Lowy v The Land and Environment Court of NSW - [2002] NSWCA 353

No judgment structure available for this case.

Reported Decision:
(2003) 123 LGERA 179

New South Wales

Court of Appeal

CITATION: Lowy v The Land and Environment Court of NSW & Ors [2002] NSWCA 353

FILE NUMBER(S): CA 40112/02

HEARING DATE(S): 9 July 2002

JUDGMENT DATE:
1 November 2002

PARTIES :

Frank Lowy - Claimant/Appellant
The Land and Environment Court of NSW - First Opponent/First Respondent
Salvatore Paino - Second Opponent/Second Respondent
Woollahra Municipal Council - Third Opponent/Third Respondent

JUDGMENT OF: Mason P at 1; Handley JA at 6; Giles JA at 70

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : LEC 10500/01

LOWER COURT
JUDICIAL OFFICER : Cowdroy J/Lloyd J

COUNSEL: P LeG Brereton SC, J B Maston/C Dimitriadis - Claimant/Appellant
Submitting - First Opponent/First Responent
P C Tomasetti - Second Opponent/Second Respondent
Submitting - Third Opponent/Third Respondent

SOLICITORS: Speed and Stracey - Claimant/First Respondent
I V Knight, Crown Solicitor - First Opponent/Second Respondent
Hardings - Second Opponent/Second Respondent
Phillips Fox - Third Opponent/Third Respondent

CATCHWORDS: Refusal of development application - appeal by applicant to Land and Environment Court - objector given leave to participate - appeal allowed - whether objector can appeal to Supreme Court - whether prerogative relief available - whether restriction on development on foreshore side of foreshore building line a development standard. D

CASES CITED:
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147;
Bowen v Willoughby City Council (2000) 108 LGERA 149;
Chriss v Williams (1988) 4 BCL 276;
Cole v Whitfield (1988) 165 CLR 360;
Corporate Affairs Commission v Bradley 1974) 1 NSWLR 391;
Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313;
Drummoyne Foreshores Committee Inc v Drummoyne Council [2001] NSWLEC 14;
Frisoli v Leichhardt Council (Talbot J, 5 June 1996, unreported)
re Great Eastern Cleaning Services Pty Ltd and the Corporations Act (1978) 2 NSWLR 278;
Hockey v Yelland (1984) 157 CLR 124;
Howard Silvers Investments Pty Ltd v Sydney City Council (1998) 99 LGERA 154;
IRC v Dowdall O'Mahoney & Co Ltd [1952] AC 401;
The King v Wallis (1949) 78 CLR 529;
Kruf v Warringah Shire Council (15 September 1988, Holland J, unreported);
McKay v North Sydney Municipal Council (2000) 107 LGERA 203;
Napper v Shoalhaven Shire Council (12 February 1988, Stein J, unreported);
North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222;
Onus v Alcoa of Australia Pty Ltd (1981) 149 CLR 27;
The Queen v Watson ex parte Armstrong (1976) 136 CLR 248;
Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114;
R v Dunphy ex parte Maynes (1978) 139 CLR 482;
R v Gray (1985) 157 CLR 351;
re Smith, ex parte Rundle (1992) 5 WAR 295;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319;
Ex parte Tooth & Co Ltd re the Council of the City of Sydney (1962) 80 WN 572;
Tweed Shire Council v Minister Administering the Crown Lands Act (1966) 92 LGERA 80;
Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496
Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425;
Woollahra Municipal Council v Carr 1985) 62 LGRA 263;
Western Aluminium Pty Ltd v Minister Administering the Environmental Planning and Assessment Act [2000] NSWLEC 265.

DECISION: (a) Extension of time to apply for leave to appeal from the decision of Cowdroy J granted, subject to filing a notice of appeal within 7 days; leave to appeal granted; appeal dismissed with costs; (b) Summons otherwise dismissed; and (c) Mr Lowy pay the costs of the summons and the appeal.

CA 40112/02
LEC 10500/01

MASON P
HANDLEY JA
GILES JA
Friday 1 November 2002

LOWY

v

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES & ORS

Judgment

1 MASON P: I have had the benefit of reading in draft the judgments of Handley JA and Giles JA.

2 On the substantive issue I agree with Giles JA. It is true that there is no requirement that all provisions regarding land use appear in the development control tables. But it remains relevant that the land use control imposed here is (a) qualified in terms when one reads cl 22 as a whole; and (b) found in Part 3 of the LEP, cheek by jowl with other provisions that are demonstrably standards. This is not to ignore the specific preclusive effect of cl 22 or the mandatory terms of s 76B of the Environmental Planning and Assessment Act 1979, but simply to place cl 22 in its wider context before asking the question whether cl 22 is amenable to the reach of SEPP 1.

3 I therefore agree with the orders proposed by Giles JA.

4 I would reserve my position on the procedural aspect of the appeal insofar as Giles JA is satisfied that Cowdroy J did not wrongly refuse to join Mr Lowy as a party to the Land and Environment Court proceedings. I am troubled about the propriety of framing the order with the specific intent of restricting appeal rights and for no other apparent reason.

5 Furthermore, if there is power to make a “Double Bay Marina order” (cf Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314) stemming from s 38 of the Land and Environment Court Act 1979, then I am far from convinced that the active intervener status thereby conferred did not make Mr Lowy a party, with ensuing appellate rights (cf O’Keeffe Nominees Pty Ltd v BP Petroleum Ltd (1995) 55 FCR 591), regardless of Cowdroy J’s intention otherwise.

6 HANDLEY JA: These proceedings, partly prerogative in nature, and partly appellate, arise out of an attempt by Mr Salvatore Paino, the second opponent (the developer), to obtain development consent for an extension to the approved balcony at his house (the proposed development) at 106 Wolseley Road, Point Piper. The claimant, Mr Frank Lowy (the objector), who owns the house at 102 Wolseley Road, objected to the application for development consent lodged with the Woollahra Council (the Council) which refused the application.

7 The developer appealed to the Land and Environment Court (the Court) pursuant to s 97 of the Environmental Planning and Assessment Act (the Act). The objector applied by motion for an order that he be joined as a party to the appeal or that he be granted leave to appear at the hearing. The motion was heard by Cowdroy J who declined to order that the objector be joined as a party because that “necessarily gives rise to appeal rights”. However he did order that he be granted leave to appear at the hearing by counsel and solicitor and to call evidence, cross-examine witnesses and make submissions. That order substantially, if not completely, protected the objector’s position in the appeal to the Court.

8 However, if the appeal succeeded, the objector might not be able to appeal to this Court if the order did not in truth make him a party. See Land and Environment Court Act s 57(1) (the Court Act). Assuming, for present purposes, that the objector had standing as a party to the notice of motion to appeal from the refusal of Cowdroy J to order that he be made a party to the appeal, leave to appeal would be required (s 57(4)). No such application was made. Its only purpose would have been to obtain a right of appeal to this Court if the developer succeeded. This Court discourages applications for leave to appeal in interlocutory matters of practice and procedure, especially where the application can be seen as premature, and it is virtually certain that leave to appeal would have been refused. The objector and his advisers acted properly in not making such an application.

9 The appeal was heard by Lloyd J and on 23 January 2002 his Honour, in an extempore judgment, allowed the appeal and granted consent for the proposed development on conditions.

10 The objector commenced proceedings in this Court within 28 days seeking relief in the nature of certiorari to quash the decision of Lloyd J for error of law on the face of the record, or for jurisdictional error. The error alleged arose from his Honour’s construction of cl 22 of the Woollahra Local Environmental Plan (the Plan) which established Foreshore building lines. The relevant building line (FBL), established pursuant to cl 22(1)(a), was 12 metres above mean high water mark. Clause 22(2) provided:

“Except in accordance with a development consent referred to in subclause (4), a building shall not be erected between a foreshore building line referred to in subclause 1(a) and the mean high water mark of the waters of Port Jackson”.

11 It was common ground that the proposed development would contravene the FBL.

12 Clause 22 (4) created limited exceptions which enabled the Council to approve swimming pools and ancillary buildings, boat sheds, wharves, jetties and structures below or at the surface of the ground but these are not relevant. Sub cl (5) enabled the Council, by resolution, to alter or abolish any FBL to the extent that it affects a site if the levels, depth or other exceptional features of the site make it expedient to do so. Lloyd J held that there was nothing exceptional about the subject site which would enable the consent authority to invoke this power.

13 The Judge held that the FBL in cl 22(2) was a development standard which could be relaxed in accordance with cl 7 of State Environmental Planning Policy No 1 (SEPP 1). He upheld the developer’s objection under cl 6 that compliance with this standard would be “unreasonable or unnecessary in the circumstances of the case”. This enabled him to grant consent notwithstanding the contravention of the FBL.

14 If the FBL was not a development standard the proposed development would be prohibited and the prohibition would be binding on the Council and the Court (s 76B). The objector contended that it was a prohibition and that Lloyd J erred in law in construing it as a development standard. This error of law, if such it was, was apparent on the face of the reasons for judgment of Lloyd J which were part of the record. Supreme Court Act s 69(3), (4). It was also said to be a jurisdictional error because the Judge had no jurisdiction or authority to embark on the enquiry under SEPP 1 if cl 22(2) was not a development standard.

15 The Court and the Council, who were joined as opponents in the summons, submitted to the orders of this Court, save as to costs. Mr Tomasetti, who appeared for the developer, did not challenge the jurisdiction of this Court to grant prerogative relief in the nature of certiorari in respect of orders of the Court, but submitted that grounds for such relief had not been established and in any event relief should be refused as a matter of discretion.

16 Section 56 of the Court Act, provides, in a case such as this, that, except as provided in s 57 which authorises an appeal to this Court on a question of law, a decision of the Court in Class 1 proceedings “shall be final and conclusive”. It is well established that such a provision does not take away the jurisdiction of this Court to grant relief in the nature of certiorari. Hockey v Yelland (1984) 157 CLR 124, 130.

17 Under the Court Act s 5, the Court is a superior court of record but this too does not exclude the jurisdiction of this Court to grant prerogative relief. The Queen v Watson ex parte Armstrong (1976) 136 CLR 248, 263. This Court’s predecessor held that certiorari for error of law on the face of the record lay to the former Land and Valuation Court. Ex parte Tooth & Co Ltd re the Council of the City of Sydney (1962) 80 WN 572. There is no distinction between the position of the Court and the Land and Valuation Court for present purposes.

18 The summons was later amended to include claims for appellate relief. The objector sought leave to appeal out of time from the decision of Cowdroy J refusing to join him as a party to the appeal. An extension of time was also sought to appeal from the decision of Lloyd J, on the basis that Cowdroy J’s orders had already made the objector a party, or if he became a party as a result of a successful appeal from the decision of Cowdroy J.

19 Section 4 of the Act contains a lengthy definition of development standards. Section 26(1) provides that an environmental planning instrument may make provision for or with respect to “(b) controlling (whether by the imposition of development standards or otherwise) development”. Control is defined in s 4 in relation to development as meaning, so far as relevant, “permit, regulate, restrict or prohibit”. Division 2 of Part 3 of the Act (ss 37-39) provides for the making of State environmental planning policies and s 36(2) provides that such a policy prevails over a Local environmental plan made before or after the policy to the extent of any inconsistency, if the policy expressly so provides. SEPP 1 expressly so provides and thus prevails over cl 22(2) if that is a development standard but not otherwise.

20 There is no need to set out the definition of development standards in full. So far as relevant it provides:

“Development standards means provisions of an environmental planning instrument … 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:

(a) … the distance of any … building or work from any specified point

…

(c) … location, siting … of a building or work”.

21 Section 76B which substantially re-enacted s 76(3) of the original Act provides:

“If:

on land to which the provision applies

on land

the land

22 Since the exceptions in sub clauses (4) and (5) do not apply cl 22 (2) (para 10) contains what is, in terms, an absolute prohibition on the erection of a building within the FBL. Building is defined in s 4 as including part of a building and any structure or part of a structure. It is not clear whether any part of the proposed development falls outside the FBL but Lloyd J said: “There is no doubt that the proposed terrace is between whichever line is selected [and] the mean high water mark”, and I take it that this means that the whole of the proposed development is within the FBL.

23 The developer’s land at 106 Wolseley Road is within Zone 2(a), the Residential A Zone under the Plan, and under the applicable development control table the proposed development is permissible with consent. However cl 8(4) in Part 1 provides:

“The development control table for each zone must be read subject to the special provisions … in parts 3 and 4 of this Plan, respectively. In the event of an inconsistency between a provision of a development control table relating to a zone and a special provision … the special provision … shall prevail”.

24 Clause 7 of the development control table for the Residential A Zone provides, so far as relevant:

“Parts 3 and 4 of … this plan must be read in conjunction with this development control table as they also affect the nature of development which can be carried out”.

25 Clause 22A was added by Amendment No. 32 published in the Gazette on 17 August 2001 after the appeal to the Court had been commenced. It provides:

Objectives of foreshore building line standards

The objectives of the foreshore building line standards set by cl 22 are as follows:

(a) to retain Sydney Harbour’s natural shorelines;

(b) to provide larger foreshore setbacks at the points and heads of bays in recognition of their visual prominence;

(c) to protect significant areas of vegetation and, where appropriate, provide areas for future planting which will not detrimentally impact on views of the harbour and its foreshores;

(d) to protect the amenity of adjoining lands in relation to reasonable access to views and sunlight;

(e) to preserve the rights of property owners to maintain an encroachment on the foreshore building line by an existing main building;

(f) to protect rock platforms and the intertidal ecology”.

26 Amendment No. 32 also added cl 37 as a Savings and Transitional Provision. Sub cl (1) provides:

“A development application lodged with the Council, but not finally determined, before the commencement of Woollahra Local Environmental Plan 1995 (Amendment No 32) is to be determined as if that plan had been exhibited but had not been made”.

27 The subject development application had not been finally determined on 17 August 2001 because the appeal was pending. Under s 79C(1)(a) the consent authority, relevantly the Court, was required “to take the amendment into consideration” to the extent it was relevant. Lloyd J was not referred to this amendment, and it only emerged at a late stage of the argument in this Court.

28 The heading and the opening words refer to “standards”, and this must mean development standards. Clause 22 (4) and (5) may contain what are, or were thought to be, development standards and on that view cl 22A might have nothing to say as to the legal character of cl 22(2). On the other hand all the substantive sub clauses may have been thought to be development standards. However if this were the case cl 22A would not affect the true construction of cl 22(2). Parliament’s mistaken view of the meaning of an existing statute, expressed in a later statute, does not amend the earlier statute. See IRC v Dowdall O’Mahoney & Co Ltd [1952] AC 401. In my opinion therefore cl 22 (2) must be construed without reference to cl 22A.

29 The definition of development standards and its application to particular provisions in environmental planning instruments, has generated a large and growing volume of case law. However the basic principles are clear. Development standards (par 20) are provisions “in relation to the carrying out of development” and they must be provisions by or under which “requirements are specified or standards are fixed in respect of any aspect of that development”. Thus development standards control the carrying out of development by specifying requirements or fixing standards.

30 Provisions in an environmental planning instrument which prohibit particular classes of development altogether are not development standards because they do not relate to “the carrying out of development” and they do not specify requirements or fix standards in respect of any aspect of that development.

31 The development control tables in local environmental plans commonly contain provisions which prohibit development. Thus the control table for the Residential A Zone in the Plan provides in cl 4 for development which may be carried out without development consent, and in cl 5 for development which may be carried out only with development consent. Cl 6 provides that all other development is prohibited. It has never been suggested, to my knowledge, that clauses in development control tables which prohibit development are development standards susceptible of relaxation under SEPP 1. The case law, with a least one notable exception, has not been generated by provisions in development control tables.

32 The courts have been struggling in this area with the distinction between prohibition and regulation but this has always been a difficult area because there is no bright line at the boundary. The High Court grappled with this distinction in the context of s 92 of The Constitution until Cole v Whitfield (1988) 165 CLR 360 when it was abandoned. The difficulties in other contexts were referred to by Young CJ in Eq in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319, 348 (Poynting).

33 The problem is that every regulation involves some prohibition. A legislative provision which would be categorised as a regulation provides in substance that a person may do something in a particular way, or to a particular extent, but may not do the thing in any other way or to any greater extent. Compare The King v Wallis (1949) 78 CLR 529, 550. Almost invariably regulation will be part permission and part prohibition.

34 The meaning of the definition of development standards was explored in three early decisions of this Court which have not been questioned. In Warringah Shire Council v KVM Investments Pty Limited (1981) 45 LGRA 425, which did not involve SEPP 1, Reynolds JA, with the approval of Samuels JA, said at 432:

“I would regard the provisions of the definition [of development standards] as being related to something against which the proposed building and associated matters may be measured”.

35 In Woollahra Municipal Council v Carr (1985) 62 LGRA 263 this Court held that SEPP 1 could not trump a prohibition on the proposed development in a development control table. Professional consulting rooms as defined in the Ordinance allowed use by not more than three employees. The developer wished to employ seven. A use for purposes within that definition was permissible with consent in a residential zone but a use outside that definition was prohibited. Priestley JA and McHugh JA, in separate judgments, considered that such a restriction was capable of being a development standard but in its context in the development control table it was not. Priestley JA said (267):

“The other function of the words … is to form a dividing line between those professional consulting rooms which are intended to be within Column IV, Clause 23 of the Ordinance [and hence permissible with consent] and those which are not [which are therefore prohibited] … the proposed development could not be carried out under the Act because of the definition of professional consulting rooms”.

36 McHugh JA said at 269:

“… the Woollahra Planning Scheme makes … provision … for the use of a building as professional consulting rooms. For the purposes of clause 6 of SEPP No 1 this is the relevant development. Once the development is particularised in this way I think the appeal must succeed … The development could not be carried out … because there is no other relevant category in the Woollahra Ordinance which permits a dental surgery with more than three employees in this residential zone. The use of premises as a dental surgery with more than three employees … is not within any permitted use or purpose as defined in the Planning Scheme … the requirements specified or standards fixed … must be requirements or standards which, ex hypothesi, are external to the aspects of [the] development. A provision is not a specified requirement or fixed standard ‘in respect of’ an aspect of a development until the development and its aspects are defined”.

37 The number of employees who could be employed in the dental practice was not a standard external to the proposed development because development for professional consulting rooms as defined, which was permissible with consent, incorporated the restriction in the number of employees. In the language of Reynolds JA that restriction was not an external standard against which the proposed development could be measured, it was an integral part of the only permissible development. McHugh JA recognised that the distinction between a standard in the definition of permissible development, and an external standard, was one of form rather than substance, but this could not affect the result.

38 In North Sydney Municipal Council v P D Mayoh Pty Limited [No 2] (1990) 71 LGERA 222 (Mayoh), the majority, Mahoney and Clarke JJA, interpreted the relevant clause in the North Sydney Plan, which was not in the development control table, as a prohibition on the proposed development and not a development standard. Mahoney JA referred to the definition of development standards and said (232-3):

“If the definition is to be construed according to its terms, three things may be said. First the definition applies, in the first instance, only to provisions which are ‘provisions … in relation to the carrying out of development’. Therefore that with which the definition deals is provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards to be observed. …

Secondly, the use of the phrase ‘requirements are specified or standards are fixed’ provides some ... support for the view that that with which the definition deals is details of a development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all.

And, thirdly, the matters detailed in [the] sub pars … of the definition … provide further support for this view. They assume that development of a kind … can be carried out and they provide for the things which are required and the standards which are to be observed in the carrying out of that development”.

39 After referring to the relevant clause he said (234):

“… what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to ‘the carrying out of’ development of that … kind … This is not a matter relating to ‘development standards’ but to the carrying out of development at all”.

40 Clarke JA said (235) that the relevant prohibition was “absolute”. He continued:

“The question … is one of the construction of [the clause] considered in the light of the terms of [the Plan]. It is not to be resolved by assuming that the zoning tables provide the exclusive code of land use”.

41 Clause 9, in which the zoning table of that plan was incorporated, was expressed to apply “except as otherwise provided” in the North Sydney Plan. In that respect it was indistinguishable from cl 8(4) of the Plan (pars 23, 24). Clarke JA said (235-6) that cl 14A (1)(a) provided otherwise because:

“It prohibits … the erection of a residential flat building on particular blocks of land situated in Zone 2(c). It is as much concerned with land use as clause 9 is for it prohibits the use of land enjoying the specified characteristics for the named purpose. In a sense it both supplements and qualifies clause 9. It qualifies the clause because it prohibits the use of identified blocks for a purpose which … would otherwise be permissible under the zoning table and it supplements clause 9 by making further provision in respect of land use within zone 2(c).

There is no requirement that all provisions regarding land use appear in clause 9. Indeed the opening words ‘Except as otherwise provided’ make it plain that other provisions bearing on land use appear in the Plan and are intended to have operative effect notwithstanding that there is a measure of inconsistency between those clauses and clause 9.

Understood in this way the zoning provisions and clause 14A (1)(a) operate in conjunction. Under the table a number of uses are prohibited throughout the zone. Under [the clause] an additional land use … is prohibited in respect of particular sites within the zone … no doubt the particular prohibition could have been incorporated in clause 9 and if that had occurred I apprehend it would not be suggested that it lay down a development standard. The fact that it didn’t appear in the table but later in the plan is, in the light of the express terms of clause 9, of no moment … The point is reinforced by the fact that [the clause] lays down an absolute prohibition on the use of certain land for a particular purpose whereas development standards lay down requirements or standards against which the proposed development is to be measured”.

42 Later Clarke JA expressed the tentative view that the decision in Quinn O’Hanlon Architects Pty Limited v Leichhardt Municipal Council (1989) 68 LGRA 114 (Quinn O’Hanlon) was correctly decided, although he acknowledged that the Court had not heard detailed argument on that question. The present Court has heard detailed argument and I have been persuaded that the case was correctly decided on the facts having regard to the very special FBL clause under consideration, but that the reasons given by Cripps CJ cannot be supported if they were intended to apply to a clause such as cl 22(2).

43 The definition of development standards, and its relationship to clauses in the body of a local environment plan, was again considered by this Court in Poynting (2001) 116 LGERA 319. The principal judgment was given by Giles JA, who comprehensively reviewed the case law. I accept the result but have reached a different conclusion from his as to the proper result in this case.

44 Column IV of the zoning table in the scheme there relevant provided in respect of the relevant zone that the uses permissible with consent included “attached dual occupancies which are not subdivided”, “detached dual occupancies which are not subdivided” and “single dwellings”. Use for multi-unit housing was prohibited.

45 Consent was sought for a subdivision into two blocks each a little less than the minimum area. Clause 41(1) provided that the Council shall not grant consent to the subdivision of land within the zone “which creates allotments intended to be used for the erection of single dwellings, attached or detached dual occupancies” unless each proposed allotment had an area of not less than 560 square metres. Sub cl (2) provided that:

“A single dwelling, attached dual occupancy, detached dual occupancy … must not be erected on an allotment of land within [the zone] which has an area of less than 560 square metres …”.

46 Thus attached and detached dual occupancies which were not subdivided could be erected on the unsubdivided land (par 39), which contained 1,114 square metres. Development consent was sought for a subdivision but the issue presented was based on the intended use of the blocks for single dwellings, attached dual occupancy, detached dual occupancy, or multi-unit housing. As Giles JA said (325):

“The questions addressed the use of the allotments as if there were the subdivision, presumably on the reasoning that consent to subdivision should not be granted if the allotments could not be used for such an intended purpose. The inconsistency asserted, therefore, was at one remove, and the appellant’s position was that it had no power to grant consent to the erection of a building in accordance with the respondent’s intention or to the use of the allotments for the purposes of any such building because the allotments would have areas less than 560 square metres.

I do not consider the course taken … to be satisfactory. The implicit intention is not exhaustive of the purposes for which buildings or works may be erected, carried out or used in the zone … and the purpose of multiple-unit housing is not permissible at all … In the appeal to this Court the single issue was argued, whether clause 41(2) … is a development standard”.

47 His Honour considered the dichotomy between prohibition and regulation and the relevant cases (327-332, 334-342). His decision is authority for the following propositions which are relevant in this case:

(i) “The provision in question must be seen as part of the environmental planning instrument as whole”. (342)

(ii) “Regulation or prohibition may depend on the governing characteristic perceived in the provision”. (342)

(iii) “… the guidance of the dichotomy [between regulation and prohibition] must be acknowledged”. (342)

(iv) “A provision prohibiting the development in question … under any circumstances … will not be a development standard”. (343)

(v) “Control by complete prohibition on the development in question will not leave room for requirements or standards”. (343)

48 His conclusion in relation to cl 41(2) was (344):

“The development in question … at least on the basis on which the separate questions were put forward must be taken to have been the erection of a building on the residential 2(a) land for the purpose of a single dwelling, an attached dual occupancy, detached dual occupancies or multiple-unit housing. So far as clause 41(2) is concerned with multiple-unit housing, the effect of [the zoning table] is that a building may not be erected on residential 2(a) for that purpose at all. There is no development in respect of an aspect of which it specifies a requirement or fixes a standard …

So far as clause 41(2) is concerned with a single dwelling or with dual occupancies, erection of a building on residential 2(a) land for those purposes is generally permissible with consent … Clause 41(2) then provides that consent shall not be given unless the land has an area of not less than 560m². Reading the provision as part of the Ordinance as a whole, this is not a prohibition on the erection of a building for the stated purposes on residential 2(a) land in any circumstances. It is prohibitory so far as it precludes development in particular cases, but not prohibitory of development by erection of a building for the stated purposes on residential 2(a) land. The development is permissible in the circumstances (negatively) expressed in clause 41(2).

Does clause 41(2) specify a requirement or fix a standard in respect of an aspect of the development? In my opinion it does”.

49 The intended development, other than for multi-unit housing, was permissible with consent in the zone, and on the unsubdivided block. The case was argued on the basis of the controls on the erection of buildings in cl 41(2), and not on the basis of the controls on subdivision in cl 41(1). The parties may have conducted the case in this way because of s 80(2) which provides:

“(2) … the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development”.

50 In that case attached or detached dual occupancies were clearly permissible with consent on the unsubdivided land in accordance with cl 41(2). In that context it is not hard to see that the assumed control on subdivision by reference to the control on the types of buildings that could be erected on the land, including the land in its unsubdivided form, was a development standard in relation to the proposed subdivision. There was in fact no relevant control, except possibly with reference to single dwellings, on the proposed building development on the existing block.

51 Giles JA carefully analysed the majority judgments in Mayoh. He said of the clause relevant in that case (332):

“… [it] imposed a criterion in relation to adjoining land, not the land to be developed. It was therefore readily seen as a prohibition on erection of a [residential flat] building on the land to be developed, rather than relating to or a requirement or standard in respect of an aspect of the development”.

52 Later he said (343):

“… [Mayoh] must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances … because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining [low] buildings, so there was relevantly a prohibition on [that] development in any circumstances”.

53 In Quinn O’Hanlon 114 cl 22(1) of the Leichhardt Plan, the FBL clause, was indistinguishable from cl 22(2) of the Plan but sub cls (2) and (3) were very different. These provided:

“(2) The council may, after taking into consideration the probable aesthetic appearance of the proposed building or work in relation to the foreshore, consent to:

(a) the erection of baths, boat sheds, dressing sheds, wharves, jetties or swimming pools; or

(b) the extension, alteration or rebuilding of a building which encroaches the foreshore building line, on land between a foreshore building line and the foreshore to which that line relates.

(3) The Council shall not grant consent under sub cl (2)(b) in respect of any alteration, extension or rebuilding where -

(a) the total encroaching floor area will be increased by more than 10 percent over the encroaching floor area as it was on the appointed day; or

(b) the building as altered, extended or rebuilt, will be closer to the foreshore than the building as it was on the appointed day”.

54 The development involved alterations and additions to an existing residential building but the Council refused consent because part of the building work was to be constructed between the FBL and the foreshore (115). The existing building already encroached on the FBL and the proposed alterations and additions would have extended the building towards the foreshore (116).

55 It seems to me that cl 22(2) and (3) were capable of being viewed as development standards in relation to alterations and extensions to an existing building which already encroached on the FBL and that as such they were amenable to SEPP 1. However Cripps CJ did not decide the case on that basis. Indeed his comments on the status of the clause as a development standard were strictly unnecessary for his decision as the appeal failed on planning merit grounds. However he said (118-19):

“… the erection of a dwelling house is permissible in the zoning tables over the whole of the land except that which is permitted … may not, subject to certain exceptions, be erected over part of the land. It would seem to me, in the absence of any authority to the contrary, that the fixing of a building line as a special provision in the planning ordinance would be relevantly a development standard and one being ‘in respect of an aspect of the development’ viz the siting of a permissible building on the land”.

56 It will be seen that his Honour focussed on the whole of the developer’s land and not just the land within the FBL. He first distinguished Kruf v Warringah Shire Council (15 September 1988, Holland J unrep) (Kruf), saying (119) that the prohibition in that case applied to the whole of the land but concluded that the case was wrongly decided (119-120).

57 In Mayoh Mahoney JA did not refer to Kruf or Quinn O’Hanlon but Clarke JA referred to both. He approved the decision in Kruf ((1990) 71 LGRA at 236, 238) but said that in his tentative view Quinn O’Hanlon was correctly decided although the point had not been fully argued (238).

58 In my view cl 22 of the Plan and the relevant FBL, in the language of Stein J in Napper v Shoalhaven Shire Council (12 February 1988 unrep), “served a zoning function”. They created what is in substance a special foreshore protection zone with its own regime of controls overlaid on the development control tables for the various zones within the foreshore protection area. There is no requirement for zoning control to follow title boundaries and it is common for a parcel of land in the one ownership to include areas within different zones. Development prohibited by the zoning table for land within one of those zones is not brought within SEPP 1 merely because it is permissible under the zoning table applicable to adjoining land in the same ownership.

59 In my judgment the issues which arise in this case as to the application of SEPP 1 to cl 22 must be considered in relation to the land within the FBL. The zoning control over other land in the same parcel and the same ownership is in my view irrelevant. This question did not arise in Kruf where, as Cripps CJ pointed out in Quinn O’Hanlon (119), the prohibition extended to the whole of the relevant land owned by the developer, as it did in Mayoh.

60 In Bowen v Willoughby CC (2000) 108 LGERA 149, 159 Bignold J distinguished the decision of Sheahan J in McKay v North Sydney Council (2000) 107 LGERA 203 on the basis that “the proposed development … was wholly contained within the foreshore side of the foreshore building line”. However this is also the position in the present case.

61 The point was not considered in Quinn O’Hanlon, or in later cases including the decision under review, and it has simply been assumed, without analysis or reasons, that in determining whether some restriction was a development standard one looked at the whole of the developer’s land. Thus in Quinn O’Hanlon Cripps CJ said, at 119, that the fixing of a building line was a development standard because it related to “the siting of a permissible building on the land”.

62 One can see the force of this reasoning where, for example, a clause of general application mandates minimum setbacks from front and side boundaries. Typically in such cases a dwelling or residential flat building would be permissible on the land and the setbacks could properly be viewed as development standards. It would be difficult, if not impossible, to regard such a clause as serving a zoning function because of its general application.

63 No such difficulties arise in the present case. The foreshore protection area within the FBL forms a distinct area which could have been made a separate zone. The special regime under cl 22 applies irrespective of the underlying zoning and provides a coherent planning regime for the affected land. Cl 22 therefore performs a zoning function. As Clarke JA said in Mayoh (235) there is no requirement that all provisions regarding land use appear in the development control tables. The Plan provides in express terms for cl 22 to prevail over the provisions of a development control table (pars 23, 24).

64 In my judgment the correct question in this case is whether cl 22 in its application to land within the FBL is a development standard. It is not whether it is a development standard in relation to land outside the FBL, or land partly within the FBL and partly outside it. The question is not to be answered by reference to the development control table for the zone, because this is subject to cl 22 (pars 23, 24). Moreover s 76B in explicit terms requires the Court to focus on the land which is the subject of the prohibition (par 21).

65 When one considers cl 22 in relation to the land which is directly affected there can only be one possible answer. Although the proposed development involves an addition to an existing building it is itself a building for the purposes of the Act. The whole of the proposed development is to take place within the FBL and no part of it is permissible. The clause prohibits the proposed development and, in accordance with Mayoh and s 76B, there is no room for the application of any development standards or SEPP 1. As Giles JA said in Poynting (332):

“The provision in [Mayoh] imposed a criterion in relation to adjoining land, not the land to be developed. It was therefore readily seen as a prohibition on erection of a building on land to be developed rather than relating to or a requirement or standard in respect of an aspect of the development”.

66 The objector has therefore established an error of law on the face of the record. In my judgment this was an error as to jurisdiction. Although the Court had jurisdiction to entertain the developer’s appeal and to consider whether cl 22 was a development standard, and in that sense to embark on that enquiry, it could not, by a wrong decision on that question, give itself jurisdiction under SEPP 1 to relax the controls imposed by that clause. See Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 per Lord Reid and 210 per Lord Wilberforce; R v Dunphy ex parte Maynes (1978) 139 CLR 482, 495-6 per Mason J and R v Gray (1985) 157 CLR 351 at 371-2 per Gibbs CJ. The relevant test for present purposes is that stated by Gibbs CJ at 372:

“However if [the Federal] Court gives a wrong meaning and effect to the word ‘irregularity’ in Part IX – if it applies the wrong test in deciding what is an irregularity – and so holds that something is an irregularity which is not in law capable of being so described, it is assuming to exercise the powers conferred on it by statute although the condition of their exercise is not satisfied”.

67 The remaining question is whether this Court should refuse prerogative relief in the exercise of its discretion. Under s 123 the objector would have had standing to bring Class 4 proceedings to challenge, on judicial review grounds, any consent granted by the Council in breach of cl 22. He also has standing, in accordance with Onus v Alcoa of Australia Limited (1981) 149 CLR 27 to maintain judicial review proceedings to challenge a consent granted by the Court in breach of that clause. It would be anomalous in the extreme if a neighbour, such as the objector, could challenge a development consent granted by the Council in judicial review proceedings in the Court, but could not challenge in this Court a consent granted on appeal by the Court. The proceedings were brought promptly and I can discern no ground on which relief could properly be refused in the exercise of this Court’s discretion.

68 I would therefore grant appropriate prerogative relief. In these circumstances there is no need for me to consider the objector’s claims for appellate relief.

69 The following orders should be made:

(1) Order that the record of the proceedings in the Land and Environment Court in matter No. 10500 of 2001 between Salvatore Paino as applicant, Woollahra Municipal Council as respondent and Frank Lowy as intervenor be removed into this Court;

(2) Order that the decision of Lloyd J in such proceedings given on 23 January 2002 be quashed;

(3) Order that Salvatore Paino pay the claimant’s costs of the proceedings in this Court, and the costs of the first and third opponents as submitting opponents;

Suitors Fund Act.

70 GILES JA: Mr Salvatore Paino is the owner of 106 Wolseley Road, Point Piper. Mr Frank Lowy is the owner of 102 Wolseley Road, Point Piper, which adjoins 106 Wolseley Road to the south. Both properties have frontages to Sydney Harbour, and have expansive views.

71 On 16 June 2000 Mr Paino applied to Woollahra Municipal Council (“the Council”) for development consent for the extension of a ground floor terrace (sometimes referred to as a balcony) across the western (harbour) side of 106 Wolseley Road. The extension would add 11 square metres to the terrace and bring its edge to a distance of 1.8 metres from the boundary between 106 Wolseley Road and 102 Wolseley Road.

72 The Council gave notice of the application to Mr Lowy. He objected to the grant of consent to the extension of the terrace on legal and merit grounds.

73 The Council’s staff recommended that consent be granted subject to the provision of a 900 mm high planter box and a 1.2 metre high balustrade at the southern end of the terrace, the end adjacent to the boundary between 106 Wolseley Road and 102 Wolseley Road. On 29 January 2001 the Council nonetheless refused to grant consent by reason of “adverse impact on the aural and visual privacy of the adjoining dwelling”.

74 On 22 June 2001 Mr Paino appealed to the Land and Environment Court pursuant to s 97 of the EnvironmentalPlanning and Assessment Act 1979 (“the EPA Act”). Mr Lowy applied to be joined as a party to the Land and Environment Court proceedings, alternatively for leave to appear in order to call evidence, cross-examine witnesses and make submissions. On 26 September 2001 Cowdroy J refused joinder but granted leave.

75 The appeal was heard by Lloyd J. On 23 January 2002 his Honour upheld the appeal and granted development consent, but subject to provision of a more substantial planter box and a glazed screen whereby the aural and visual privacy afforded to 102 Wolseley Road would be enhanced.

76 Mr Lowy wished further to contest the grant of consent to the extension of the terrace. Section 57 of the Land and Environment Court Act 1979 (“the Court Act”) provides that a “party to proceedings” may appeal to the Supreme Court, but Mr Lowy had been refused joinder as a party to the Land and Environment Court proceedings. Accordingly, by a summons filed on 20 February 2002 he applied in this Court -

(a) for an order in the nature of certiorari quashing the decision of Lloyd J on the ground of jurisdictional error or error of law on the face of the record; and

77 The jurisdictional error or error of law on which Mr Lowy relied for the prerogative relief was that Lloyd J had wrongly held that a provision of the Woollahra Local Environmental Plan 1995 (“the LEP”) prohibiting erection of a building between the foreshore building line and the high water mark of the waters of Sydney Harbour was a development standard, whereby pursuant to cll 6 and 7 of State Environmental Planning Policy No 1 – Development Standards (“SEPP 1”) the consent could be granted although the provision was not complied with. Any appeal from the decision of Lloyd J pursuant to s 57 of the Court Act was confined to a question of law, and Mr Lowy relied on the same wrong holding for error of law in the event that he was able to prosecute an appeal.

78 The active parties in this Court were Mr Paino and Mr Lowy. The Land and Environment Court and the Council were joined in the summons, but both filed submitting appearances.

79 In my opinion Lloyd J was not in error in regarding the relevant provision of the LEP as a development standard. Mr Lowy must therefore fail in this Court. Since it may be material to the further rights of the parties, however, it is appropriate to address to some extent other issues raised.

The appellate route

80 Mr Lowy made clear that this was very much a fall-back. However, whether he can appeal is material to whether the discretionary remedy of certiorari should be granted.

81 The issues raised, apart from error of law in regarding the relevant provision of the LEP as a development standard, were whether Mr Lowy should have an extension of time to apply for leave to appeal from the decision of Cowdroy J, whether he should have leave to appeal, whether Cowdroy J was in error in refusing to join him as a party, and whether he should have an extension of time to appeal from the decision of Lloyd J. It was not disputed that, if this Court overturned Cowdroy J’s decision and ordered that Mr Lowy be joined as a party to the Land and Environment Court proceedings, Mr Lowy would have current standing to obtain an extension of time to appeal from the decision of Lloyd J and prosecute that appeal.

82 There was also some discussion, initiated by the Court, of Mr Lowy’s standing to appeal by virtue of the leave granted by Cowdroy J to appear in order to call evidence, cross-examine witnesses and make submissions.

83 For the reasons which follow, I do not think that error has been shown in Cowdroy J’s refusal to join Mr Lowy as a party.

84 Under the EPA Act the procedures by which development consent is obtained differ according to the category of development. Particular provisions apply for local development, State significant development, designated development and integrated development, and the categories can overlap. Mr Paino’s development was not in any special category. In particular, it was not designated development as provided in the EPA Act.

85 Mr Paino’s appeal to the Land and Environment Court exercised the right of appeal given by s 97(1) of the EPA Act to “[a]n applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application”. A right of appeal is given by s 98(1) to “[a]n objector who is dissatisfied with the determination of a consent authority to grant consent to a development application for designated development”, but an objector is not given a right of appeal where the development is not in a special category.

86 Section 97(4) provides that for an appeal relating to an application for consent to carry out designated development -

“ … each objector to that application is to be given notice by the consent authority of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal.”

87 Section 98(2) provides, referring to the objector’s appeal in the case of a designated development, that -

“ … the person who made the development application and the consent authority … are to be given notice of that appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal”.

88 The course taken by the legislature appears quite deliberate. Ordinarily the only parties to an applicant’s appeal are the applicant and the consent authority and an objector is not a party to the appeal, although where the development is a designated development or required particular concurrence or approval an objector or the concurring or approving body can be heard as if a party to the appeal. An objector can not appeal at all unless the development is a designated development, but if an objector appeals the applicant and the consent authority are entitled to be heard as parties and any concurring or approving body is entitled to be heard as if a party to the appeal. Being heard as if a party to an appeal is distinct from being heard as a party to an appeal.

89 Under the EPA Act the contest was between Mr Paino as the applicant for consent and the Council as the consent authority. Participation rights in some circumstances given to others did not arise. Mr Lowy was not a party to Mr Paino’s appeal, and was not given an entitlement to be heard as if a party to the appeal.

90 Part 6 r 1 of the Rules of the Land and Environment Court provides that a number of Parts of the Supreme Court Rules “are taken to form part of these rules and to apply, with such adaptations as may be necessary, to proceedings in classes 1, 2 and 3 of the Court’s jurisdiction”. Mr Paino’s proceedings were in class 1. The incorporated Parts include Part 8 of the Supreme Court Rules, dealing with causes of action and parties.

91 Part 8 r 8 of the Supreme Court Rules permits the addition as a party of a person who “ought to have been joined as a party” or “is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon”. In either event the Court “may order” the addition as a party, indicating a discretion. Mr Lowy’s application heard by Cowdroy J invoked this incorporated rule.

92 In Chriss v Williams (1988) 4 BCL 276 it was said (at 277, obiter) that Pt 8 r 8 is not to be approached in the Land and Environment Court necessarily in the same way as it would be applied in the Supreme Court, and that it is relevant to appreciate that in the Land and Environment Court matters of public law are commonly involved and not matters of private law as are commonly involved in the Supreme Court. It was said that it was strongly arguable that the adjoining owner directly affected by non-compliance with Ordinance 70 came within Pt 8 r 8. But in Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80 it was held that provisions concerning appeal to the Land and Environment Court in the Aboriginal Land Rights Act 1983 of the same kind as those in the EPA Act earlier noted meant that joinder under Pt 8 r 8 was not available. Meagher JA said (at 83) that the statutory scheme “envisages a gladiatorial combat between two contestants, the land council and the Minister, nobody else”, and that if the statute provides that there are only two parties to an appeal the statute itself makes the rule inapplicable.

93 Cowdroy J did not directly address satisfaction of one or other of the pre-conditions to joinder in Pt 8 r 8. In the face of the provisions of the EPA Act to which I have referred, it could not be said that Mr Lowy ought to have been joined as a party. Those provisions suggest also, in accordance with Tweed Shire Council v Minister Administering the Crown Lands Act, that any question of joinder of Mr Lowy as a necessary party (by which I mean the more full wording in the rule) does not arise.

94 Implicitly, however, Cowdroy J found that Mr Lowy was not a necessary party. His Honour’s reasons must be read as a whole in order to unerstand his conclusion as to Pt 8 r 8.

95 His Honour said –

“14. The joinder of a party is a serious matter because it necessarily gives rise to appeal rights and also ultimately possibly to questions of costs. Mr Craig of senior counsel, who appeared with Mr Maston for the objector, was unable to nominate any specific case in this Court where in such a matter as that before the Court a joinder had been made.

15. In this case the Court is satisfied that the interests of justice would not be served by making an order joining the objector as a party. It could defeat the purpose of achieving an expeditious and cost effective result in the proceedings. However, that is not the end of the matter. The question is whether some other form of relief should be granted.”

96 His Honour went on to consider the grant of leave to appear in order to call evidence, cross-examine witnesses and make submissions. He noted hat the Council was undecided whether to oppose the appeal actively, and said -

“21. In this case the court considers that the objector is entitled to be apprehensive that his interests might not be served if some form of representation is not permitted. The alleged impact on his property could be severe. There may be matters which have not been fully investigated and will not be investigated if council determines not to proceed with opposition to the Class 1 appeal.”

97 This is not consistent with finding that Mr Lowy was a necessary party. Necessity for joinder as a party involves how else the position of the party applying to be joined can adequately be met. His Honour considered that Mr Lowy’s position would be adequately served by participation, short of joinder as a party, pursuant to the leave granted.

98 The Council was a proper contradictor in the appeal. Cowdroy J noted its indecision, but the Council had not determined to acquiesce in the appeal (and in fact the Council participated to uphold its refusal of consent). Mr Lowy had an obvious interest. But it was not a case in which there was no active contradictor (as in, for example, Western Aluminium Pty Ltd v Minister Administering the Environmental Planning and Assessment Act [2000] NSWLEC 265, taking up re Great Eastern Cleaning Services Pty Ltd and the Corporations Act (1978) 2 NSWLR 278; see also Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496). The dispute, that is, the question whether Mr Paino should have his development consent, could be effectually and completely determined and adjudicated upon with Mr Lowy’s participation pursuant to the leave granted.

99 With respect, it can not be said that Cowdroy J’s treatment of the matter was satisfactory. However, assuming that there is room for Pt 8 r 8 so far as it provides for joinder of a necessary party, I do not think that error has been shown in the implicit finding that Mr Lowy was not a necessary party.

100 I earlier adverted to discussion of Mr Lowy’s standing to appeal by virtue of the leave granted by Cowdroy J to appear in order to call evidence, cross-examine witnesses and make submissions. It appears that an order granting leave of this kind is regularly made in the Land and Environment Court, and has achieved the shorthand of a “Double Bay Marina order” (from Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314). Its basis is said to be s 38 of the Court Act. It is not necessary to investigate whether this is a sound basis.

101 Mr Lowy was at times described as an intervener. In other areas of the law where intervention has been permitted the intervener has all the rights of a party, including a right of appeal (see the discussion in Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391). Mr Lowy’s counsel initially eschewed any submission that the leave granted by Cowdroy J was intervention of this kind. He reluctantly came to make the submission. With respect, his reluctance was justified. Cowdroy J did not intend that the leave granted would amount to making Mr Lowy a party to the proceedings, since he refused to join him as a party, or that Mr Lowy should be able to appeal, since a reason for the refusal was that he should not have appeal rights. His Honour adverted to at least some consequences of joinder as a party when he noted that joinder “gives rise to appeal rights and also ultimately possibly to questions of costs”, clearly enough intending that neither consequence should flow from the leave granted. Other consequences would have included the ability to have discovery and inspection of documents and to administer interrogatories. Perhaps a participant in proceedings may be made an intervener with a right of appeal inadvertently, but not in these circumstances.

102 Mr Lowy’s counsel also eschewed any submission that for the purposes of the right of appeal to this Court conferred by s 57 of the Court Act on “[a] party to proceedings” the leave granted sufficiently made Mr Lowy a party to the proceedings.

103 Since Cowdroy J did not wrongly refuse to join Mr Lowy as a party to the Land and Environment Court proceedings, Mr Lowy can not succeed by the appellate route. I see no sufficient reason to decline to extend time and, since the matter has been fully argued, I would grant leave to appeal from the decision of Cowdroy J, but the appeal should be dismissed. Mr Lowy does not get to an appeal from the decision of Lloyd J.

The prerogative relief route

104 By s 69 of the Supreme Court Act 1970 a remedy in the nature of certiorari can be granted if previously it could have been granted on a writ of certiorari. The writ of certiorari provided a process by which the Supreme Court required the record of proceedings of an inferior court to be sent to it, for examination of whether the inferior court had exceeded its jurisdiction or failed to exercise jurisdiction or of whether the record disclosed an error of law on its face. A stranger to the proceedings giving rise to the record could apply for certiorari, although the remedy was discretionary and the nature of the interest of the person claiming it was material to the exercise of discretion.

105 The issues raised, again apart from error of law in regarding the relevant provision of the LEP as a development standard, were whether certiorari lies in relation to the Land and Environment Court and whether the remedy should be refused in the exercise of discretion. It was not disputed that, if there were the error of law, it was error of law on the face of the record (relevantly, in the reasons of Lloyd J), and jurisdictional error need not be considered.

106 Mr Paino did not submit that certiorari does not lie in relation to the Land and Environment Court. In Tweed Shire Council v Minister Administering the Crown Lands Act Meagher JA referred in passing (at 84) to relief in the nature of prerogative relief against the Land and Environment Court. Priestley JA and Simos AJA agreed generally with his Honour. In Howard Silvers Investments Pty Ltd v Sydney City Council (1998) 99 LGERA 154 Lloyd J appears to have accepted, with reference to these observations, that certiorari would lie. The Land and Environment court is a superior court of record (Court Act, s 5(1)), but its jurisdiction in a s 97 appeal is statutory and there is thus room for jurisdictional error. If the error of law for which Mr Lowy contended had been established, I would have been content to assume that certiorari lies.

107 As an adjoining owner exposed to the impact of the proposed development, Mr Lowy has an interest greater than that of a general member of the public. His interest would ordinarily suffice for the grant of prerogative relief, see Onus v Alcoa of Australia Pty Ltd (1981) 149 CLR 27 at 69-71 and re Smith, ex parte Rundle (1992) 5 WAR 295. Since he does not have a right of appeal, there is no question of an alternative remedy leading to refusal of the remedy.

108 Mr Paino submitted that the remedy should nonetheless be refused because the legislature had chosen not to give Mr Lowy as an objector the status of a party and thus not to give him a right of appeal; because general considerations of finality of litigation so required (referring to Drummoyne Foreshores Committee Inc v Drummoyne Council [2001] NSWLEC 14); and in particular because he had not earlier sought to appeal from Cowdroy J’s refusal to join him as a party and had continued in the proceedings apparently content with his entitlement to call evidence, cross-examine witnesses and make submissions.

109 I do not find these matters persuasive. That Mr Lowy has not been put by the legislation into the position of a party does not deny his interest, or its reality, and if the Council had granted consent rather than refused it Mr Lowy would have been able to challenge the grant of consent in his own proceedings in the Land and Environment Court. Having sufficient interest to seek prerogative relief, he can do so even if that means another round of litigation – the circumstances are quite different from those in Drummoyne Foreshores Committee Inc v Drummoyne Council. There is no inconsistency between failing to appeal from Cowdroy J’s decision and seeking prerogative relief, since seeking prerogative relief is underpinned not by standing as a party but by the interest recognised and given effect by Cowdroy J’s grant of leave. It would be a mistake to take Mr Lowy to have been content with Cowdroy J’s decision, but he did not act unreasonably in his conduct in the face of that decision.

110 If the error of law for which Mr Lowy contended had been established, I would not have declined to grant certiorari in the exercise of discretion.

Error of law?

111 The LEP included as cll 22AA and 22 -

22AA

The objectives of the foreshore building line standards set by clause 22 are as follows:

(e) to retain Sydney Harbour’s natural shorelines,

(f) to provide larger foreshore setbacks at the points and heads of bays in recognition of their visual prominence,

(g) to protect significant areas of vegetation and, where appropriate, provide areas for future planting which will not detrimentally impact on views of the harbour and its foreshores,

(h) to protect the amenity of adjoining lands in relation to reasonable access to views and sunlight,

(i) to preserve the rights of property owners to maintain an encroachment on the foreshore building line by an existing main building,

22. Foreshore building lines

foreshore building line

(a) a line shown on the map marked ‘Woollahra Local environmental Plan 1995 – Foreshore Building Line Map’ as a broken line with ‘F.B.L. 12m’ marked in black letters, being a line which is taken for the purposes of this clause to be situated 12 metres above the mean high water mark of the waters of Port Jackson, and

(2) Except in accordance with a development consent referred to in subclause (4), a building shall not be erected between a foreshore building line referred to in subclause (1)(a) and the mean high water mark of the waters of Port Jackson.

(3) In the case of a foreshore building line referred to in subclause (4), a building shall not be erected between that building line and the mean high water mark of the waters of Port Jackson.

(a) baths (swimming pools) and ancillary buildings,

(b) boat sheds,

(c) wharves,

(d) jetties,

(5) The Council may, by resolution, alter or abolish any foreshore building line to the extent that it affects a site if the levels, depth or other exceptional features of the site make it expedient to do so.”

112 The relevant foreshore building line was that in cl 22(1)(a). Lloyd J said that it was not clear whether the foreshore building line was the line on the map referred to in cl 22(1)(a), which was more distant than 12 metres from the mean high water mark, or an imaginary line 12 metres from the mean high water mark. He said that it was unnecessary to decide, because the extension of the terrace was between whichever line was taken and the mean high water mark.

113 The extension of the terrace was not a structure as described in cl 22(4), and no exceptional feature of the site made it expedient to alter or abolish the foreshore building line to the extent that it affected the site. Hence by force of cl 22(2) the extension of the terrace, which was the erection of a building for the purposes of the EPA Act, was precluded unless cl 22(2) stated a development standard within the definition of “development standards” in s 4 of the EPA Act.

114 Lloyd J said -

“22. It seems clear to me that the foreshore building line described in sub-cll 22(1) and (2) of the Woollahra Local Environmental Plan 1995 falls within the definition of development standards. The proposed development is permissible with development consent under the relevant zoning table under the local environmental plan. Clause 22 specifies a requirement in respect of an aspect of the development, namely, the location of the building on the land which is affected by the foreshore building line. Moreover it is a requirement which falls within the description under par (a) of the definition, namely, a requirement in respect of the distance of any building or work from any specified point, in this case the mean high water mark. It also falls within par (c) of the definition, being a requirement in respect of the location or siting of a building or work.

North Sydney Municipal Council v P D Mayoh Pty Ltd [No.2]

Strathfield Municipal Council v Poynting

Mayoh

Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council

Bowen v Willoughby City Council

115 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 included an analysis of the so-called dichotomy said to flow from North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222, and also made reference to Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114 and Bowen v Willoughby City Council (2000) 108 LGERA 149. It may not be entirely correct that the approach of the majority of the Court of Appeal in North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) was affirmed in Strathfield Municipal Council v Poynting.

116 We were taken in some detail to the cases, and it was pointed out that the correctness of Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council had been doubted in Frisoli v Leichhardt Council (Talbot J, 5 June 1996, unreported) and that a provision concerning a foreshore building line had been thought not be a development standard in McKay v North Sydney Municipal Council (2000) 107 LGERA 203. It has been said many times that whether a provision is a development standard depends on the particular provision seen as part of the planning instrument as a whole. Rather than be caught up in a raft of decisions on their own facts and fine distinctions, I consider it better to address the LEP by regard to principle and its own structure and provisions.

117 I will not repeat my consideration of development standards in Strathfield Municipal Council v Poynting. The conclusion in my reasons, with which Heydon JA agreed, was relevantly -

“95 There must be found a distinction between a provision which is a development standard and a provision which controls development in some other way, and the guidance of the dichotomy in providing a conceptual basis for the distinction must be acknowledged. But neither the dichotomy itself nor its expression in the two different kinds of provision can replace the definition in the Act.

North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2)

Woollahra Municipal Council v Carr

98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard.

North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2)

Woollahra Municipal Council v Carr

Healesville Holding Pty Ltd v Pittwater Council

Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council

Scott Revay & Unn v Warringah Council

Bell v Shellharbour Municipal Council

118 I go to the first step in the present case. The development is the erection of a building for the purpose of a dwelling house. Is it prohibited under any circumstances?

119 Clause 8 of the LEP states development control tables, establishing zones applying to land and identifying for each zone development which is prohibited, may be carried out only with consent, or may be carried out without consent. 106 Wolseley Road is within zone 2(a), as to which development for the purpose of dwelling houses may be carried out only with consent: other kinds of development either are prohibited or may be carried out without consent.

120 Clause 8(4) provides that the development control table for each zone “must be read subject to the special provisions and heritage provisions in Parts 3 and 4 of this plan, respectively”, and that in the event of an inconsistency between a provision of a development control table relating to a zone and a special provision or a heritage provision “the special provision or heritage provision shall prevail”. Paragraph 7 within the development control table for zone 2(a) states that Parts 3 and 4 to the LEP “must be read in conjunction with this development control table as they also affect the nature of development which can be carried out”. Clauses 22AA and 22 are within Part 3 of the LEP.

121 Part 3 of the LEP is headed “Additional provisions for the development of land”. It contains many disparate provisions, apart from cll 22AA and 22. They concern the need for consent to subdivision of land; allotment sizes for dwelling houses; site area and site frontage requirements; floor space ratio requirements; building height requirements; community use of facilities and sites with consent; acquisition and development of land reserved for roads; acquisition of land reserved for open space; how excavation of land is to be carried out; development in the harbour foreshore scenic protection area; development of land adjoining public open space; water and sewerage services requirements; classification and reclassification of public land as operational land; and identification of exempt and complying development. They also make particular provision with respect to development of identified parcels of land. Some of the provisions describe their requirements as “standards” (site area and frontage standards, floor space ratio standards), and the maximum building height requirements are described as “development standards”. As has been seen, cl 22AA refers to “foreshore building line standards”.

122 Considering these provisions as a whole, I do not think that the effect of cl 8(4) and para 7 in the development control table for zone 2(a) is that the special provisions in Part 3 of the LEP should be seen as prohibitory of development permitted in accordance with the development control table. Rather, the special provisions deal with associated requirements material to the permitted development and regulate the carrying out of the permitted development. Development of 106 Wolseley Road by the erection of a building for the purpose of a dwelling house is a permitted development, even though carrying out the development may be subject to the special provisions.

123 I have described this as development of 106 Wolseley Road. In the identification of the development. I do not accept Mr Lowy’s submission that, when considering whether a development is prohibited, the relevant land is confined to that the subject of the provision the categorisation of which is in question, here the land on the foreshore side of the foreshore building line. If the land be confined in that way, of necessity there is a prohibition (save that even then consent may be granted in the circumstances in cl 22(4) and (5)). The LEP is a planning instrument. It primarily addresses land in zones, with prohibited or permitted kinds of development. The development is by reference to the land in the zone, here 106 Wolseley Road.

124 Going to the second step, cl 22(2) specifies a requirement in respect of an aspect of the permitted development of 106 Wolseley Road. The development is permitted, but by cl 22(2) is subject to location or siting of the building (the extension of the terrace) on the land within the zone: it can not be placed on the foreshore side of the foreshore building line. This is an aspect of the development, see para (c) of the definition of “development standards” in s 4 of the EPA Act.

125 Accordingly, in my view cl 22(2) is relevantly a development standard amenable to dispensation pursuant to SEPP 1, and Lloyd J correctly so held.

The result

126 I propose that -

(a) an extension of time to apply for leave to appeal from the decision of Cowdroy J be granted, subject to filing a notice of appeal within 7 days leave to appeal be granted, and the appeal be dismissed with costs;

(b) the summons be otherwise dismissed; and

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Citations

Lowy v The Land and Environment Court of NSW [2002] NSWCA 353

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CITATION:	Lowy v The Land and Environment Court of NSW & Ors [2002] NSWCA 353
FILE NUMBER(S):	CA 40112/02
HEARING DATE(S):	9 July 2002
JUDGMENT DATE:	1 November 2002
PARTIES :	Frank Lowy - Claimant/Appellant The Land and Environment Court of NSW - First Opponent/First Respondent Salvatore Paino - Second Opponent/Second Respondent Woollahra Municipal Council - Third Opponent/Third Respondent
JUDGMENT OF:	Mason P at 1; Handley JA at 6; Giles JA at 70

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 10500/01
LOWER COURT JUDICIAL OFFICER :	Cowdroy J/Lloyd J

COUNSEL:	P LeG Brereton SC, J B Maston/C Dimitriadis - Claimant/Appellant Submitting - First Opponent/First Responent P C Tomasetti - Second Opponent/Second Respondent Submitting - Third Opponent/Third Respondent
SOLICITORS:	Speed and Stracey - Claimant/First Respondent I V Knight, Crown Solicitor - First Opponent/Second Respondent Hardings - Second Opponent/Second Respondent Phillips Fox - Third Opponent/Third Respondent
CATCHWORDS:	Refusal of development application - appeal by applicant to Land and Environment Court - objector given leave to participate - appeal allowed - whether objector can appeal to Supreme Court - whether prerogative relief available - whether restriction on development on foreshore side of foreshore building line a development standard. D
CASES CITED:	Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Bowen v Willoughby City Council (2000) 108 LGERA 149; Chriss v Williams (1988) 4 BCL 276; Cole v Whitfield (1988) 165 CLR 360; Corporate Affairs Commission v Bradley 1974) 1 NSWLR 391; Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313; Drummoyne Foreshores Committee Inc v Drummoyne Council [2001] NSWLEC 14; Frisoli v Leichhardt Council (Talbot J, 5 June 1996, unreported) re Great Eastern Cleaning Services Pty Ltd and the Corporations Act (1978) 2 NSWLR 278; Hockey v Yelland (1984) 157 CLR 124; Howard Silvers Investments Pty Ltd v Sydney City Council (1998) 99 LGERA 154; IRC v Dowdall O'Mahoney & Co Ltd [1952] AC 401; The King v Wallis (1949) 78 CLR 529; Kruf v Warringah Shire Council (15 September 1988, Holland J, unreported); McKay v North Sydney Municipal Council (2000) 107 LGERA 203; Napper v Shoalhaven Shire Council (12 February 1988, Stein J, unreported); North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222; Onus v Alcoa of Australia Pty Ltd (1981) 149 CLR 27; The Queen v Watson ex parte Armstrong (1976) 136 CLR 248; Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114; R v Dunphy ex parte Maynes (1978) 139 CLR 482; R v Gray (1985) 157 CLR 351; re Smith, ex parte Rundle (1992) 5 WAR 295; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Ex parte Tooth & Co Ltd re the Council of the City of Sydney (1962) 80 WN 572; Tweed Shire Council v Minister Administering the Crown Lands Act (1966) 92 LGERA 80; Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496 Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425; Woollahra Municipal Council v Carr 1985) 62 LGRA 263; Western Aluminium Pty Ltd v Minister Administering the Environmental Planning and Assessment Act [2000] NSWLEC 265.
DECISION:	(a) Extension of time to apply for leave to appeal from the decision of Cowdroy J granted, subject to filing a notice of appeal within 7 days; leave to appeal granted; appeal dismissed with costs; (b) Summons otherwise dismissed; and (c) Mr Lowy pay the costs of the summons and the appeal.