;

....

(i) to preserve and enhance the amenity of defined environmentally sensitive areas, public places and areas visible from public places or from navigable waters around the Municipality;

(j) to ensure that new development does not detract from the very special visual quality of the Municipality;"

(Clause 6 adopts the Environmental Planning and Assessment Model Provisions 1980 with exceptions that are immaterial.)

"Interpretation

7(l). In this plan -

.......

'Foreshore Scenic Protection Area' means any land shown by black hatching and marked as a Foreshore Scenic Protection Area on the map.

......"

In Part 2 - General Restrictions on the Development of Land - cl.9 designates 8 "Zones" by references to colouring of the Plan Map, after which the following provisions appear:-

"Zone objectives and development control table

10.(1) The objectives of a zone are set out in the Table to this clause under the heading "Objectives of zone" appearing in the matter relating to the zone.

(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -

(a) development may be carried out without development consent;

(b) development may be carried out only with development consent; and

(c) development is prohibited,

are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone.

(3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out."

The subject land is in "Zone No. 2 - Residential Zone" and, in the Table which follows cl.10, the objectives of the zone are stated in cl.1 thereof which is followed by these clauses:-

"2. Without development consent

Bed and breakfast accommodation, dwelling-houses, other than dwelling-houses in the Foreshore Scenic Protection Area; home occupations.

3. Only with development consent

Any purpose other than a purpose included in item 2 or 4.

4. Prohibited

Advertising structures, etc. (not material)."

In Part 3 - Special Provisions - appears the following"-

"Visual and aesthetic protection of certain land

17. The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area."

Clause 3(2) of the above LEP stated that the particular aims of the Plan were to divide the land into the zones referred to and enable the Council to make development control plans regulating the carrying out of development in any zone -

" (i) by restricting the carrying out of that development to a specified area within the zone; or

(ii) by fixing standards or specifying requirements for that development."

In pursuance thereof the Manly Development Control Plan for the Residential Zone came into force on 16 September 1988. That Plan, in its preliminary section, sets out its aims and objectives. One of the general aims and objectives stated:-

"3. to increase the availability and variety of dwellings to enable population growth without having adverse effects on the character and amenity of the residential areas."

One of the specific aims and objectives is stated to be:-

"1.to introduce density controls which will set aside areas for low through medium to high density housing - a substantial portion of which is identified in the Foreshore Scenic Protection Area;"

This Development Control Plan governs the maximum residential density allowed in the residential zone which, for the purpose, is divided into 7 sub-zones. The subject land is in sub-zone 7 in respect of which the minimum site area per dwelling varies from one dwelling unit per 750m2 to one per 1,150m2 dependent on slope. The exact slope of the subject land for the purposes of this plan had not been established but sufficiently for the purposes of the present case it would appear that the site area would accommodate 2 dwellings under the standard laid down for sub-zone 7.

Sydney Regional Environmental Plan No. 12

Dual Occupancy

This plan came into force on 19 June 1987. Its relevant provisions appear hereunder:-

"Aims, objectives, etc.

2. The aims and objectives of this plan are -

....

(d) to increase the supply of accommodation on land to which this plan applies -

(i) by providing uniform controls for the provision of dual occupancy in the Sydney region;

....

(iv) by permitting the erection of a second dwelling-house on an allotment of land, other than land zoned rural or non-urban, upon which a dwelling-house is already situated;"

Clause 3(l)(b) applies the plan to the land in Manly.

Clauses 4 and 5 repeal the existing dual occupancy provisions in the Sydney Regional Environmental Plans 1 and 2 and all other environmental planning instruments in the State.

The plan contains the following relevant provisions:-

"Relationship to other environmental planning instruments

6. (1) A provision of any local environmental plan or deemed environmental planning instrument (whether made before, on or after the appointed day), to the extent that that provision would, but for this clause, prohibit or restrict or enable a consent authority to prohibit or restrict the carrying out of development in accordance with this plan is, to that extent, of no effect.

(2) Without affecting the generality of subclause (1), anything in any such local environmental plan or deemed environmental planning instrument -

(a) purporting to impose, or enable the imposition of, any limitations or restrictions as to the persons who may occupy a dwelling; or

(b) relating to residential flat buildings,

shall not apply to a dwelling erected or created in accordance with this plan.

Definitions

7. (1) In this plan -

'height' in relation to a building means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.

Dual occupancy development

8. Where, in accordance with any other environmental planning instrument, development for the purposes of a dwelling-house may be carried out on an allotment of land, either with or without development consent, a person may with the consent of the council:-

....

(c) in the case of an allotment that is not land within a zone or area referred to in Schedule 2 -

....

(ii) erect a second dwelling-house in addition to one already erected on that allotment,

if, but only if, not more than 2 dwellings will be so created as a result of the development being carried out.

The abovementioned Schedule 2 contains the following:-

"Land to which clause 8(c) does not apply

1. Land which under an environmental planning instrument, is within a zone (within the meaning of that instrument) identified in that instrument by the description -

(a) Rural;

(b) Non-urban;

(c) Environment Protection;

(d) Escarpment:

(e) Escarpment

(f) Escarpment Protection;

(g) Scenic;

(h) Scenic Protection; or

(i) Conservation

or identified in that instrument by a word or words cognate with any word or words used in paragraph (a), (b), (c), (d), (e), (f), (g), (h) or (i) or by a description including a word or words so used.

(2) Land within the area of the City of Blue Mountains.

(3) Land within the area of the Shire of Warringah, being land north of Mona Vale Road and Booralie Road, Mona Vale."

In this Plan cl.9 specifies minimum site areas for dual occupancy development and cl.10 specifies floor space ratios which must be satisfied before a council may consent to an application made for dual occupancy under the plan.

Clause 11(1) is material. It provides:-

"Height of second dwelling-house

11. (1) If an application is made to erect a second dwelling-house on an allotment where there is an existing dwelling-house, the second dwelling-house shall not exceed 3.6 metres in height."

The Council's case was based upon the view that Sydney Regional Environmental Plan (SREP) No. 12 governed the proposed development and, because the subject land was in a foreshore scenic protection area under the Manly LEP, cl.8(c) of SREP No. 12 did not apply to the land and, therefore, there was no power under that instrument to consent to dual occupancy; but, if it did apply to the land, the height restriction in cl.11(1) of the SREP No. 12 applied so as to prevent consent being given.

For the applicant, it was contended that the proposed development was permissible with the consent of the Council under the Manly LEP 1988 but, in any case, if cl.11(1) of the SREP No. 12 did apply, the height restriction was a development standard that, in the circumstances of the present case, was unreasonable and unnecessary to apply as the building was an existing building with no material alteration proposed to it.

The principal point at issue was whether it was open to the Council to grant development consent to the application. The Council contended that on its proper construction SREP No. 12 was intended to supersede all other planning instruments in relation to development by way of dual occupancy to the extent to which such other instruments were inconsistent with its provisions. However, the Council's contention that it was not open to the Council to give consent depended upon the view that the subject land was land within a zone or area referred to in schedule 2 within the meaning of cl.8(c) of the SREP and the provisions of that schedule. In my opinion that contention is not correct.

The Council's argument was that in the Manly LEP the land was identified by the description "Foreshore Scenic Protection Area", being words that were cognate with the words "Scenic Protection" or a description which included the words "Scenic Protection", being words used in para. (h) of cl.1 of Schedule 2 and, therefore, was land in Schedule 2 and, as such, land excluded by cl.8(c) of SREP No. 12 from the dual occupancy development which might be permitted with the consent of the Council.

Cl.1 of Schedule 2 describes the land to which it applies as "Land which under an environmental planning instrument is within a zone (within the meaning of that instrument) identified in that instrument by" the descriptions which follow. It is the zone that must be so identified. In order for the Council's argument to be correct, it is necessary to treat the words "Foreshore Scenic Protection Area" as a description identifying a zone under, and within the meaning of, the Manly LEP.

In my opinion, the description Foreshore Scenic Protection Area is not used in the Manly LEP as the identification of a zone. For the purpose of imposing development restrictions the text of the instrument and the plan map appear to be precise and specific in the use of the word "zone" and to intend that word to have a distinctive meaning and significance separate from other descriptions of areas of land calling for some special considerations in respect of the development permitted therein. Note the contrast between the use of the word "zone" and "area" in cl.3(1)(c) and (i); cl.3(2)(a) and (b)(i). Cl.3(2)(a) expresses the intention to divide the land into zones in cl.9 to achieve the objectives specified in cl.10. This is done in Part 2 of the LEP under the heading "General Restrictions on Development of Land". In Part 2 the word "zone" is used exclusively and consistently throughout cls.9 and 10 and the Table thereunder as the word to which land use descriptions are attached for the purpose of regulating d

evelopment of land within each zone. In the table printed on the plan map the eight zones described in cl.9 are boxed and listed separately under the heading "Zones". By contrast "Foreshore Scenic Protection Area" is listed in an adjoining box under the heading "General". The description "Tourist Area" also appears there. Whilst "Zones" are dealt with by cls.9, 10 and the Table thereunder, "Areas" are left to be defined in cl.7 ("Conservation Area", "Foreshore Scenic Protection Area" (quoted above), "Recreation Area" and "Tourist Area"). The particular considerations applicable to development in the "Areas" are dealt with in Part 3 under the heading "Special Provisions".

The Council's argument would, in effect, use the words "zone" and "area" as interchangeable in applying cl.8(c) of the SREP No. 12 and Schedule 2 thereof; but they are not so used either there or in the Manly LEP. While cl.8(c) refers to "a zone or area referred to in Schedule 2", Schedule 2 itself deals with "zones" in cl.1 and certain "areas" in cls.2 and 3 of the Schedule. However, by cl.1 of the Schedule, it is the meaning of the environmental planning instrument in question that counts in determining whether under that instrument the land is in a zone identified therein by the requisite description. In the present case the land is in a zone identified in the Manly LEP by the description "Residential Zone", not a zone identified therein by the description "Foreshore Scenic Protection Area". The latter description does not identify a zone but refers to an area. In my opinion, neither the zone nor the area in which the subject land is located by the Manly LEP are caught up by Schedule 2 of the SREP No. 12 a

nd, therefore, it was open to the Council under cl.8(c)(ii) of the latter instrument to consent to the erection of a second dwelling house in addition to the one already erected on the applicant's land.

I should mention that in reaching this conclusion I have disregarded the comments upon Schedule 2 contained in the explanatory notes accompanying SREP No. 12.

The next question is whether the height restriction in cl.11(1) of SREP No. 12 applies, that being the basis on which the Council rejected the development application. That clause refers to an application "to erect" a second dwelling house. It was contended for the applicant that these words should be taken literally and, as the present application was, substantially, only for internal alterations to a building already erected, there was no application to erect a second dwelling house and, therefore, cl.11(1) did not operate to apply a height restriction.

In my opinion, s.34 of the Environmental Planning and Assessment Act, 1979 applies and expressions used in SREP No. 12 are to have, unless a contrary intention appears, the same meanings they have in that Act. By s.4(2) a reference to the erection of a building includes a reference to the making of structural alterations to it and that, as to the interior and part of the exterior of the existing building, is proposed here.

But, it was argued, there is a contrary intention indicated in SREP No. 12 which, in cl.8(a), speaks of altering or adding to an existing dwelling house to create two dwellings (not proposed here) which is to be contrasted with cls.8(b) and (c) which speak of erecting two dwellings or a second one in addition to one already erected on the land. The purpose of the instrument is to govern by whatever means the creation of dual occupancy of land where single occupancy exists and this is, in my opinion, sufficient to exclude any intention contrary to the application of the extended meaning of "erect", derived from s.4, to that word in cl.11(1). In my opinion, cl.11(1) applies to limit the height of the proposed second dwelling-house to 3.6 metres.

That brings up the objection made by the applicant under SEPP 1. I am satisfied that that objection is well founded and should be upheld on the ground that the provision in question is a development standard (within the meaning of the legislation) that is unreasonable in the circumstances of the present case. Development and building approval for the erection of the main structure that will contain the proposed dwelling was given by the Council in 1984 and the building was erected as a two storey garage in accordance with those approvals to its present height of 7.6m. The existing situation in that respect will not change whether the application to convert the upper floor to a dwelling-house is refused or granted. It is therefore unreasonable to apply a 3.6m height limit to the existing building.

Counsel for the applicant put an argument that the Council had the power to consent to the present application under the Manly LEP independently of SREP 12. This was based on the use of the plural "dwelling-houses" in para. 2 of the Table for Zone No. 2 - Residential Zone. It was argued that this wording permitted, without consent, under cl.2, development by the erection of more than one dwelling-house on an allotment not in the Foreshore Scenic Protection Area and, with the consent of the Council, under cl.3, on an allotment within that area. It was pointed out that nowhere in the Act or the Manly LEP was only one dwelling-house per allotment stipulated, leaving aside density or minimum area restrictions.

The respondent submitted that the plurality of the expression "dwelling-houses" was of no assistance to the applicant's argument because by s.8(c) of the Interpretation Act, 1987 the plural form included the singular. To this counsel for the applicant replied, as I understood him, that that Act did not apply to the interpretation of environmental planning instruments and that the interpretation of such instruments was governed by s.34 of the Environmental Planning and Assessment Act, 1979.

As such instruments are instruments made under s.24 of the last mentioned Act and as the Interpretation Act, by ss.3(1) and 5(1) thereof, applies to "an instrument (including a statutory rule) made under an Act", this last contention is incorrect; but the proposition that a power to consent to more than one dwelling-house on an allotment is to be derived from the use of the words "dwelling-houses" in cl.2 of the Zone No. 2 Table is, in my opinion, wrong for a different reason.

As the solicitor for the Council submitted, the provisions of the Manly LEP in question are concerned with controlling land use in terms of purpose. The key to this is in cl.10(2) in the words ".... in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which (a) development may be carried out... are specified under the headings (etc.)". Thus the words "dwelling-houses" describe a purpose for which the land in the Zone may be used and are not directed at all to the question of quantity. They cannot, therefore, be read as intended to vest power in the Council to approve of the development of land in the Foreshore Scenic Protection Area by the erection of more than one house on any single allotment within such Area.

It does not follow that it is not open to the Council to approve a development application for the erection of two or more houses on one lot. The Council was unable to point to any prohibition against it in the Environmental Planning and Assessment Act,1979 or the Manly LEP. Of course when the applicant came to seek building approval, s.307(c) of the Local Government Act, 1919 would entitle the Council to disapprove. By that section, the Council may disapprove of the erection of any building upon any land if the land has not been subdivided and if by the erection of the building the land would become obviously adapted for separate occupation in two or more parts. A similar kind of question arose in Cogan v. Lane Cove Municipal Council (1960) 6 L.G.R.A.250 AT pp.260-261 but was left undecided. It is unnecessary to pursue it here also because, whether or not there is power to consent to dual occupancy under the Manly LEP, there is power to do so under cl.8 of SREP No. 12 which, by cl.6 thereof, overrides any pr

ohibition or restriction thereon contained in any local environmental plan.

It was the Council's submission that the Manly LEP did not regulate dual occupancy at all. It was argued that since SREP No. 12 came into force that instrument was the sole regulatory control of development for dual occupancy. If that argument means that a local environmental plan is entirely excluded in respect of any dual occupancy development application for land to which SREP No. 12 applies, I think it goes too far as cl.6 thereof only declares to be of no effect a provision of a local environmental plan to the extent that it would prohibit or restrict development in accordance with the SREP.

The Council called its Deputy Chief Town Planner, Mr. G. Rhodes, to explain a matter of concern about the proposed development having regard to the fact that it would be located in the Foreshore Scenic Protection Area. The Council had long pursued a policy of governing the density and height of buildings in that area to enhance and avoid detraction from the scenic attraction of the foreshore and slopes above when viewed from Middle Harbour and its opposite shores. As no material alteration of the existing structures, their locality, height or appearance was to take place no objection could be taken to the development or building applications in the present circumstances; but Mr. Rhodes pointed out that the size of the land was such that an application to subdivide the land at some future time might fairly be anticipated and then problems of preserving the visual standards of the foreshore area could arise if the owner of the new allotment desired to apply for dual occupancy. Whilst Mr. Rhodes' foresight and d

esire to protect the Municipality's foreshore areas is commendable, I do not think that with all the uncertainties that attend predictions of the future the present applications could properly be refused upon the basis of Mr. Rhodes' speculations about problems that might arise with respect to a possible future application for approval of a subdivision of the subject land.

It was common ground that, apart from the height issue, the proposed development satisfied the requirements of the SREP No. 12, the Manly LEP and the Manly Development Control Plan. As the existing external structure of the building remains intact no issue as to detriment to the amenity of the neighbourhood or adverse environmental impact arises from the proposed development. In my opinion, the Court should grant development consent.

Approval of the building application should follow but subject to the two conditions proposed by the Council quoted above to which the applicant took no exception.

The Court orders as follows:-

No. 10599 of 1987

1. Appeal allowed.

2. Order that development consent be given to the conversion of the existing garage at 3 Linkmead Avenue, Clontarf, to dual occupancy as proposed by the applicant in his development application to the respondent No. 2288/87.

3. No order for costs.

No. 20371 of 1988

1. Appeal allowed.

2. Order that the building application made by the applicant to the respondent for conversion of the existing garage at 3 Linkmead Avenue, Clontarf, to a dwelling by Building Application No. 100/88 be approved subject to the following conditions:

(a) The plans being notated to show provisions for clothes washing facilities to accord with clause 46.4(1)(c) of Ordinance 70.

(b) Manufacturer's specifications being submitted to the satisfaction of the Council in respect of the proposed spiral staircase.

3. No order for costs.