Guilfoyle v Lake Macquarie City Council

[2002] NSWLEC 29

Reported Decision: 119 LGERA 300

Land and Environment Court

of New South Wales

CITATION:	Guilfoyle and Anor v Lake Macquarie City Council [2002] NSWLEC 29
PARTIES:	APPLICANT: Guilfoyle and Anor RESPONDENT: Lake Macquarie City Council
FILE NUMBER(S):	10888 of 2001
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- For preliminary determination-whether proposed development permissible-relationship between defined terms "cluster housing" and "dwelling-houses"
LEGISLATION CITED:	Lake Macquarie Local Environmental Plan 1984 Environmental Planning and Assessment Act 1979 s 54(1) and s 74(2)
CASES CITED:	Crosland v North Sydney Council (2000) 109 LGERA 244; Friends of Pryor Park Inc v Ryde Council (LEC-unreported 25 September 1995; Westpoint Corp Pty Ltd v Rockdale City Council (2000) 109LGERA 398 at 403
DATES OF HEARING:	1, 6 March 2002
EX TEMPORE JUDGMENT DATE :	03/06/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Thompson; Barrister SOLICITORS Bowen and Gerathy RESPONDENT: Mr G Newport, Barrister SOLICITORS Mr P Rees

JUDGMENT:

IN THE LAND AND

Matter No. 10888 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

12 March 2002

D GUILFOYLE AND D SUTHERLAND

Applicants

v

LAKE MACQUARIE CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. At the conclusion of argument on 6 March 2002 in respect of Notices of Motion filed by each party raising questions of law for determination in advance of the hearing on the planning merits of a development appeal (which is fixed for 18-20 March 2002), I announced my determination holding that the proposed development was permissible development in terms of Lake Macquarie Local Environmental Plan 1984 (the LEP) and stated that my reasons for that determination would be subsequently published. I adopted this course because of the imminence of the hearing dates so that the parties could prepare their respective cases for the merits hearing. I now publish my reasons.
B. THE QUESTIONS OF LAW

2. This is a class 1 proceeding, being an appeal pursuant to the EP&A Act, s 97 against the Council’s determination refusing development consent to a proposed community title residential development involving the creation of 19 residential lots, each to be developed by a dwelling on land situate at Gateshead, a suburb of Lake Macquarie City.

3. The proposed development as originally formulated was for the creation of 21 residentially developed lots but the proposal has now been amended with the leave of the Court (granted by consent) to create 19 such lots.

4. By Notice Motion filed 17 January 2002 the Council sought the determination of the following preliminary question of law (as amended by leave at the hearing):

Whether the proposed development is properly characterised as cluster housing as defined by Lake Macquarie Local Environmental Plan, 1984 and is a prohibited purpose within Zone 3 (c) Neighbourhood Business, except for that part of the land so zoned to which cl 24A of the LEP applies.

5. Thereafter on 21 February 2002 the Applicants filed a Notice of Motion seeking the determination of another preliminary question of law, namely:

Whether Clause 24A of Lake Macquarie Local Environmental Plan 1984 contains a development standard.

6. Both these Motions initially came before me on 1 March 2002 when the competing arguments on the Council’s Notice of Motion were commenced, but were by consent adjourned for a few days to enable the parties to investigate two matters that were raised during the oral argument, namely—

(i) the impact upon the question of the making of LEP Amendment No 102 which had introduced in 1996 into the LEP the definition of “cluster housing’; and

(ii) whether, assuming the correctness of the Council’s contention, the proposed development would nonetheless be permissible development, if carried out in two distinct stages, namely (i) a community title subdivision; and (ii) subsequent development by the erection of a dwelling on each of the 19 lots created in that subdivision.

7. It was in these circumstances that argument on the Applicants’ Notice of Motion did not proceed. That Notice of Motion was clearly defensive in the sense that it was seeking to advance an alternative basis for the permissibility of the proposed development if the Council’s question of law were resolved against the Applicants.

8. Upon resumption of the hearing on 6 March 2002 additional argument was advanced in respect of the two matters that had been raised, including in particular the ramifications of LEP Amendment 102. However, the Applicants did not proceed with their Notice of Motion principally because they were content to rely upon their case on the Council’s Notice of Motion and secondarily because of the fundamental difficulties likely to be encountered with their Motion (some of which were raised at the initial hearing).
C. THE RELEVANT FACTS

9. The following relevant facts are principally derived from the Statement of Agreed Facts (Exhibit B):
1. The site to which the Development Application in this appeal relates is Lot 2052 DP 823719 Bulls Garden Road, Gateshead (the subject land).
2. On 31 May 2001 the Respondent received Development Application 01/3210 in respect of the subject land which described the development as proposed medium density development comprising 21 single storey free standing villas (15 x 3 bed 6x2 2 bed villas). The plans forming part of the Development Application described the development as housing development.
3. By leave of the Court granted on 1 March 2002, the development application was amended to reduce the number of lots from 21 to 19 and to correspondingly reduce the number of dwelling-houses (free standing villas) from 21 to 19.
4. The amended proposal is to erect 19 free standing dwelling-houses all on separate allotments to be created in a community title subdivision.
5. The access to the said dwelling-houses is proposed by way of a common roadway or carriageways area to be contained in proposed Lot 1.
6. Five visitor carparking spaces are proposed within the said Lot 1.
7. A shared communal open space area is also proposed within the said Lot 1.
8. The subject land is zoned in part 2 Residential (a) Residential A and 3(c) Business Neighbourhood pursuant to LEP, as shown on the extract from the LEP map annexed hereto and marked A.
D. THE RELEVANT PROVISIONS OF THE LEP

10. Clause 10 of the LEP contains in the conventional manner the Development Table in respect of the several zones designated by the LEP by reference to which permitted, permissible and prohibited development is stated in Columns II, III, and IV respectively of the Development Table.

11. Relevantly within the Neighbourhood Business Zone No 3(c) the following development is “permissible development” (ie purposes for which development may be carried out, only with development consent—Column III):

Advertisements; advertising structures; child care centres; commercial premises; community meeting rooms and halls; dual occupancy – attached; dual occupancy – detached; dwelling houses; education establishments; parking; professional consulting rooms; recreation facilities; refreshment rooms; residential flat buildings; shops and general stores having a gross floor area not exceeding 250 square metres; telecommunications facilities;

and the following development is “prohibited development”—

Any purpose other than those included in Column III

12. Relevantly within the Residential “A” Zone No 2(a) the following development is “prohibited development’ (Column IV):

Advertising structures; advertisements; aerodromes; automotive uses; brothels; bulk stores; cemeteries and crematoria; commercial premises (other than home offices); funeral parlours; generating works; hotels; industries (other than home industries); junk yards; liquid fuel depots; mines; quarries; roadside stalls; sawmills; shops (other than general stores having a gross floor area not exceeding 250 square metres); service stations; stock and sale yards; timber yards; tourist facilities; transport terminals; warehouses,

and the following development is “permissible development”:

Any purpose other than those included in Column II or IV

(No purpose is stated in Column II)

13. The Council accepts that the proposed development is permissible development within the Residential 2(a) Zone (which accounts for a little less than 20 per cent of the total area of the development site).

14. The LEP in the conventional manner contains in cl 7(1) a large number of definitions which operate “unless the context or subject matter otherwise includes or requires”.

15. Definitions relevant to the present proceedings (which is only concerned with residential development) are as follows:

Cluster housing means 4 or more dwelling houses grouped together on a site area

Dual occupancy development - means development that results in 2 dwellings (whether attached or detached) on a single allotment of land (or which would have that result were it not for the fact that the allotment is to be subdivided as part of the development);

Dual occupancy—attached means 2 dwellings in a single building on a single allotment of land;

Dual occupancy—detached means 2 detached dwellings on a single allotment of land;

Dwelling house means a building containing one but not more than one dwelling, but does not include a detached dwelling resulting from dual occupancy development;

16. In addition to the foregoing definitions, the LEP adopts the Environmental Planning and Assessment Model Provisions 1980 (other than the definition of “dwelling-house”). The Model Provisions contain the following relevant definitions—

dwelling - means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

residential flat building means a building containing two or more dwellings

17. The definition of “cluster housing” was inserted into the LEP on 18 October 1996 when Lake Macquarie Local Environmental Plan 1984 (Amendment No 102) came into force: vide Government Gazette No 117 of 18 October 1996 at p 7041 – 7043. (LEP Amendment No 102)—a copy of which is annexed hereto and marked “B”.

18. Clause 2 of the LEP Amendment No 102 contains the following “aims, objectives etc”:

Aims, objectives etc.

2. This plan aims:

(a) to enable development to be carried out on certain land at Edgeworth for residential purposes, for the purpose of recreation facilities, community facilities, and commercial and retailing facilities, and for the purpose of tourist facilities and cluster housing; and
(b) to provide part of the land for use for open space.

19. Clause 3 of LEP Amendment No 102 describes “the land to which plan applies” as follows:

3. The plan applies to land in the City of Lake Macquarie in the vicinity of Minmi Road, Cameron Park rive and George Booth Drive, Edgeworth, as shown edged heavy black on the map marked Lake Macquarie Local Environmental Plan 1984 (Amendment No 102) deposited in the office of the Council of the City of Lake Macquarie.

20. Clause 4 of LEP Amendment No 102 notes the following “relationship to other environmental planning instruments”

4. This plan amends Lake Macquarie Local Environmental Plan 1984 in the manner set out in clause 5.

21. Clause 5 contains 12 amendments to the LEP (set forth in pars (a) to (l) respectively), which include (in par (b)) the insertion into cl 7(1) of the LEP of the definition of “cluster housing”. It is common ground that all of these amendments, except for the amendment contained in par (b) relate exclusively to the land at Edgeworth described in cl 3. It is also common ground that the land referred to therein as “shown edged heavy black on the map…. etc” is that particular land at Edgeworth. The effect, of all of these amendments can be stated globally to be that particular land situate at Edgeworth is designated a new zone (Environmental Protection (Landscape Management) 7(d)) within which zone the permissible development includes “cluster housing” and “tourist facilities” and that consequential amendments are made.

22. As will presently be shown, the crucial question that arises from the terms of LEP Amendment No 102 is whether the amendment contained in par (b) (inserting as a new definition into the LEP the term “cluster housing”) is similarly circumscribed as are all the other amendments to the LEP which exclusively apply to the aforesaid land at Edgeworth. If the answer is that that amendment likewise only applies to the particular land at Edgeworth, then there is simply no foundation for the Council’s contention that the proposed development is prohibited development (because the development site is not located within the land at Edgeworth).

23. The only other provisions of the LEP that are of relevance to the question of law are cl 11(1) and 24A.

24. Clause 11(1) which appears in Part III (“Special Provisions”) of the LEP provides as follows:

A person shall not subdivide any land without the consent of the Council..

25. To the extent that there has been some argument concerning the impact and operation of this clause and its relationship to the Development Table incorporated in cl 10, it should be noted that cl 10 provides as follows:

10. Except as otherwise provided by this plan, the purposes for which

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

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

in each of the zones specified in Column 1 of the Table tot his clause are respectively shown on the next page thereto in Columns II, III and IV of that Table.

26. Thus, by virtue of the opening phrase whatever be the effect of cl 10, cl 11(1) prevails to permit subdivision of any land but only with development consent.

27. Since the Applicants have not ultimately pressed their Notice of Motion, the only relevance of cl 24A is by way of express exception that is incorporated into the Council’s question of law.

28. Clause 24A (1) and (2) provide as follows:

Minor boundary adjustments

24A. (1) This clause applies to land that is within 20 metres of the boundary between any 2 zones, except where either of those zones is Zone No. 7(b) or 7(c).

(2) Land to which this clause applies may, but only with the consent of the Council be developed for any purpose for which land in the adjoining zone may be developed.

E. IS THE PROPOSED DEVELOPMENT PERMISSIBLE WITHIN NEIGHBOURHOOD BUSINESS ZONE NO 3(C)?

29. Before the parties had explored the ramifications of LEP Amendment No 102, the competing argument on the question raised by the Council’s Notice of Motion had followed the conventional lines of seeking to properly categorise the proposed development by reference to the defined categories or purposes of development in terms of the LEP. Thus, the Council contended that the proposal was for the prohibited purpose of “cluster housing” because that purpose was comprehended by the “innominate purposes” created by the words in Column IV of the Development Table stating that the purposes for which development was prohibited within the Neighbourhood Business 3(c) Zone were:

Any purpose other than those included in Column III

30. The Applicants’ competing contention was that the proposal was for the permissible purposes of “subdivision of land” (cl 11(1)) and “dwelling-houses” because “dwelling-houses” was included in Column III of the Development Table to cl 10 stating the permissible purposes of development within the Neighbourhood Business 3(c) Zone.

31. In adjudicating upon these competing arguments, the proper approach to the question of categorisation of the proposed development for the purposes of the LEP is to determine whether the proposal “truly falls within the ambit of the permissible purposes of development”—see Crosland v North Sydney Council (2000) 109 LGERA 244 at 247 cf. Westpoint Corp Pty Ltd v Rockdale City Council (2000) 109LGERA 398 at 403.

32. In applying this approach, it is to be noted that the only suggested permissible purpose of development appearing in Column III of the Development Table in respect of Zone No 3(c) is “dwelling-houses”.

33. It is also to be noted that the “subdivision” aspect of the proposal is also permissible either by virtue of cl 10 of the LEP (ie subdivision for the purpose of dwelling-houses) or by virtue of cl 11(1) applying generally to “the subdivision of land”.

34. If it is found that the proposed development is truly development for the purposes of “dwelling-houses”, then as a matter of construction of cl 10 of the LEP, the Council’s contention that the proposed development is for a prohibited purpose (namely “cluster housing”) being a purpose embraced by the words “other than those included in Column III” simply cannot be sustained Indeed, if it is found that the proposed development is “truly” development for the purposes of “dwelling-houses” then the Council’s contention is, in my judgment, at that very point legally irrelevant: see Crosland at 247 cf Friends of Pryor Park Inc v Ryde Council (LEC—unreported 25 September 1995).

35. However, in the present case, a further fundamental question of construction is to be encountered even before the question of construing cl 10 arises, namely how do the defined terms “cluster housing” and “dwelling-house” relate to one another? Clearly the definition of “cluster housing” requires there to be “4 or more dwelling houses”, but what distinguishes that concept from a development involving a plurality of dwelling-houses? The answer is provided by the definition of “cluster housing”, namely the plurality of dwelling-houses must be “grouped together on a site area”. But how is this quality or criterion meaningfully to be distinguished from a plurality of dwelling-houses found in a conventional residential subdivision/development?

36. The answer surely lies in an appreciation of the conventional nature of a residential subdivision providing a separate lot for each dwelling-house and (usually) a road access to each lot.

37. Thus, the relevant criterion or quality of the definition of “cluster housing” is for a grouping together of the dwelling-houses on a “site area” and this physical arrangement is something quite different from a conventional residential subdivision/development providing separate lots for separate dwelling-houses to be erected thereon.

38. "Site area" is defined by the Model Provisions (adopted by the LEP) as follows:

site area means the area of land to which an application for consent under the Act relates, excluding therefrom any land upon which the development to which the application relates is not permitted by or under the local environmental plan.

39. By applying this definition to the definition of “cluster housing”, it is clear in my judgment, that the relevant criterion or quality in the definition of “cluster housing” is for the grouping together of 4 or more dwelling-houses on the site area in contradistinction to any subdivision of that site area (creating separate residential lots as occurs in a conventional residential subdivision/development).

40. Accordingly, the distinction between a cluster housing development and a development involving a plurality of dwelling-houses to be accommodated in a conventional residential subdivision is clear—it is found not in the fact of the plurality of dwelling-houses (that is merely the common denominator) but in the manner in which the dwelling-houses relate to the land upon which they are to be erected. In the case of “cluster housing” development, the dwelling-houses are “grouped together” on a common site whereas in the case of “dwelling-house” development, each dwelling house is erected on its own residential lot.

41. Having established, as a matter of construction, the true relationship between the closely related concepts of “cluster housing” development and “dwelling-house” development, and the true meaning of the defined terms, the next question to be answered is to which defined concept does the proposed development truly belong.

42. An examination of the development plans showing the layout of proposed 19 lots (each to be developed by a dwelling-house) with road access provided to each lot, clearly and unmistakably relates to the model or concept of “dwelling-houses” development rather than the model or concept of a “cluster housing” development.

43. Accordingly, I find that the proposed development is relevantly development for the permissible purpose of “dwelling-houses” and is not development for the purposes of “cluster housing”. This conclusion derives simply by applying to the undisputed facts concerning the nature of the proposed development, the defined terms “cluster housing” and “dwelling house” as these terms have been interpreted, especially in elucidating the true relationship between them.

44. In so concluding, I have also concluded that there is no doubt concerning the permissibility of the proposed community title subdivision. Clearly, it is development “for the purposes of dwelling-houses” within the meaning of the Development Table to clause 10 of the LEP and equally clearly, it falls within the ambit of cl 11(1) of the LEP. On either basis, the proposed subdivision is for a permissible development.

45. Whereas these conclusions are sufficient to answer the Council’s question of law in the negative, I should nonetheless express my conclusions on the impact on the present question of LEP Amendment No 102, which conclusions are to the effect that “cluster housing” is not a purpose of development that falls within the “innominate purposes” of development expressed in Column IV of the Development Table to cl 10 of the LEP in respect of the Neighbourhood Business 3(c) zone.

46. My reasons for so concluding can be briefly stated as follows.

47. As earlier stated, it is accepted that, but for the amendment made by cl 5(b) of LEP Amendment No 102, (inserting into the LEP the definition of “cluster housing”), the amendments made to the LEP, exclusively relate as a matter of construction to the particular land at Edgeworth as described in cl 3.

48. LEP Amendment No 102 is relevantly a “local environmental plan” within the meaning of the EP&A Act. As such, it applies to “such area or part of such area as is described in the plan”: vide the EP&A Act, s 70(2). The only land within the City of Lake Macquarie so described is the particular land situate at Edgeworth as more particularly described in cl 3. Pursuant to s 70(2) that is the land to which LEP Amendment No 102 applies.

49. To the extent that LEP Amendment No 102 amends (by virtue of cl 5) the LEP, it is “a subsequent environmental planning instrument” within the meaning of the EP&A Act, s 74 and as such, it was required to be made in accordance with the provisions of Part 3 of the Act (except for some immaterial exceptions).

50. Part 3 (“Environmental Planning Instruments”) includes (i) s 54(1) which empowers a council to prepare a draft local environmental plan “in respect of the whole or any part of the land within its area”; (ii) s 54(4) which requires a council which so decides to prepare a draft plan, to inform the Director-General of its decision “and of the land to which it is intended to apply”; and (iii) s 70(2) which provides:

A local environmental plan shall apply to such area or part of such area as is described in that plan.

51. In view of these statutory provisions, it would clearly follow that LEP Amendment No 102 applies, and only applies, to the particular land at Edgeworth, as described in cl 3.

52. What then, is the effect of the amendment made by cl 5(b) by including in cl 7(1) of the LEP (the definitions clause) the definition of “cluster housing”? Is it legally possible that that amendment applies generally (as contended by the Council) to all land within the City of Lake Macquarie, despite the fact that LEP Amendment No 102 only applies to the land at Edgeworth?

53. I do not think that it is so possible, given the statutory provisions I have noted, because the scope of the amendment cannot outflank, or rise higher than, the geographic limitations that bind the operation of the environmental planning instrument.

54. However, I need not finally decide the point (which is obviously of general importance for the operation of environmental planning instruments) because the question can be otherwise satisfactorily resolved by the process of statutory construction, even if the Council’s contention is assumed to be correct.

55. By this process, I would conclude that the inclusion within the LEP of the definition of “cluster housing” was only intended to operate in respect of lands in respect of which the LEP made specific provision in respect of development for the purposes of “cluster housing”. Thus, initially, that land was clearly enough confined to the particular land situate at Edgeworth which was also designated as the new Environmental Protection (Landscape Management) Zone No 7(d). However, by subsequent environmental planning instruments (eg Lake Macquarie Local Environmental Plan 1984 (Amendment No 115), published in Government Gazette No 123 of 14 November 1997), land at Glendale was included in the Environmental Protection (Landscape Management) Zone No 7(d). In the Development Table to cl 10 of the LEP for this Zone “cluster housing” is a permissible development (being expressly included in Column III). It follows that the definition of “cluster housing” contained in the LEP would apply to that land and indeed, to any other land that is included within that Zone or any other Zone which may at some time in the future employ the term “cluster housing”.

56. In so concluding, it is to be noted that the only references in the LEP, as currently in force, specifically made to “cluster housing” are those made by the LEP Amendment No 102.

57. Accordingly, I would construe the “innominate purposes” expressed in Column IV of the Development Table to cl 10 of the LEP relating to the Neighbourhood Business 3(c) Zone as not including the purpose of “cluster housing”.
F. CONCLUSIONS AND ORDERS

58. For all of the foregoing reasons, I would answer the Council’s question of law in the negative, by holding that the proposed development is permissible development within the Neighbourhood Business 3(c) Zone under the LEP, being properly categorised as development (including subdivision) for the purposes of “dwelling-houses”.

59. Since the Applicants have not pressed their Notice of Motion, I make the following orders:

1. The question of law raised by the Council’s Notice of Motion is answered in the negative.

2. The question of law raised by the Applicant’s Notice of Motion does not require to be answered.

3. Exhibits to remain on the Court file.