Napper v Shoalhaven City Council

[1988] NSWLEC 109

Land and Environment Court

of New South Wales

CITATION:

Napper v Shoalhaven City Council [1988] NSWLEC 109

PARTIES:

APPLICANT

Stephen John Napper

RESPONDANT

Shoalhaven City Council

FILE NUMBER(S):

40091 of 1988

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

City of Shoalhaven Local Environmental Plan 1985

CASES CITED:

Woollahra Municipal Council v. Carr (Court of Appeal Unreported 23 August l985);
WarringahShire Council v.K.V.M Investments ((l98l)

DATES OF HEARING:

26/02/1988

DATE OF JUDGMENT:

02/26/1988

LEGAL REPRESENTATIVES:

APPLICANT
Mr. Wilson
RESPONDENT
Mr. Davison

JUDGMENT:

JUDGMENT

HIS HONOUR: By an amended Class 4 Application filed in Court on 19 November 1987 the applicant, Stephen John Napper, seeks the following relief:-

"A declaration that Clause 15 (2) of the City of Shoalhaven Local Environmental Plan 1985 which states:-

'The Council shall not consent to the erection of a dwelling house on any land within zone no. l (g) unless the dwelling house is essential for the proper and efficient management of the agricultural use of the land.'

is a development standard in respect of which the applicant may object to compliance pursuant to the provisions of State Environmental Planning Policy No. l in an application for development consent for the erection of a dwelling house upon the land in the schedule hereto."

The subject land is the whole of the land in Certificate of Title Volume 10432 folio 152 being Lot 7 of section 10 in Deposited Plan 9182 and known as 7 Grandview Street, Erowal Bay. The allotment has an area of l0l2m2, a frontage of 20.ll5m and a depth of 50.29m. The applicant purchased the land in January l975 at a public auction of land for overdue rates. The order of sale described Grandview Street as providing very poor access and continued "Council will not permit the building of a dwelling until all weather access is provided". A Village zoning was noted.

The applicant wishes to erect a dwelling house on his land. In June 1984 Council refused his application stating two reasons therefor:-

"l. The development is contrary to the proposed zoning of Rural l(g) - Flood Liable - in the Draft Local Environmental Plan No. 1 which has been exhibited and submitted to the Department of Environment and Planning. (Note: This zoning was applied to certain lands within Erowal Bay after extensive investigations into the areas drainage and associated problems).

2. The land has severe drainage and soil problems which would render the site unsuitable for the erection of a dwelling."

The applicant exercised his right of appeal to this Court and the application is still pending awaiting the outcome of the Class 4 proceedings.

On 17 May 1985 the City of Shoalhaven Local Environmental Plan was gazetted. Under this instrument the subject land is zoned No. l(g) (Rural "G" Zone). The zone objectives and development control table are set forth in clause 9.

Clause 9(2) provides:-

"Except_as_otherwise_provided_by_this_plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -

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

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

(c) development is prohibited,

are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone." (My emphasis added)

The objectives of the l(g) zone are as follows:-

".... to identify land liable to periodic inundation. The actual flood line has been determined from the most recent information available and in many cases further investigation is still being carried out. Development is mainly restricted to agriculture and forestry but allows certain other compatible land uses to be carried out with the consent of the Council."

The only development permitted without consent in the zone is agriculture and a number of uses are permissible with consent, including dwelling houses.

Clause 15 of the LEP contains special provisions in relation to dwelling-houses in the l(g) zones as well as other zones. Clause l5(l) requires, inter alia, that, for a dwelling-house to be erected, the allotment must have an area of not less than 40 hectares. There is already an objection under State Environmental Planning Policy No. l (SEPP l) lodged by the applicant with respect to the 40 hectare requirement. It is not disputed that this is a development standard.

Subclause (2) of Clause l5 provides that :-

"The Council shall not consent to the erection of a dwelling-house on any land within Zone No. l(g) unless the dwelling-house is essential for the proper and efficient management of the agricultural use of the land."

It is the submission of Mr. Wilson on behalf of the applicant that the subclause contains a development standard as defined in section 4(l) of the Environmental_Planning_and_Assessment_Act. Since it is impossible for the subject parcel of land, being only 10l2m2, to be used for agricultural purposes, Mr. Wilson submits that the applicant may lodge a SEPP l objection on the basis that strict compliance with clause l5(2) would be unreasonable or unnecessary.

Clause 2 of SEPP l defines "development standards" by reference to the definition in section 4(l) of the Act. This definition is as follows:-

"'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 area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point;

(b) the proportion or percentage of the area of a site which a building or work may occupy;

(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work;

(d) the cubic content or floor space of a building;

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

(f)the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment;

(g)the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles;

(h) the volume, nature and type of traffic generated by the development;

(i) road patterns;

(j) drainage;

(k) the carrying out of earthworks;

(l) the effects of development on patterns of wind, sunlight, daylight or shadows;

(m) the provision of services, facilities and amenities demanded by development;

(n) the emission of pollution and means for its prevention or control or mitigation; and

(o) such other matters as may be prescribed;"

The applicant argues that clause l5(2) of the LEP specifies a requirement in respect of the carrying out of development. If the requirement is incapable of being complied with, as Mr. Wilson submits is obvious, then the requirement ought to be able to be made the subject of a SEPP l objection.

On behalf of Council Mr. Davison submits that clause l5(2) must be read in the light of the objectives of the l(g) zone i.e., that the land has been identified as flood prone and development "is mainly restricted to agriculture" except for "certain other compatible land uses" with consent. He also relies on the introductory words in clause 9 which precede the zoning tables, in particular the words in subclause (2) thereof "Except as otherwise provided by this plan". He submits that clause l5(2) reads down the permissible use as a dwelling-house under the development control table.

Mr. Davison relies on the definition of "development standards" and submits that clause l5(2) does not contain such a standard as defined. Firstly, he submits that the provision of the environmental planning instrument must be "in relation to the carrying out of development". He maintains that clause l5(2) is not such a provision. The clause goes to the permissibility of the use as a condition precedent to the carrying out of the development rather than the way in which it is to be carried out or regulated. Putting it another way Mr. Davison submits that the subclause relates to the characterisation and permissibility of the use and not to the implementation of the development.

Mr. Davison supports his argument by further reference to the statutory definition. The provision (in the environmental planning instrument) must be one by which "requirements are specified..... in respect of any aspect of that development". While there may be some doubt about the meaning to be ascribed to the word "aspect", Mr. Davison seeks to derive assistance from the list of requirements or standards (a) to (n) inclusive in the definition. Conceding that this is not an exhaustive list, he nevertheless submits that an examination reveals that they are all about the manner in which development is regulated. Each pertains to the carrying out of development.

The Council therefore submits that the provision is not a specified requirement in respect of any aspect of the development nor does it relate to the carrying out of the development. Mr. Davison submits that the requirement in clause l5(2) goes to permissibility of the use per se and not to the manner in which the development is to be carried out.

Clause 3 of SEPP l states that the objective of the policy is to provide "flexibility in the application of planning controls operating by virtue of development standards....". Mr. Davison submits that what is involved in this case is not the flexibility of planning controls via development standards but by virtue of the zoning itself. According to the submission, to allow SEPP l to be used to vary clause l5(2) would be tantamount to altering the uses permitted under the zoning. As has often been pointed out this can only be done by the plan making process and not by an objection under SEPP l.

Whilst by no means on all fours with the present case, Woollahra Municipal Council v. Carr (Court of Appeal Unreported 23 August l985) is of assistance. The case concerned a dental surgery. The relevant environmental planning instrument made no provision for the use of a building as a dental surgery but did provide for the use of buildings as "professional consulting rooms". For the purposes of SEPP l that was seen to be the relevant development. In dealing with this issue McHugh J.A. stated:-

"The development could not be carried out even if that requirement was eliminated, 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 the use of a building for professional consulting rooms. It is not within any permitted use or purpose as defined in the Planning Scheme. The respondent's submission requires the rewriting not of a "development standard" but of the definition of a permitted use - "professional consulting rooms"."

His Honour referred to the then Senior Assessor's reasoning (now Bignold J.) and commented as follows:-

"This analysis, however, overlooks the essential condition 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. 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. For example, the two stories of a duplex building are not in any relevant sense requirements specified or standards fixed in respect of any aspect of the use of a duplex."

In my assessment what the subject environmental planning instrument is saying is that within the l(g) zone, identified as flood prone, the erection of a dwelling-house is prohibited unless it is essential for the proper and efficient management of the agricultural use of the land. Only in these circumstances will it be a permissible use with consent. This conclusion is strengthened by the words "except as otherwise provided by this plan" in clause 9(2) introducing the zone objective and development control tables, as well as by the plain words of the objectives of the subject zone. So understood, clause l5(2) is a prohibition on the use unless the criteria mentioned are met. In my opinion it is not a specified requirement relating to any aspect of the development or related to the carrying out of the development. To use the word of McHugh J.A. it is not a requirement which is "external" to the aspects of that development.

Applying this construction to the case the fact that the subject land is incapable of agricultural use leads to the conclusion that the use is impermissible in the l(g) zone.

Some assistance in the interpretation of the definition of "development standards" is to be gained from the Judgment of Reynolds J.A. in Warringah_Shire_Council_v._K.V.M._Investments ((l98l) 45 LGRA 425 at 432). Concluding that the clause before the Court did not specify requirements or fix standards he said:-

"I would regard the provisions of the definition as being related to something against which the proposed building and associated matters may be measured."

The provision of clause l5(2) is not, to my mind, something against which the proposed dwelling-house and associated matters may be measured.

In my opinion the clause does not describe or specify any requirement or standard which concerns the actual carrying out of the development nor does it specify requirements in respect of "any aspect of that development".

In my opinion clause l5(2) does not contain a development standard as defined. It follows that SEPP l cannot apply. Accordingly, I refuse the declaration and the application is dismissed with costs.

Associate