Georgakis v North Sydney Council

[2004] NSWLEC 123

Land and Environment Court

of New South Wales

CITATION:	Georgakis v North Sydney Council [2004] NSWLEC 123
PARTIES:	Zoi Georgakis (Appl) North Sydney Council (Resp)
FILE NUMBER(S):	10032 of 2004
CORAM:	McClellan CJ
KEY ISSUES:	Development Application :- Proximity to transport service Development standards Prohibition on development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW)
CASES CITED:	Lowy v Land and Environment Court of New South Wales & Ors (2002) 123 LGERA 179; North Sydney Municipal Council v Mayoh [No 2] (1990) 71 LGRA; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Woollahra Municipal Council v Carr (1985) 62 LGRA
DATES OF HEARING:	11 March 2004
DATE OF JUDGMENT:	04/06/2004
LEGAL REPRESENTATIVES:	J A Ayling SC (Appl) Pike Pike & Fenwick M G Craig QC (Resp) Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10032/04

McCLELLAN J

TUESDAY, 6 APRIL 2004

GEORGAKIS

Applicant
v

NORTH SYDNEY COUNCIL

Respondent

Judgment

Introduction

1 The applicant has lodged a development application with the council seeking consent to develop land within the municipality for “Housing for Older People or People with a Disability” pursuant to State Environmental Planning Policy No 5 (“SEPP 5”). Although the council is of the opinion that there are general merit considerations which require the application to be refused, it submits that by reason of the location of the site of the proposed development relative to public transport facilities it cannot lawfully be approved. This conclusion is said to follow from cl 12(1) and (2) of SEPP 5.

2 The council has prepared a statement of issues which contains the following questions for preliminary determination:

“1. Whether, upon the proper interpretation of subclauses (1) and (2) of clause 12 of State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (‘SEPP 5’), all of the facilities and services referred to paragraphs (a), (b) and (c) of subclause (1) are required to be located not more than 400m from the site of the proposed development when a transport service referred to in paragraph (b) of subclause (2) is available only at a distance greater than 400m from the site of the proposed development.
2. Whether as a matter of law it is necessary for all the required facilities and support services identified in paragraphs (a), (b), and (c) of clause 12(1) of State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (‘SEPP 5’) to be within 400m of the site of the proposed development or a transport service which complies with clause 12(2)(b).
3. Whether clause 12(1) of SEPP 5 is a development standard in respect of which an objection made pursuant to State Environmental Planning Policy No 1 (‘SEPP 1’) can be made.”

3 To enable these questions to be determined the parties have provided an agreed statement of facts. That statement is in the following terms:

“1. The development for which consent is sought comprises:
(a) The demolition of existing structures and the construction of a State Environmental Planning Policy No 5 (‘SEPP 5’) development being a two-storey building with a basement parking level;
(b) The basement parking level comprises nine spaces for residents, three visitor spaces, garbage store, residential storage lockers and lift and stairway access to the building above;
(c) The two-storey building comprises seven two-bedroom self-contained dwellings (apartments), consisting of four ground floor dwellings and three first floor dwellings. Each of the ground floor dwellings has a private outdoor courtyard;
(d) Landscape works, plantings, landscaping, pathways, outdoor seating, and bin storage area; and
(e) Strata subdivision of the development to provide seven dwelling lots with parking spaces, and common areas comprising the front and south side outdoor landscaped area and entry pathway, driveway, three visitor parking spaces, and corridors and common facilities within that building.
2. The development is proposed to be carried out on Lots 5, 6 and 7, DP 8066 known as 20-24 Brook Street, Crows Nest (‘the land’).
3. The land is zoned Residential B Zone under the North Sydney Local Environmental Plan 2001 (‘LEP 2001’).
Pursuant to State Environmental Planning Policy No 5 (‘SEPP 5’)
4. With reference to subclause 12(2)(b) it is not agreed between the parties whether the nearest transport service to the facilities and services referred to in subclause 12(1) is located at a distance of more than 400 metres from the site of the proposed development. The table below sets out the respective positions of the parties.

Transport Service	Applicant’s measurement	Council’s measurement
Route 273 bus service	a) 390m from the site to the bus route. b) 445.5m to the bus stop (outward journey) c) 425m to the bus stop (inward journey)	a) 390m from the site to the street along which Route 273 bus service passes. b) 445.5m to the bus stop (outward journey) c) 459m to the bus stop (inward journey)



5. With reference to subclause 12(2)(a) it is not agreed between the parties whether the facilities and services referred to in subclause 12(1) are located at a distance of not more than 400 metres from the site of the proposed development. The table below sets out the respective positions of the parties.



Facility	Appl’s m’ment from the nearest bus stop along bus route 273 to the facility	Council’s m’ment from the nearest bus stop along bus route 273 to the facility	Appl’s m’ment from the site boundary closest to the facility to the entrance of the facility	Council’s m’ment from the site boundary closest to the facility to the entrance of the facility
(a) Supermarket convenience store Bank Pharmacy Tile shop	168m 47m 69m -	168m 47m 69m -	438 metres 680 metres 550.5 metres 397 metres (beginning of retail precinct)	466 metres 680 metres 598 metres 397 metres (not beginning of retail precinct)
(b) Community Service and recreational facility – Crows Nest Community Centre Wheatleigh St tennis courts	78 m -	78m -	560 metres 375 metres	560 metres
(c) General medical practitioner	210m	210m	405 metres	424 metres

4 SEPP 5 applies to land with the characteristics referred to in cl 4 of the Policy.

5 It is agreed by the parties that the land has the relevant characteristics and, accordingly, SEPP 5 applies to it.

6 Part 2 of SEPP 5 is entitled “Development Criteria”. The objective of the part is defined in cl 9 in the following terms:

“9. The objective of this Part is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer, and other people with a disability regardless of their age.”

7 Clause 10 of the policy provides the authority to carry out the relevant development. It is in the following terms:

“10. This Part allows development for the purpose of any form of housing for older people or people with a disability, despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with this policy.”

8 The remaining provisions of Part 2 are the criteria to which development must conform for it to be permitted. Under cl 12, headed “Matters for Consideration”, the policy provides criteria in relation to “location, facilities and support services.” Clause 12(1) and (2) are in the following terms:

“(1) The consent authority must not consent to a development application made pursuant to this Part unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:
(a) shops, banks and other retail and commercial services that residents may reasonably require; and
(b) community services and recreation facilities; and
(c) the practice of a general medical practitioner.
(2) Access complies with this subclause if:
(a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development; or
(b) there is a transport service available to the residents who will occupy the proposed development:
(i) that is located at a distance of not more than 400 metres from the site of the proposed development; and
(ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the relevant facilities or services; and
(iii) that is available both to and from the proposed development during daylight hours at least once per day from Monday to Friday (both days inclusive).”

9 Clause 12 also contains provisions in relation to bush fire and other matters. Clauses 13 and 13A are both headed “Development Standards”. Clause 13 relates to building height and street frontage and cl 13A relates to access and useability.

10 Part 3 of the policy relates to matters referred to as “Design Requirements” and miscellaneous provisions are contained within Part 4.

Is there a prohibition?

11 The council submits that because the site of the proposed development is at least 425 metres from the nearest bus stop on the inward journey, this being in excess of 400 metres, the proposed development is prohibited by cl 12(1) of SEPP 5. The bus stop is at a greater distance from the site, agreed to be 445.5 metres on the outward journey.

12 The applicant submits that, notwithstanding the distance from the nearest bus stop, cl 12(1) should not be construed as prohibiting the development. However, if it is a prohibition, it is submitted that cl 12(2) provides a development standard amenable to variation pursuant to State Environmental Planning Policy No 1 and the proposed development is accordingly permissible.

13 As the statement of agreed facts makes plain, some of the facilities referred to in cl 12(1) are within 400 metres of the site. However, they are not all within this distance. Only one shop, which happens to be a tile shop, and a community recreational facility in the nature of tennis courts are within the relevant distance.

14 The applicant submits that all that is required to meet the obligation imposed by cl 12(1) is that one or more, although not necessarily all, of the services referred to in subclauses (a) (b) and (c) are located within 400m of the site. It is further submitted that it is a matter for the judgment of the consent authority whether the services which are within 400m are sufficient to provide to residents a reasonable level of convenience. If the site is so isolated that there are no such services within 400 metres, there must be a complying transport service; likewise, if there are some services which are enumerated in cl 12(1) but are not within 400m, there must be a transport service available to obtain access to them. This is, it is submitted, the only meaning which can be given to the clause which is consistent with any sensible planning rationale.

15 I do not accept this submission. The various facilities referred to in cl 12(1)(a) (b) and (c) are, in my opinion, a collection of facilities which must either be within 400 metres of the site or there must be a transport service available within 400 metres which will permit access to the facilities. In my opinion, the words of cl 12(1), are plain and the meaning is confirmed by the fact that in cl 12(2)(b) they are collected as “the relevant facilities or services”. The applicant’s argument would require that provision to be read as extending to only one of the facilities or services referred to in cl 12(1), rather than to the collection of them.

16 The applicant also submitted that the requirement was fulfilled provided a relevant transport route was within 400 metres of the site even though it could not be accessed at that point or at any point within 400 metres. It was submitted that in circumstances where a railway line passed within 400 metres of a property it did not matter that a resident may have to travel some kilometres to find a railway station which would give access to a train.

17 I cannot accept this submission. The requirement in cl 12 is for the consent authority to be satisfied that residents will have access to the relevant facilities, which can be provided by there being a transport service available. Availability requires a capacity to utilise the facilities at a point within the defined distance. It is not sufficient that it merely passes the site. So much is plain from the purpose of the clause, which is to ensure that aged and disabled people are not isolated by residing at an excessive distance from necessary facilities or transport to those facilities.

18 It follows that, in my opinion, although failing by an extremely modest distance, the site of the proposed development is located at a distance more than 400 metres from where the transport service is available. Accordingly, the question which must be answered is whether cl 12 is a development standard amenable to State Environmental Planing Policy No 1.

The development of the law in relation to “development standards”

19 The question of whether or not a provision in an environmental planning instrument contains a development standard has been the subject of considerable litigation.

20 In Woollahra Municipal Council v Carr (1985) 62 LGRA 263, the Court of Appeal considered whether the definition of “professional consulting rooms” in the Woollahra Planning Scheme Ordinance, which limited the number of dentists to three, contained a development standard. Because the use was only permissible if it met the definition, and the definition limited the number of professionals to three, the court held that SEPP 1 could not be utilised to permit the development.

21 McHugh JA drew attention to the fact that development standards are matters that “ex hypothesi, are external to aspects of that development.” As his Honour points out if all that is permissible is a duplex SEPP 1 could not be utilised to approve a three storey building. If all that is permissible is a “dwelling house”, defined as a single dwelling on a parcel of land, SEPP 1 could not be utilised to approve a multi dwelling development on the site.

22 The analysis necessary to resolve the problem in Carr’s case does not give rise to many difficulties but does not greatly assist in resolving many of the other problems which have arisen.

23 In North Sydney Municipal Council v Mayoh [No 2] (1990) 71 LGRA 222, cl 14A(1)(A) of the North Sydney Local Environmental Plan 1989 provided that a residential flat building could not be erected on the relevant land if “any principle building on adjoining land is less than three storeys.” The Court of Appeal held this was not a development standard. The essential proposition was that the clause laid down requirements in relation to the land on which the development was proposed, rather than requirements relating to the development itself.

24 Mahoney JA expressed the matter in the following terms (at LGRA 234):

“I do not think that cl 14A(a) is a provision ‘in relation to the carrying out of development …’. There is, in my opinion, a distinction in the provisions between a provision which in form provides: ‘On land of characteristic X no development may be carried out’ and a provision which in form provides: ‘On such land development may be carried out in a particular way or to a particular extent.’ The provision in cl 14A(2) is, I think, of the latter kind. If cl 14A(1)(a) provided merely that ‘no building shall be erected on land in Zone No 2(c) if …’ the position would, in my opinion, be clear. In fact cl 14A(1)(a) prohibits erection on the land described in par (a) not of all buildings but only of ‘a residential flat building’. But it remains correct, I think, to say that, in respect of the land referred to in par (a) what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to ‘the carrying out of’ development of that or any other kind. If regard be had to purpose, the purpose of the provision was, I think, to proscribe development by buildings which would overshadow smaller buildings at the particular place. This is not a matter relating to ‘development standards’ but to the carrying out of development at all.”

25 Clarke JA came to the same conclusion and said (at LGRA 236):

“The point is reinforced by the fact that cl 14A(1)(a) lays down an absolute prohibition on the use of certain land for a particular purpose whereas development standards lay down requirements or standards against which the proposed development is to be measured: see Warringah Shire Council v K V M Investments Pty Ltd (1981) 45 LGRA 425 at 432, 440. There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development.”

26 Clarke JA went on to consider the judgment of McHugh JA in Carr. His Honour said this at (LGRA 237):

“In Carr the proposed development in question was that of professional consulting rooms which was defined in the relevant instrument to mean a number of rooms, inter alia, ‘used or intended for use … by not more than three dentists … and who employ not more than three employees’. The submission was that the condition restricting the number of employees was a development standard as it specified a requirement in respect of an aspect of that development. The argument was rejected upon the ground that the restriction appeared in the definition of the development which was under consideration. The point being made by his Honour was simply that the provision did not lay down a standard against which the proposed development could be measured but itself formed part of the definition of the development. If, for instance, in the present case, residential flat buildings were defined in the table in cl 9 as meaning residential flat buildings with no more than two storeys no part of that definition could be regarded as a development standard. In this case the Court is not concerned with the definition of residential flat buildings and with the greatest respect to Bignold J the passage in McHugh JA’s judgment does not assist in the resolution of the question whether cl 14A(1)(a) lays down a development standard.”

27 Since the decision in Mayoh, the problem of whether a provision in a Local Environment Plan contains a development standard has been debated many times. In most cases it has been held that the provision under consideration contains a development standard. However, the many cases confirm that the question has caused considerable difficulty.

28 The Court of Appeal looked at the matter in a comprehensive manner in two recent cases: Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 and Lowy v Land and Environment Court of New South Wales & Ors (2002) 123 LGERA 179.

29 In Poynting, Young CJ in Eq agreed with the analysis of the problem undertaken by Giles JA. Acknowledging that the task is not necessarily easy, Young CJ in Eq identified the fact that a lack of consistency in the drafting of planning instruments has multiplied the occasions on which it has been necessary for the court to resolve the problem. I respectfully agree with his Honour’s observations. The difficulty in the application of SEPP 1 is but one reason, and there are many others, why there should be a return to consistency of wording across planning instruments.

30 With respect to the method by which the problem can be resolved, Young CJ in Eq embraced the familiar analysis by Mahoney and Clarke JJA in Mayoh. Acknowledging that the task was not an easy one, his Honour said (at LGERA 347):

“The dichotomy between a development standard and an absolute prohibition provides a valuable guideline as long as it is remembered that a development standard may contain expressly or impliedly some sort of prohibition. However the sort of prohibition involved is a prohibition on the extent of development, not a prohibition as to whether development is possible at all.”

31 Giles JA traced the history of consideration of relevant clauses to determine whether they were developments standards. After referring to the familiar passages in Mayoh his Honour acknowledged the role which the “prohibition v regulation” dichotomy had played in the resolution of many disputes.

32 His Honour concluded that “a process of construction to find regulation on the one hand or prohibition on the other hand” will bring finely divided decisions. His Honour said (at LGERA 342):

“I do not think it profitable to go to further decided cases, which will only reveal how a provision has been categorised in the interpretation of the particular environmental planning instrument. It is evident that a process of construction to find regulation on the one hand or prohibition on the other hand will bring finely divided decisions. Care must be taken lest form govern rather than substance. A provision in the form, ‘A building may be erected on land in a particular zone if the land has an area greater than a particular area’ appears regulatory, whereas a provision in the form, ‘A building must not be erected on land if the land has an area less than a particular area’ appears prohibitory, but the substance is the same.
As was done in, for example, Fencott Drive Pty Ltd v Lake Macquarie City Council, the provision must be seen as part of the environmental planning instrument as a whole. Regulation or prohibition may depend on the governing characteristic perceived in the provision. In the second form of provision just set out, if the characteristic is land in the particular zone the area requirement may be seen as stating a permissible way or extent of development, but if the characteristic is land with the particular area no development may be carried out. I do not find the so-called dichotomy, or its expression in the two different kinds of provision, either clear or providing ready answers.
There must be found a distinction between a provision which is a development standard and a provision which controls development in some other way, and the guidance of the dichotomy in providing a conceptual basis for the distinction must be acknowledged. But neither the dichotomy itself nor its expression in the two different kinds of provision can replace the definition in the Act.”

33 Giles JA reasoned that there are two steps in the process of identifying whether a particular provision provides a development standard. A provision which provides a prohibition on the development under any circumstances will not be a development standard. His Honour said that the argument that the relevant clause was a development standard in Mayoh and Carr failed at this first step. If the clause does not provide an absolute prohibition, the debate is “whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development.” (at LGERA 343)

34 His Honour explained the correct approach to the analysis in the following manner (at LGERA 343):

“If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. 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 a relevant aspect of the development is identified the control will be by imposition of a development standard.
In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in pars (a)-(n) of the definition of ‘development standards’ in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA’s comments on the observations of McHugh JA in Woollahra Municipal Council v Carr ) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances. Healesville Holding Pty Ltd v Pittwater Council must be explained in a similar way. The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed – sitting of the building ( Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council ), number of storeys of the building ( Scott Revay & Unn v Warringah Council ), minimum subdivisible area ( Bell v Shellharbour Municipal Council ).”

35 Giles JA then considered cl 41(2) of the relevant Local Environmental Plan which was in the following terms:

“A single dwelling … must not be erected on an allotment of land within Zone No 2(a) or 2(b) which has an area of less than 560 square metres … .”

36 Acknowledging that on one view “the area of the land to be developed is not an aspect of the development” his Honour preferred a “wider view” saying that “the aspects of the development include the size of the parcel on which the building is to be erected, and both independently and because par (a) of the definition of “development standards” includes area and dimensions of land I consider that to be correct.” (LGERA 346)

37 In Lowy, Giles JA confirmed the approach he adopted in Poynting. Mason P agreed with Giles JA.

38 Notwithstanding that the relevant clause in Poynting defined, albeit by reference to specified dimensions of the allotment, whether the particular development is permissible on the land, the court, taking “the wider view”, held that it was a development standard. In Mayoh, permissibility was defined by reference to the attributes of adjoining land. In Poynting, permissibility was defined by attributes of the land itself. It would seem that the difference is significant when determining whether the provision contains a development standard.

39 It was submitted by the council in the present case that the reasoning in Mayoh remains the guiding principle when resolving whether a particular provision contains a development standard. Of this proposition Giles JA said in his detailed reasons in Lowy that “it may not be entirely correct.” If his Honour had in mind the “wider view” adopted in Poynting, with respect, I doubt that the approach in Mayoh now completely reflects the law.

The resolution of the present case

40 Applying the approach adopted by Giles JA in Poynting and applied in Lowy, it is appropriate to ask in the present case whether the proposed development is prohibited under any circumstances. Plainly it is not, for the land could without question be developed for the intended purpose if the nearest bus stop was closer to the site. If the size of the allotment is not a complete prohibition, then the distance from a given point cannot be a complete prohibition.

41 Turning to the second step, the relevant provision fixes the distance of the land from a specified point, as it happens a bus stop, and provides for the services, facilities and amenities demanded by the development.

42 Because of the definition of development standards in s 4 of the Environmental Planning and Assessment Act 1979 (NSW) the distance to a bus stop and requirements in relation to services are both aspects of the development. The relevant parts of the definition are as follows:

“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 the 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,
…
(m) the provision of services, facilities and amenities demanded by development.”

43 It follows that although the development is not absolutely prohibited, by a combination of clauses 12(1) and (2) of SEPP 5 it is subject to a requirement that access to the relevant facilities be within 400 metres. This is an aspect of the development and, accordingly, a development standard amenable to dispensation pursuant to SEPP 1.

44 But for the decision of the Court of Appeal in Poynting and the approach taken by Giles JA and Mason P in Lowy there may have been force in the submission that, rather than being an aspect of permissible development, cl 12 defines a characteristic of the land without which the development is prohibited on that land. However, I consider that conclusion to be excluded by the necessity to take the “wider view” identified by Giles JA in Poynting and endorsed by Mason P in Lowy.

45 It is true, as the council points out, that clauses 13 and 13A of SEPP5 are titled “Development Standards” whereas cl 12 is headed “Matters for Consideration”. However, the character of the provision for present purposes cannot be determined by its title. All of these provisions are contained within Part 2 of the Policy under the heading “Development Criteria”. They all provide elements of potential development on land to which the policy applies by the operation of cl 4.

46 For these reasons I am satisfied that cl 12(1) and (2) of State Environmental Planning Policy No 5 contains a development standard.

47 I answer the preliminary questions in the following manner:

1. Yes.
2. Yes.
3. Yes.

48 Costs may be argued.

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