Peden v Lake Macquarie City Council

[2024] NSWLEC 2

Land and Environment Court

New South Wales

Medium Neutral Citation:

Peden v Lake Macquarie City Council [2024] NSWLEC 2

Hearing dates:

14 March 2023

Date of orders:

31 January 2024

Decision date:

31 January 2024

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [102].

Catchwords:

JUDICIAL REVIEW: validity of consent for change of use of land – whether change of use constitutes development where no erection of a dwelling occurs – the meaning of “carrying out development” – change of use from dwelling and secondary dwelling to dual occupancy – change of use is development – Council had the power to grant the consent.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4(1), 1.5, 1.5(1), 1.5(3), 1.5(4), 4.2(1), 4.2(2), 4.12, 4.15, 4.16, 4.16(1), 4.53(4), 4.53(5), 4.70, 4.70(1)

Lake Macquarie Local Environmental Plan 2014, cll 2.3(1)(c), 2.6, 3, 4.1, 4.1A, 4.1A(2)(a), 5.4(9)

State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 24, Sch 1

State Environmental Planning Policy (Housing) 2021, cl 51

Cases Cited:

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112; (2021) 105 NSWLR 152

Baron Corporation Pty Ltd v Council of City of Sydney [2019] NSWLEC 61

Bowers v Northern Beaches Council& Grigull Custodian Pty Ltd [2022] NSWCA 253

Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400

Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223

Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780

Hornsby Shire Council v Trives(No 3) [2015] NSWLEC 190

IPM Holdings Pty Ltd v Council of City of Sydney [2020] NSWLEC 1593

Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300

Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493

Nikolaidis v Pittwater Council [2009] NSWLEC 227; (2009) 171 LGERA 104

Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58

Stock v Wingecarribee Shire Council [2021] NSWLEC 1066

Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299

Category:

Principal judgment

Parties:

Michelle Peden (Applicant)
Lake Macquarie City Council (First Respondent)
Sase Stojcevski (Second Respondent)
Tanja Stojcevski (Third Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
Submitting appearance (First Respondent)
J Lazarus SC (Second and Third Respondents)

Solicitors:
SWS Lawyers Pty Ltd (Applicant)
Maddocks (First Respondent)
Hartley Solicitors (Second and Third Respondents)

File Number(s):

2022/251241

Publication restriction:

Nil

JUDGMENT

The Validity of a Development Consent is Challenged

1. These Class 4 judicial review proceedings challenge the validity of a development consent granted on 24 May 2022, to use the land described as Lot 39 Sec 22 in DP 13639 (“the property”) as a dual occupancy development.

2. The applicant, Michelle Peden, is the owner of Lot 40 Sec 22 in DP 13639.

3. The second and third respondents, Sase Stojcevski and Tanja Stojcevski (together, “the Stojcevskis”), are the registered owners of the property and resist the challenge to the validity of the consent.

4. Peden’s land adjoins the property and shares its southern boundary. Directly to the north of the property is Heath Lane.

5. The first respondent, Lake Macquarie City Council (“the Council”), granted the consent. It has filed a submitting appearance in the proceedings.

6. For the reasons contained in this judgment I find that the challenge must fail and that the amended summons should be dismissed with costs.

The Stojcevskis Obtain Permission to Erect a Secondary Dwelling

7. The following facts are uncontentious. Prior to 17 May 2013 the property was developed with a single storey detached dwelling house (“principal dwelling”). It had an area of 705.15 m².

8. In 2013 the Stojcevskis obtained a complying development certificate (“CDC”) from Kain Tarlinton of BuildCert Consultants (“PCA”), to allow for the erection of a secondary dwelling (a granny flat) at the rear yard of the property (“secondary dwelling”).

9. On 19 October 2021 the Stojcevskis, through Piper Planning, lodged development application DA/2532/2021 with the Council for "Change of Use - Detached Dual Occupancy and Construction of a Carport" (“the DA”). The DA was to carry out (“the proposed development”):

1. the change of use of the property;

2. the subdivision of the property into two lots, namely, Lots 1 and 2;

3. the erection of a carport; and

4. the erection of two covered decks.

10. Proposed Lot 1 was to have an area of 419.83 m² and was to be subject to an easement for access 1 m wide, and an easement for services of 1 m wide, as indicated on the plans accompanying the DA.

11. Proposed Lot 2 was to be located at the rear of Lot 1 and would have an area of 259.65 m², excluding the area of the easement for access.

12. The DA further sought consent for the erection of two covered decks to the front of the principal dwelling and a carport on the southern side of that dwelling. These structures do not form part of Peden’s challenge to the validity of the consent.

13. The Statement of Environmental Effects prepared by Piper Planning dated 28 September 2021 (“the Piper Report”), described the proposed development at section 3.1 as follows:

The Applicant seeks consent for the change of use of the existing detached secondary dwelling to a dwelling house. As such, the resultant outcome is to form a detached dual occupancy. The application seeks to subdivide the lot by way of Torrens Title subdivision (1 into 2).

The development essentially correlates to the existing form, with only minor works proposed to the existing proposed dwelling. In this manner, the proposal mostly relates to the change of use description to the existing secondary dwelling.

14. The Council notified the DA on 18 October 2021, describing the development in respect of which consent was granted as, “Change of Use – Detached Dual Occupancy and 1 into 2 lot subdivision”.

15. However, as the Council’s Section 4.15 Assessment Report DA/2532/2021 dated 19 October 2021 (“Assessment Report”) noted, the subdivision element of the proposal was subsequently removed during the assessment process and the proposal was amended to “change of use from dwelling and secondary dwelling to dual occupancy” and the “construction of a car port”.

16. On 6 May 2022 Piper Planning submitted amended architectural plans for the DA. In short, the DA was amended by the withdrawal of the two lot subdivision.

17. Peden made two written submissions to the Council objecting to the proposed change of use. Her concern was that as a dual occupancy with subdivision, the residential use of the land would intensify and cause her amenity impacts.

18. On 24 May 2022 the Council granted consent to the DA for the change of use and the minor works comprising the carport and the covered decks (“the consent”).

19. The property is zoned R2 Low Density Residential under the Lake Macquarie Local Environmental Plan 2014 (“the LEP”).

20. The CDC was issued under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“the 2009 SEPP”).

21. Pursuant to the CDC, the property was developed with the secondary dwelling so that upon its completion, the property had a principal dwelling and a detached secondary dwelling on it.

22. Vehicular access and pedestrian access to the secondary dwelling was via Heath Lane.

23. An occupation certificate for a “secondary dwelling (granny flat)” was issued by Tarlinton on 29 July 2014.

24. At all material times, the Council was the consent authority under Pt 4 of the Environmental Planning and Assessment Act 1979 (“EPAA”).

Legislative Framework

25. To resolve the issues for determination listed below, it is necessary to understand the statutory framework pursuant to which the consent was issued.

26. The starting point is s 4.12(1) of the EPAA, which states that a person may apply for consent to “carry out development”:

4.12      Application

(1)   A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

27. A “development application” is defined in s 1.4(1) of the EPAA to mean:

1.4       Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.

28. The term “development” is defined in s 1.5 of the EPAA as any of the following:

1.5       Meaning of “development”

(1)   For the purposes of this Act, development is any of the following—

(a)   the use of land,

(b)   the subdivision of land,

(c)   the erection of a building,

(d)   the carrying out of a work,

(e)   the demolition of a building or work,

(f)   any other act, matter or thing that may be controlled by an environmental planning instrument.

(2)   However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).

(3)   For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).

29. The meaning of the phrase “use of land” in s 1.5(1)(a) of the EPAA is clarified by recourse to the phrase “use of land includes a change of building use” in s 1.4(1) of that Act. The term “change of building use” means:

change of building use means a change of use of a building from a use that the Building Code of Australia recognises as appropriate to one class of building to a use that the Building Code of Australia recognises as appropriate to a different class of building.

30. The Building Code of Australia (“BCA”) provides that “the classification of a building or part of a building is determined by the purpose for which it is designed or adapted to be used”. For example, class 1(a) buildings contain several sub-classifications which include “one or more buildings, which together form a single dwelling including” a detached house and “one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit”.

31. The phrase “erection of a building” is defined in s 1.4(1) of the EPAA expansively to include:

erection of a building includes—

(a)   the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or

(b)   the placing or relocating of a building on land, or

(c)   enclosing a public place in connection with the construction of a building, or

(d)   erecting an advertising structure over a public road, or

(e)   extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road,

but does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).

32. Section 4.2(1) and (2) deals with development that requires consent. It confers jurisdiction on the consent authority to grant consent.

4.2        Development that needs consent

(1)   General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a)   such a consent has been obtained and is in force, and

(b)   the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

(2)   For the purposes of subsection (1), development consent may be obtained—

(a)   by the making of a determination by a consent authority to grant development consent, or

(b)   in the case of complying development, by the issue of a complying development certificate.

33. The consent is then evaluated under s 4.15 of the EPAA and a determination of the development application is made pursuant to s 4.16 of that Act by granting the consent to the application either conditionally or unconditionally, or by refusing consent to the application (s 4.16(1)).

34. The consent can lapse by reason of desuetude (s 4.53(4) and (5) of the EPAA). Relevantly, in providing for the lapsing of a consent, the statutory regime distinguishes between consents issued for the erection of buildings, the subdivision of land, and the carrying out of a work, on the one hand (s 4.53(4) of the EPAA), and consents granted for “development other than that referred to in subsection (4)”, namely, the use of land (s 4.53(5) of the EPAA). In other words, a distinction is drawn between development contemplated by the doing of acts and the use of land.

35. The 2009 SEPP applied to the property until November 2021, when it was repealed and replaced with the State Environmental Planning Policy (Housing) 2021 (“the 2021 SEPP”).

36. At the time the CDC was issued, cl 19 of Div 2 of Sch 1 to the 2009 SEPP set out the requirements to be met in development applications for the carrying out of development for a “secondary dwelling”. It adopted the standard instrument definition for a “secondary dwelling” as follows:

Division 2    Secondary dwellings

19    Definition

In this Division:

development for the purposes of a secondary dwelling includes the following—

(a)   the erection of, or alterations or additions to, a secondary dwelling,

(b)   alterations or additions to a principal dwelling for the purposes of a secondary dwelling.

Note— The standard instrument defines secondary dwelling as follows—

secondary dwelling means a self-contained dwelling that—

(a)   is established in conjunction with another dwelling (the principal dwelling), and

(b)   is on the same lot of land (not being an individual lot in a strata plan or community title scheme) as the principal dwelling, and

(c)   is located within, or is attached to, or is separate from, the principal dwelling.

37. Pursuant to cl 24 of the 2009 SEPP, a consent authority could not consent to a development application that would result in any subdivision of a lot upon which development for the purpose of a secondary dwelling has been carried out. The 2021 SEPP contained a clause similar to cl 24, namely, cl 51.

38. Clause 2.6 of the LEP contains the following proscription in relation to subdivision:

2.6       Subdivision—consent requirements

(1)    Land to which this Plan applies may be subdivided, but only with development consent.

Notes—

1   If a subdivision is specified as exempt development in an applicable environmental planning instrument, such as this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, the Act enables it to be carried out without development consent.

2 Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that the strata subdivision of a building in certain circumstances is complying development.

(2)   Development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land.

Note—

The definition of secondary dwelling in the Dictionary requires the dwelling to be on the same lot of land as the principal dwelling.

39. Dual occupancy development is permitted with consent in the R2 Low Density Residential zone in the LEP (cll 2.3(1)(c) and 3).

40. Not dissimilar to the definitions contained in the 2009 SEPP, the terms “dual occupancy” and “dual occupancy (detached)” are defined in the Dictionary to the LEP to mean:p

dual occupancy means a dual occupancy (attached) or a dual occupancy (detached).

Note—

Dual occupancies are a type of residential accommodation—see the definition of that term in this Dictionary.

…

dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling.

Note—

Dual occupancies (attached) are a type of dual occupancy—see the definition of that term in this Dictionary.

41. Likewise, the term “secondary dwelling” has the following conjunctive meaning in the LEP:

secondary dwelling means a self-contained dwelling that—

(a)   is established in conjunction with another dwelling (the principal dwelling), and

(b)   is on the same lot of land as the principal dwelling, and

(c)   is located within, or is attached to, or is separate from, the principal dwelling.

Note—

See clauses 5.4 and 5.5 for controls relating to the total floor area of secondary dwellings.

Secondary dwellings are a type of residential accommodation—see the definition of that term in this Dictionary.

42. Both “dual occupancy (detached)” and “secondary dwelling” are types of “residential accommodation”, the latter of which is defined in the LEP to mean:

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

(a)   attached dwellings,

(b)   boarding houses,

(baa)   co-living housing,

(c)   dual occupancies,

(d)   dwelling houses,

(e)   group homes,

(f)   hostels,

(faa)   (Repealed)

(g)   multi dwelling housing,

(h)   residential flat buildings,

(i)   rural workers’ dwellings,

(j)   secondary dwellings,

(k)   semi-detached dwellings,

(l)   seniors housing,

(m)   shop top housing,

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

43. As the above definition indicates, there are 14 separate forms of development that are specifically included in the definition of “residential accommodation”, each of which is a “building or place used predominantly as a place of residence”.

44. The permissible minimum subdivision lot sizes are set out in cl 4.1 of the LEP. In summary, the size of any lot resulting from a subdivision of land to which cl 4.1 applies is to be no less than the minimum size shown on the Lot Size Map in relation to that land:

4.1       Minimum subdivision lot size

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

(a)   to promote the efficient use of land in accordance with this Plan,

(b)   to ensure that subdivision does not prevent the orderly development of land in accordance with this Plan,

(c)   to require adequate street frontages and dimensions for standard, battle-axe and irregular shaped lots,

(d)   to ensure that the intensity of the development is appropriate to the land’s environmental capability,

(e)   for land in Catherine Hill Bay Village Precinct or Middle Camp Village Precinct—to ensure that the intensity of the development is appropriate to the land’s heritage significance.

(2)   This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3)   The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

45. The minimum size shown on the Lot Size Map in relation to the property is 450 m².

46. Clause 4.1A of the LEP contains exceptions to the minimum subdivision lot size for certain residential development in order to encourage housing diversity without adversely impacting on residential amenity:

4.1A     Exceptions to minimum subdivision lot size for certain residential development

(1)   The objective of this clause is to encourage housing diversity without adversely impacting on residential amenity.

(2) Despite clause 4.1, development consent may be granted to development on land in Zone R1 General Residential or Zone R2 Low Density Residential that is both of the following—

(a)    the erection of a dual occupancy,

(b)    the subdivision of the land into 2 lots if the size of each lot resulting from the subdivision is at least 250 square metres.

The Issues for Determination

47. According to the parties, the following issues arose for determination in the application for judicial review:

1. whether the Council had the power to grant development consent under Pt 4 of the EPAA to the DA to change the use of the property from a “principal dwelling with a secondary dwelling” to a “dual occupancy”;

2. whether the Council had the power to grant development consent for a dual occupancy where there was already a lawfully erected secondary dwelling existing on the property;

3. whether the change of use to a dual occupancy met the definition of “development” contained in s 1.5 of the EPAA; and

4. if it did not, whether the Council had the power to grant consent to the DA in circumstances where there was no relevant development proposed.

48. These issues may be distilled into a single question, that is, was there power to grant the consent in circumstances where the Council did not authorise “development”, as that concept is defined in s 1.5 of the EPAA, because, according to Peden, there was no physical change to the development already approved and constructed on the property.

Evidence of the Parties

49. In addition to limited agreed facts, the evidence relied upon by the parties was principally documentary, with considerable emphasis placed upon the Council’s Assessment Report.

50. Critically, as observed earlier, the Assessment Report noted that “the development does not include subdivision” and that none was proposed in the DA ultimately before the Council for assessment. The Assessment Report also relevantly noted that while the proposal was for a change of use, minor alterations were proposed, including, among other things, landscaping and streetscaping changes that comprised planter boxes within the laneway, as well as planting and fencing along Allard St to provide a sense of address for the rear dwelling.

51. Landscape plans were submitted to the Council depicting the proposed landscaping changes, namely, garden edging, a new gate, a new colorbond fence, the planting of evergreen shrubs and the construction of raised vegetable beds. Architectural plans indicated that there was to be no internal fence between the two dwellings.

52. Peden relied on an affidavit sworn by her on 18 November 2022. The affidavit deposed to the approval history of the property, including the secondary dwelling. Various planning documents and plans were exhibited to her affidavit, including the Piper Report.

53. The Piper Report noted that, “the development essentially correlates to the existing built form, with only minor work proposed to the existing principal dwelling.” And therefore, that “in this manner, the proposal mostly relates to the change of use description to the existing secondary dwelling.” This was considered to be an “ideal” outcome because it “preserves the development form and its response to the surrounding context.” Moreover, the streetscape changes were consistent with the Council’s requirements that each dwelling have its own distinct street address and access.

Was “Development” Proposed to be Carried Out on the Property?

54. Peden submitted that the power to grant development consent contained in s 4.2(2) of the EPAA was not engaged and that the Council fell into error in granting the consent for five principal reasons. First, because while “development” is defined to include the use of land, to carry out a use of land there must be the physical doing of an act, matter or thing, which was absent in respect of the proposed development the subject of the consent. That is, the change of use from secondary dwelling (granny flat) to dual occupancy (detached) involved no actual change of use, in the sense of the doing of an act, matter or thing different from the use the subject of the CDC, and therefore, there was no proposal to carry out development contained in the DA. Accordingly, consent could not be granted by the Council. The use of the land for residential purposes involved the construction of the secondary dwelling and the principal dwelling house as separate domiciles on the one parcel of land. The physical acts by which the land was used for the purpose of a principal dwelling house and a secondary dwelling were the same as those physical acts involved in using the land for the purpose of dual occupancy, and hence there was no relevant “development” to engage the power of the Council to approve the DA.

55. Second, the existing development already included a secondary dwelling, and therefore, what was proposed in the DA could not be for the use as a dual occupancy (detached). This was because a principal dwelling and a secondary dwelling were two dwellings on the same parcel of land, which was an inherent feature of dual occupancy. Thus, there was no change of use in fact proposed in the DA and the DA was not for “development”. Rather, the DA merely recharacterised the development which was not sufficient to enliven the Council’s power to grant consent.

56. This conclusion was reinforced by the fact that the approved secondary dwelling satisfied the requirements in cl 5.4(9) of the LEP concerning floor area, whereas the dual occupancy (detached) proposed no relevant change in this regard to the secondary dwelling insofar as it related to the principal dwelling. In addition, there was no change to how the occupants would use the development, there was no new environmental impact, and there was no physical change in the use of the property.

57. While a secondary dwelling and dual occupation are species of “residential accommodation”, as that composite term is defined in the LEP, this is irrelevant. The 14 uses listed in the definition of that term involve the same physical acts required to use the land as a place of residence. In this case, the actual physical use of the property as a place of residential accommodation remained unchanged and no development was proposed to be carried out.

58. Third, Peden asserted that the DA was made in an attempt to circumvent the secondary dwelling provisions of the 2009 and the 2021 SEPPs which regulated the size of a secondary dwelling and precluded subdivision of the property on which a secondary dwelling is situated. There were no equivalent provisions in the LEP for dual occupancy (detached) development, which meant that the property could be subdivided, and each lot sold with a dwelling house that could be further developed.

59. Fourth, the LEP contained a prohibition on the subdivision of land in cl 2.6 of that instrument. In particular, development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision will result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land (see further cl 4.1 of the LEP).

60. Peden contended that the Stojcevskis submitted the DA solely to recharacterise the approved use of a principal dwelling and a secondary dwelling to a dual occupancy, and not to carry out development. This was to avoid the proscription contained in cl 2.6 of the LEP. A dual occupancy as defined in the LEP cannot include a secondary dwelling. The Council therefore had no power to grant consent to use the land for a dual occupancy where there was a secondary dwelling lawfully erected on the property. The existing principal dwelling and secondary dwelling had already been erected on the property and were at all material times used for residential purposes. Again, there was therefore no “development” proposed by the DA.

61. Fifth, cl 4.1A(2)(a) of the LEP allowed consent to be granted to the “erection of a dual occupancy”. Having regard to the definition of “erection” in the EPAA, there was no erection of a dual occupancy proposed by the DA because both the principal dwelling and the secondary dwelling had already been constructed. Whereas the LEP permitted the erection of a dual occupancy, it did not allow for a change of use simpliciter from a secondary dwelling to dual occupancy. Accordingly, cl 4.1A(2)(a) of the LEP was not engaged and there was no power to grant consent.

62. In response, the Stojcevskis submitted that:

1. first, the use of land as a dual occupancy (detached) constitutes “development” as that term is defined in s 1.5 of the EPAA;

2. second, dual occupancy (detached) is not the same as a principal and secondary dwelling. They are separately and differently defined forms of development;

3. third, dual occupancy (detached) is a permissible form of development (albeit with consent) on the land. The Council was empowered to grant development consent to this form of development; and

4. fourth, the consent approved the use of the property as dual occupancy (detached).

The Consent Granted Approval to “Development”

63. In my view, the consent properly granted approval to the change of use proposed in the DA when regard is had to the definition of “development” in s 1.5 of the EPAA. To the extent that Peden argued that “development” comprises only the use of the land involving a physical act or action (relying on s 1.5(4) of the EPAA and citing Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 at 508 and Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [28]), this must be rejected.

64. First, as the Stojcevskis correctly, in my opinion, submitted, to inhabit a dwelling is a use of the land upon which the dwelling is located. No physical works are required to be carried out, but the use nevertheless constitutes “development” for the purpose of the EPAA. Moreover, although the use of land must be for a purpose (Chamwell at [27]), residing on and inhabiting the land for the purpose of dual occupancy is a use that amounts to the carrying out of development on that land; this is the end to which the land serves, or its purpose (Chamwell at [27]). It is for this reason that the BCA states that the classification of a building is determined by the purpose for which it is designed or adapted to be used.

65. This conclusion follows from the statutory definition of “development” contained in s 1.5(1) of the EPAA, which expressly distinguishes “the use of the land” (in s 1.5(1)(a)) from “the erection of a building” (s 1.5(1)(c)), “the carrying out of a work” (s 1.5(1)(d)), and “the demolition of a building or work” (s 1.5(1)(e)). This distinction is repeated in s 4.53(4) and (5) of the EPAA in respect of the lapsing of consent. The plain intention of Parliament is that, to use the language employed by Peden, both physical acts and non-physical acts are encompassed within the broad concept of “development” as defined in the EPAA. This is reinforced by the reference to “any other act, matter or thing that may be controlled by an environmental planning instrument” in s 1.5(1)(f) of the Act, which plainly envisages non-physical activities falling within its ambit.

66. It is also fortified by the context within which the definition of “development” in s 1.5(1) occurs. In particular, the composite phrase stating that the “use of land includes a change of building use” and the definition of “change of building use” in s 1.4(1) of the EPAA, both of which envisage a change that does not necessarily effect the carrying out of any physical works to the dwellings on the property or the construction of new dwellings.

67. Second, in any event, if, as Peden contends, some form of physical activity is required for “development” to engage the Act, the use of the land for the purpose of a dual occupancy (detached) is in and of itself a physical act in the requisite sense. While no construction works are being carried out, physical activity is nevertheless required to use the land as a place of residential accommodation.

68. Third, the consent authorised a substantive change to “the use of the land” (see s 1.5(1)(a) of the EPAA) from secondary dwelling to dual occupancy (detached). Whether that use was in substance the same as that authorised by an earlier approval (the CDC) it does not presently matter. While consent cannot be granted to authorise development that has already been carried out (Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299 at [11] and [33] and Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300 at [39] per Preston J), this is not what has occurred by reason of the change of use of the land. Just as development consent can be given for the future use of an already erected building (Buyozo at [39] and [41]), so too can approval be granted in respect of a change of use of existing buildings.

69. This is consistent with the remarks of the Court of Appeal in Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd [2022] NSWCA 253 (at [63]):

63   …It is well settled that past illegal use neither precludes the grant of development consent for future legal use nor is a relevant factor by itself in determining whether to grant development consent: see, for example, Kouflidis v Salisbury City Council (1982) 29 SASR 321 at 323 –324 and Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [19] –[33]. A development application seeks development consent for, and the development consent authorises, the carrying out of development in the future, and does not retrospectively approve development that has been carried out in the past: Kur-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [39] .

70. It is also consistent with the decision in IPM Holdings Pty Ltd v Council of City of Sydney [2020] NSWLEC 1593. At issue was whether there was power under the EPAA to grant consent to a development application for a development, the residential use of which had already been approved by an earlier consent. The application sought approval for the occupation and use of five residential apartments. At the hearing, the applicant conceded that the occupation of the units was not a form of development capable of being the subject of a development application under the EPAA but that an application for use was. The Senior Commissioner agreed holding that whether there was an existing consent for the residential use was irrelevant because the EPAA provides opportunity for multiple and inconsistent consents for the same land (at [83]). Because the development application was for the residential use of the building on different terms, the application was permissible (at [84]-[87]). The reasoning, if not the result, IPM has direct application to the present case.

71. Fourth, while, as opined above, a development consent cannot be granted for development that that has already occurred, or to amend an existing development consent (Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [16]-[20]) that is not, contrary to the position put by Peden, this case given the proposed change to the future use of the property.

72. Fifth, the physical acts involved in the use of the land do not necessarily determine how land use is defined (again, it is important to direct attention to the purpose served by the land). For example, as the Stojcevskis observed, all 14 uses referred to in the definition of “residential accommodation” involve, as a common element, the same physical acts necessary to use land as a place of residence. However, the use of the land as a residential flat building is not clearly the same as the use of the land as a boarding house, seniors housing, or a hostel. In other words, the physical acts involved in the use of land are not to be conflated with how the use is defined for the purposes of the EPAA. That irrespective of the nature of the physical acts being carried out, the specific use of land may vary depending on the circumstances and relationships between one place of residence compared to another, is expressly recognised and provided for in various environmental planning instruments and laws (such as the definition of “residential accommodation” in the LEP).

73. Sixth, Peden submitted that the change of use of land could not be carried out because the physical activity had not changed, and therefore, to grant consent to the DA was not a valid exercise of power because there was no application to “carry out development” in the relevant sense under Pt 4 of the EPAA. To “carry out” means to physically engage in one of the activities referred to in s 1.5(1) of the EPAA, or, in the language of s 1.5(3), to ‘do’ “the acts, matters or things referred to in subsection (1)”. The verb “doing” connotes action. This was in conformity with cl 2.3(1)(c) of the LEP which notes that the Land Use Table for that Part specifies for each zone “development that may be carried out only with development consent.”

74. But as s 1.5(1)(a) explicitly states, the carrying out of development refers to the doing of that referred to in subsection (1), which includes “the use of land” (in subparagraph (a)). The submission therefore does not assist Peden.

75. Finally, Peden appeared to suggest that because the physical acts would be identical, or at the very least materially the same, in the use of the property irrespective of the change of use to dual occupancy (detached), there was no relevant development. This submission was made notwithstanding Peden’s belated concession that dual occupancy (detached) is a differently defined development to that of a secondary dwelling under the LEP.

76. The submission cannot be accepted. At the risk of repetition, the physical acts inherent in the use of land are not necessarily coterminous with the use of that land as defined under the applicable environmental planning instruments. Again, by way of illustration, the 14 uses listed in the definition of “residential accommodation” in the LEP require the same physical activity to use the land as a place of residence, however, as explained above, as the relationship between the residents and the residents and the place changes, so too does its use.

77. As quoted above, under the LEP a dual occupancy (detached) means two detached dwellings on one lot of land but does not include a secondary dwelling, whereas a secondary dwelling means a self-contained dwelling that is established “in conjunction with” another dwelling (the principal dwelling), is on the same lot, and is within, or is attached to, or is separate from the principal dwelling. Even if it is assumed that the physical use of each dwelling on the lot remains unchanged, the use of the land from a planning perspective has altered and this is sufficient to amount to “development” for the purpose of the LEP and the EPAA, and effecting this change in use amounts to the “carrying out of development”.

78. The concession by Peden concerning the differences in the definition of “dual occupancy (detached)” and “secondary dwelling” in the LEP (the latter of which is relevantly identically defined in the SEPPs) is not unimportant. The words “in conjunction with” must be given work to do in the definition of “secondary dwelling”. If Peden’s submission were accepted, this text is rendered otiose and there is no difference between the two forms of accommodation. I do not accept that this was the intended result.

79. On the contrary, the words “in conjunction with” have meaning and connote, as Biscoe J found in Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 (at [72]), “a connection or a relationship or association, which it is convenient to refer to as a nexus, between, on the one hand, a proposed structure and, on the other hand, a dwelling-house…That nexus is not demonstrated by mere physical location or proximity or by the fact that they are both residential accommodation. The nexus is between two uses.”

80. As Dixon SC pithily put it in Stock v Wingecarribee Shire Council [2021] NSWLEC 1066, it is possible for a detached dual occupancy and a secondary dwelling to serve very different uses in planning law notwithstanding that their built form may look identical (at [50]):

50   It is important, when characterising a development for the purpose of use, to focus on the specific provisions that define that use. In planning law, use must be for a purpose and the purpose is the end to which the land is seen to serve (Chamwell at [27]). The built form of secondary dwellings resulting from the provisions of different environmental planning instruments (EPIs) may look quite different. For example, a secondary dwelling in a residential zone under Pt 2 Div 2 and Sch 1 to the State Environmental Planning Policy (Affordable Rental Housing) 2009 may not look the same as the built form of a secondary dwelling in a rural zone under LEP 2010, because the provisions in each EPI are different. The built form of a permissible secondary dwelling development under LEP 2010 may not fit one's presumption of what a secondary dwelling should look like, because the presumption is probably based on the character of a secondary dwelling development in a residential zone. It is also possible that the built form of a permissible detached dual occupancy may look exactly the same as the built form of a permissible secondary dwelling, depending on the terms of the applicable provisions, but their use in planning law would not be same. The proposal, which may have the same built form as what might, in a different application on a different site, be a detached dual occupancy, is a secondary dwelling within the meaning of the dictionary definition of secondary dwelling under LEP 2010.

81. In any event, Peden’s assertion that “the dwellings referred to in the dual occupancy (detached) consent are exactly the same” is not correct as a matter of fact. As the Assessment Report, the Piper Report, the various submitted plans, and the consent itself demonstrate, the following physical works were proposed to be carried out:

1. a carport was to be added to the principal dwelling;

2. new colorbond fencing was to be erected;

3. a gate was to be added;

4. a new stairway leading to the rear laneway was to be constructed; and

5. shrubs, raised vegetable beds, garden edging, large potted plants and privacy screening were to be built and planted.

82. On any view, this constituted “development”, especially insofar as work was being carried out (see s 1.5(1)(d) and (3) of the EPAA). It is therefore not correct to contend that no work or activity - and therefore no development - was proposed to be carried out in the DA, and in respect of which consent was granted by the Council. Furthermore, having regard to the Assessment Report, there is no suggestion that the Council, in assessing the DA, did not consider, among other things, the likely impact of the development, including the environmental, social and economic impacts. It did.

83. For all these reasons, the DA was in respect of “development”, namely, the change of use of the property and the works referred to above described in that application. The power of the Council to approve the development proposed in the DA was therefore properly engaged and validly exercised. That is, because, for the reasons explained above, there was a proposal in the DA to carry out development for the purpose of the EPAA, the Council had jurisdiction to grant consent (AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112; (2021) 105 NSWLR 152 at [232]-[234]).

84. As a consequence, by reference to the issues for determination the findings of the Court are that:

1. the change of use for which approval was sought by the Stojcevskis met the definition of “development” contained in s 1.5 of the EPAA, as did the works associated with this change of use proposed in the DA;

2. the fact that there was already a lawfully erected secondary dwelling existing on the property was not an impediment to the Council granting the consent;

3. the Council had the power to grant the consent under Pt 4 of the EPAA; and

4. accordingly, there was a relevant development proposal for the purpose of s 4.12 of the EPAA.

Purpose of Lodging the DA is Irrelevant

85. Peden argued that the Stojcevskis’s motivation in lodging the DA was to avoid the proscription on subdivision contained in either the 2009 or the 2021 SEPP which limited the size of a secondary dwelling and precluded subdivision of the land on which a secondary dwelling is situated. There were no equivalent provisions in the LEP for dual occupancy development, rather the property could be subdivided, with each lot sold including a dwelling house that could then be further developed as if it was a detached dwelling house on a separate lot. It was therefore necessary to consider the real nature of the development or activity described in the DA in order to determine whether the development described therein was permissible.

86. But this submission ignores the fact that during the assessment process the subdivision proposal was removed, so that the proposed works included the change of use from dwelling and secondary dwelling to dual occupancy and the physical works described above.

87. In the result, there was no cogent evidence demonstrating the claim made by Peden as to the Stojcevskis’s purpose in lodging the DA. The objective evidence indicates that whatever may have been intended originally, subdivision ultimately did not form part of the proposed development.

88. In any event, the intention of a proponent beyond that expressed in the material before the consent authority is generally an irrelevant consideration. It is irrelevant to the determination of these Class 4 judicial review proceedings.

89. Similarly, Peden asserted that the LEP contained a prohibition on the subdivision of land in cl 2.6, namely, that development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots were not less than the minimum size show on the Lot Size Map in relation to that land. Accordingly, the Council had no power to grant consent for the use of land for a dual occupancy where there was already lawfully erected on the land a principal dwelling and a secondary dwelling, which were at all material times used for residential purposes. Put another way, there was no development as defined in the EPAA proposed by the DA.

90. Applying the same reasoning as that discussed above, this argument must be rejected.

91. Similarly, the fact that the use of the land was subject to a CDC for a principal dwelling and a secondary dwelling does not matter. Nor does the fact that a “dual occupancy (detached)” is defined in the LEP not to include a secondary dwelling.

92. The approval of a prior development on the land does not preclude the existence of further consent being granted in respect of later development. While it is settled law that the EPAA does not contemplate the lodging of a development application to amend a development consent - it only permits applications to carry out “development” - a later consent may be in conflict with, or even have the practical effect of modifying, an earlier consent (see, for example, Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 at 241-242, Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223 at [35], Nikolaidis v Pittwater Council [2009] NSWLEC 227; (2009) 171 LGERA 104 at [19], Baron Corporation Pty Ltd v Council of City of Sydney [2019] NSWLEC 61 at [3] and IPM at [82]-[87]). A later consent can also authorise the same use of the land as that approved by the earlier consent. And a single parcel of land may be subject to multiple concurrent consents (Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 at [76]). This is because the existence of a development consent does not affect the power of a consent authority to grant a fresh consent.

93. It is, moreover, always open to a proponent to make an application for development consent under the EPAA provided that the application is, as has been determined in this instance, in respect of “development”. Whether that application after assessment is approved, or capable of being approved, is, however, another matter (IPM at [87]).

94. Finally, and for the sake of completeness, Peden relied upon s 4.70 of the EPAA to argue that because a proponent cannot get development consent for the carrying out of development that accords, without more, with an existing consent, the consent was invalid for the reasons already explained by her.

95. Section 4.70(1) of the EPAA provides that:

4.70     Saving of effect of existing consents

(1)   Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

96. But as discussed earlier, the consent was not for the same development as that the subject of an earlier approval because, first, a change of use was sought, and second, the carrying out of physical works was contemplated by the DA. When regard is had to the particular development that was being proposed as evidenced by the content of the DA and the accompanying plans, it is clear that the DA was for the carrying out of development.

Minimum Subdivision Lot Sizes Are Irrelevant

97. Had the DA proposed subdivision it appears that the resultant lots would not have met the minimum size depicted on the Lot Size Map pursuant to cl 4.1 of the LEP. The Stojcevskis could therefore not have availed themselves of the exception to this requirement provided in cl 4.1A(2)(a) of the LEC because, according to Peden, that clause allows development consent to be granted to “the erection of a dual occupancy” and there was no “erection” (as defined) of any dwelling or other structure on the land, the principal dwelling and the secondary dwelling having already been erected. There was therefore no power to consent to a use which did not involve the erection of a dual occupancy.

98. However, neither cll 4.1 nor 4.1A were engaged by the DA, and the consent did not rely upon either for permissibility. This is because, as stated above, subdivision formed no part of the assessed DA and no part of the consent. Accordingly, whether or not the DA, and therefore, the consent, complied with cl 4.1 or met the criteria in cl 4.1A does not arise in this matter and, in my opinion, Peden’s reliance on cl 4.1A(2)(b), in particular, is misconceived.

99. Peden is correct insofar as she submits that cl 4.1A contemplates that the development governed by that provision and cl 4.1 of the LEP involve, in addition to the minimum lot sizes stipulated therein, the erection of a dual occupancy, and that because no such dwelling was proposed to be built by the Stojcevskis, the exception in cl 4.1A to the minimum lots sizes proscribed in cl 4.1 does not apply. But there is nothing in the LEP that prohibits or precludes the use of the property as a dual occupancy (detached) or, for that matter, a change of use from a secondary dwelling to that of dual occupancy. Put another way, the LEP does not mandate the erection of a dwelling for the purpose of its use as a dual occupancy.

Conclusion and Orders

100. The issues for determination identified by the parties as set out above may therefore be succinctly answered as follows:

1. yes;

2. yes;

3. yes; and

4. unnecessary to answer.

101. Having failed in her judicial review application and these being Class 4 proceedings where costs typically follow the event, Peden must pay the Stojcevskis’s costs.

102. The orders of the Court are therefore that:

(1)   the amended summons is dismissed;

(2)   the applicant is to pay the respondents’ costs on an ordinary basis; and

(3)   the exhibits are to be returned.

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Decision last updated: 31 January 2024