Universal Property Group Pty Ltd v Blacktown City Council

Universal Property Group Pty Ltd (the appellant) appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of the Land and Environment Court concerning development consent for secondary dwellings. The dispute centred on whether a minimum lot size requirement in the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (NSW) was overridden by provisions in the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW).

The primary legal issue before the Court of Appeal was the proper interpretation and application of two State Environmental Planning Policies (SEPPs) that appeared to contain conflicting provisions regarding the development of secondary dwellings. Specifically, the court had to determine whether clause 22 of the SEPP (Affordable Rental Housing) 2009, which permitted secondary dwellings on lots of any size, impliedly repealed or overrode clause 4.1AC of the SEPP (Sydney Region Growth Centres) 2006, which stipulated a minimum lot size for such developments. The court also considered the effect of clauses within each SEPP that purported to resolve inconsistencies by prevailing over other planning instruments.

The Court of Appeal applied the principles of statutory interpretation, particularly concerning the harmonious construction of legislative provisions and the doctrine of implied repeal. The court found that the two SEPPs were capable of harmonious construction and that there was no actual contrariety between clause 22 of the SEPP (Affordable Rental Housing) 2009 and clause 4.1AC of the SEPP (Sydney Region Growth Centres) 2006. The court reasoned that the SEPP (Affordable Rental Housing) 2009 was intended to facilitate affordable rental housing and did not, by its terms, override specific provisions in other SEPPs that might impose additional requirements, such as minimum lot sizes, for development. The court concluded that the provisions could co-exist, with the SEPP (Sydney Region Growth Centres) 2006 continuing to impose its lot size requirement.

The Court of Appeal granted leave to appeal and treated the notice of appeal as validly filed. However, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.