Northcote Trust v Hornsby Shire Council
[2012] NSWLEC 1134
•25 May 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Northcote Trust v Hornsby Shire Council [2012] NSWLEC 1134 Hearing dates: 23 February 2012 Decision date: 25 May 2012 Jurisdiction: Class 1 Before: Pearson C Decision: The matter is listed before the Registrar for directions on 7 June 2012
Catchwords: DEVELOPMENT APPLICATION - Affordable rental housing - Heritage item - Subdivision of land - Whether State Environmental Planning Policy (Affordable Rental Housing) 2009 applies Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No 53- Metropolitan Residential Development
Hornsby Shire Local Environmental Plan 1994Cases Cited: Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94
Farah v Warringah Council & Ors [2006] NSWLEC 191
Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWCA 322
Owners Strata Plan 37762 v Pham & Ors [2005] NSWLEC 500
Personal Design Projects Pty Ltd v Hornsby Shire Council [1991] NSWLEC 34
S & I Investments Pty Ltd v Pittwater Council [1993] NSWLEC 166Category: Procedural and other rulings Parties: Northcote Trust (Applicant)
Hornsby Shire Council (Respondent)Representation: Counsel
Mr I Hemmings (Applicant)
Solicitors
Whittens Lawyers (Applicant)
Mr A Seton, Marsdens Law Group (Respondent)
File Number(s): 11109 of 2011
Judgment
On 8 April 2011 Northcote Trust (Northcote) lodged a Development Application DA/334/2011 with Hornsby Shire Council seeking approval for the erection of a three storey affordable rental housing development comprising 33 units and basement car parking for 37 vehicles on the land at 8A Northcote Road Hornsby (the site).
On 3 August 2011 the respondent Council refused the development application. The grounds for refusal included that the proposed development is not affordable housing to which State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) applies, and grounds going to the merits of the proposed development.
On 21 December 2011 an order was made that the following issue be determined as a preliminary point:
Whether Division 1 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 applies to the application.
The Property Description for the site of the proposed development was identified in the Development Application Form as Lot A DP 399538 8A Northcote Road Hornsby. The registered DP 399538 (exhibit 1, p 51) shows Lot A DP 399538 (Lot A) was irregular in shape with frontage to Northcote Road and Pulbrook Parade. Lot A had an area of 4,651 sqm with access via existing driveways fronting Northcote Road and Pulbrook Parade.
A building known as the Hornsby Ku-ring-gai Hospital and Community Health Service is erected on the northern part of Lot A. The Hornsby Shire Local Environmental Plan 1994 (the LEP) defines a "heritage item" to mean "a building, work, relic, tree or place listed in Schedule D". Schedule D includes as an item of local significance "Hornsby Ku-ring-gai Hospital and Community Service", at the address "26 Pulbrook Parade", with the property description "Lot A, DP 399538".
On 8 February 2011 the Council approved the subdivision of Lot A DP 399538 (Development Application 1538/2010) to create two allotments to be known as Lots 25 and 26. On 21 October 2011 the subdivision was registered. Lot A DP 399538 is now known as Lots 1 and 2 DP 1165114. Lot 1 has an area of 1,272 sqm, and frontage to Pulbrook Parade. Lot 2 has an area of 3,378 sqm, and frontage on an access handle to Northcote Road. Lot 1 is subject to easements for services and to drain water 1m wide from Lot 2 across Lot 1 to Pulbrook Parade on the eastern boundary of Lot 1.
The Hornsby Ku-ring-gai Hospital and Community Health Service building (the heritage item) is located on Lot 1 DP 1165114. The proposed development for 33 units and car parking is located on Lot 2 DP 1165114. The Concept Stormwater Management Plan (Drawing C2) includes a pipe along the eastern boundary of Lot 1 to the nearest Council kerb inlet pit on Pulbrook Parade. The location of the proposed development and the heritage item are shown on the plan in Annexure A.
Planning controls
The site is zoned Residential A (Low Density) under the LEP. Development permissible with development consent includes "multi-unit housing" which is defined as "2 or more dwellings, whether attached or not, but does not include a hotel or motel". It was common ground that the proposed development falls within the definition of multi-unit housing, and is permissible with consent.
State Environmental Planning Policy (Affordable Rental Housing) 2009: before amendment
The SEPP commenced on 31 July 2009, and was amended from 20 May 2011. The aims of the SEPP both before and after amendment include at cl 3(b):
To facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,
It was common ground that if the SEPP applies, the applicant would benefit from the bonus floor space ratio provisions in cl 13 of the SEPP, which would authorise a maximum FSR of 0.9:1. The maximum FSR permitted under the LEP is 0.4:1. If the SEPP does not apply, the proposed development, which has an FSR of 0.718:1, would require an objection under State Environmental Planning Policy No 1-Development Standards.
Division 1 of Part 2 of the SEPP contains provisions for in-fill affordable housing. The relevant provisions of the SEPP as in force before 20 May 2011 (the former SEPP) include cl 10 Land to which Division applies, and cl 11 Development to which Division applies:
10 Land to which Division applies
(1) This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone:
(a) Zone R1 General Residential,
(b) Zone R2 Low Density Residential,
(c) Zone R3 Medium Density Residential,
(d) Zone R4 High Density Residential.
(2) Despite subclause (1), this Division does not apply to a development site in the Sydney region unless all or part of the development site is within:
(a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or
(b) 400 metres walking distance of a public entrance to a light rail station or in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or
(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 18.00 each day from Monday to Friday (both days inclusive).
(3) Despite subclauses (1) and (2), this Division does not apply to land identified in an environmental planning instrument as being within a scenic protection area unless development with a building height of 8.5 metres or more is permitted on the land.
(4) In this clause:
walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings.
11 Development to which Division applies
This Division applies to the following development on land to which this Division applies:
(a) development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings where at least 50 per cent of the dwellings in the proposed development will be used for affordable housing, but only if:
(i) the development does not result in a building on the land with a building height of more than 8.5 metres, and
(ii) in the case of development for the purposes of a residential flat building-residential flat buildings are not permissible on the land otherwise than because of this Policy,
(b) development for the purposes of residential flat buildings where at least 20 per cent of the dwellings in the building will be used for affordable housing, but only if:
(i) residential flat buildings are permissible on the land otherwise than because of this Policy, and
(ii) the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register.
Clause 4 provided definitions, including:
site area or site means the area of any land on which development is, or is to be, carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Policy.
The Council accepts that the proposed development meets cl 10, and cl 11(b)(i), of the former SEPP. The issue is whether it meets cl 11(b)(ii).
Clause 54 of the former SEPP provided:
54 Savings and transitional provisions
(1) If a development application has been made before the commencement of this clause in relation to development to which this Policy applies and the application has not been finally determined before that commencement, the application may be determined as if this Policy had not been made.
(2) Despite subclause (1), a development application that has been made under State Environmental Planning Policy No 10-Retention of Low-Cost Rental Accommodation before the repeal of that Policy and not finally determined must be determined:
(a) if the application is for development has been referred to the Director-General for concurrence under clause 7 of that Policy-in accordance with this Policy except that the prior concurrence of the Director-General is required before consent can be granted to the development application, and
(b) in any other case-in accordance with this Policy.
(3) Anything done by Housing NSW or the Department of Human Services under clause 16 or 63D (3) of State Environmental Planning Policy (Infrastructure) 2007 in respect of development for a purpose referred to in clause 40 (1) (a) of this Policy is taken to have been done in respect of that development by the Land and Housing Corporation under clause 40 of this Policy.
State Environmental Planning Policy (Affordable Rental Housing) 2009: after amendment
The relevant provisions of the SEPP following its amendment from 20 May 2011 (the amended SEPP) include cl 10 Development to which Division applies:
10 Development to which Division applies
(1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:
(a) the development concerned is permitted with consent under another environmental planning instrument, and
(b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.
(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.
(3) Despite subclause (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use, or within a land use zone that is equivalent to any of those zones.
Clause 11 was repealed. The definition of "site area" and "site" in cl 4 was not amended.
The Council accepts that the proposed development meets cl 10(1)(a) of the amended SEPP, and that cl 10(2) is relevant only if the former SEPP does not apply and the amended SEPP applies. The issue is whether the proposed development meets cl 10(1)(b).
Clause 54 was retained, and a new cl 54A was inserted:
54A Savings and transitional provisions-2011 amendment
(1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if:
(a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and
(b) the development is commenced not later than 2 years after the amendment.
(2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made.
(3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
(4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP.
Council's submissions
The Council contends that the former SEPP does not apply to the development because the development is proposed on land that contains a heritage item, being Lot A, contrary to cl 11(b)(ii) of the former SEPP. The Council also contends that the amended SEPP does not apply because the development is proposed on land that contains a heritage item, being Lot A, contrary to cl 10(1)(b) of the amended SEPP.
The Council relies on the description of the proposed development in the Development Application Form, and submits that there is nothing in the Development Application Form that sought to distinguish different parts of Lot A, or to limit the development to only part of Lot A. While the Statement of Environmental Effects states (at p6) that "The site is described as part of Lot A, DP 399538" that description was not incorporated in the Development Application Form. It is the Development Application Form that must prevail for the purposes of determining the development for which consent is sought and the land to which the development application relates, and that form describes the property as Lot A in Deposited Plan 399538 and does not on its face relate to any other land or part of land.
The Council submits that this reasoning applies to both the former and the amended SEPP. In addition, the Council submits that cl 54A(2) of the amended SEPP does not apply to the development because the development was not development to which the SEPP applied before the commencement of the amended SEPP. The relevant date for determining whether the SEPP applies is 20 May 2011, on the basis that cl 54A applies to an "existing application", defined in cl 54A(2) to be a development application made before the commencement of the amending SEPP in relation to development to which the SEPP applied before the amended SEPP commenced.
Applicant's submissions
The applicant submits that in applying the former SEPP, clauses 10 and 11 must be read together. While cl 10 deals with the "land" to which the Division applies, cl 11 then deals with "development" that may be carried out on that "land". Clause 10 is directed towards the "development site", and the reference in cl 11(b)(ii) to "land" is the same "land", that is, the land being developed, or the "development site". The focus of cl 10 of the former SEPP is on the development site, and not on the whole parcel of land, and the "development" to which cl 11 refers is that development on land identified by cl 10.
Under the amended SEPP, clauses 10 and 11 have been collapsed into cl 10, however cl 10 still focuses on "land" rather than a lot, DP, or allotment. The former State Environmental Planning Policy No 53 (SEPP 53) did refer to "allotment", however this word was not used in a technical sense.
The applicant submits that the Council's focus on the Development Application Form is incorrect. At the least any development consent would refer to plans, and those included in the Council's bundle clearly identify the division between proposed Lot 25 and proposed Lot 26 (now being respectively Lot 2 and Lot 1 in DP 1165114); do not propose development on proposed Lot 26 (now Lot 1); and clearly identify a boundary between those proposed two lots. The material in support of the development application includes the Statement of Environmental Effects, which clearly identified that the development site has an area of 3,378 sqm, that is now Lot 2. Even if regard is limited to the Development Application Form, it is correct that the property descriptor is Lot A DP 399538 (no other lot and DP existing at the time the development application was lodged); however, the form also identifies 8A Northcote Road, which is the address of proposed Lot 25 and not the address of Lot 26 which is known as 26 Pulbrook Parade; and identifies the gross site area as 3,378 sqm which was proposed Lot 25 only (now Lot 2). While the stormwater plan shows drainage work on Lot 1, Drawing C2 is the only plan with the potential for work on Lot 1. The SEPP applies to multi-unit housing that is permissible, and the LEP does not include drainage work as a purpose for which consent can be granted: drainage work can only lawfully be carried out if it is ancillary to some other permissible development which in this instance is multi-unit housing.
The building is located at 26 Pulbrook Parade and is now on Lot 1 DP 1165114. The applicant accepts that the balance of the land, including the "development site", did form part of the curtilage of the heritage item. The applicant submits that it is apparent from the Council's approval of the subdivision that the heritage item now sits within a more confined curtilage, being now Lot 1. The purpose of cl 11(b)(ii) is not to preclude the application of Part 2 Div 1 of the SEPP because the land may once have formed part of the curtilage of a heritage item. Properly construed, for the purposes of cl 11(b)(ii), the development site does not contain a heritage item, and Part 2 Div 1 applies. Because of the operation of cl54A of the amended SEPP the development application may be assessed pursuant to the former SEPP, with the additional operation of cl 54A(3).
Applying the amended SEPP, if the development application is not affected by cl 54A, Part 2 Div 1 of the amended SEPP applies because the subdivision has been registered and the development is proposed on Lot 2 DP 1165114 and there can be no suggestion that there is a heritage item on that land.
The applicant submits that the Class 1 appeal is a hearing de novo and the relevant law to apply is that which is in force at the date of the Court's determination: that law is the amended SEPP which includes the transitional provision in cl 54A, which permits, but does not direct, the determination of the application under the former SEPP. The SEPP is beneficial and facultative.
Consideration
At the time the development application was lodged, the former SEPP was in force, and the subdivision of Lot A had been approved, but was not yet registered. At the time the Council determined the application, the amended SEPP was in force, and the subdivision was not yet registered. At the time the Class 1 appeal was lodged, the subdivision was registered.
The savings and transitional provisions in cll 54 and 54A of the SEPP permit determination of a development application made before the commencement of the SEPP, or the commencement of the amendments made in 2011 respectively, under the legislation applicable at the date of lodgement. Both provisions provide a discretion, with additional requirements imposed by cl 54(2) and cl 54A(3) respectively if that discretion is exercised to apply the law as at the date of lodgement. The conferral of a discretion as to which planning controls to apply is in contrast with the savings provision in cl 1.8A of local environmental plans which adopt the standard provisions, and which provides that a development application lodged before the commencement of a new local environmental plan must be determined as if the new plan had not commenced. The conferral of the discretion is consistent with the aims of the SEPP, in particular the aim in cl 3(b) to facilitate effective delivery of new affordable rental housing. A broad construction of the provisions of the SEPP would be consistent with those aims, and also consistent with the approach adopted in the relation to the former SEPP 53 in decisions such as Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94, where Pearlman CJ described the purpose of SEPP 53 as facultative, and noted that it aimed to encourage a particular form of housing. In my view the savings and transitional provisions of the SEPP direct attention first, to the law as at the date of application, and then confer a discretion as to what law to apply to assessment of a particular application. Clause 54A(2) limits the availability of that discretion to a development application made before the commencement of the amended SEPP on 20 May 2011 to an application "in relation to development to which this SEPP applied before that commencement".
The first step is to consider whether the proposed development was, at the date of lodgement of the development application, development to which the former SEPP applied. As at that date, the first question to be answered was whether Div 1 of Part 2 applied, which required that cll 10 and 11 be met. Subclauses 10(1) and (2) refer to "a development site", cl 10(1) directing attention to the applicable zoning, and cl 10(2) to accessibility issues. The term "development site" is not defined, however the definition of "site" makes it clear that the reference is to the area of "any land on which development is, or is to be, carried out", and that that land may include the whole or part of one lot, or more than one lot.
Applying that definition, the "development site" referred to in cl 10 is not in terms limited to a lot or parcel or any other technical means of identifying land. That is consistent with the broad approach adopted in relation to the term "allotment" under the former SEPP 53. In Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94 Pearlman CJ held that that expression did not bear a technical meaning, but rather its ordinary meaning as being an identifiable piece or parcel of land; and that was satisfied in the circumstances of that case where three proposed lots were identified on a formal plan of subdivision to which consent had been granted, but which had not yet been registered. Pearlman CJ was satisfied that the broad construction accorded with the aims of SEPP 53. Pearlman CJ noted that Bignold J had reached a similar conclusion in Personal Design Projects Pty Ltd v Hornsby Shire Council [1991] NSWLEC 34, which concerned applications to carry out development on three lots in an approved but not registered subdivision of land. In circumstances where the council had not consented to subdivision, there may still be consideration of a development application, with any consent subject to a condition requiring registration of a plan of subdivision before the development was carried out: S & I Investments Pty Ltd v Pittwater Council [1993] NSWLEC 166.
The parties disagreed as to whether the identification of the "development site" for the purposes of cl 10 is limited to the Development Application Form, or can be undertaken by reading that form together with the plans and Statement of Environmental Effects (SEE). The SEE states (at p6) that the subdivision of Lot A, approved but not yet registered, "separated the site of the heritage building from the redevelopment site" and that Lot 25, with an area of 3,378 sqm, was the site of the proposed development. The plans show the boundary between approved Lots 25 and 26.
The Council relied on Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWCA 322, Farah v Warringah Council & Ors [2006] NSWLEC 191, and Owners Strata Plan 37762 v Pham & Ors [2005] NSWLEC 500 in support of its submission that the terms of the development application, in this instance the Development Application Form, identify what land an application relates to. I agree with the applicant that those decisions, concerning construction of development consents, do not necessarily assist in the task required by cl 10 of the SEPP. In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 789 Preston CJ noted, in a context where there was a misdescription in the development application of development as being amendment of an existing consent, that one looks to substance and not form, and that understanding what is the particular development being proposed may require looking at the particular plans accompanying the development application.
I agree with the applicant that the Development Application Form identifies the "land on which development is ... to be carried out" as being part of what was then Lot A. The form requires insertion of information under "Property Description" to specify "Lot No.", "DP No.", "Unit/Shop/Street No.", "Street Name:" and "Suburb". The information provided in response was accurate in terms of the formal property description at a time when the subdivision of Lot A had been approved, but not registered, and included a reference to "8A Northcote Road Hornsby" and not the other street frontage "26 Pulbrook Parade". At Part B of the Form, requiring information for All New Buildings, the "Gross site area (m2)" is specified as "3,378 m2", which is less than the area of Lot A being 4,651 sqm. In my view, when read as a whole, the Development Application Form indicates that the "development site" is only part of the former Lot A, and not Lot A in its entirety.
The definition of "site area" and "site" requires identification of the "land" on which the development is to be carried out. While the Development Application Form identifies that that land is only part of the former Lot A, further information is required to ascertain what that "land" is. The development application proposed "construction of a part two, part three storey residential flat building". The physical works required for that "development" were identified in the plans. While those plans show the boundary approved in the subdivision of Lot A into Lots 25 and 26, and the footprint of the proposed residential flat building on Lot 25 (now Lot 2), Drawing C2 of the Concept Stormwater Plan 1 shows construction of drainage works along the eastern boundary of proposed Lot 26, now Lot 1. The carrying out of that work would only be permissible if ancillary to the proposed multi-unit housing, and is part of the "development" proposed to be carried out in the development application.
Applying cl 10, the "development site" is that part of the former Lot A on which the works identified in the plans is proposed to be carried out, which includes a significant part of what is now Lot 2, and part of what is now Lot 1. That is the "land" to which Div 1 of Part 2 of the former SEPP applied. Applying cl 11, the "development" is development for the purposes of a residential flat building requiring consideration under cl11(b). The land on which that development is proposed includes part of what is now Lot 1, and Lot 1 contains a heritage item. Accordingly, cl 11(b)(ii) is not satisfied, and Div 1 of Part 2 of the former SEPP did not apply to the proposed development. That conclusion means that cl 54A(2) is not satisfied.
If, in the alternative, the relevant inquiry is that required by the amended SEPP, being the law in force as at the date of determination, rather than the law as at the date of lodgement of the development application, the proposed development must satisfy cl 10 as amended. Clause 10 does not require identification of a "development site", but rather identification of the "land" on which "the development" for the purposes of dual occupancies, multi unit dwelling housing or residential flat buildings is proposed. The "development" includes the proposed drainage works on Lot 1. If the word "land" is to be read, applying the broad construction adopted in Demihale, to mean a readily identifiable piece or parcel of land, after registration of the subdivision that land is now Lot 1, which is land that contains a heritage item. The proposed development does not satisfy cl 10(1) of the amended SEPP and Div 1 of Part 2 of the SEPP does not apply.
Conclusion
For the reasons above, I conclude that Division 1 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 does not apply to Development Application DA/334/2011. The parties agreed that if the SEPP does not apply to the proposed development that would not lead to automatic refusal of the application, and the appropriate course would be for the Council to prepare amended Statement of Facts and Contentions and for further directions to be made for the progress of the matter. The matter is listed before the Registrar for directions on 7 June 2012.
Linda Pearson
Commissioner of the Court
ANNEXURE A
Decision last updated: 25 May 2012
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