Taperell v Randwick City Council [2000] Nswlec

[2000] NSWLEC 103

Land and Environment Court

of New South Wales

CITATION:	Taperell & Anor v Randwick City Council [2000] NSWLEC [2000] NSWLEC 103
PARTIES:	APPLICANTS Christopher Henry Taperell & Gwyneth Elaine Taperell RESPONDENT Randwick City Council
FILE NUMBER(S):	10756 of 1999
CORAM:	Lloyd J
KEY ISSUES:	Judicial Review :- validity of development control plan - discrepancies between final plan and publicly exhibited draft - whether final plan different from exhibited draft plan
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 s72 Environmental Planning & Assessment Regulation 1994 Pt 3 Randwick Local Environmental Plan 1998
CASES CITED:	John Brown Lenton & Co. Pty Ltd v The Minister (1999) 106 LGERA 150; Leichhardt Council v The Minister [No 2] (1995) 87 LGERA 78; Vanmeld Pty Ltd v Fairfield Council (1999) 46 NSWLR 78, 101 LGERA 297
DATES OF HEARING:	21/03/00
DATE OF JUDGMENT:	06/02/2000
LEGAL REPRESENTATIVES:	APPLICANT: D P Wilson (Barrister) SOLICITORS: Haralambis Lawyers RESPONDENT: W R Davison SC SOLICITORS: Bowen & Gerathy

JUDGMENT:

IN THE LAND AND Matter No: 10756 of 1999

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 2 June 2000

Taperell & Anor

Applicant

v

Randwick City Council

Respondent

JUDGMENT

HIS HONOUR:

1. This is a question of law raised in proceedings being heard by a commissioner and which has been referred to me under s 36(5) of the Land & Environment Court Act 1979 for determination. The question is as follows:

Whether the development control plan Exhibit 3 in these proceedings is void and of no effect in that the plan was not made in accordance with the provisions of the Environmental Planning & Assessment Act 1979 and its Regulations.

2. The relevant facts which give rise to the question may be briefly stated. On 14 August 1998 the applicants made a development application for the demolition of an existing house and the erection on the same land of a multi-unit housing development comprising four dwellings and basement car parking. When the development application was made the land was subject to the Randwick Local Environmental Plan 1998 and there was no development control plan for multi-unit housing, residential flat buildings or medium density dwellings. On 2 June 1998, however, the respondent had adopted a draft development control plan for multi-unit housing as an interim policy. The draft development control plan had previously been placed on public exhibition between 17 March 1998 and 17 April 1998 and in respect of which the respondent received a number of submissions.

3. On 5 May 1999, the respondent refused to grant consent to the development application. On 15 February 2000, following its considerations of the submissions on the draft development control plan and a report by its director of planning and environment, the respondent adopted the development control plan for multi-unit housing which became Exhibit 3 in these proceedings, effective on 1 March 2000.

4. The applicants contend that there are significant differences between the draft development control plan which was publicly exhibited and the development control plan which was adopted by the respondent on 15 February 2000, so that the plan that was adopted is not the plan that was exhibited. The applicants contend that the development control plan which was adopted by the respondent on 15 February 2000 is a new plan which was neither advertised nor exhibited as required by the Environmental Planning & Assessment Regulation 1994 (“the Regulation”). That is to say, the applicants contend that the development control plan which was adopted is not the outcome of the procedure identified in Part 3 of the Regulation and which relates to the making of development control plans.

5. The principal differences between the draft development control plan which was exhibited and the development control plan which was adopted, upon which the applicants rely, relate to controls governing the setbacks of buildings from boundaries and controls governing solar access.

6. In the draft development control plan which was exhibited, building setbacks are described in clause 4.2. In the adopted development control plan building setbacks are described in clause 3.3. Clause 4.2.1 of the exhibited development control plan is headed “Objectives”. It states:

· Reduce the impact of development on adjoining land .

· Ensure adequate separation between buildings for landscaping, visual and acoustic privacy, sunlight penetration and private open space.

· Integrate development with desirable characteristics of the established streetscape.

Clause 3.3.1 of the adopted development control plan is also headed “ Objectives ” and is in identical terms.

7. Clause 4.2.2 of the exhibited development control plan is headed “ Explanation ” and states:

Building setbacks define the overall footprint of a building and the outer extremities of that building in relation to front, side and rear boundaries. They have a significant influence on the character of a street and will ultimately determine its prevailing form and building type.

Variations in front setbacks can be used to accentuate or diminish the prominence of streetscape elements. The separation between buildings and public spaces is an important principle of design for infill development. Setbacks also influence the potential for overshadowing and privacy problems to adjoining and nearby development.

Clause 3.3.2 of the adopted development control plan is also headed “ Explanation ” and is also in identical terms.

8. Clause 4.2.3 of the exhibited development control plan is headed “ LEP Controls ” and states: “ None applicable ”. Clause 3.3.3 of the adopted development control plan is also headed “ LEP Controls ” and states: “ Clause 2(g). Aims of the LEP ”. I do not regard this difference as significant since the aims of a local environmental plan must be taken into consideration in any event.

9. Clause 4.2.4 of the exhibited development control plan is headed “ Performance Measures and Design Solutions ”. Under that heading is a table which contains two columns, one headed “ Performance Measures ” and the other headed “ Design Solutions ”. Item P1 under the heading “ Performance Measures ” states: “ Building setback from the front boundary is determined by the existing and desired character of the streetscape ”. In the adjacent column headed “ Design Solutions ” Item D1 states:

Building setbacks from the front boundary is consistent with the setback of adjoining development or the dominant setback along the street.

The preservation of significant landscape elements or streetscape qualities may necessitate an increase to building setbacks.

10. Clause 3.3.4 of the adopted development control plan is headed “ DCP Controls ”. Under that heading is a table which also contains two columns headed respectively “ Performance Requirements ” and “ Preferred Solutions ”. Under the heading “ Performance Requirements ” Item P1 states:

The front setback is determined by the existing and desired character of the streetscape.

The setback is to be consistent with the setback of adjoining development or the dominant setback along the street.

There is nothing under the heading “ Preferred Solutions ” opposite Item P1.

11. Returning to clause 4.2.4 of the draft development control plan, Item P2 under the heading “ Performance Measures ” states:

Side boundary setbacks (Refer to Figure 32)

The minimum setbacks from any side boundary are:

· 1.5 metres for an level of a building that is substantially excavated (the ceiling of which does not protrude more than 1 metre above ground level) at that point:

· 3 metres for any part of a building, the height of which is up to 1 level at that point;

· 4 metres for any part of a building, the height of which is up to 2 levels at that point; and

· 5 metres for any part of a building, the height of which is 3 levels at that point.

Figure 32 shows an illustration of a building set back from the boundary by a series of steps at each level.

12. Under the heading “ Design Solutions ” Item D2 states:

Variations to building setbacks, including building to the boundary, may be permitted where:

· there is no adverse impact of the boundary wall on neighbours;

· the privacy between neighbouring dwellings and their open spaces is improved;

· the proposed setback matches an existing or simultaneously constructed wall to the neighbouring building .

13. In clause 3.3.4 of the adopted development control plan, Item P2 is headed “ Side Boundary Setbacks ” and states:

Buildings are set back from the side boundary to ensure that:

· there is adequate separation between buildings to maintain reasonable levels of solar access and minimise overshadowing.

· reasonable levels of privacy between neighbouring dwellings and their open spaces are provided.

· opportunities for landscaping and private open space are provided.

· streetscape amenity is maintained.

Under the heading “ Preferred Solutions ” the following appears under Item S2 opposite Item P2:

Zone 2B

Buildings (including balconies) maintain a minimum average setback (measured for the length of the building along that boundary) of 4 metres from any side boundary

No part of the building is closer than 2.5 metres from any side boundary.

The maximum length of any one section of wall (without any articulation) is 10 metres. The minimum length of any step is 3 metres.

Zone 2C

Buildings (including balconies) maintain a minimum average setback (measured for the length of the building along that boundary) of 5 metres from any side boundary.

No part of the building is closer than 3.5 metres from any side boundary.

The maximum length of any one section of wall (without any articulation) is 10 metres. The minimum length of any step is 3 metres.

14. The next item relating to building setbacks is rear boundary setbacks. In clause 4.2.4 of the draft development control plan Item P3 under the heading “ Performance Measures ” contains a similar but not identical provision to Item P2; that is to say, it provides for increasing setbacks for each level of the building so as to achieve so as to achieve a stepped setback. Reference is made to Figure 33 which, like Figure 32 for side setbacks, shows an illustration of a building set back from the rear boundary by a series of steps at each level. Under the heading “ Design Solutions ” Item D3, opposite Item P3, is stated: “ See D2 above ”.

15. In clause 3.3.4 of the adopted development control plan Item P3 which is headed “ Rear Boundary Setbacks ” contains a similar but not identical provision to Item P2 in the same clause. Under the heading “ Preferred Solutions ”, Item S3 opposite Item P3, like Item S2 in the same clause, is divided into Zone 2B and Zone 2C with nominated distances from the rear boundary in each case and which are not stepped for each level.

16. The other discrepancy which is particularly relied upon by the applicant relates to the provisions for solar access. Clause 3.5 of the draft development control plan is headed “ Solar Access and Energy Efficiency ”. The clause sets out a number of objectives. The clause contains the following statement ( inter alia ):

The collective effect of design decisions can be evaluated by Nat HERS, a computer simulation tool used throughout Australia for rating the thermal performance of houses by stars. Five stars indicates the highest efficiency. Randwick and many other Councils are adopting a standard which requires all new dwellings to achieve at least 3.5 stars.

The clause then goes on to specify a number of detailed numeric standards designed to achieve the stated objectives.

17. Clause 4.4 of the adopted development control plan is also headed “ Solar Access and Energy Efficiency ”. It sets out a number of similar but not identical objectives to these in the draft development control plan. The clause also specifies a number of detailed numeric controls, all of which are designed to achieve the stated objectives, but which differ in detail from those set out in the draft development control plan. For example, the paragraph which I have set out from clause 3.5 of the draft development control plan (paragraph 16 above), which requires all new dwelling to achieve at least 3.5 stars, is modified under the adopted development control plan so as to read as follows:

S4 75% of dwellings in a development achieve 3.5 star rating by Nat HERS or equivalent and no dwelling achieves less than 3 stars, unless the site analysis can demonstrate that this is not achievable on a particular site and an Energy Performance Statement demonstrates that the design of the dwelling units satisfies the intent of these objectives and performance criteria.

18. The applicants in their submissions do not point to any other provisions of the two instruments which are said to be of significance. I turn now to the statutory requirements governing the making of development control plans. Section 72 of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”) enables a council to make a development control plan. Subsections (2), (3) and (4) of s 72 are as follows:

(2) the format, structure, subject-matter and procedures for the preparation, public exhibition, approval, amendment and repeal of such a development control plan shall be as prescribed.

(3) Such a development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan which applies to the land to which the development control plan applies.

(4) A development control plan prepared in accordance with this section shall be available for public inspection, without charge, at:


(a) the office of the council during ordinary office hours; and

(b) such other premises operated or controlled by the council and at such times as may be prescribed.

19. Part 3 of the Regulation prescribes the matters referred to in subsection 72(2). Clauses 15 and 16 of the Regulation deal with the form and content of a development control plan. Clause 17 provides that following the preparation of a draft development control plan the Council must give public notice in a local newspaper of the places, dates and times for inspection of the draft plan and must publicly exhibit the draft development control plan for at least 20 days. Clause 19 provides that any person may make written submissions to the Council about the draft development control plan during the period specified in the notice. Clause 20 is, for present purposes, an important provision. It states:

20. (1) After considering any submissions about the draft development control plan that have been duly made, the council:


(a) may approve the plan in the form in which it was publicly exhibited; or

(b) may approve the plan with such alterations as the council thinks fit; or

(c) may decide not to proceed with the plan.


(2) The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.

...

20. Both parties accept the relevant test of validity as being that stated by Priestley JA in Leichhardt Council v The Minister [No 2] (1995) 87 LGERA 78. That was a case concerning the validity of a regional environmental plan, but the principles apply equally to the making of a development control plan. Section 40 of the EP&A Act enables the Director of the Department of Urban Affairs & Planning to prepare a draft regional environmental plan. Section 45 requires the Director to ensure that consultations are held with each council whose area or part of whose area is situated in the region to which the draft plan applies. Section 47 provides that when a draft regional environmental plan has been prepared the Director shall give public notice of the places, dates and times for inspection of the draft plan, shall publicly exhibit the draft plan and shall specify in the notice the period during which submissions may be made thereon to the Director. Section 48 provides that during the period referred to in the notice any person may make written submissions to the Director about the draft plan. Section 49 provides that the Director may amend the draft regional environmental plan by making changes whether or not of substance and whether or not as a consequence of the consideration of any such submissions and may (but need not) publicly exhibit that amended draft regional environmental plan. Section 51 enables the Minister to make a regional environmental plan in accordance with the draft plan submitted to him by the Director or with such alterations as the Minister thinks fit.

21. The facts in the Leichhardt case were somewhat complex, but for present purposes it is sufficient to say that there was consultation between the Director and the Council as required by s 45 in which the Director had agreed on maximum height limits on three large redundant industrial sites which were to be rezoned for residential purposes. The draft regional environmental plan which was publicly exhibited included a height limitation provision referrable to development control plans which were exhibited with the draft plan and which included the previously agreed height controls. The Minister subsequently made a regional environmental plan which omitted the height controls and left height control to the consent authority’s discretion. No relevant development control plans were simultaneously brought into effect when the Minister made the regional environmental plan. The Council argued, firstly, that the Director had failed to consult with the Council as required by s 45 of the EP&A Act; and secondly, that the regional environmental plan made by the Minister was so significantly different from the draft plan that had been exhibited by the Director that it could not be validly made pursuant to s 51. The Council failed on its first argument but succeeded on its second argument.

22. Priestley JA (with whom Sheller JA agreed) said (at 86-87):

The differences, so far as building heights are concerned, are stark. In the Minister’s Greater Metropolitan Regional Environmental Plan No 1 there are no building height restrictions. The references to development control plans by which building heights would be controlled have vanished. Further, no relevant development control plans were brought into effect when the Minister made the plan. ...

This seems to me to be a very significant difference.

23. Priestley JA also said (at 88):

To someone contemplating multi-unit development, to whom every additional storey and every day saved in starting may mean more profit, a control plan without height restrictions will seem a quite different plan from one with height restrictions.

....

My conclusion therefore is that the Minister did not have power to make the plan which he made on 21 December 1993. It was not a plan which in all important respects was the product of a Pt 3 div. 3 process. ...

...The resulting Greater Metropolitan Regional Environmental Plan No 1 was significantly different from the draft Greater Metropolitan Regional Environmental Plan No 1 publicly exhibited.

24. The applicants also rely upon the judgment of Cowdroy J in John Brown Lenton & Co Pty Ltd v The Minister (1999) 106 LGERA 150, a case concerning the validity of a local environmental plan. The provisions relating to the making of a local environmental plan with which Cowdroy J was concerned are similar to, but not identical with, those which apply to the making of regional environmental plans. They include the giving by the Council of public notice of the places, dates and times for the inspection of the draft local environmental plan by the public and the public exhibition by the Council of the draft local environmental plan (s 66). Any person may during the exhibition period make written submissions to the Council on the draft local environmental plan (s 67). The Council may make any alterations it considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing into any submission (s 68(3)). Subsections 68(3A) and (3B) provide as follows:

(3A) An alteration made by a council pursuant to subsection (3) need not to relate to a submission.

(3B) The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). ...

25. One of several grounds of challenge to the validity of the local environmental plan in John Brown Lenton was a submission that there had been no public involvement in the preparation of the final draft local environmental plan in that case, which was said to be so different from the exhibited draft plan that the Council was required to again publicly exhibit and re-advertise the final document under section 66 of EP&A Act. After referring to the Leichhardt case, Cowdroy J said (at 160 [39]) that although it related to a regional environmental plan rather than a local environmental plan, the same principles can be applied by analogy:

Accordingly it is necessary to consider whether the draft LEP now before the Minister can be characterised as a product of a Pt 3 process, or whether the draft LEP is now ‘a quite different plan’ (Leichhardt [No.2] at 84) from the exhibited draft plan. This is in turn requires a consideration of the changes that have occurred since the exhibition of the draft plan and the draft LEP in its current form.

26. Cowdroy J then considered the very many and highly unusual changes which were made to the draft local environmental plan in that case and which made the final draft local environmental plan a different plan from that which was exhibited. Cowdroy J continued (at 164 [45]):

Whilst Council may make changes which are of significance (Vanmeld), in this instance the totality of such changes results in an LEP which bears little or no resemblance to that which was exhibited. In Vanmeld only one significant change was made which did not alter the character of the plan (see Vanmeld per Meagher JA at 114; Spigelman CJ at 91). The draft LEP has its genesis in the exhibited draft plan but it has been transformed into a different plan. The result is analogous to that found by the Court of Appeal in Leichhardt [No 2], namely that the draft LEP cannot be said to be the result of the process provided by Part 3 of the Act.

28. The references by Cowdroy J to Vanmeld are to the Court of Appeal decision in Vanmeld Pty Ltd - v - Fairfield (1999) 46 NSWLR 78, 101 LGERA 297. In that case the Council advertised and exhibited a draft local environmental plan which allowed certain development as permissible with consent, but changed the final plan so that the particular development became prohibited. The Court held that the amendment was not such that it could be said to be so significant that the local environmental plan could not be characterised as a product of a Pt 3 Division 4 process (per Spigelman CJ at 91[48], Meagher JA at 113 [179] and Powell JA at 114 [187]).

29. In applying the principles which emerge from the abovementioned cases to the facts in the present case, the starting point is Pt 3 of the Regulation. It is clear that clause 17 and clause 19 are for the purpose of enabling the public to be given notice of the provisions of a draft local environmental plan and to afford an opportunity for the making of submissions thereon. It is equally clear clause 20(1)(b) enables the Council to approve the plan with such alterations as it thinks fit. The questions which then must be asked are whether the changes made to the exhibited plan are so significantly different or so substantial that the adopted plan could not be said to be a product of the prescribed process ( Leichhardt [No. 2] at 87, John Brown Lenton at 160). That is to say, whether it can be said that the adopted development control plan is a quite different plan from the exhibited plan ( Leichhardt [No. 2] at 160). In another way, whether the totality of the changes results in a development control plan which bears little or no resemblance to the exhibited plan ( John Brown Lenton at 164). And in yet another way, whether the adopted development control plan is a wholly different plan from the exhibited plan so as to alter the character of the plan ( Vanmeld at 114).

30. It must be borne in mind the onus in establishing invalidity lies on the challenger. In my opinion the applicants have not discharged that onus in this case. I have come to this view for the following reasons.

a) The particular changes made to the adopted development control plan following the exhibition of the draft plan and which have been specifically identified by the applicants in their submissions relate to two of very many controls, specifically those relating to setbacks and solar access;

b) The objectives in both the exhibited and the adopted development control plan relating to setbacks are the same in each;

c) The explanation for the setback controls in both the exhibited development control plan and the adopted development control plan is the same in each;

d) Unlike the height restrictions in the Leichhardt case, where the exhibited regional environmental plan contained height restrictions but the final regional environmental plan did not (apart from discretional considerations) both the exhibited development control plan and the adopted development control plan in the present case contain numeric criteria for setbacks;

e) Although the method of calculating setbacks in both the exhibited development control plan and the adopted development control plan are different, they are directed to achieving the same objectives and to satisfying the same explanation set out in each plan;

f) The method of calculating setbacks in the exhibited development control plan and in the adopted development control plan are aimed at achieving the same performance requirements identified in each. (Compare, for example, Item D2 of the exhibited development control plan and Item P2 of the adopted development control plan, described in Paragraphs 12 and 13 above);

g) Although there are different methods of calculating setbacks in the exhibited draft development control plan and in the adopted draft development control plan, they do not enable me to say that the latter is a wholly different plan from the former;

h) The objectives relating to solar access in both the exhibited development control plan and the adopted development control plan are similar although not identical;

i) Both the exhibited development control plan and the adopted development control plan incorporate the same rating for thermal performance (namely a 3.5 star rating by Nat HERS). I do not regard the application of such rating to all new dwellings under the exhibited development control plan and application of the rating to 75 percent of dwellings in the adopted development control plan as being either significantly different or quite different;

j) The numeric controls relating to solar access in the exhibited draft development control plan and the adopted development control plan, although different, are all designed to achieve basically the same stated objectives in each plan. The differences are matters of detail, rather than of a substance;

k) The totality of the changes made in the adopted development control plan to the exhibited development control plan, identified by the applicants, do not make the adopted development control plan one which is either substantially different, or quite different, or wholly different from the latter. Neither do the changes alter the character of the exhibited draft development control plan;

l) The changes made can be fairly described as alterations within the meaning of clause 20 (1)(b) of the Regulation which the Council is entitled to make.

31. For the abovementioned reasons I answer the question of law as follows:

The development control plan Exhibit 3 in these proceedings is valid, having been made in accordance with the provisions of the EP&A Act and the Regulation.

32. The proceedings will be remitted to the commissioner with that expression of opinion.