Lotus Project Management Pty Ltd v Pittwater Council

[2015] NSWLEC 166

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166
Hearing dates:	26 May, 16 July 2015
Date of orders:	27 October 2015
Decision date:	27 October 2015
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See [60]
Catchwords:	APPEAL – separate question of law in Class 1 proceedings – statutory construction of Pittwater Local Environmental Plan 2014 – whether maximum floor space ratio identified – whether State Environmental Planning Policy (Affordable Rental Housing) 2009 applies to subject land   APPEAL – separate question of law in Class 1 proceedings – whether provision in local environmental plan a development standard
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4, 26(1)(b), 97 Environmental Planning and Assessment Regulation 2000 (NSW), cll 42, 43 Interpretation Act 1987 (NSW), ss 3, 21, 33 Pittwater Development Control Plan 21 Pittwater Local Environment Plan 1993 (repealed), cl 30C Pittwater Local Environment Plan 2014, cll 1.2, 2.2, 2.3, 4.3, 4.4, 4.5, 4.5A, 4.6, cl 6.1, Dictionary, Pt 4 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 4, 7, 8, 10, 13, Pt 2 Div 1 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 67 NSWLR 672 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 Huang v Hurstville City Council [2012] NSWCA 177 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83 Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 16 LGERA 319 The Council of the Municipality of North Sydney v P D Mayoh Pty Limited (1990) 71 LGRA 222 Theiss v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12; (2014) 201 LGERA 232 Woollahra Municipal Council v Carr (1985) 62 LGRA 263
Category:	Principal judgment
Parties:	Lotus Project Management Pty Ltd (Applicant) Pittwater Council (Respondent)
Representation:	COUNSEL: Mr I Hemmings SC with Ms A Hemmings (Applicant) Mr L Waterson (Respondent)   SOLICITORS: Hones Lawyers (Applicant) King & Wood Mallesons (Respondent)
File Number(s):	10233 of 2015

Judgment

Separate questions of law in Class 1 appeal

1. Lotus Project Management Pty Ltd (the Applicant) has appealed under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) against the refusal of its development application (DA N009/15) by Pittwater Council (the Council). By order made in these Class 1 proceedings the following two questions have been listed for separate hearing:

1. Does cl 13(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Affordable Housing SEPP) apply to the proposed development?

2. Is the “Not more than 9 dwellings or less than 7 dwellings” specification for “Buffer area 3b” in the table to cl 6.1(3) of the Pittwater Local Environment Plan 2014 (the PLEP) a “development standard” to which cl 4.6 of the PLEP applies?

2. The Applicant owns two adjoining parcels of land known as 5 Macpherson St (Lot 1, DP 314508) and 7 Macpherson St, Warriewood (Lot 21, DP 758096) (together comprising the subject land). The two parcels each have a single dwelling located on them. The total area of the subject land is 2,980m². DA N009/15 seeks development consent for the demolition of the existing structures and the erection of 39 dwellings in two residential flat buildings under the Affordable Housing SEPP. The proposed residential flat buildings comprise two storeys at the street front and three storeys at the rear, each with two levels of underground car parking with parking for 81 vehicles (the development).

3. The subject land is within the R3 Medium Density Residential zone under the PLEP. The Land Use Table in the PLEP specifies that development for the purpose of “residential flat buildings” may be carried out only with development consent within the R3 Medium Density Residential zone. The subject land is located within the “Warriewood Valley Release Area” to which cl 6 of PLEP applies.

4. The Subject Land is located within “Buffer area 3b” in the “Urban Release Area Map” as defined for the purposes of cl 6 of PLEP. The “Warriewood Valley Strategic Review” referred to in cl 6.1 of PLEP is the review, the results of which are set out in the report entitled “Warriewood Valley Strategic Review Report”, adopted by the Respondent on 12 June 2013.

5. Following the Warriewood Valley Strategic Review, the Pittwater Local Environment Plan 1993 was amended with effect from 6 December 2013 including in relation to cl 30C which provided:

30C   Dwelling yield

The Council shall not grant consent to residential development on land to which clause 30B applies unless it is satisfied that the total number of dwellings to be erected in a particular sector or buffer area will comply with the following:

…Buffer 3b-not more than 9 dwellings or less than 7 dwellings.

6. Buffer 3b for the purposes of cl 30C of PLEP 1993 was the same area as Buffer area 3b for the purposes of cl 6.1(3) of the PLEP.

7. The Applicant tendered a bundle of agreed documents (Exhibit A) that included the statement of agreed facts, relevant planning instruments and the Applicant’s Class 1 application attaching DA N009/15 for an “infill affordable housing residential flat development” at 5 and 7 Macpherson St, Warriewood. The Council tendered the NSW Department of Planning and Infrastructure’s document entitled “Warriewood Valley Strategic Review Report” dated November 2012 (Exhibit 1). Pittwater Development Control Plan 21 (DCP) was not included in Exhibit A.

Environmental Planning and Assessment Act 1979

8. Development standards is defined in s 4 of the EPA Act as:

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 that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

…

(e)   the intensity or density of the use of any land, building or work, …

9. Section 26(1)(b) of the EPA Act provides:

26 Contents of environmental planning instruments

(1)   Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following:

…

(b)   controlling (whether by the imposing of development standards or otherwise) development,

…

State Environmental Planning Policy (Affordable Rental Housing) 2009

10. Relevant clauses in the Affordable Housing SEPP are as follows:

Part 1 Preliminary

3 Aims of Policy

The aims of this Policy are as follows:

…

(b)   to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

…

4 Interpretation—general

(1) In this Policy:

…

existing maximum floor space ratio means the maximum floor space ratio permitted on the land under an environmental planning instrument or development control plan applying to the relevant land, other than this Policy or State Environmental Planning Policy No 1—Development Standards.

…

(2)   A word or expression used in this Policy (other than Schedule 1 or 2) has the same meaning as it has in the standard instrument (as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011) unless it is otherwise defined in this Policy.

…

7 Land to which Policy applies

This Policy applies to the State.

8 Relationship with other environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

…

Part 2 New affordable rental housing

Division 1 In-fill affordable housing

10 Development to which Division applies

(1)   This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:

(a)   the development concerned is permitted with consent under another environmental planning instrument, and

(b)   the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.

(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.

…

13 Floor space ratios

(1)   This clause applies to development to which this Division applies if the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing is at least 20 per cent.

(2)   The maximum floor space ratio for the development to which this clause applies is the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which the development is to occur, plus:

(a)   if the existing maximum floor space ratio is 2.5:1 or less:

(i)   0.5:1—if the percentage of the gross floor area of the development that is used for affordable housing is 50 per cent or higher, or

(ii)   Y:1—if the percentage of the gross floor area of the development that is used for affordable housing is less than 50 per cent,

where:

AH is the percentage of the gross floor area of the development that is used for affordable housing.

Y = AH ÷ 100

or

(b)   if the existing maximum floor space ratio is greater than 2.5:1:

(i)   20 per cent of the existing maximum floor space ratio—if the percentage of the gross floor area of the development that is used for affordable housing is 50 per cent or higher, or

(ii)   Z per cent of the existing maximum floor space ratio—if the percentage of the gross floor area of the development that is used for affordable housing is less than 50 per cent, where:

AH is the percentage of the gross floor area of the development that is used for affordable housing.

Z = AH ÷ 2.5

(3)   In this clause, gross floor area does not include any car parking (including any area used for car parking).

Pittwater Local Environmental Plan 2014

11. The table of contents is partially extracted as follows:

Part 1 Preliminary

1.2. Aims of plan

Part 2 Permitted or Prohibited Development

2.1. Land use zones

2.2. Zoning of land to which Plan applies

2.3. Zone objectives and Land Use Table

Land Use Table

Zone R3 Medium Density Residential

Part 3 Exempt and Complying Development

…

Part 4 Principal Development Standards

4.1.   Minimum subdivision lot size

4.1AA   Minimum subdivision lot size for community title schemes

4.1B.   Minimum lot sizes for dual occupancies

4.2. Rural subdivision

4.2A. Minimum subdivision lot size for strata plan schemes in certain rural, residential and environment protection zones

4.3. Height of buildings

4.4. Floor space ratio

4.5. Calculation of floor space ratio and site area

4.5A. Density controls for certain residential accommodation

4.6. Exceptions to development standards

Part 5 Miscellaneous Provisions

…

Part 6 Urban Release Areas

6.1. Warriewood Valley Release Area

6.2. Development requiring the preparation of a development control plan

Part 7 Additional Local Provisions

…

7.3 Flood planning

Dictionary

12. Individual clauses provide:

Part 1 Preliminary

1.2 Aims of Plan

This Plan aims to make local environmental planning provisions for land in Pittwater in accordance with the relevant standard environmental planning instrument under section 33A of the Act.

The particular aims of this Plan are as follows:

(a) to promote development in Pittwater that is economically, environmentally and socially sustainable,

(b) to ensure development is consistent with the desired character of Pittwater’s localities,

(c) to support a range of mixed-use centres that adequately provide for the needs of the Pittwater community,

(d) to retain and enhance land used for employment purposes that is needed to meet the economic and employment needs of the community both now and in the future,

(e) to improve access throughout Pittwater, facilitate the use of public transport and encourage walking and cycling,

(f) to encourage a range of housing in appropriate locations that provides for the needs of the community both now and in the future,

(g) to protect and enhance Pittwater’s natural environment and recreation areas,

(h) to conserve Pittwater’s European and Aboriginal heritage,

(i) to minimise risks to the community in areas subject to environmental hazards including climate change,

(j) to protect and promote the health and well-being of current and future residents of Pittwater.

…

Part 2 Permitted or Prohibited Development

…

2.3 Zone objectives and Land Use Table

(1)   The Land Use Table at the end of this Part specifies for each zone:

(a)   the objectives for development, and

(b)   development that may be carried out without development consent, and

(c)   development that may be carried out only with development consent, and

(d)   development that is prohibited.

(2)   The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

(3)   In the Land Use Table at the end of this Part:

(a)   a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(b)   a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

(4)   This clause is subject to the other provisions of this Plan.

…

Land Use Table

…

Zone R3 Medium Density Residential

1 Objectives of zone

◦   To provide for the housing needs of the community within a medium density residential environment.

◦   To provide a variety of housing types within a medium density residential environment.

◦   To enable other land uses that provide facilities or services to meet the day to day needs of residents.

◦   To provide for a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses.

2 Permitted without consent

Home businesses; Home occupations

3 Permitted with consent

Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Child care centres; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Group homes; Health consulting rooms; Home-based child care; Home industries; Multi dwelling housing; Neighbourhood shops; Places of public worship; Residential flat buildings; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Serviced apartments; Veterinary hospitals

4 Prohibited

Any development not specified in item 2 or 3

…

Part 4 Principal Development Standards

…

4.3 Height of buildings

(1)   The objectives of this clause are as follows:

(a)   to ensure that any building, by virtue of its height and scale, is consistent with the desired character of the locality,

(b)   to ensure that buildings are compatible with the height and scale of surrounding and nearby development,

(c)   to minimise any overshadowing of neighbouring properties,

(d)   to allow for the reasonable sharing of views,

(e)   to encourage buildings that are designed to respond sensitively to the natural topography,

(f)   to minimise the adverse visual impact of development on the natural environment, heritage conservation areas and heritage items.

(2)   The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

(2A)   Despite subclause (2), development on land:

(a)   at or below the flood planning level or identified as “Coastal Erosion/Wave Inundation” on the Coastal Risk Planning Map, and

(b)   that has a maximum building height of 8.5 metres shown for that land on the Height of Buildings Map,

may exceed a height of 8.5 metres, but not be more than 8.0 metres above the flood planning level.

(2B)   Despite subclause (2), development on land:

(a)   at or below the flood planning level or identified as “Coastal Erosion/Wave Inundation” on the Coastal Risk Planning Map, and

(b)   that has a maximum building height of 11 metres shown for that land on the Height of Buildings Map,

may exceed a height of 11 metres, but not be more than 10.5 metres above the flood planning level.

(2C)   Despite subclause (2), development on an area of land shown in Column 1 of the table to this subclause and identified as such on the Height of Buildings Map, may exceed the maximum building height shown on the Height of Buildings Map for that land, if the height of the development is not greater than the height shown opposite that area in Column 2.

Column 1	Column 2
Area	Maximum height above the flood planning level
Area 1	11.5 metres
Area 2	8.5 metres on the street frontage and 10.5 metres at the rear
Area 3	8.5 metres
Area 4	7.0 metres

(2D)   Despite subclause (2), development on land that has a maximum building height of 8.5 metres shown for that land on the Height of Buildings Map may exceed a height of 8.5 metres, but not be more than 10.0 metres if:

(a)   the consent authority is satisfied that the portion of the building above the maximum height shown for that land on the Height of Buildings Map is minor, and

(b)   the objectives of this clause are achieved, and

(c)   the building footprint is situated on a slope that is in excess of 16.7 degrees (that is, 30%), and

(d)   the buildings are sited and designed to take into account the slope of the land to minimise the need for cut and fill by designs that allow the building to step down the slope.

(2E)   Despite subclause (2), development for the purposes of shop top housing on land identified as “Area 5” on the Height of Buildings Map may have a height of up to 10 metres if the top floor of the building is setback a minimum of 6 metres from the boundary to the primary street frontage.

(2F)   Despite subclause (2), development on land identified as “Area 6” on the Height of Buildings Map must not exceed 8.5 metres at the street frontage.

(2G)   In this clause:

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metres freeboard, or other freeboard determined by an adopted floodplain risk management plan.

floodplain risk management plan has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published in 2005 by the NSW Government.

…

4.4 Floor space ratio

(1)   The objectives of this clause are as follows:

(a)   to ensure that buildings, by virtue of their bulk and scale, are consistent with the desired character of the locality,

(b)   to minimise adverse environmental effects on the use and enjoyment of adjoining properties and the public domain,

(c)   to minimise any overshadowing and loss of privacy to neighbouring properties and to reduce the visual impact of any development,

(d)   to maximise solar access and amenity for public places,

(e)   to minimise the adverse impact of development on the natural environment, heritage conservation areas and heritage items,

(f)   to manage the visual impact of development when viewed from public places, including waterways,

(g)   to allow for the reasonable sharing of views.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

4.5 Calculation of floor space ratio and site area

(1) Objectives

The objectives of this clause are as follows:

(a)   to define floor space ratio,

(b)   to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to:

(i)   prevent the inclusion in the site area of an area that has no significant development being carried out on it, and

(ii)   prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and

(iii)   require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio”

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area

In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be:

(a)   if the proposed development is to be carried out on only one lot, the area of that lot, or

(b)   if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

(4) Exclusions from site area

The following land must be excluded from the site area:

(a)   land on which the proposed development is prohibited, whether under this Plan or any other law,

(b)   community land or a public place (except as provided by subclause (7)).

(5) Strata subdivisions

The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation.

(6) Only significant development to be included

The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.

…

(8) Existing buildings

The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings.

…

4.5A Density controls for certain residential accommodation

(1)   The objectives of this clause are as follows:

(a)   to achieve planned residential density in certain zones,

(b)   to ensure building density is consistent with the desired character of the locality.

(2)   Development consent must not be granted to development for a purpose specified in Column 1 of the table to this clause on land in the zone shown opposite that development in Column 2 of that table unless the development complies with the density requirements specified in Column 3 of that table.

(3)   This clause does not apply to land in the Warriewood Valley Release Area.

(4)   In this clause:

Warriewood Valley Release Area means the area identified as Warriewood Valley Release Area on the Urban Release Area Map.

Column 1	Column 2	Column 3
Specified development	Zone	Density
Attached dwellings	R3 Medium Density Residential	A maximum of 1 dwelling per 200 square metres of site area.
Multi dwelling housing	R3 Medium Density Residential	A maximum of 1 dwelling per 200 square metres of site area.
Residential flat buildings	R3 Medium Density Residential	A maximum of 1 dwelling per 200 square metres of site area.
Semi-detached dwellings	R3 Medium Density Residential	A maximum of 1 dwelling per 200 square metres of site area.

…

4.6 Exceptions to development standards

(1)   The objectives of this clause are as follows:

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)   Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)   Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)   Development consent must not be granted for development that contravenes a development standard unless:

(a)   the consent authority is satisfied that:

(i)   the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)   the concurrence of the Director-General has been obtained.

…

(8)   This clause does not allow development consent to be granted for development that would contravene any of the following:

(a)   a development standard for complying development,

(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated,

(c)   clause 5.4.

…

Part 6 Urban Release Areas

6.1 Warriewood Valley Release Area

(1)   The objectives of this clause are as follows:

(a)   to permit development in the Warriewood Valley Release Area in accordance with the Warriewood Valley Strategic Review,

(b)   to ensure that development in that area does not adversely impact on waterways and creek line corridors, protects existing native riparian vegetation and rehabilitates the creek line corridors,

(c)   to facilitate the mitigation of odours from the Warriewood Sewage Treatment Plant on the users and occupiers of residential development in a buffer area.

(2)   This clause applies to the land in the Warriewood Valley Release Area.

(3)   Development consent must not be granted for development on land in a buffer area or sector or at an address mentioned in Column 1 of the table to this clause unless the consent authority is satisfied that the total number of dwellings shown opposite that buffer area, sector or address in Column 2 of that table will be erected.

Column 1	Column 2
Buffer area, sector or address	Number of dwellings to be erected
Sector 1	Not more than 209 dwellings or less than 195 dwellings
Sector 101	Not more than 4 dwellings
Sector 2	Not more than 54 dwellings or less than 49 dwellings
Sector 3	Not more than 34 dwellings
Sector 301	Not more than 53 dwellings or less than 42 dwellings
Sector 302	Not more than 84 dwellings or less than 66 dwellings
Sector 303	Not more than 29 dwellings or less than 23 dwellings
Sector 5	Not more than 94 dwellings or less than 75 dwellings
Sector 8	Not more than 140 dwellings
Sector 801	Not more than 38 dwellings or less than 19 dwellings
Sector 901A	Not more than 192 dwellings or less than 156 dwellings
Sector 901B	Not more than 36 dwellings or less than 12 dwellings
Sector 901C	Not more than 22 dwellings or less than 17 dwellings
Sectors 901D and 901E	Not more than 16 dwellings
Sector 901F	Not more than 14 dwellings
Sector 901G	Not more than 6 dwellings
Sector 10	Not more than 134 dwellings
Sector 10B	Not more than 45 dwellings or less than 28 dwellings
Sector 11	Not more than 163 dwellings or less than 147 dwellings
Sector 12	Not more than 180 dwellings or less than 163 dwellings
Sector 12A	Not more than 19 dwellings
Sector 20	Not more than 72 dwellings
Buffer area 1a	Not more than 17 dwellings or less than 15 dwellings
Buffer area 1b	Not more than 24 dwellings or less than 17 dwellings
Buffer area 1c	Not more than 18 dwellings or less than 13 dwellings
Buffer area 1d	Not more than 1 dwelling
Buffer area 1e	Not more than 15 dwellings or less than 11 dwellings
Buffer area 1f	Not more than 21 dwellings or less than 14 dwellings
Buffer area 1g	Not more than 23 dwellings or less than 17 dwellings
Buffer area 1h	Not more than 1 dwelling
Buffer area 1i	Not more than 39 dwellings or less than 27 dwellings
Buffer area 1j	Not more than 40 dwellings or less than 26 dwellings
Buffer area 1k	Not more than 21 dwellings or less than 14 dwellings
Buffer area 1l	Not more than 67 dwellings or less than 43 dwellings
Buffer area 1m	No dwellings
Buffer area 2	Not more than 113 dwellings
Buffer area 2a	Not more than 29 dwellings or less than 20 dwellings
Buffer area 3a	Not more than 186 dwellings
Buffer area 3b	Not more than 9 dwellings or less than 7 dwellings
9 Fern Creek Road	No dwellings

(4)   Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the proposed development will not have any significant adverse impact on any of the following:

(a)   opportunities for rehabilitation of aquatic and riparian vegetation, habitats and ecosystems within creek line corridors,

(b)   the water quality and flows within creek line corridors,

(c)   the stability of the bed, shore, and banks of any watercourse within creek line corridors.

(5)   In this clause:

buffer area means land identified as “buffer area” on the Urban Release Area Map.

creek line corridor means land identified as “creek line corridor” on the Urban Release Area Map.

sector means land identified as “sector” on the Urban Release Area Map.

Warriewood Valley Release Area means the land identified as Warriewood Valley Release Area on the Urban Release Area Map.

13. The Dictionary to the PLEP includes:

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.

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(a)   the area of a mezzanine, and

(b)   habitable rooms in a basement or an attic, and

(c)   any shop, auditorium, cinema, and the like, in a basement or attic, but excludes:

(d)   any area for common vertical circulation, such as lifts and stairs, and

(e)   any basement:

(i)   storage, and

(ii)   vehicular access, loading areas, garbage and services, and

(f)   plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)   car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)   any space used for the loading or unloading of goods (including access to it), and

(i)   terraces and balconies with outer walls less than 1.4 metres high, and

(j)   voids above a floor at the level of a storey or storey above.

residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following:

(a)   attached dwellings,

(b)   boarding houses,

(c)   dual occupancies,

(d)   dwelling houses,

(e)   group homes,

(f)   hostels,

(g)   multi dwelling housing,

(h)   residential flat buildings,

(i)   rural workers’ dwellings,

(j)   secondary dwellings,

(k)   semi-detached dwellings,

(l)   seniors housing,

(m)   shop top housing,

but does not include tourist and visitor accommodation or caravan parks.

site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan.

14. The Floor Space Ratio Map referred to in cl 4.4 of the PLEP was in evidence. The tan coloured area for which a numerical maximum floor space ratio (FSR) is specified does not include a large area of the Warriewood Valley Release Area, the subject land.

Question 1

Agreed facts

15. Clause 13(1) of the Affordable Housing SEPP provides for a floor space bonus “if the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing is at least 20 per cent”. The subject development provides at least 20% of its gross floor area for the purposes of affordable housing relying on cl 13(1).

16. The “existing maximum floor space ratio” is defined in cl 4 of the Affordable Housing SEPP.

17. The “Floor Space Ratio Map” adopted by the PLEP (Sheet FSR_012) does not specify a numerical floor space ratio for the subject land. The DCP does not specify a numerical maximum floor space ratio for the subject land.

Applicant’s submissions

18. The provisions of Pt 2 Div 1 of the Affordable Housing SEPP including cl 13(2) apply to the land. At issue is whether an “existing maximum floor space ratio” as defined in that SEPP is specified in the PLEP.

19. “Gross floor area” is defined in the PLEP Dictionary. Using the definition of “floor space ratio” of the PLEP in cl 4.5, together with the suite of controls in the PLEP, the DCP and State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (height, site cover, landscape area etc) the potential maximum FSR of any site can be determined. Clause 4.5 of PLEP applies and defines the maximum site area. This results in a figure which is no less a maximum than the existing maximum FSR.

20. For some land in the Pittwater local government area in addition to the potential maximum floor space which can be calculated relying on various controls, the “Floor Space Ratio Map” will apply. By operation of cl 4.4(2) of the PLEP the “maximum floor space ratio” for that mapped land will be limited to the number shown on the map. If that number is lower than the potential maximum floor space then the maximum for the site is reduced. If the number on the map is greater than the potential maximum then the floor space for the site is increased. On the Council’s approach any unmapped land has no maximum FSR.

Council’s submissions

21. Clause 13(2) of the Affordable Housing SEPP does not apply to the subject development because there is no existing maximum floor space ratio (as defined in cl 4) applying to the land under the PLEP.

22. The “maximum floor space ratio permitted on the [subject] land permitted under the [PLEP]” as referred to in the definition of “existing floor space ratio” is, by operation of cl 4.4(2) of the PLEP, the “floor space ratio” shown for the subject land in the “Floor Space Ratio Map” adopted by the PLEP. The “Floor Space Ratio Map” does not show any “floor space ratio” for the subject land.

23. The DCP does not contain any provision regulating the floor space ratio for the subject land for the subject development. There is no “maximum floor space ratio permitted on the [subject] land” under any environmental planning instrument or development control plan and therefore no “existing maximum floor space ratio” as defined in cl 4 of the Affordable Housing SEPP for the subject development or development for any other purpose (including “residential accommodation”). Thus, there is no “existing maximum floor space ratio for any form of residential accommodation permitted on the land” as required under cl 13(2) of the Affordable Housing SEPP. Clause 13(2) does not operate to specify a maximum floor space ratio for the subject development.

24. If Pt 6 cl 6.1(3) is found to be a prohibition in question 2 the proposed development is prohibited. The application of cl 10(1)(a) of the Affordable Housing SEPP would mean that Pt 2 Div 1 of that SEPP could not apply in this case. The answer to this question is therefore subject to the outcome of question 2.

Finding on question one

25. The first question requires the statutory construction of the relevant provisions of the Affordable Housing SEPP and development controls in Part 4 “Principal development standards” in the PLEP. Well understood principles of statutory construction require that the instrument as a whole must be considered. In Theiss v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22] the High Court, citing Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39], unanimously confirmed that the task of statutory construction must begin and end with a consideration of the statutory text. The statutory text must be considered in its context, which includes legislative history and extrinsic material but this cannot displace the meaning of the statutory text. There is no need to refer to extrinsic material on this occasion. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Proprietary Limited v TheCommissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 305. Section 33 of the Interpretation Act 1987 (NSW) requires a construction which promotes the purpose or object of an Act or statutory rule over one which would not and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ at [69]-[71] held to similar effect. While I note that in the Interpretation Act a distinction appears to be made between a statutory rule and an environmental planning instrument in the definition of instrument in s 3 and in the separate definitions in s 21 a purposive approach to construction is to be preferred to the extent such an approach can assist.

26. A LEP is delegated legislation so that while the principles of statutory construction referred to immediately above must apply the instrument should also be read in a practical manner, as identified in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 by Leeming JA citing Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183.

27. Considering the meaning of the provisions in issue, by virtue of cl 7 the Affordable Housing SEPP applies to the whole State of New South Wales. The objective of promoting the provision of new affordable rental housing is identified in cl 3(b). The Affordable Housing SEPP incorporates a definition of “existing maximum floor space ratio” in cl 4. The Council essentially argues that because there is no numerical maximum floor space ratio for the subject land in the PLEP there is no maximum floor space ratio meeting the Affordable Housing SEPP definition. Any land not coloured tan on the FSR map referred to in cl 4.2 of the PLEP, of which there is a great deal in the Warriewood Valley Release Area, therefore has no maximum FSR control in the PLEP according to the Council.

25. The definition in cl 4 of the Affordable Housing SEPP states that the existing maximum FSR is the maximum FSR permitted on land under an environmental planning instrument or development control plan. Clause 13 “Floor space ratios” refers to existing maximum FSR and then identifies for specified numerical values the amount of additional permissible FSR in subclauses (a) and (b). The words in the Affordable Housing SEPP definition must be read to give them a plain, ordinary meaning. Read in such a way, it is clear that the definition does not identify a process by which a maximum FSR must be identified in a local environmental plan (LEP). The definition does not require that the word “maximum” in the context of FSR must appear in a LEP for the definition of “existing maximum floor space ratio” to be engaged. The meaning contended for by the Council suggests that the phrase must appear in an LEP in order for the definition to have work to do. That does not reflect the precise terms of the definition.

26. The only specific inclusion of the term maximum FSR in the PLEP is cl 4.4(2) which refers to land shown on the FSR map which specifies as a numerical value the maximum FSR for a tan coloured portion of the land in the Warriewood Valley Release Area. On the Council’s submissions, only the tan coloured area has an existing maximum FSR in the Warriewood Valley Release Area for the purposes of the Affordable Housing SEPP. When the controls in Pt 4 of the PLEP are viewed as a whole the existing maximum FSR can be deduced from the controls contained in the PLEP. These controls are in cl 4.5 “Calculation of floor space ratio and site area” specifying how FSR is to be calculated in light of the clause and the definition of gross floor area in the Dictionary. Clause 4.3 “Height of buildings” controls the height of buildings by reference to the Height of Buildings Map, which applies to the subject land. The application of all these controls enables the calculation of a maximum FSR which conforms with the definition of maximum FSR in the Affordable Housing SEPP. While described as potential FSR in the Applicants’ submissions, the term “existing” in the definition in the Affordable Housing SEPP can equally apply.

27. To the extent a purposive construction assists, the application of the Affordable Housing SEPP to the whole State and the aims of the Affordable Housing SEPP in relation to the provision of affordable housing supports the application of the Affordable Housing SEPP in the context of the PLEP. There is nothing within the PLEP to suggest that the objectives of the Affordable Housing SEPP should not be supported by this reasoning.

28. The parties did not provide the Court with the DCP referred to in submissions so that presumably has no role to play on this question.

29. The answer to the first question is that cl 13(2) of the Affordable Housing SEPP may apply to the proposed development on the basis the relevant controls in Pt 4 of the PLEP apply to it. This must be qualified however. Quite separately to the issue in question one, if cl 6.1(3) is not a development standard but a prohibition the development is prohibited. That is the subject of question two. As the Council submitted the Affordable Housing SEPP will not apply if the development is prohibited as cl 10(1)(a) cannot be satisfied.

Question two

33. The issues raised in the second question concerning whether a provision in Pt 6 cl 6.1(3) of the PLEP is a development standard are very similar to those considered in Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83. At issue in that case was a preliminary question of law of whether a similar clause in Pt 6 cl 6.1(3) (nil dwellings for buffer area 1m) was a development standard. I held in that case that it was not.

34. After the hearing the Council provided a marked up map of the Warriewood Release Area which purported to show sector/buffer areas with a number of dwellings within and outside the range in cl 6.1(3). A number of sector/buffer areas were outside the range with no approved dwellings. Some were unable to be determined. The map also showed land outside the remit of cl 6.1(3).

35. The parties agreed that 18 of the 41 sectors/buffers areas may have the potential for existing use rights if the provision in issue is a prohibition. The Applicant contended that more sector/buffer areas may have existing use rights. It is not possible to be more definitive on the very limited information available about this issue beyond the provisional agreement of the parties.

Applicant’s submissions

36. Karimbla should not be followed. The two-step approach applied there is not supported by Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 and earlier authorities. A textual analysis of the instrument identifies that:

1. development standards in the PLEP are not limited to those controls contained within Pt 4;

2. a control on density is a development standard (see cl 4.5A of the PLEP);

3. the instrument provides for a control on density for all land other than the Warriewood Valley Release Area in cl 4.5A;

4. the density control for the Warriewood Valley Release Area is contained in cl 6.1;

5. cl 6.1 is not excluded from the operation of cl 4.6; and

6. the definition of development standard in s 4 of the EPA Act applies.

37. A finding that cl 6.1(3) “buffer area 3b” is a prohibition will lead to absurd results. Any landowner with an existing dwelling not within the specified range for a particular buffer or sector will have existing use rights which can be expanded under cll 42 and 43 of the Environmental Planning and Assessment Regulation 2000 (NSW).

Council’s submissions

38. Agostino is the latest Court of Appeal decision in this area and is binding on the Court. It supports the approach in Karimbla which should be followed to conclude that the clause in issue is a prohibition. The Council’s submissions were very similar to those made in Karimbla and I will refer to these in the course of my finding.

Clause 6.1(3) buffer 3b not a development standard

39. In Karimbla I applied the two-step approach in Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 16 LGERA 319 as refined in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 (RAID) to the determination of whether a similar provision to buffer area 3b in cl 6.1(3) was a development standard for the reasons stated at [26] of that decision. I noted that there were conflicting Court of Appeal decisions on the appropriate approach to identifying a development standard. I considered that Agostino as the most recent Court of Appeal decision on that issue was binding and that the majority (Tobias JA, with whom Giles JA agreed, McClellan CJ in CL dissenting) essentially applied the first step of the two-step approach in Poynting. McCllellan CJ in CL understood the approach taken by Tobias and Giles JJA followed the two-step approach suggested in Poynting, at [83]. The steps in Karimbla were firstly to determine if cl 6.1(3) has the character of a prohibition and secondly whether the provision in question specifies an aspect of development. In Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 (Huang LEC) I adopted the two-step approach which was not overturned in the Court of Appeal in Huang v Hurstville City Council [2012] NSWCA 177 (Huang CA) refusing leave to appeal. Pepper J also adopted a two-step approach in Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12; (2014) 201 LGERA 232 at [33]-[41] in light of Huang LEC and Huang CA.

40. Leaving Huang CA to one side given the relatively short consideration of issues by the Court of Appeal in the context of whether leave to appeal ought be granted, Agostino continues to be the most recent Court of Appeal decision to consider the issue of identifying a development standard. I will again determine if Agostino supports the continued application of a two-step approach. Tobias JA in the principal judgment (Giles JA agreeing) at [27] cited his Honour’s review in Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 67 NSWLR 672 of numerous Court of Appeal decisions both ratio and obiter in Woollahra Municipal Council v Carr (1985) 62 LGRA 263; Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 LGERA 179 and RAID. Tobias JA went on to consider authorities, including the decision of Ipp and Basten JJA in Laurence Browning Pty Ltd, at [29]-[36]. Regardless of whether a two-step approach or the Applicant’s approach is adopted I must determine whether buffer area 3b in cl 6.1(3) is a development standard.

41. One matter can be stated unequivocally. Agostino at [43] and the authorities referred to therein identify that the primary task is one of statutory construction so that the particular provisions of a particular planning instrument must be considered, as other authorities cited in par 25-26 in relation to question one also identify). I stress that obvious finding because while the provision in issue here can be described as a density control specifying the number of dwellings allowed in a sector/buffer area, none of the cases referred to by the parties have considered the issue of a development standard in the context of this particular control in this PLEP.

42. In Agostino the control in issue was a fruit and vegetable store defined as having a maximum area of 150m2. Shops were otherwise prohibited in the relevant zone. The control was found to be a prohibition at first instance and on appeal. When Agostino at [25]-[32], [43], [46], [48]-[51] is viewed a two-step approach is identified including by reference to Poynting. As the Council submitted it was not necessary for the second step to be considered in that case. Recognising the slightly different approach of Basten JA in Laurence Browning, at [30]-[31] Tobias JA identified that Basten JA applied the terms and structure of the particular planning instrument under consideration and required the determination firstly of what were the essential elements of the permissible development. Tobias JA did not consider this approach was inconsistent with Giles JA in Lowy. A prohibition on a particular kind of development is not a development standard if the characteristic is an essential element of the particular development, not a standard in relation to an aspect of development. Tobias JA concluded in Agostino:

46   In the present case, what one is required to do is to identify the proposed development and then to determine whether it falls within the description of that which clause 41(3) makes permissible with consent. In performing this exercise it is necessary to identify which criteria are essential conditions in determining whether the particular development proposed is permissible. Thus as Giles JA observed in Lowy at [116], it is necessary to first address the LEP by reference not only to principle but also to its own structure and provisions. In so doing care is also to be taken to ensure that form does not govern substance: Poynting at [93].

…

48   In oral argument it was suggested that given the definition of “development standards” in s 4(1) of the EP&A Act, one is only concerned to determine what is the development in respect of which requirements are specified or standards are fixed regarding an aspect of that development. Given the definition of “development” in that section as including the erection of a building, it followed, so it was suggested, that the only building proposed to be erected in the present case was an extended fruit and vegetable store so that it followed that the words “with a maximum floor area of 150m²” in clause 41(3) were no more than a requirement specified in respect of an aspect of that building, namely, its floor area.

49   But such a [a party’s] contention overlooks the fact that the definition of “development standards” is referrable only to provisions of an environmental planning instrument “in relation to the carrying out of development”. Thus the development in respect of which it is asserted that the relevant provision is a development standard must be one which may be carried out; that is, one which is permitted or permissible. One can only determine that question by reference to the terms of the planning instrument.

50   In my respectful view therefore, the approach referred to in [48] above is to put the cart before the horse. Before one comes to the definition of “development standards” one is required to determine precisely what is the permissible or, as Giles JA described it in Poynting at [97], the “non-prohibited” development. For it is only when one determines what precisely is permissible that one can measure that which is proposed against it in order to determine whether it is permissible or prohibited: if you like, the first step described by Giles JA in Poynting.

43. I agree with the Council’s submissions that the reasoning of Tobias JA confirms a two-step approach. The 150m2 limitation the subject of Agostino was found to be an aspect of the permissible development meaning that “it describes or defines that which is permissible” at [57]. The criteria was not an aspect relevant to the carrying out of the development and was not a development standard as defined in s 4 of the EPA Act.

44. In Laurence Browning to which Agostino refers, the planning control was specified in a map which identified a consolidation requirement whereby development was prohibited unless all adjoining lots with a specified subscript had been consolidated into one lot. The development proposal involved the consolidation of 85 lots into 14 lots with a dwelling-house to be erected on each consolidated lot but left six lots unconsolidated. Basten JA in the principal judgment held that the provision was not a development standard. Part of his reasoning described as slightly different by Tobias JA in Agostino is identified above. Tobias JA held that the relevant clause satisfied the first Poynting step because the requirement that all adjoining lots with the subscript be consolidated into one lot was a characteristic of the land the subject of the consolidation requirement. This had to be satisfied before any form of development was permissible with consent on that land. Ipp JA provided separate reasons.

45. In Carr a case also referred to in Agostino at [31]-[36] the requirement that professional consulting rooms not employ in excess of three employees was held not to be a development standard but a prohibition. A dentistry practice with more than three rooms was not within the definition of professional consulting rooms in the relevant LEP.

46. The reasoning in Agostino relying on Laurence Browning and Carr suggests that it is appropriate to apply the two step approach, including by reference to Poynting, as I did in Karimbla at [31]-[50]. The majority approach in Agostino does not support the Applicant’s approach.

47. The eight principles adopted by Tobias JA (Giles JA agreeing) at [60]-[61] in RAID were referred to by me in Karimbla at [27]-[28] as a refinement of the Poynting approach. These principles were not expressly referred to in Agostino by Tobias JA. The principles remain a useful touchstone for decision-making and provide as follows:

[60]   The first appellant referred to the distillation of the relevant principles by Jagot J in Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 at [26]–[31] which her Honour had derived from Poynting, Lowy and Woollahra Municipal Council v Carr (1985) 62 LGRA 263 and which she recently reiterated in McCabe v Blue Mountains City Council (2006) 145 LGERA 86 at 101–2.

[61]   It is convenient to set out the following propositions adopted by her Honour as I regard them as accurately summarising the principles articulated by Giles JA in Poynting:

(1)   The provision in question must be “seen as part of the environmental planning instrument as a whole” (Poynting at 342 [94]). The “wider context” of the provision, as part of the instrument overall, should be considered in construing the provision (Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182–183 [2] per Mason P).

(2)   If a provision falls within one of the matters in subparas (a) to (o) of the definition of “development standard”, that fact alone does not mean that the provision is thereby a development standard. The provision must be “in relation to the carrying out of development” and must fix requirements or standards in respect of an aspect of the development (Poynting at 333–334 [58]).

(3) Although [there is a distinction] between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between “regulation” and “prohibition” cannot replace the definition in the EPA Act. As this conceptual division “will bring finely divided decisions”, “care must be taken lest form govern rather than substance” (Poynting at 342 [93]).

(4)   A provision that prohibits the development under any circumstances controls development, but is not a development standard (Poynting at 343 [96] and [98]).

(5)   If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then “in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development”. Hence:

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 the relevant aspect of the development is identified the control will be by imposition of a development standard.


(Poynting at 343 [98]).

(6)   It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269–270 per McHugh JA and Poynting at 343 [97]).

(7)   An essential condition of the definition of “development standard” is that the “requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development” (Carr at 269–270 per McHugh JA).

(8)   Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in subparas (a) to (n) of the definition of “development standard” shows that “a broad view of what is an aspect of a development should be taken” (Poynting at 343 [99]).

48. One point that should be made is that it is likely that none of the authorities referred to above, with the exception of Karimbla, have considered the issue of development standards in a LEP made in accordance with the Standard Instrument (Local Environmental Plans) Order 2006. That Order identifies optional and compulsory clauses for a LEP. Clause 4.6 “Exceptions to development standards” is compulsory. In contrast to Karimbla great reliance was placed by the Applicant on cl 4.6(8) not including cl 6.1 as indicating a drafting intention to specify provisions that are not development standards so that cl 6.1 must be because it is not referred to in cl 4.6(8). As the Applicant accepted that is one measure no doubt intended to reduce uncertainty about what is a development standard. It is not determinative so that it still remains for the PLEP to be construed as a whole.

49. The area of the Warriewood Valley Release Area under consideration is in the R3 Medium Density Residential zone shown on the Land Zoning Map provided in cl 2.2 of the PLEP. The Land Use Table for that zone identifies that residential flat buildings are permissible with consent. A wide range of other developments are permissible with consent such as attached dwellings, boarding houses, dual occupancies, dwelling houses, multi dwelling housing, semi-detached dwellings, inter alia. Part 4 of the PLEP is headed “Principal Development Standards” and several clauses were referred to in argument on this question by the parties, most relevantly cl 4.5 “Calculations of floor space ratio and site area”, 4.5A “Density controls for certain residential accommodation” and 4.6 “Exceptions to development standards”. Important planning controls for the Warriewood Valley Release Area are otherwise contained in cl 6.1 of Pt 6 “Urban Release Areas”. Subclause (2) states that this clause applies to land in the Warriewood Valley Release Area. The Warriewood Valley Release Area is identified on the Urban Release Area Map. The objectives of the clause are identified in subclause (1)(a)-(c) and include permitting development in accordance with the Warriewood Valley Strategic Review. Subclause (3) states that development consent must not be granted for development on land in a buffer area or sector or at an address in column 1 unless the consent authority is satisfied that the total number of dwellings will be as in column 2 (generally a range of dwellings). “Buffer area” is defined in subclause (5) to mean land identified as such on the Urban Release Area Map. Buffer areas are identified on the map with a heavy red edging. For buffer area 3b “not more than nine dwellings or less than seven dwellings” is identified in column 2. The development proposed by the Applicant is a residential flat development for 39 units and related car parking.

48. Development standards apply to an aspect of the carrying out of development and can include the intensity or density of the use of any land building or work (definition in s 4 of the EPA Act). That a provision meets the definition of development standard in s 4 does not mean automatically that it is a development standard based on the majority in Agostino. It will always be necessary to construe the relevant planning instrument if there is doubt. That a provision uses prohibitive language is also not conclusive of whether it is a development standard, per Young CJ in Eq in Poynting at [126] and subsequent authorities, as the Applicant submitted. By way of example in the PLEP, cl 4.5A which is a development standard, uses prohibitive language, namely “development consent must not be granted…”

49. The Applicant’s counsel submitted that Agostino required that it is first necessary to specify the development, here a residential flat building, in order to determine if the control in issue is an external requirement to the carrying out of a development or an aspect of the permissible development itself (and therefore a development standard). The Applicant’s approach to the construction of the PLEP as summarised above in par 36 relied heavily on a description of cl 6.1(3) as a density control, submitted to be similar to cl 4.5A which is labelled explicitly in the PLEP as a density control. Clauses which are density controls are typically development standards in many environmental planning instruments, as is the case with cl 4.5A. That clause specifies a maximum dwelling yield of one per specified site area. The control in cl 6.1(3) is expressed differently to cl 4.5A and appears in a different part of the PLEP to cl 4.5A as I consider further below. Further the control in cl 6.1(3) is not directed to residential flat buildings in particular but to all development which is permissible in the R3 Medium Density Residential zone, another relevant consideration I consider below.

50. The Applicant made other submissions concerning the construction of the PLEP as follows in this paragraph. The heading of Pt 4 “Principal development standards” implies that other development standards may appear elsewhere. The flexibility in the application of development standards in cl 4.6(2) applies unless specified development standards are exempted from the operation of cl 4.6, as provided for in cl 4.6(8). Provisions need only be excluded from the operation of cl 4.6 if they are development standards. Clause 6.1 is not excluded from the operation of cl 4.6 suggesting it is a development standard. The density control for the Warriewood Valley Release Area is provided in cl 6.1, that area being expressly excluded from the density control in cl 4.5A. That the density control is in Pt 6 not Pt 4 of the PLEP is not determinative.

51. The Council’s submissions also addressed the PLEP as a whole extensively, identifying that the Land Zoning Table in Pt 2 of the PLEP is expressly stated to be subject to the other provisions of the PLEP by virtue of cl 2.3(4). The permissibility of certain kinds of development is therefore subject to other provisions in the PLEP, including potentially cl 6.1(3). As identified at [35] in Karimbla, the Warriewood Valley Release Area was included separately as under the standard LEP, the basis for the PLEP, cl 2 cannot be varied with different zones. This suggests that Pt 6 is intended to stand alone in its application to the Warriewood Valley Release Area. As the Council submitted the permissibility of development under cl 2 is subject to other provisions of the PLEP such as cl 6.1(3) that have the effect of prohibiting some or all kinds of development.

52. As the Council submitted, in order for cl 4.6 exceptions to development to apply a development standard must be capable of being contravened. Arguably cl 6.1(3) imposes a precondition to approval in requiring that the Council be satisfied that the number of dwellings to be erected in the range specified for a sector/buffer area can be satisfied. Clause 6.1(3) inherently confers a degree of flexibility in its operation in relation to buffer area 3b, and other buffer areas. I agree with the Council that the nature of the control in cl 6.1(3) is fundamentally different in operation from cl 4.5A. I so found in Karimbla at [38]. The governing characteristic in cl 6.1(3) is land in the specified buffer or sector on which more or less than the specified number of dwellings will be erected. The clause prohibits all development not within these parameters. The control in cl 6.1(3) is similar to that in The Council of the Municipality of North Sydney v P DMayoh Pty Limited (1990) 71 LGRA 222 described as a provision that provides “… on land of characteristic X no development may be carried out” where a proposed development is outside the sector/buffer area range. At issue in that case was a provision which prohibited the erection of a residential building on land in a specified zone if the neighbouring land was less than three storeys in height. That control was found not to be a development standard.

53. The Applicant submitted that there was effectively no difference between a reference to a buffer area or sector and an allotment (a lot) of land because in some cases the buffer area or sector was one lot when the boundaries of the Warriewood Valley Release Area in the Urban Release Area Map are considered. In such a case ownership in one lot will be one development. In this case the development application is over two lots which both comprise buffer area 3b. The control on dwellings identifies a provision in relation to the carrying out of development where a standard is fixed for how many dwellings can be included in a residential flat building. Alternatively, if a single development is not over the entirety of a buffer area or sector the Council must be satisfied in relation to the development application that the dwelling range is satisfied. The dwelling range specified is in relation to an aspect of the development being dwelling numbers in relation to carrying out the residential flat building. My finding must apply for the whole of the Warriewood Valley Release Area and should not be subject to the circumstances applying to one particular buffer area or sector so that I do not find this argument to be persuasive. The circumstances for each buffer area or sector vary and what occurs in this particular case does not mean my finding that the dwelling numbers are a requirement of the land not an aspect of a particular development is wrong.

54. No single provision such as cl 4.6(8) in the PLEP is determinative of the outcome of this question. It is necessary to consider the PLEP as a whole and both parties have emphasised different aspects of the PLEP to support their case. Ultimately I find the Council’s submissions are more persuasive. I consider that the clause in issue is a prohibition on development that does not meet the description in cl 6.1(3) buffer 3b and is not a development standard.

55. Whether the control relates to an aspect of the development is the second step in Poynting. I agree with the Council’s submissions that the control in cl 6.1(3) does not operate by reference to the number of dwellings to be erected as part of a particular proposed development. This suggests it is not controlling an aspect of the development as required by the definition of “development standard” in s 4 of the EPA Act. In terms cl 6.1(3) imposes a requirement comprising the Council’s satisfaction as to the existence of an attribute of the whole of the land comprising the relevant sector or buffer area within which a proposed development is to be carried out. It does not impose a requirement relating to the carrying out of an aspect of that proposed development. Clause 6.1(3) applies to development of any kind not only residential development. The clause limits the number of dwellings permissible on land, further confirming that it specifies an attribute for an area of land not an aspect of a particular development. I also agree with the Council that the provision has some similarity to the consolidation requirements considered in Laurence Browning in which case Tobias JA considered that the provision imposed a requirement in relation to an attribute of the whole of the land the subject of the consolidation requirement at [52] and [53].

56. The Applicant’s submissions emphasised that a wider approach to considering an aspect of development is necessary, supported by a statement to that effect by Giles JA at [99] in Poynting and Laurence Browning at [53], citing the eighth principle in RAID. Adopting that wider approach does not assist the Applicant when the structure of the PLEP is considered as a whole.

57. In further contrast to Karimbla, the Applicant submitted that the Council’s approach (and now the Court’s) would lead to absurd results. If the provision in issue is a prohibition then for all buffers or sectors where dwellings exist which are not within the specified range existing use rights would apply. The parties agree that the marked up Urban Release Area Map for the Warriewood Valley Release Area provided by the Council after the hearing (referred to in par 34-35 above) shows that 18 out of a possible 41 sector/buffer areas may have the potential to benefit from existing use rights in part or whole. It is difficult to conclude on the material available that a finding that the provision in question is not a development standard but a prohibition produces absurd results. For the totality of the reasons given above concerning the structure of the PLEP I do not consider that I should change my view based on that submission.

58. I consider Pt 6 cl 6.1(3) buffer area 3b is a prohibition. The answer to the second question is no. As noted above in par 32 this means that the Affordable Housing SEPP provisions the subject of question one cannot apply to the Applicant’s proposed development.

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Decision last updated: 28 October 2015