Gales-Kingscliff Pty Ltd v Tweed Shire Council
[2007] NSWLEC 683
•16 October 2007
Reported Decision: 156 LGERA 389
Land and Environment Court
of New South Wales
CITATION: Gales-Kingscliff Pty Ltd v Tweed Shire Council [2007] NSWLEC 683 PARTIES: APPLICANT
RESPONDENT
Gales-Kingscliff Pty Ltd
Tweed Shire CouncilFILE NUMBER(S): 10775 of 2007 CORAM: Preston CJ KEY ISSUES: Development Application :- proposed development of livestock grazing - whether permissible - interaction of State Environmental Planning Policy and Local Environmental Plan - State Environmental Planning Policy No 71 - Coastal Protection (cl 13) renders provision of an environmental planning instrument that allows development within a zone to be consented to as if it were in a neighbouring zone, or a similar provision, to be of no effect - Tweed Local Environmental Plan 2000 (cl 11) specifies as a nominate permissible development in the relevant zone "any use which is compatible with adjacent uses and with uses allowed (with or without consent) in adjacent zones" - whether that provision of Tweed Local Environmental Plan a provision described by State Environmental Planning Policy No 71 LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
Unicomb Development Services Pty Ltd v Shellharbour City Council (2003) 125 LGERA 170DATES OF HEARING: 16 October 2007 EX TEMPORE JUDGMENT DATE: 16 October 2007 LEGAL REPRESENTATIVES: APPLICANT
T Robertson SC with J Lazarus (Barrister)
SOLICITORS
Woolf AssociatesRESPONDENT
J Griffiths SC with G Wright (Barrister)
SOLICITORS
Home Wilkinson Lowry
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON CJ
16 OCTOBER 2007
10775 OF 2007
GALES-KINGSCLIFF PTY LTD V TWEED SHIRE COUNCIL
JUDGMENT
1 HIS HONOUR: The applicant, Gales-Kingscliff Pty Limited, owns land at Chinderah on the far north coast of New South Wales, being Lot 1 in DP 1075645, Tweed Coast Road, Chinderah, on which it wishes to carry out the development of livestock grazing. The land is approximately 18.18 hectares. The applicant proposes to graze between 30 to 50 cattle on the land.
2 The applicant lodged a development application seeking development consent to use the land for the purpose of livestock grazing, which development application was refused by Tweed Shire Council on 2 August 2007. The sole reason for refusal was that “the proposed development is prohibited”.
3 The applicant lodged an appeal against the Council’s refusal under s 97 of the Environmental Planning and Assessment Act 1979 to the Court. On 6 September 2007, the Council filed a statement of facts and contentions raising three contentions. The first two contentions involve points of law and are the subject of this hearing. The third contention was whether the proposed development is inconsistent with Draft Tweed Local Environmental Plan Amendment No 14 which proposes to rezone the land from the current zone 5(a) – Special uses to zone 4(a) – Industrial in which zone agriculture would be prohibited. However, the Council no longer presses this contention. Accordingly, the only issues in the proceedings are the first two points of law raised in the Council’s statement of facts and contentions. These are:
- “1. Whether, pursuant to clause 13 of SEPP 71, Item 2 on the development control table for the 5(a) – Special Uses Zone has no effect?
- 2. If the answer to question 1 is “yes”, is the proposed development prohibited?”
4 On 11 September 2007, the Court set the proceedings for hearing today and made directions for the filing by the applicant of its statement of facts and contentions, by the respondent of a bundle of documents with the applicant to add any document it wishes, and by both parties of written submissions.
5 The evidence tendered at the hearing involved (a) the Council’s bundle of documents which included the development application and accompanying statement of environmental effects, the Council officer’s report to the Council meeting of 31 July 2007 (which report raised no merit issues in relation to the proposed development, only the question of permissibility subsequently raised in the points of law), and the Council’s Notice of Refusal of the Development Application dated 2 August 2007, various correspondence between the Council and the applicant, and the relevant environmental planning instruments of State Environmental Planning Policy No 71 – Coastal Protection (“SEPP 71”) and Tweed Local Environmental Plan 2000 (“Tweed LEP”); (b) an extract from the Tweed LEP 2000 zoning map showing the zoning of the land and the adjacent zones; and (c) the Council’s and the applicant’s respective statements of facts and contentions.
6 In essence, the Council’s argument is that clause 14 of SEPP 71 operates so as to cause the part of the development control table (in Item 2) for the 5(a) zone in clause 11 of Tweed LEP which would make the proposed development of livestock grazing on the land permissible with consent, to have no effect. Accordingly, the Council submits, the first question should be answered in the affirmative. (The Council concedes that if the answer to the first question is in the negative, the proposed use would be permissible having regard to its compatibility with adjacent uses and with uses allowed (with or without consent) in adjacent zones: see the note to paragraph 4 of the Council’s Statements of Facts and Contentions).
7 If the answer to the first question is in the affirmative, because there is no other provision in the Tweed LEP which would permit livestock grazing on the land with or without consent, the consequence would be that the proposed development would be prohibited. Council therefore submits that the second question should be answered in the negative.
8 The applicant submits, to the contrary of the Council, that clause 13 of SEPP 71 has no application to that part of the development control table (Item 2) for the 5(a) zone in clause 11 of Tweed LEP and hence the proposed development of livestock grazing remains permissible with consent on the land under Tweed LEP. The applicant submits, therefore, that the first question should be answered in the negative. The second question would therefore not arise. (However, the applicant concedes that if it were to be wrong as to the first question, then the second question would need to be answered in the affirmative as the Council has submitted).
9 The land is zoned 5(a) – Special Uses under Tweed LEP. Clause 11 of Tweed LEP contains the development control table which sets out the objectives of the zones, the development that is allowed without consent or only with consent or that is prohibited in the zone. For each zone, Item 1 sets out the development allowed without consent, Item 2 sets out development only with consent, Item 3 sets out development allowed only with consent and that must satisfy the provisions of clause 8(2) of Tweed LEP and Item 4 sets out prohibited development.
10 For the 5(a) zone, none of the four categories of nominate development in Item 1 of the development control table are of relevance to the proposed development of livestock grazing. The development of livestock grazing is, therefore, not allowable without consent in the 5(a) zone.
11 Item 2 sets out four categories of development allowable only with consent in the 5(a) zone. Three of those categories are not relevant to the proposed development of livestock grazing. One category, however, is of relevance, namely:
- “• any use which is compatible with adjacent uses and with uses allowed (with or without consent) in adjacent zones” (hereinafter referred to as the “any use” category).
12 This is the category on which the applicant relies to make permissible the proposed development of livestock grazing on the land.
13 Item 3 specifies “nil” for the 5(a) zone, that is to say, there are no developments allowed with consent and that must satisfy the provisions of clause 8(2) of Tweed LEP.
14 Item 4 specifies that:
- “• any buildings, works, places or land uses not included in Item 1, 2 or 3”
are prohibited.
15 As a consequence, if the applicant’s proposed development of livestock grazing can fall within the “any use” category in Item 2, it cannot be prohibited. On the other hand, if the “any use” category in Item 2 were not to apply to the applicant’s proposed development, because there is no other category in Items 1, 2 or 3 that would be applicable, the proposed development of livestock grazing would be prohibited under Item 4.
16 SEPP 71 applies, with some exceptions, to land within the coastal zone: clause 4(1) of SEPP 71. The parties agree that the applicant’s land is within the coastal zone and is land to which SEPP 71 applies. Part 4 of SEPP 71 applies to all development of land to which SEPP 71 applies (clause 12) and specifies the development controls that will and will not be applicable to such development. Clauses 14, 15 and 16 in Part 4 of SEPP 71 impose development controls in relation to public access, effluent disposal and stormwater and prohibit the granting of consent unless the consent authority is satisfied that such matters are addressed in specified ways. Clause 13 is different; it renders certain provisions in an environmental planning instrument to have no effect to development on land to which SEPP 71 applies. The section heading to clause 13 of SEPP 71 is “Flexible zone provisions”. Clause 13 of SEPP 71 provides:
- “A provision of an environmental planning instrument that allows development within a zone to be consented to as if it were in a neighbouring zone, or a similar provision, has no effect”.
17 The critical question in this case is whether the “any use” category of permissible development in Item 2 of the development control table for zone 5(a) in clause 11 in Tweed LEP can be said to be a provision within either limb of clause 13, that is either within the first limb of “a provision of an environmental planning instrument that allows development in the zone to be consented to as if it were in a neighbouring zone” or within the second limb of “a similar provision”. If the “any use” category were to fall within either limb, then it will have no effect by operation of clause 13, but if it does not fall within either limb, then it will continue to have effect.
18 I have considered both the written and the oral submissions of Senior Counsel for both parties on the points of law. I have concluded that clause 13 of SEPP 71 is not applicable to the “any use” category of permissible development in Item 2 of the development control table for the 5(a) zone in clause 11 of Tweed LEP, as it is neither a provision that allows development within a zone to be consented to as if it were in a neighbouring zone nor a similar provision.
19 As I have noted, clause 13 of SEPP 71 has two limbs which together constitute the provisions of an environmental planning instrument which the section heading describe as “Flexible zone provisions”.
20 The first limb of cl 13 of SEPP 71 refers to a provision of an environmental planning instrument which uses a particular fiction to enable consent to be granted to development in circumstances where consent could not otherwise be granted, namely, allowing development within a zone to be consented to “as if” the development were in a neighbouring zone. The fiction is to assume that development for a particular purpose is not to be carried out in the zone in which it is actually proposed to be carried out but rather in a neighbouring zone. Such a fiction is employed because development for that purpose would not be able to be consented to in the zone in which it is actually proposed but would be able to be consented to if it were to be carried out in the neighbouring zone. The provision operates to empower the consent authority to consent to development for that purpose in the zone in which it is actually proposed to be carried out as if it were in the neighbouring zone where it would be permissible with consent.
21 The second limb expands the reach of clause 13 of SEPP 71 by including “a similar provision”. The reference point of similarity is with a provision described in the first limb. The critical feature of the first limb I have noted above is the employment of a fiction to enable the granting of consent to development in the zone in which it is actually proposed. The first limb refers to a particular kind of fiction, namely assuming the development were in the neighbouring zone. In order for a provision to be similar to a provision in the first limb, it must also involve the critical feature of employment of a fiction or assumption to enable development within a zone to be consented to. The fiction or assumption need not be in the same terms as that described in the first limb, but it must have the same effect of enabling development to be consented to where absent the fiction or assumption it could not be consented to.
22 Often, a flexible zone provision of an environmental planning instrument is limited in operation to development in a prescribed geographical area, such as within a prescribed distance from the boundary with the neighbouring zone.
23 A typical example of a flexible zone provision, which would be within cl 13 of SEPP 71, is to be found in clause 14 of Tweed LEP. Clause 14(2) and (3) provide:
- “(2) This clause applies to land which is:
- (a) within 20 metres of a boundary between any two of Zones 1 (c), 2 (a), 2 (b), 2 (c), 2 (d), 2 (e), 2 (f), 3 (a), 3 (b), 3 (c), 3 (d), 3 (e), 4 (a), 5 (a), 6 (a) and 6 (b), or
- (b) within 50 metres of a boundary between Zones 1 (a) and 1 (b), or
- (c) within 50 metres of a boundary between any zone referred to in paragraph (a) and any zone referred to in paragraph (b).
- (3) Development that would otherwise be prohibited may, with consent, be carried out on land to which this clause applies if the development may be carried out (with or without consent) in the adjoining zone.”
24 Clause 14 of Tweed LEP has the precise effect to which clause 13 of SEPP 71 refers. Clause 14 allows development on land that is within one zone, which development would be prohibited in that zone, to be consented to as if the development were to be in a neighbouring zone (where it would be permissible), provided the land on which the development is proposed is within the specified distance of the neighbouring zone. In the present case, for example, clause 14(3) would allow consent to be granted on that part of the applicant’s land that is within 20 metres of the boundary between the 5(a) zone and the 4(a) – Industrial Zone to the north of the applicant’s land for development that would otherwise be prohibited in the 5(a) zoned land if the development may be carried out (with or without consent) in the adjoining 4(a) zone.
25 Another example of a flexible zone provision was considered by Lloyd J in Unicomb Development Services Pty Ltd v Shellharbour City Council (2003) 125 LGERA 170. Clause 83 of the Shellharbour Local Environmental Plan 2000 (Shellharbour LEP) was headed “flexible zone boundaries” and provided that development that may be carried out (whether with or without development consent) on land within a zone (specified in column I of the table to the clause) may also, with development consent, be carried out on land that is within an adjoining zone (specified opposite it in Column II of the table) but only to the extent specified in Column II.
26 Like clause 14 of Tweed LEP, clause 83 of Shellharbour LEP enlarges the power of the consent authority to grant consent to development that is not permissible in the zone in which it is proposed to be carried out if it is permissible in the adjoining zone.
27 It may be that neither clause 14 of Tweed LEP nor clause 83 of Shellharbour LEP are, in terms, a provision within the first limb of clause 13 of SEPP 71 in that they do not allow development within a zone to be consented to by employed the fiction of treating the development “as if it were in a neighbouring zone”. Nevertheless, they would be within the second limb of clause 13 of SEPP 71 of being a similar provision to such a provision in that they allow development within a zone to be consented to by employment of the fiction of treating the range of permissible developments in the zone to include the permissible developments in a neighbouring zone.
28 The “any use” category of permissible development in Item 2 of the development control table for the 5(a) zone in clause 11 of Tweed LEP, however, is not a provision of the kind referred to in clause 13 of SEPP 71. Development that falls within the “any use” category is allowed with consent in the 5(a) zone – it is not prohibited. Development is only prohibited in the 5(a) zone if it is not included in Items 1, 2 or 3 of the development control table. As development in the “any use” category is in Item 2, which category is allowable with consent, it cannot be prohibited.
29 Development that falls within the “any use” category is directly permissible in the 5(a) zone in the sense that the “any use” category is expressly included in Item 2 which specifies development allowed only with consent. The provision does not make development in the “any use” category of development permissible with consent by reference to whether such a category of development is permissible in a neighbouring zone. The provision does not invoke any fiction or assumption, in order to allow the development to be consented to, of treating the development as if it were in a neighbouring zone or treating the range of permissible developments in the zone as including the permissible developments in a neighbouring zone.
30 The requirement of compatibility in the “any use” category does not have any deeming effect. The requirement of compatibility operates to restrict the uses that are allowed only with consent to those which are compatible with adjacent uses (present uses) and with uses allowed (with or without consent) in adjacent zones (future uses). This requirement of compatibility does not make either the adjacent uses or the uses allowed (with or without consent) in adjacent zones permissible in the 5(a) zone. Rather, “any use” is permissible in the 5(a) zone provided it is compatible with adjacent uses and with uses allowed (with or without consent) in adjacent zones.
31 The mere fact that the requirement of compatibility in the “any use” category uses as one of the reference points the uses allowed (with or without consent) in adjacent zones is not sufficient to make the “any use” category a provision within clause 13 of SEPP 71. Provisions of a kind referred to in clause 13 have as a critical feature the enabling of the grant of consent to development by employment of a fiction, such as by treating the development as if it were in a neighbouring zone or treating the developments permissible in the zone to include those permissible in the neighbouring zone or by making some other similar assumption, in circumstances where but for employment of that fiction, the development could not be consented to. The requirement of compatibility in the “any use” category does not have this critical feature. Mere employment of the uses allowed in adjacent zones as a reference point to determine compatibility of the proposed use does not invoke this critical feature.
32 The Council submits that “any development which is identical with the actual or permitted uses in adjacent zones will inevitably be compatible with such uses or may therefore be carried out in the 5(a) zone with consent. Clause 13 therefore embraces provisions such as Item 2, with the consequence that Item 2 in zone 5(a) table has no effect”: paragraph 16 of the Council’s written submissions. I reject the submission for three reasons.
33 First, there is nothing inherent in the concept of “compatibility” which requires that the proposed use in the 5(a) zone be identical with adjacent uses or uses allowed (with or without consent) in adjacent zones, as the applicant correctly submits: para 13 of the applicant’s written submissions. Compatibility of uses refers to the capability of the uses to exist together in harmony. This proposition that compatibility does not necessitate the uses be identical seems to have been conceded by the Council: see paragraph 17 of the Council’s written submissions.
34 Secondly, the mere fact that the proposed use might be for the same purpose as the uses actually carried out or permitted to be carried out in adjacent zones does not “inevitably” result in compatibility. Some uses may be of a kind where clustering of the same uses is undesirable from a planning point of view because of adverse effects. Planning authorities have produced environmental planning instruments and development control plans which prohibit clustering of certain types of uses. Brothels and convenience stores are examples in urban environments.
35 Thirdly, even if the proposed use were to be identical with the actual or permissible uses in adjacent zones, and hence on the Council’s argument be inevitably compatible, that still would not mean that the “any use” category in Item 2 of the development control table for the 5(a) zone in clause 11 of Tweed LEP has the effect of enabling consent to be granted to development that would not otherwise be permissible in the 5(a) zone by reason of the fact that such development is permissible in neighbouring zones. The provision does not require an assumption that the development is to be carried out in a neighbouring zone or expand the range of developments permissible in the 5(a) zone by including by reference developments that are permissible in a neighbouring zone. Yet, some form of deeming effect would be necessary in order for the provision to be of the kind to which clause 13 of SEPP 71 refers.
36 The Council submits that “clause 13 picks up Item 2 in that one of the effects of Item 2 is to allow development as if it were in a neighbouring zone”: paragraph 17 of the Council’s written submissions. The “any use” category in Item 2 to the development control table of the 5(a) zone does no such thing. Nowhere in the “any use” category does it make the use in the 5(a) zone dependent for its permissibility on the circumstances in which such use would be permissible in the neighbouring zone.
37 The Council submits that it is necessary to construe the “any use” category in Item 2 of the development control table to the 5(a) zone of Tweed LEP as being a provision to which clause 71 applies in order to give effect to a purposive approach to construction: paragraphs 17-20 of the Council’s written submissions. The Council submits that:
- “...if cl 13 has the effect of excluding the application of a provision such as cl 14 of the LEP, while not capturing Item 2 of the 5(a) zone table, the central purpose of cl 13 and the SEPP 71 would be undermined. If it applied, Item 2 would allow a potentially much broader range of development in the coastal zone than that which is disallowed by reason of the effectiveness of cl 13 of SEPP 71 on orthodox flexible zoning provisions, such as cl 14 of the LEP. Such a construction of cl 13 would subvert the purpose of both that clause and SEPP 71”.
38 However, a purposive approach to construction does not warrant a Court rewriting a statutory provision. Here, clause 13 of SEPP 71 states the types of provisions to which it will apply – they are provisions that allow development within a zone to be consented to as if it were in a neighbouring zone or a similar provision. The question in this case is whether the “any use” category in Item 2 of the development control table for the 5(a) zone in clause 11 of Tweed LEP answers either of these descriptions of provisions in clause 13 of SEPP 71. On no proper construction of the “any use” category does it answer either of these descriptions of provisions in clause 13 of SEPP 71. It is not for the Court to rewrite clause 13 to expand the range of provisions to which it should apply so as to catch the “any use” category in Item 2 of the development control table for the 5(a) zone.
39 The Council submits that even if the “any use” category in Item 2 of the development control table for the 5(a) zone in clause 11 of Tweed LEP is not a provision answering the description in the first limb of SEPP 71 of being one that “allows development within a zone to be consented to as if it were in a neighbouring zone”, it is nevertheless “a similar provision” in the second limb. The Council submits the words “or a similar provision” must be given “some meaning and more properly, a broad meaning in line with the underlying legislative purpose of SEPP 71”: paragraph 22 of the Council’s written submissions.
40 The applicant submits that the words “or similar provision” is “intended to cover provisions that, while not framed in precisely the language of ‘allowing development within a zone to be consented to as if it were in a neighbouring zone’, have that effect. In that way, ‘or a similar provision’ means ‘or a provision which has that effect’. It may be that, properly construed, there are no provisions within an EPI that fall within the first limb of cl 13, but not the second, but that does not matter. The addition of those words is not without purpose (or effect). They make clear that the clause is intended to cover not just provisions framed precisely in the terms of the first limb of the clause, but extends to provisions with the same effect”: paragraph 6 of the applicant’s written submissions.
41 The Council replies that the applicant’s interpretation of clause 13 “gives the words ‘or a similar provision’ in clause 13 little, if any, work to do and as such, is contrary to ordinary principles of legislative construction: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]”: paragraph 5 of the Council’s written submissions in reply.
42 The words “or similar provision”, in their context in clause 13 of SEPP 71, refer, as the applicant submits, to a provision of an environmental planning instrument which, although not drafted in terms of the first limb of clause 13 of SEPP 71, nevertheless has a similar effect. As I have noted above, the first limb of clause 13 of SEPP 71 refers to a provision which has the effect of making permissible in a zone development for a purpose which, although not otherwise permissible in the zone, would be permissible if such a development were to be carried out in a neighbouring zone. This flows from the deeming words of “as if it were” in the first limb in clause 13. It is this effect of deeming development to be permissible in the zone that is at the heart of the first limb of clause 13 of SEPP 71.
43 Provisions of an environmental planning instrument which are drafted in the terms of the first limb of clause 13 of SEPP 71 to achieve this deeming effect will, obviously, fall within the first limb. The second limb of clause 13 of SEPP 71 is intended to catch other provisions of environmental planning instruments which, although using different terms, still achieve this effect of deeming development to be permissible in the zone, and hence “allowing development within a zone to be consented to”, by reference to whether the development would be permissible in a neighbouring zone and hence able to be consented to in that neighbouring zone. Such provisions are “similar provisions” to those referred to in the first limb.
44 As I have noted above, the “any use” category in Item 2 of the development control table for the 5(a) zone in clause 11 of Tweed LEP does not have such a deeming effect. The “any use” category does not make permissible a use that would otherwise be prohibited in the 5(a) zone by treating the development as if it were in the adjacent zone or by treating the uses allowed (with or without consent) in the adjacent zone to be uses allowed with consent in the 5(a) zone or by making any other similar assumption. The “any use” category is neither in the terms of a provision in the first limb of SEPP 71 nor to a similar effect as such a provision. Accordingly, the “any use” category is not a “similar provision” within the second limb of clause 13 of SEPP 71.
45 For these reasons, the answers to the points of law listed for separate determination are:
1. Whether, pursuant to clause 13 of SEPP 71, Item 2 of the development control table for the 5(a) special uses zone has no effect?
No.
Not applicable.2. If the answer to question 1 is “yes”, is the proposed development prohibited?
46 As the Council raises no other issues, including importantly any merit issues, as to why the applicant’s development application for livestock grazing should not be approved, and on the evidence there is no valid reason not to approve the application, the parties agree that the appeal should be upheld and development consent granted. It will be necessary, however, for appropriate conditions of consent to be proposed. The parties seek an adjournment for about a week in order for this to be done. Accordingly, I make the following directions:
1. The Council is to file and serve draft conditions of consent by 19 October 2007.
3. The matter is re-listed for further hearing on 26 October 2007.2. The applicant is to file and serve amended draft conditions of consent by 24 October 2007.
2
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