Penny v Cooma-Monaro Shire Council

[2003] NSWLEC 51

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Reported Decision: (2003) 125 LGERA 353

Land and Environment Court

of New South Wales

CITATION:	Penny & Anor v Cooma-Monaro Shire Council [2003] NSWLEC 51
PARTIES:	APPLICANTS John Henry Penny and Michelle Denise Penny RESPONDENT Cooma-Monaro Shire Council
FILE NUMBER(S):	10890 of 2002
CORAM:	Pain J
KEY ISSUES:	Construction and Interpretation :- meaning of "direct vehicular access" in definition of 1997 holding in Cooma-Monaro Local Environmental Plan 1999 Development Standards : - whether cl 15(1)(a) and/or the definition of 1997 holding in the Cooma-Monaro Local Environmental Plan 1999 constitute development standards
LEGISLATION CITED:	Cooma-Monaro Local Environmental Plan 1999 - (Rural), cl 15(1)(a) Environmental Planning and Assessment Act 1979 s 4 Roads Act 1993 State Environmental Planning Policy No 1 cl 3, cl 5, cl 6, cl 7
CASES CITED:	BP Australia Limited v Campbelltown City Council (Bignold J, NSWLEC, 24 September 1993, unreported); BP Refinery (Western Port) Pty Ltd v Hastings Shire (1977) 16 ALR 363; Council of Sutherland Shire v Michael Bassett Tijuana (No 15) Pty Limited (Pearlman J, NSWLEC, 22 February 1994, unreported); Council of Sutherland Shire v Telope Pty Ltd (1993) 85 LGERA 103; Currey v Sutherland Shire Council [2002] NSWLEC 195; Gary Rhodes v Penrith City Council (Talbot J, NSWLEC, 28 July 1993, unreported); Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Kringas v Cooma-Monaro Shire Council [2000] NSWLEC 53; North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222; Prime Group Properties Limited v Camden Council (Bannon J, NSWLEC, 14 September 1994, unreported); Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Thompson v Goold & Co (1910) AC 409; Woollahra Municipal Council v Carr (1985) 62 LGRA 263
DATES OF HEARING:	03/02/2003
DATE OF JUDGMENT:	04/04/2003
LEGAL REPRESENTATIVES:	APPLICANTS Mr RR Dawson (solicitor) SOLICITORS Conditsis & Associates RESPONDENTS Mr AJJ Thompson (barrister) SOLICITORS Last & Maxwell

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10890 of 2002

Pain J

4 April 2003

JOHN HENRY PENNY and

MICHELLE DENISE PENNY

Applicants

v

COOMA-MONARO SHIRE COUNCIL

Respondent

Judgment

Introduction

1 This is a preliminary point of law in Class 1 proceedings commenced by the Applicants in relation to the refusal of a development application for a dwelling house by Cooma-Monaro Shire Council (the Council). The points of law which the parties wish the Court to answer are:

(1) whether Portion 119 DP750551, No 1730 Carlaminda Road, Carlaminda NSW is a "1997 holding" as defined pursuant to the Cooma-Monaro Local Environment Plan 1999 - (Rural) (the LEP).

(2) if not, is the development proposed prohibited?

(3) if the answer to question (2) is no, whether

(a) clause 15(1)(a) of the LEP; or
(b) clause 15(1)(a) of the LEP when read with the definition of "1997 holding" in the LEP; or

(c) the definition of "1997 holding" in the definition of the LEP

constitute a development standard as defined pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act).

The relevant provisions of the LEP

2 Clause 15(1)(a) of the LEP provides that:

development for the purpose of a dwelling house must not be carried out on an allotment of land within Zone 1(a) …unless the allotment comprises:
(a) a 1997 holding
(the balance of paragraphs in cl 15(1) (b) - (e) are not relevant)

"1997 holding" is defined in the dictionary to the LEP to mean that, relevantly:
(a) an allotment, portion or parcel of land in existence at 3 March 1997 as a separate allotment, portion or parcel and having direct vehicular access to a public road vested in the Council or to a classified road…

Facts

3 The Applicants filed a Statement of Facts which was agreed to by the Respondent and this is set out as follows:

4. As at 3 March 1997, the Land was owned by the Applicants as a separate allotment, portion or parcel.

5. As at 3 March 1997, the Applicants did not own any adjoining or adjacent allotments, portions or parcels.

6. The Land enjoys the benefit of a right of carriageway created by a Section 88B Instrument registered with DP629325.

8. Carlaminda Road, Carlaminda is a public road vested in the Respondent Council pursuant to the Roads Act 1993.

10. The Land is subject to and is zoned 1(a) (Rural Zone) by the Cooma-Monaro Local Environmental Plan 1999 - (Rural) ("the LEP").

11. Pursuant to the LEP and by Development Application No 129/02 dated 13 December 2001 ("the Development Application") the Applicants made application to the Respondent for development consent for the erection of a dwelling on the Land. The Development Application was accompanied by an objection pursuant to Statement [sic] Environmental Planning Policy No 1 ("the SEPP objection").

"1. That in the absence of the land being a "1997 holding" as defined in the Cooma-Monaro Local Environmental Plan 1999 - (Rural), Council refused the Development Application for a dwelling proposed to be erected on the subject land (Portion 119 DP750551).

13. By a letter dated 15 April 2002, the Applicants, through their solicitors, Conditsis & Associates, Lawyers, made application to the Respondent for a review of the Council's determination (by refusal) of the said Development Application pursuant to Section 82A of the Environmental Planning and Assessment Act 1979.

(a) that Council supports an application under State Planning Policy No. 1 to allow a dwelling on Portion 119 DP750551;

(b) that the application has appropriate conditions placed upon it by the Director of Environmental Services prior to lodgement with Planning NSW"

15. By letter dated 5 July 2002 the Respondent referred the SEPP 1 objection to the Regional manager, Planning NSW at Queanbeyan for concurrence.

16. As at the date hereof [29 January 2003], concurrence has not issued.

4 These Agreed Facts make no reference to a public Crown road which runs from Portion 119 along the boundary of Portion 118 to Carlaminda Road. This was raised at the hearing for the first time by the Applicants. There was some argument as to whether the public Crown road was open so that it also could be relied on by the Applicants as providing vehicular access from Portion 119 to Carlaminda Road. The Applicants relied on an affidavit of Mr Dennis Chisholm, legal searcher, who attested that, in his opinion, based on the records he searched at the office of Land and Property Information the Crown road had not been closed and consequently was a public Crown road under the Roads Act 1993 (which is not a public road vested in the Council as required by the definition of 1997 holding). There was also evidence of a conversation between the Applicant's solicitor and an officer of the Crown Lands Office at Goulburn to the effect that the Crown road in question was not closed. The Council pointed to the written notation on survey plans attached to Mr Chisholm's affidavit stating that this road was closed but did not provide further evidence on this matter. I will consider the matter as if the public Crown road is open but, as will become clear, that does not have any impact on my finding in any event.

First question of law

5 The key issue for the purposes of these proceedings is whether the Applicants' land has "direct vehicular access to a public road vested in the Council" (emphasis added) as required by the definition of "1997 holding" in the definition of 1997 holding.

Applicants' argument

6 The Applicants argued that the land enjoys the benefit of a right of carriageway from the Applicants' land to Carlaminda Road across Portion 112 DP629325 and Portion 22 DP625729. The right of carriageway constitutes an estate or interest in land (Real Property Act 1900, s 3 - definition of land) and is a right attached to Portion 119. As I understand the Applicants' argument, because the right of carriageway is recognised as an interest in land under the Real Property Act 1900 this strengthens the Applicants' case that there is direct vehicular access to Carlaminda Road for the purposes of the LEP.

7 Further, there is the public Crown road, running along Portion 118, joining Portion 119 to Carlaminda Road. Either of these means of access from Portion 119 to Carlaminda Road (the right of carriageway or public Crown road) constitute direct vehicular access to a public road vested in the Council, namely Carlaminda Road. The Applicants contended this interpretation accorded with the plain and ordinary meaning of the words in the definition of 1997 holding.

8 The Applicants submitted the Concise Oxford Dictionary of Current English (7th edition) has two meanings of the word "direct". The Applicants relied on the meaning that direct means:

1. Straight, not crooked(ly) or oblique(ly) or round about (the direct road; went direct to heaven); (of descent) lineal(ly), not collateral(ly); (of argument) following uninterrupted chain of cause and effect etc; without intermediaries (prefer direct dealings, to deal with him direct; as a direct result of his action) .

9 The Applicants reviewed a number of cases, including that of Kringas v Cooma-Monaro Shire Council [2000] NSWLEC 53, a decision of Cowdroy J which considered the same definition. That case, however, dealt with an application for the subdivision of land which also sought to construct vehicular access to an unmade Crown reserve road. The same issue as here did not arise. Cowdroy J was there concerned with the time at which direct vehicular access was required under the definition of 1997 holding and whether cl 14(2)(b) of the LEP applied to the land in question.

10 His Honour noted that, in relation to the principles of statutory interpretation,

If the meaning of a provision is ambiguous it is the function of the Court to apply a purposive approach to the interpretation of such provision: see Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (CA), at 408 , 407 and 423, and Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 390. The grammatical meaning of a provision constitutes the starting point for a purposive interpretation …

11 In this case the Applicants argue there is no ambiguity. If the construction contended for by the Respondent is accepted, so that direct vehicular access means one should have a frontage to a public road, this would be reading words into the text which is not warranted because there is no ambiguity: see Thompson v Goold & Co (1910) AC 409 at 420 (per Lord Mersey) "it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do", see also BP Refinery (Western Port) Pty Ltd v Hastings Shire (1977) 16 ALR 363 at 374. Where words have a plain natural ordinary meaning this should be applied.

12 The Applicants reviewed a number of cases where the word "direct" has been considered but none were in exactly the same context as this case which limited their application. The cases referred to by the Applicants were Council of Sutherland Shire v Michael Bassett Tijuana (No 15) Pty Limited (Pearlman J, NSWLEC, 22 February 1994, unreported); Council of Sutherland Shire v Telope Pty Ltd (1993) 85 LGERA 103; BP Australia Limited v Campbelltown City Council (Bignold J, NSWLEC, 24 September 1993, unreported); and Prime Group Properties Limited v Camden Council (Bannon J, NSWLEC, 14 September 1994, unreported).

13 In Michael Bassett Pearlman J was required to consider whether a development fell within the definition of “bulky goods sales room or showroom” in the Sutherland Local Environmental Plan 1993, which was essentially defined as a building used for the sale of goods which were of such size, shape or weight as to require direct vehicular access by the public to the site/building to load the goods once purchased. The Applicants referred to the passage of Gleeson CJ in Telope which Pearlman J set out in her judgment. However, it is clear that that passage and the judgment of Pearlman J focused on the meaning of “require” in the definition in question, not specifically on the meaning of “direct vehicular access”. The Applicants nevertheless contended that this case illustrated that it was the uninterrupted access from the showroom to the vehicle so that goods could be loaded that was important. It seems to me the Council could as easily rely on this case to support its argument that "direct" means "immediate".

14 In BP Australia Ltd v Campbelltown City Council an Interim Development Order provided that Council could not consent to new development on land fronting Pembroke Road without the concurrence of the Department of Planning if it involved direct vehicular access to that road. Bignold J had to consider whether direct access from the development to Pembroke Road should be allowed. Again, Bignold J did not specifically consider the meaning of “direct vehicular access”, although it appears to me that in that case his Honour seems to have used it in the context of meaning access from the subject site straight onto the road in question, rather than access from the site onto another road which then joined to the road in question. The Applicants' submissions stated that in this case the land also had a “frontage” to Pembroke Road and what was proposed was direct access to Pembroke Road, as of right, rather than indirect access via a service road. I do not think this submission assists the Applicants' case.

15 In Prime Group Properties, Bannon J was required to consider the proper meaning of cl 26 in the Camden Local Environmental Plan. That clause provided that “a person must not use land for any purpose if that land has frontage only to Narellan Road”. An objective in the LEP was to prohibit land use requiring “direct vehicular access onto Narellan Road from any lot fronting to that road”. His Honour noted that the clause was probably intended to prohibit uses on land having a frontage to Narellan Road and requiring direct vehicular access to it. However, his Honour rejected this alternative construction of cl 26 because the wording of the clause was "so clear and intractable… that the Court would not be justified in departing from the plain and grammatical meaning of the words used", namely, that land could not be used for any purpose if it had a frontage only to Narellan Road. As the land in question also had frontage to Smeaton Grange Road, cl 26 did not apply. The Applicants relied on this case to argue that applying the plain, ordinary and grammatical meaning of cl 15 of the LEP, Portion 119 has direct vehicular access to Carlaminda Road. I do not find the case to be of assistance.

16 Subsequent to this case being heard, the Applicants drew the Court's attention to the definition of "Bulky goods sales room or show room" in the dictionary of the LEP, which included a reference to "direct vehicular access". The Applicants did not make any submissions as to how it would assist the Court in answering the questions of law now before it. I note this definition is similar to the definition at issue in Michael Bassett, my comments in relation to which are at par 13.

Council's arguments

17 Accepting that the right of way provides for vehicular access the Council argued that the appropriate meaning of "direct" as defined in the definition of 1997 holding is, inter alia, "without intervening agency; immediate; personal" (Macquarie Dictionary, 2nd revised edition). The Council argued that as the access is across adjoining portions it is collateral in the sense that it is secondary or auxiliary and, while it may be for the purpose of connecting Portion 119 to Carlaminda Road, Portion 119 does not have direct access. It was also argued that the easement or right of carriageway is an intervening agency within the meaning of this definition. If the adjoining Portions 112 and 22 are considered, there are three intervening agencies. The Respondent submitted that direct has the meaning of "immediate" and relied on Currey v Sutherland Shire Council [2002] NSWLEC 195 at [51] in support of this proposition. That case does not deal with the same legislative context as here and is not directly applicable in my view.

18 The public Crown road was raised by the Applicants as another possible means of vehicular access for Portion 119. The Council essentially made the same arguments in relation to it as were made in relation to the right of carriageway.

19 Further, it was argued that a purposive construction required that if there was any ambiguity or uncertainty in the ordinary, literal meaning of the words then regard must be had to the purpose and objectives of the LEP (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423). The objectives of the 1(a) Rural zone in the LEP as set out in cl 8 included the objective of restricting development to uses which are

· unlikely to prejudice agricultural production potential of land within the zone,

· generate significant additional traffic,

· have an adverse impact on the area's water resources or

· create unreasonable or uneconomic demand for the provision or extension of public amenities or services.

20 It was argued by the Council that when these objectives are considered it is clear that the word "direct" confines such development to land which is immediately accessible to a public road, that is, next door to. This construction was said to promote the underlying objectives of cl 8 of the LEP which are meant to restrict development in this zone.

21 I should note that the Applicants criticised the Council's reliance on these objectives to support its case, pointing out that the single dwelling house at issue here was unlikely to cause any of the identified problems (see par 19) which restricting development in the rural zone was intended to address.

Finding on Question 1

22 There are two arguments before me which assert different meanings for "direct" in the definition of 1997 holding. Both arguments are maintainable in the sense that the respective interpretations contained in those arguments are open on the wording.

23 It seems to me the Council's interpretation is to be preferred and, accordingly, I accept the Council's arguments that in cl 15(1)(a) of the LEP "direct" means "immediate" in the sense that there should be no intervening land or roads between the Council controlled road (Carlaminda Road) and the Applicants' property. In the context in which the provision appears in the LEP this is the preferable construction.

24 Were the Applicants' meaning accepted, it is possible to think of other factual circumstances where owners of land which is several properties removed from a council controlled road, unlike Portion 119, and which has rights of way across those intervening properties, will seek to rely on the alternative meaning of "direct" proposed by the Applicants to argue they should have the right to build a dwelling house. It is conceivable the Applicants' interpretation of "direct" could lead to the construction of dwelling houses in this rural zone on blocks of land substantially removed from a council controlled road. I do not think that is what this LEP intends.

25 To the extent that the word "direct" is ambiguous in this context it is relevant to take a purposive approach, as the Council urged on me, and consider the objectives and purpose of the LEP when construing the clauses in question. On balance, I consider that the purposive approach as presented by the Council supports the definition submitted by it. While the Applicants' criticism of the application of the purposive approach may be warranted in the sense that the single dwelling house at issue here will not automatically lead to prejudice to the agricultural production potential of rural zoned land, generate significant traffic, have an adverse impact on the area's water resources or create unreasonable or uneconomic demand for the provision or extension of public amenities or services, it is quite possible if the Applicants' interpretation is accepted that over time in the foreseeable circumstances referred to in par 24 these objectives of the rural zone could be undermined.

26 The Applicants' argument that applying the Council's interpretation means that the words "having frontage onto" were effectively read into cl 15 is not persuasive. It is quite possible for provisions in an LEP to be expressed in different ways, one of which in this case could also be "have frontage onto Carlaminda Road" but it does not seem to me that negates the meaning urged by the Council.

27 The numerous cases referred to by the Applicants (see par 12 - 15), as correctly acknowledged by the Applicants, do not deal with an identical factual circumstance and are of limited assistance.

28 The fact that one of the means for access relied on by the Applicants is a right of way which is a recognised interest in land under the Real Property Act 1900 is not relevant, in my view, to the interpretation of the LEP.

29 The answer to question 1 is that Portion 119 is not a "1997 holding" under the LEP.

Second question of law

30 Before I can answer whether the development is prohibited under the LEP I must first decide whether cl 15(1)(a) and/or the definition of 1997 holding is a development standard susceptible to a State Environmental Planning Policy 1 (SEPP 1) objection. I will therefore answer question 3 before question 2.

Third question of law

31 In light of the answer to question 1 it is now necessary that I decide the issues raised in question 3 as to whether cl 15(1)(a) and/or the definition of "1997 holding" constitute a development standard as defined pursuant to the EP&A Act.

32 The importance for the Applicants in proving that cl 15(1)(a) and/or the definition of 1997 holding is a development standard lies in the fact that if cl 15(1)(a) and/or the definition is a development standard, consent may be granted to the development despite the existence of the provision, if an objection can be successfully made out pursuant to SEPP 1. Clause 7 of SEPP 1 provides that, notwithstanding the development standard, a consent authority can grant development consent where an objection is well founded, would be consistent with the aims of SEPP 1 and the Director concurs.

33 Clause 3 of SEPP 1 states that the objectives and aims of the SEPP are as follows:

This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act.

34 Clause 5 provides that SEPP 1 prevails over any environmental planning instrument in the event of an inconsistency. Clause 6 provides:

Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.

35 Development standards are defined in s 4 of the EP&A Act as being:

provisions of an environmental planning instrument or the regulations in relation to the carrying out of development , being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of … [emphasis added].
(a)…(o)

36 The Applicants submitted that sub-paragraph (g) in s 4 is relevant, which provides:

The provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles.

37 There are several cases in the Court of Appeal the parties referred to which I will now refer to as these contain the relevant applicable law on this issue. In North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222, after setting out the definition of development standard in s 4 of the EP&A Act, Mahoney JA stated (at 232 – 3):

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

Secondly, the use of the phrase “requirements are specified or standards are fixed” provides some (though, of course, not conclusive) support for the view that that with which the definition deals is the details of a development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all.
And, thirdly, the matters detailed in subpars (a) to (n) of the definition, in so far as a pattern can be seen from them, provide further support for this view. They assume that development of a kind, for example, the erection of a residential flat building, can be carried out and they provide for the things which are required and the standards which are to be observed in the carrying out of that development. They deal, for example, with the “siting” of a flat building which is to be erected on the land and “the distance of” relevant things from any specified point.

38 Later on in his Honour’s judgment the distinction is made by Mahoney JA between a provision which provides "'On land of characteristic X no development may be carried out' and a provision which in form provides 'on such land development may be carried out in a particular way or to a particular extent.'" (at 234).

39 In the earlier Court of Appeal decision of McHugh JA in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 his Honour had identified that the provision in question, the definition of "professional consulting rooms", did not lay down a standard against which the proposed development could be measured, but itself formed part of the definition of a permitted use, namely "professional consulting rooms". It was not therefore a development standard (the relevant definition stated that professional consulting rooms were rooms "used or intended for use by not more than… three dentists…and who employ not more than three employees…"). The case concerned whether cl 6 of SEPP 1 could be applied to this definition of a permissible use on the basis it was a development standard. The opening words of cl 6 of SEPP 1 provide “Where development could, but for any development standard, be carried out under the Act …”.

40 At 269 McHugh JA stated:

It is not correct to say, as the respondent submits, that the development, ie the use of the building as professional consultingrooms as defined could be carried out under the Act “but for” the prohibition of having more than three employees. 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 consultingrooms. 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”.

Priestly JA, after assuming that the words in the definition in question constituted a development standard stated (at 267):

That does not mean however, that those words serve only as a development standard. They seem to me to have a dual function. If they happen to fall within the definition of development standard in s 4 of the EPAA then that is one function they perform. … The other function of the words … is to form a dividing line between those professional consulting rooms which are intended to be within column IV, cl 23 of the ordinance and those which are not.

Returning to the opening words of cl 6 of SEPP No 1 I do not think it is accurate to say that development could but for the development standard contained in the definition of professional consultingrooms be carried out under the Act. The proposed development could not be carried out under the Act because of the definition of professional consultingrooms. That definition, including the words which although on the present hypothesis are a development standard are nevertheless part of the definition, prevent the development which is proposed.

41 In Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 Giles JA (Heydon JA and Young CJ in Eq agreeing) undertook a substantial review of the many cases in this area. At [96] – [99] his Honour stated:

The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step.

Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr, to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of 'development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.

If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. … Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard.

In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of "development standards" in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr ) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstance….

Applicants' arguments

42 The Applicants relied on Poynting (at [94]) to argue that it is necessary to look at cl 15(1)(a) and the definition of a 1997 holding in the context of the whole LEP. It was submitted that this case concerns development for the purposes of a dwelling house which must not be carried out on an allotment of land within Zone 1(a) unless the allotment has certain characteristics, namely those set out in the definition of 1997 holding. The Applicants argued that these provisions concerned the carrying out of development (dwelling houses), which specify a requirement or fix a standard in respect of an aspect of that development, namely the need for direct vehicular access. If the provision does not prohibit the development in question under any circumstances and a development is permissible in the circumstances expressed in the provision, the provision will be one which specifies a requirement or fixes a standard in respect of an aspect of the development and will therefore be a development standard, see par 98 of Poynting. Gary Rhodes v Penrith City Council (Talbot J, NSWLEC, 28 July 1993, unreported) was also relied on by the Applicants.

43 The Applicants submit there is no prohibition of dwelling houses of any description in the zone. There is only regulation of the erection of a dwelling house upon land that does not have a certain characteristic, namely, direct vehicular access to a public road. The Applicants therefore argue that the definition of 1997 holding and cl 15(1) are development standards.

Council's arguments

44 The Council argued that on the basis of Mayoh and Poynting, cl 15(1)(a) when read in combination with the definition of 1997 holding is not a development standard. Under cl 15(1)(a) it states that land must be in the category of a "1997 holding" before it can be used to carry out development for the purposes of a dwelling. There is no general provision that permits dwelling houses in the rural zone. There is clearly a prohibition on the building of dwelling houses on the land unless the definition of "1997 holding" is satisfied. This case can therefore be distinguished from the factual situation in Poynting. The Council further submitted that SEPP 1 cannot be applied to a definition, that is, the definition of 1997 holding.

Finding on Question 3

45 I will answer the questions of law posed firstly in relation to 3(c). It is inappropriate to consider cl 15(1)(a), as question 3(a) requires, separately from the 1997 holding definition given its inclusion in cl 15(1)(a). I will therefore answer question 3(b) only, after 3(c).

46 It is useful to first consider whether the definition of "1997 holding" is a development standard as posed in question 3(c). It is necessary to state the obvious, namely that “1997 holding” is a definition contained in the dictionary section of the LEP, being a word or phrase to be applied consistently for the purposes of the LEP. I consider a definition on its own is unlikely to be a development standard. Generally something either falls within the definition or it does not. This definition does not fix a standard or specify a requirement of an aspect of development.

47 The reasoning of the Court of Appeal in Woollahra Municipal Council v Carr, in which the Court was considering the definition of a permissible use and whether it constituted a development standard, is of assistance. The reasoning in Woollahra Municipal Council v Carr is set out at some length at par 40.

48 Both Priestly and McHugh JJA held that “but for” the development standard contained in the definition the development still could not be carried out under the EP&A Act. Although the reasoning in the two judgments appears to be slightly different, both judgments focus on the fact that the provision in question is a definition of a permitted use. It is implicit in the reasoning in the extracts of the judgments set out above that the definition was not amenable to be changed. McHugh JA referred to the respondent’s submission requiring a “rewriting” of the definition, Priestly JA referred to the words in question being “nevertheless part of the definition”.

49 Although the definition of 1997 holding in this case is in a different context in that it is not a definition of a permitted use, but rather a definition of a land holding, the reasoning in Woollahra Municipal Council v Carr can still be applied to the extent that it is relevant. Can the development in question be carried out were it not for the requirement of direct vehicular access? No it cannot. It was the argument before me that the only applicable provision in the LEP which could potentially apply to this development was cl 15(1)(a), which allows a dwelling house to be built only if the allotment comprises a 1997 holding. Applying the reasoning of Priestly JA in particular to this case, the proposed development could not be carried out because of the definition of 1997 holding. The wording requiring direct vehicular access is part of the definition, such that the development in question is prohibited.

50 What this reasoning highlights is simply what I have already stated above at par 46, namely that a definition is generally a word or phrase to be applied consistently for the purposes of the LEP. Something either falls within the definition or it does not. The definition is generally not meant to be amenable to change, it is after all a definition. Here, it can be seen that the Applicant is, in McHugh JA’s words, trying to rewrite a definition.

51 Further, the 1997 holding definition does not relate to any of the subparagraphs specified in s 4 of the definition of "development standards" in the EP&A Act (although I note that list is not exhaustive). The Applicants relied on subparagraph (g) of the definition of development standards in the EP&A Act, but that deals, inter alia, with facilities for movement and parking of vehicles which is not what the definition of 1997 holding is dealing with. The definition of 1997 holding concerns the availability of vehicular access of land to a Council controlled road, a different issue entirely. The answer to question 3(c) is that the definition of 1997 holding is not a development standard. This gives the reasoning of Priestly JA (at par 40) even greater force in this context, given that there is no basis on which to assume it is a development standard.

52 In relation to question 3(b), cl 15(1)(a) and the 1997 holding definition when read together fit within the first limb identified by Mahoney JA in Mayoh in my view (see par 38 of this judgment). (I note here my finding in relation to the definition of 1997 holding alone that it is not a development standard). Clause 15(1)(a), which specifies that development must not be carried out on land unless the allotment is a 1997 holding, is a prohibition on the development "on land of characteristic x". I consider this finding is also supported by the passage quoted at par 40 of this judgment from Poynting in relation to the two step approach set out there. Clause 15(1)(a) when read with the 1997 holding definition prohibits the development in question (dwelling houses) in defined circumstances, namely unless the allotment comprises a 1997 holding. Depending on how the words "[a] provision prohibiting the development in question…under any circumstances will be a provision controlling development, but it will not be a development standard" (per Giles JA, at [96]) (see par 40) are interpreted, the first step identified in Poynting may be satisfied. If the "development in question" is defined only as a dwelling house, then there is not a prohibition in all circumstances and it is necessary to go to the second step. If the "development in question" is defined as a dwelling house on this land (which is not a 1997 holding) then there is a complete prohibition, making it unnecessary to proceed to the second step. Arguably, it is only necessary to consider the first step in Poynting, and the Applicants' case fails there as the development is prohibited, but for more abundant caution I will also consider the second step.

53 Does cl 15(1)(a) in referring to the 1997 holding definition specify a requirement or fix a standard in relation to an aspect of the prohibited development (the second step identified in Poynting)? No it does not.

54 I have already held that the 1997 holding definition does not fall within any of the categories (a) - (n) set out in the definition of development standard in s 4(1) of the EP&A Act, nor does cl 15(1)(a). While this list is not exhaustive, it is broad, as noted in Poynting. The Applicants relied on subpar (g) (see par 36) but that deals with the provision of facilities for the movement, unloading etc of vehicles. Clause 15(1)(a) and the 1997 holding definition do not concern the provision of facilities for the movement, unloading etc of vehicles. No other aspects of the development are raised by these provisions. Clause 15(1)(a) and/or the definition of 1997 holding are not a development standard as defined in s 4 of the EP&A Act. In these circumstances I do not think that the Applicants gain any assistance when cl 15(1)(a) is read together with the definition of 1997 holding as these sections do not, individually or collectively, constitute a development standard.

Finding on Question 2

55 As the answers to questions 1 and 3 are in the negative, the development is prohibited under the LEP.

Summary of Findings on Questions of Law
Question 1

56 Is Portion 119 DP750551, No 1730 Carlaminda Road, Carlaminda NSW a "1997 holding" as defined pursuant to the LEP?

Answer: No

Question 2

57 If not, is the development proposed prohibited?

Answer: Yes
Question 3

58 (a) Is cl 15 (1)(a) a development standard as defined pursuant to the EP&A Act?

Answer: Not answered

(b) Is cl 15(1)(a) of the LEP when read with the definition of "1997 holding" in the LEP a development standard as defined pursuant to the EP&A Act?

Answer: No

(c) Is the definition of 1997 holding in the LEP a development standard as defined pursuant to the EP&A Act?

Answer: No