Garry Dent v Hastings Council

[1999] NSWLEC 9

Land and Environment Court

of New South Wales

CITATION:	Garry Dent V Hastings Council [1999] NSWLEC 9
PARTIES	Applicant Garry Dent
Respondent Hastings Council
NUMBER:	10698 of 1998
CORAM:	Sheahan J
KEY ISSUES:	:- Preliminary Question of Law - Development Control Plan - inconsistency with other instruments
LEGISLATION CITED:	Preliminary Question of Law - Development Control Plan - inconsistency with other instruments
DATES OF HEARING:	02/03/1999
DATE OF JUDGMENT DELIVERY:	02/05/1999
LEGAL REPRESENTATIVES:	Prosecutor Mr P McEwen SC Mr L Lim of Gadens Lawyers Respondent Mr T Robertson Mr S Miles of Donovan Oates Hannaford

JUDGMENT:

IN THE LAND AND Matter No: 10698 of 1998
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 5 February 1999

GARRY DENT
Applicant

v

HASTINGS COUNCIL
Respondent


JUDGMENT


Introduction

1. This Class 1 application is listed for hearing on Monday 8 February 1999, and some preliminary questions of law have lately arisen, requiring early determination.

2. The Class 1 application, filed on 14 October 1998, appeals against the deemed refusal by Council of a development application, lodged on 31 July 1998, for the construction of a substantial residential development, with associated shops and carpark, worth approximately $12 million.

3. The subject property is located at the corner of Short and Hayward Streets, Port Macquarie (see map in Exhibit D2 ). It is zoned “3(a) General Business” under the provisions of Hastings Local Environmental Plan 1987 (as amended) (“ the LEP ”), which came into force on 2 October 1987 (see Exhibit D1 ).

4. The North Coast Regional Environmental Plan 1988 (as amended) (“ the REP ”) which came into force on 15 January 1988 (see Exhibit D3), also covers the site. Other relevant instruments are Development Control Plan 20 - 1997 - Port Macquarie Town Centre (“ DCP 1997 ”), which took effect on 1 February 1997, and Development Control Plan 20 - 1998 - Port Macquarie Town Centre (“ DCP 1998 ”) (see Exhibit D5 ). Also relevant is a draft amendment (“ Amendment 93 ”) to the LEP (see Exhibit D4 ), which went on exhibition late in 1998.

5. Under DCP 1998 the subject site falls within “the Horton Street Precinct” of Port Macquarie.

6. The central issue in this matter, at this preliminary stage, is the relationship and interaction of these various instruments, which I will now describe in more detail before posing and addressing the questions raised.

The relevant instruments

The LEP

7. Clause 4 of the LEP , sets out the following objectives for General Business Zone 3(a):

“(a) to allow a range of retail, office and commercial development appropriate to the status and function of the particular retail centre; and
(b) to allow a wide range of uses which may be ancillary to, supportive of, or appropriately located near, or with, retail and commercial facilities; and
(c) to facilitate strong, multi-functional town centres; and
(d) to enable appropriate development falling within Item 3”.

8. The effect of clauses 28A and 28B of the LEP on land within the area hatched on its map are to add the objectives stated in clause 28B to those of the 3(a) zone.

9. Clause 28B(1) states “this clause applies to land shown diagonally hatched on the floor space ratio map” and it is common ground between the parties that the subject site is within that diagonally hatched area. Clause 28B relates to the consideration of development applications in respect of the town centre and requires Council (by clause 28B(3)) to “not grant consent to an application for development of land to which this clause applies unless it has taken into consideration” the following objectives (in clause 28B(2)):

“(a) to encourage a strong multi-functional town centre:
(b) to ensure that development is arranged and carried out in a way that maintains significant views to and from the town centre;
(c) to encourage development of prime tourism sites; and
(d) to ensure convenient pedestrian access is provided throughout the town centre”.

10. The applicant contends that, correctly construed, the LEP contains no height restrictions applicable to Zone 3(a) land generally, or to the subject land in particular.

The REP

11. The aims of the REP , as stated in clause 2, are as follows:

“(a) to develop regional policies that protect the natural environment, encourage an efficient and attractive built environment and guide development into a productive yet environmentally sound future;
(b) to consolidate and amend various existing policies applying to the region, make them more appropriate to regional needs and place them in an overall context of regional policy;

(c) to provide a basis for the co-ordination of activities related to growth in the region and encourage optimum economic and social benefit to the local community and visitors to the region; and
(d) to initiate a regional planning process that will serve as a framework for identifying priorities for further investigation to be carried out by the Department and other agencies.”

12. Clause 32B(2) of the REP requires that Councils must , in determining applications for consent to carry out development on any land to which it applies, have regard to three documents:

(a) The New South Wales Coast Government Policy;
(b) The Coastline Management Manual; and
(c) The North Coast: Design Guidelines (see Exhibit D8 ).

13. Clauses 34, 37, 41 and 49 of the REP relevantly provide as follows:

“34. The objectives of this plan, in relation to heritage items and conservation areas, are:
(a) to conserve the environmental heritage (including the historic, scientific, cultural, social, archaeological, architectural and aesthetic heritage) of the North Coast Region;
(b) to promote the appreciation and understanding of the North Coast Region’s distinctive variety of cultural heritage items and conservation areas including significant buildings, structures, works, relics, towns and precincts; and
(c) to encourage the conservation of the Region’s historic townscapes which contain one or more buildings or places of heritage significance or which have a character and appearance that is desirable to conserve.

37. The objectives of this plan in relation to urban development are to -
(a) provide for the orderly and economic release of urban land and identify growth centres; and
(b) promote the efficient commercial functioning of subregional and district centres.

41. The objectives of this plan in relation to housing are to promote the provision of a range of adequate, affordable and suitable housing to meet the needs of the region’s population.

49. The objectives of this plan in relation to the erection of tall buildings are to ensure that proposal for buildings over 14 metres are -
(a) subject to the opportunity for public comment; and
(b) assessed for their local impact and regional significance.”

14. Clause 47 of the REP deals specifically with the preparation of draft local environmental plans, within the region, relating to commercial and/or industrial development. Among the principles which the Council should take into consideration is the following:

“strong multi-functional town centres should be maintained to focus the drawing power of individual businesses and maintain the integrity of the main business area by only zoning land for further commercial or retail development where that development adjoins or is adjacent to the existing town centre;”

15. Clause 2A provides that when a Council is deciding whether or not to prepare a draft LEP, or is preparing one, it should take into consideration “such of the aims and objectives of this plan as are relevant… .” See also clause 83(h).

16. Under clause 51 of the REP the Council is required to obtain the concurrence of the Director before granting consent to any development application for the erection of a building over 14 metres in height. The Director is required to take into consideration, inter alia, “the likely regional implications of the development as regards its social, economic and visual effect and the effect which it will or is likely to have on the amenity of the area” (Clause 51(3)).

DCP 1998

17. In section 1.2 of DCP 1998 , setting out “Council’s Vision and Development Control Objectives for Port Macquarie”, the following three objectives are identified:

“1. To maintain its role as the primary business and retail centre in the local government area and promote its role as a regional centre on the North Coast, subject to maintaining and enhancing the valued characteristics of the town centre and encouraging development which recognises and responds to the existing town fabric.
2. To enhance its role as a holiday destination for an increasing number of visitors.
3. To maintain and enhance its role as an important recreational and social centre including community gathering place for residents and tourists alike”.

18. Height limits for the town centre are dealt with in section 1.4, and it is clear that the intention is to impose a 12 metre height limit (measured from natural ground level to uppermost ceiling) on the subject site. DCP 1998 provides:

“Where an applicant wishes to depart from these height limits the applicant will need to demonstrate all of the following:
· compliance with the objectives of the DCP,
· the proposed variation will not negatively impact on the character of the precinct,
· the proposed variation is part of a development that results in other urban design advantages such as:
* a desirable pedestrian link is to be provided or maintained,
* significant restoration works on heritage items are to be carried out as part of the development,
* demonstrable architectural merit that enhances the desired future character of the precinct
In circumstances where variation is sought, the Council may require an independent assessment of the proposal”.

The Amendment

19. Draft Amendment 93 (clause 5), as noted above, would amend the LEP by deleting from clause 8(1) the definition of “floor space ratio map” and by deleting both clauses 28A and 28B.

Planning evidence

20. Counsel for both sides drew the Court’s attention to the opinions expressed by their respective planning experts regarding these instruments (see Exhibits D7 and H2 ). They have provided useful background information, but I have paid no regard to such portions of them as express a view on the legal questions before the Court.

Council’s Recent Decision regarding the dcps

21. On 11 January 1999 an Extraordinary Meeting of the Council carried a resolution which relevantly:

· Approved DCP 1998.
· Resolved to give public notice of that decision, “with the DCP to become effective from that date”, within 28 days.
· Repealed DCP 1997 as at the date of the public notification of DCP 1998.
· Inserted in DCP 1998, as adopted, a note to the effect that it replaces DCP 1997.
· Amended clause 5 of (draft) Amendment 93 so that it will amend the LEP:
(a) by deleting the definition of “floor space ratio map” in clause 8(1);
(b) by adding to clause 8(1) - “‘town centre map’ means the map marked Hastings Local Environmental Plan - Town Centre Map”;

(c) by deleting clause 28A, and clause 28B(1), and adding as a new clause 28B(1):
“This clause applies to land shown diagonally hatched on the Town Centre Map”.
· noted that Council would be required to prepare a map which details the area now to be covered by clause 28B.

22. The relevant publication notifying the substitution of DCP 1998 for DCP 1997, pursuant to the resolution of 11 January 1999, occurred on 20 January 1999.

23. It would appear that the purpose of the resolution on 11 January 1999 was not only to replace the DCP, but to seek an amendment to the LEP to ensure its consistency with the new DCP.

24. The applicant contends that without the gazettal of the proposed changes to the LEP, including a new map, there is “a hiatus” between the repeal of DCP 1997 and the coming into effect of DCP 1998, which needs the LEP to be amended to give it meaning and scope.

The Questions to be answered

Question (a)

25. The first question posed in the Amended Notice of Motion is whether DCP 1998 generally conforms to the provisions of the LEP and/or the REP.

26. The applicant contends that the height controls imposed on the Horton Street Precinct are inconsistent with and contrary to:

(a) the objectives and requirements of the REP;
(b) the objectives of the 3(a) zone, set out in clause 12 of the LEP; and
(c) Clause 28B of the LEP;

and that DCP 1998 is invalid because those height controls are, in so far as they are repugnant to the objectives of the REP and the LEP, “inconsistent with and contrary to the provisions of” the LEP and the REP.

27. Section 36 (2) of the Environmental Planning and Assessment Act 1979 (‘the EPAA’) provides that a State environmental planning policy prevails over a regional environmental plan or a local environmental plan made before or after the policy to the extent of any inconsistency, should the regional environmental plan expressly provide. In accordance with this, section 36 (3) sets out that a regional environmental plan prevails over a local environmental plan, made before or after the regional environmental plan to the extent of any inconsistency, if the local environmental plan provides.

28. Section 72(3) of the EPAA provides:

“... a development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan which applies to the land to which the development control plan applies”.

29. Despite the hierarchical framework attaching to the various environmental planning instruments, the EPAA does not provide that a development control plan needs to be consistent with a regional environmental plan or a State environmental planning policy.

30. Thus the relevant question is one of repugnancy or inconsistency between the LEP and DCP 1998. I accept the submission of Mr Robertson, for the respondent, in that the question of inconsistency between the North Coast REP and the Hastings DCP 1988 is not relevant under the EPAA.

31. The applicant relied upon the decision of Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 (“Guideline Drafting”) in which Bignold J (at 278) considered a clause of a DCP, which purported to restrict the location of refreshment rooms to the ground floor of buildings. The relevant LEP permitted, with development consent, refreshment rooms without restriction. It was held that a DCP that “absolutely prohibits the establishment or use of a refreshment room other than on the ground floor of a building cannot be reasonably regarded as ‘generally conforming’ to the provisions of [the] local plan”.

32. However, Guideline Drafting was disapproved, at least in part, but, in my view, most relevantly for present purposes, by the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23.

33. Cole JA, with whom Abadee and Meagher JJ agreed, stated in Ligon (at 31):

“I see no reason why a development control plan, in providing more detailed planning considerations may not, by imposing criteria by way of restriction or specification of necessary requirements to be met before the development consent contemplated by a North Sydney Local Environmental Plan is granted, should not be regarded as conforming with the wider North Sydney Local Environmental Plan. In my opinion that aspect of the decision in Guideline Drafting should be regarded as wrongly decided... A detailed plan which contained a provision contrary to the wider plan would not be in conformity with it, but a provision which is restrictive or prohibitive unless certain conditions are met is not such a contrary provision.”

34. In my opinion, the legal test stated and used by the Court of Appeal in Ligon is binding on this Court and is the proper one to apply in this situation.
35. DCP 1998, to the extent that it provides a height limit on the subject site, is not inconsistent with the LEP which is silent on the issue. The DCP in so attending to detail is performing the function envisaged for DCPs by section 72(1)(a) of the Environmental Planning & Assessment Act 1979.

36. Accordingly, I answer the first question in the Amended Notice of Motion in the affirmative .

Question (b)

37. The second question asks whether, given that the answer to the first question is in the negative, this Court should take into consideration the provisions of DCP 1998 in determining the development application which is the subject of these proceedings.

38. The LEP is proposed to be amended, in accordance with the Council resolution of 11 January 1999, to achieve conformity between it and DCP 1998.

39. Mr McEwen submitted what became known as “the hiatus” argument, namely that because the amendments to the LEP, adopted by the respondent, have not been gazetted, DCP 1998 does not conform with the LEP and is consequently invalid.

40. I cannot agree with this submission. Whilst the effective operation of DCP 1998 may be affected by the anticipated gazettal of amendments to the LEP, its validity as a DCP, made by Council in accordance with the EPAA, is not affected.

41. However, as the answer to question (a) as framed in the Amended Notice of Motion is in the affirmative , question (b) as framed does not arise.

Question (c)

42. There is no need to address the third question in the applicant’s Amended Notice of Motion, which asked whether, if both earlier answers were negative, the Court should take into consideration the provisions of DCP 1997 in determining the development application.

Conclusion

43. I therefore, deal with the three questions as follows:

Question (a):
“Whether Development Control Plan 20 - 1998 - Port Macquarie Town Centre approved by the respondent on 11 January 1999 (the ‘approved DCP20’) generally conforms to the provisions of the Hastings Local Environmental Plan 1987?”

Answer: Yes

Question (b):

“If the answer to question (a) is in the negative, whether this Court should nonetheless take into consideration the provisions of the approved DCP 20 in determining the development application which is the subject of these proceedings?”

Answer: Does not arise

Question (c):

“If the answer to the questions in paragraphs (a) and (b) are in the negative, whether this Court should take into consideration the provisions of the Development Control Plan 20 1997 Port Macquarie Town Centre in determining the development application which is the subject of these proceedings?”

Answer: Does not arise

44. There will be no order as to costs.

45. The exhibits may be returned and the matter remitted for determination on the merits, commencing Monday 8 February 1999, in the light of the answers summarised above.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 12 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

Associate:
Dated: 5 February 1999