Young v Parramatta City Council
[2007] NSWCA 82
•27 March 2007
NEW SOUTH WALES COURT OF APPEAL
CITATION: Young v Parramatta City Council [2007] NSWCA 82
FILE NUMBER(S):
40601/06
HEARING DATE(S): 27 March 2007
JUDGMENT DATE: 27 March 2007
EX TEMPORE DATE: 27 March 2007
PARTIES:
Greg Young
Parramatta City Council
JUDGMENT OF: Beazley JA Tobias JA Basten JA
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S): 10322/06
LOWER COURT JUDICIAL OFFICER: Pain J
LOWER COURT DATE OF DECISION: 1 September 2006
LOWER COURT MEDIUM NEUTRAL CITATION:
[2006] NSWLEC 368
COUNSEL:
A: Greg Young
R: Ian Woodward (solicitor)
SOLICITORS:
A: Greg Young
R: Storey & Gough (Sydney)
CATCHWORDS:
ENVIRONMENT AND PLANNING - Planning schemes and instruments - Construction and interpretation - State Environmental Planning Policy 5 - Housing for Older People or People with a Disability cl 18
LEGISLATION CITED:
Environmental Planning & Assessment Act 1979
Environment Planning & Assessment Regulation 2000
Land and Environment Court Act 1979
Land and Environment Court Rules 1996
State Environmental Planning Policy 5 - Housing for Older People or People with a Disability
State Environmental Planning Policy (Seniors Living) 2004
CASES CITED:
Blue Mountains City Council v Laurence Browning Pty Limited (2006) NSWCA 331
Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319
Young v Parramatta City Council [2004] NSWLEC 245
Young v Parramatta City Council (2006) NSWLEC 368
Young v Parramatta City Council (2006) NSWLEC 662
DECISION:
Appeal dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 040601/06
BEAZLEY JA
TOBIAS JA
BASTEN JATUESDAY 27 MARCH 2007
GREG YOUNG v PARRAMATTA CITY COUNCIL
Judgment
TOBIAS JA: The appellant, Mr Greg Young, is the owner of a parcel of land located at 43 Wyralla Avenue, Epping (the land) upon which there is currently constructed a fairly dilapidated old weatherboard cottage. The land has an area of 723 square metres and is at the western end of Wyralla Avenue and within a conservation area under the Parramatta City Council’s Heritage Local Environmental Plan and Heritage Development Control Plan.
In 2002 Mr Young made application to the Council pursuant to State Environmental Planning Policy 5 - Housing for Older People or People with a Disability (SEPP 5) to demolish various outbuildings and unsympathetic rear extensions to the existing weatherboard cottage, to carry out alterations and additions to that cottage and to erect a new cottage at the rear of the existing cottage. Both buildings would be suitable for use by aged or disabled persons.
Mr Young had made a number of applications to the Council and to the Land and Environment Court with respect to the redevelopment of the land, generally without success. In particular, he had sought to erect a new dwelling at the rear of the existing dwelling as part of a dual occupancy, which the Court had rejected. However, it was accepted ultimately by the Court that housing for older people or people with disabilities authorised by the enabling provisions of SEPP 5 created a different situation as a consequence whereof Mr Young made the application under that Policy to which I have referred.
On 24 May 2004 Commissioner Nott granted development consent pursuant to SEPP 5 for the demolition of certain structures, for alterations and additions to the existing dwelling, and for the construction of a new dwelling upon the land subject to some 54 conditions none of which are presently relevant. At the time the Commissioner allowed Mr Young’s appeal and granted development consent, SEPP 5 had in fact been repealed and a new policy had been made known as State Environmental Planning Policy (Seniors Living) 2004 (the 2004 Policy).
In many respects the provisions of the 2004 Policy were identical to the provisions of SEPP 5. Importantly the former contained in cl 6 a transitional provision which relevantly provided as follows:
(1)Despite clause 5 (1), State Environmental Planning Policy No 5 — Housing for Older People or People with a Disability as in force immediately before its repeal continues to apply to and in respect of the following as if it had not been repealed:
(a) any development application made under that Policy on or before 18 February 2004, but not finally determined before the commencement of this Policy, and
(b) any development application, whether made before or after the commencement of this Policy, that relates to development for which a development consent was granted under the Policy as referred to in section 80 (4) of the Act, and
In his decision Commissioner Nott specifically referred to cl 6(1)(a) and noted in [22] of his judgment that as the development application with which he was concerned was made on or before 18 February 2004 but not finally determined before the commencement of the 2004 Policy on 31 March 2004, then pursuant to cl 6(1) of the latter policy, the application before him was to be determined in accordance with the provisions of SEPP 5.
On 10 March 2006 Mr Young lodged a development application with the Council to subdivide the land into two lots. The frontage lot containing the existing dwelling was proposed to have an area of 290 square metres whereas the rear lot containing the new dwelling was proposed to have an area of 413 square metres. The rear lot was to be accessed by a right-of-way over the adjoining property so that the frontage lot adjacent to the street did not require any easement or right-of-way over it in order to gain access to the new dwelling to be erected at the rear of the land.
The application for subdivision made by Mr Young in March 2006 relied solely upon the power of the Land and Environment Court to grant subdivision consent pursuant to cl 18 of SEPP 5 which provided as follows:
“Land on which development has been carried out under this Policy may be subdivided with the consent of the consent authority.”
An identical or nearly identical provision is to be found in cl 23 of the 2004 Policy.
It is understandable that Mr Young lodged his application for subdivision pursuant to cl 18 for had he been seeking to merely subdivide the land without the benefit of that provision he would have run foul, as he accepts, of cl 38 of Parramatta Local Environmental Plan 2001 (the 2001 LEP) which relevantly provides that a dwelling house shall not be erected upon a lot in any residential zone - and I interpolate that the land is within a Residential 2A zone – unless, where the lot is a battleaxe allotment, it has a minimum area of 670 square metres or where it is not a battleaxe allotment and has a minimum area of 550 square metres and a minimum width of 15 metres at the front alignment of the building. The two lots in question fail by a significant margin to comply with those minimum requirements although the frontage lot does just comply with the 15 metre requirement, having a width of 15.24 metres. Accordingly, a conventional subdivision application under the 2001 LEP was doomed to failure.
It would appear that the Council refused Mr Young’s development application for the subdivision of the land under cl 18 of SEPP 5 as a result of which Mr Young appealed to the Land and Environment Court against that decision. The amended statement of issues was filed by the Council on 25 May 2006 which included relevantly the following:
“SEPP 5 SUBDIVISION
As the application is a subdivision of a development consent granted by the Court in 2004 (Young v Parramatta City Council [2004] NSWLEC 245), pursuant to State Environmental Policy No. 5 – Housing for Older People or People with a Disability (SEPP 5), Council has no power to approve the application until that development has been carried out.
Particulars
Clause 18 – Subdivision of SEPP 5 allows subdivision of land only if the development has already been carried out. Development has not been carried out prior to this application.SUBDIVISION GENERALLY
In the alternative if the application is not the subdivision of a SEPP 5 Development, the following issues arise:
a. The allotments proposed to be created are below the minimum lot size set out in clause 38(1) of Parramatta Local Environmental Plan 2001, (LEP 2001) and the Court has no power to grant consent without the submission of an objection under State Environmental Planning Policy No.1 (“SEPP 1”). Further any SEPP 1 submitted would not satisfy the requirements of the Draft State Environmental Planning Policy (Application of Development Standards) 2004. (“Draft SEPP”)
Particulars
Allotment No 1 is non compliant with the 670sqm requirement for a battleaxe allotment. Allotment No 2 is non-compliant with the 550sqm requirement for non-battleaxe allotments. Under clause 7(2) of the Draft SEPP, a standard may only be departed from if it would result in a better environmental planning outcome than that which could have been achieved on the site had the standard been complied with. The proposed subdivision would not achieve a better environmental outcome than a development which complied with the minimum site area requirement.”It was agreed between the parties that the first issue raised by the Council should be determined by the primary judge, Pain J, as a preliminary question of law, namely, whether the Land and Environment Court has power to approve Mr Young’s application for subdivision before the development in respect of which he obtained consent from Commissioner Nott had been carried out in the sense of completed. That question, as her Honour observed in [1] of her judgment, concerned the operation of cl 18 of SEPP 5.
A large number of submissions were made by both parties to her Honour and, in particular, it was submitted by the Council that cl 18 only operated where the development the subject of the development consent that had been granted under SEPP 5 had been carried out in the sense of completed. It was only then, so it was submitted, that the Council or the Court on appeal had power to grant a subdivision of the land upon which that development had been carried out.
On the other hand Mr Young submitted that the expression “carried out” did not mean “completed” but that it was sufficient to have engaged the power to grant subdivision consent under cl 18 that a development consent had been granted under SEPP 5 and it was not necessary that that development should have been carried out in the sense contended for by the Council.
A number of other subsidiary arguments were advanced by Mr Young and repeated on the appeal to some of which I shall reflect below. In particular, one of those arguments was that the word “development” where used in cl 18 should be interpreted in accordance with its meaning as defined in cl 4(1) of the Environmental Planning & Assessment Act 1979 (the EP&A Act), relevantly (a) the use of land, and (c) the erection of a building.
Mr Young had submitted before her Honour and repeated before this Court that the development consent granted by Commissioner Nott was a consent to the use of the land and for the erection of buildings for the purpose of “housing for older people or people with disabilities”, an expression defined in the dictionary to SEPP 5 as meaning:
“residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with a disability...”.
Her Honour, in her judgment delivered on 1 September 2006, accepted in [33] that the real issue before her was the meaning and operation of cl 18. No case had been cited to her Honour where that provision had been previously considered. She accepted in [34] that cl 18 took precedence over any other planning instrument which would otherwise apply to the land by virtue of cl 5(2) of SEPP 5. She said:
“The fact that the Parramatta LEP allows subdivision and dual occupancy dwellings for development consent in this zone is irrelevant given that the development consent granted by this court in Young 2004 was for an SEPP 5 development and this application for subdivision relates to that SEPP 5 development”.
Ultimately she determined, as a matter of statutory construction, that the Council’s interpretation of cl 18, when taken in the context of SEPP 5 as a whole, was correct and that it prohibited the Council as the consent authority or the Court on appeal from granting subdivision consent unless and until the development which had been the subject of a development consent under the Policy had been carried out in the sense of completed. As that had not occurred in the present case, she determined (in [43]), that the Court did not have power to consider and determine the development application for subdivision of the land which had been lodged by Mr Young in March 2006.
After her Honour had delivered her judgment on 1 September 2006, Mr Young filed a notice of motion on 11 September 2006 seeking an order under the provisions of cl 55 of the Environment Planning & Assessment Regulation 2000 and Pt 10 r 1 of Land and Environment Court Rules 1996 seeking leave to amend his development application in respect of the subdivision of the land by having it assessed as a deferred commencement development under the provisions of s 80(3) of the EP&A Act.
Her Honour acceded to the submission of the Council that there was no provision in either the Act, the Rules or the Regulations which enabled an application to be made for development consent which was the subject of a deferred commencement condition, although of course there was power in the Court to grant a development consent subject to such a condition. But that power, according to her Honour, was within the province of the consent authority or the Court as the case may be and there was no mechanism whereby a development application could be lodged for a deferred commencement consent.
As a consequence of her rejection of that application and in the light of her earlier findings in her first judgment that the Court had no jurisdiction to determine the development application of the subdivision of the land until the development in respect of which Mr Young had obtained consent had been completed, her Honour ordered that Mr Young’s class 1 appeal should be dismissed. In the circumstances, she ordered that he pay the Council’s costs of the preliminary point of law determined on 1 September 2006 and its costs of the Notice of Motion of 11 September 2006. That being a final order of the Land and Environment Court, Mr Young has a right of appeal to this Court under s 57(1) of the Land and Environment Court Act 1979 on a question of law.
Although ultimately it did not form part of the argument on the appeal, I should not be taken as necessarily agreeing with her Honour that it is not open to an applicant for development consent under the EP&A Act to make an application which seeks the grant of a consent which is the subject of a deferred commencement condition imposed pursuant to s 80(3). In my view, there is nothing which would prevent or prohibit the making of such an application and there is no reason why such a condition cannot be sought or suggested by an applicant in his or her development application or in the statement of environment effects that is required to accompany such an application.
However, it makes no difference in the present case because, for the reasons I will indicate, it would not have been open to her Honour to grant subdivision consent in response to Mr Young’s application with a deferred commencement condition that required the development approved by Commissioner Nott to be completed before that consent for subdivision came into force.
I turn now to the essential grounds upon which Mr Young conducted the appeal. His primary ground, understandably, was that her Honour had misconstrued cl 18 of SEPP 5 in that she had wrongly determined that it was a condition precedent to the power of the consent authority and the Court on appeal to grant consent to the subdivision of land in respect of which development consent under SEPP 5 had been granted prior to the development the subject of that consent being completed. As I understand Mr Young’s argument, her Honour erred in substituting for the words “carried out” the word “completed”. In my opinion, that argument has no substance.
What is critical to the construction of cl 18 is not only the context in which it appears but also the past tense of the expression “carried out” which, in my view carries the meaning that the development to which the clause relates has been carried out in the sense of accomplished or completed. In this respect, it was accepted that the definition of the expression “carried out” in the Macquarie Dictionary was “accomplished or completed”. Such a construction in its context makes appropriate sense. As Mr Young was at pains to emphasise, cl 5(2) of SEPP 5 provides that if the Policy is inconsistent with any other planning instrument made before or after SEPP 5, then the latter prevails to the extent of the inconsistency. This was of particular moment in relation to cl 38 of the 2001 LEP to which I have already referred which prohibited the erection of a dwelling house in any residential zone on an allotment of land which, if a battleaxe allotment, had an area of less than 670 square metres or, if not a battleaxe allotment, had an area of less than 550 square metres.
Accordingly, had Mr Young made an application to the Council to subdivide his land in the conventional way, it would have been prohibited by cl 38(1) or at least he would not have been able to erect a dwelling house on what are substandard sized allotments. The whole purpose of cl 5(2) of SEPP 5 in that context is that pursuant to cl 18, land may be subdivided without any minimum lot size requirement but only in respect of development which has been the subject of a consent under SEPP 5 with respect to that land, that is, development for housing for older people or people with disabilities which has been “carried out”.
The aims of SEPP 5 are to encourage the provision of housing that will increase the supply and diversity of housing that meets the needs of older people or people with disabilities. Those aims are to be achieved, as cl 3(2) provides, by setting aside local planning controls that would prevent such development. One of the ways in which such development could be achieved which would otherwise be prevented by cl 38 of the 2001 LEP and where it was desired to give separate title to the occupiers of such housing, is to apply to subdivide the relevant land pursuant to cl 18. However, under that provision, that which triggers what is in effect an exception to the minimum lot sizes referred to in cl 38 of the 2001 LEP must first have been provided or carried out or completed.
That objective would not be achieved if the land could be subdivided into what were otherwise substandard sized allotments in circumstances where those lots could then be disposed of but the uncompleted development the subject of a consent under SEPP 5 is abandoned. Although the Court was not provided with a copy of the 2001 LEP, I would assume that in common with similar plans, a dwelling house may be erected without development consent in a Residential 2(a) zone but of course it can only be erected on an allotment of land that complies with cl 38.
Mr Young nevertheless submitted that the word “development” in cl 18 included the use of land or the erection of buildings in the sense of their future use or the erection as the case may be. The difficulty with that construction, as I see it, is that the word “development” where used in cl 18 refers to development under SEPP 5. In other words, it indicates that a subdivision under cl 18 can only be granted in respect of land the subject of a development that has been consented to in accordance with the provisions of SEPP 5. That is a particular form of development and, therefore, the general definition of the word “development” really has no part to play. The only question then is whether that particular development which is the subject of the grant of consent under the Policy “has been carried out”.
The clear meaning and intent of cl 18, in my view, as it was in the opinion of the primary judge, was that the power to grant consent to a subdivision did not arise unless and until the development which was the subject of a consent granted pursuant to SEPP 5 had in fact been completed. It is only in those circumstances that, in my view, cl 5(2) would be engaged to render inconsistent and, therefore, to be ignored the provisions of cl 38 as to minimum lot sizes upon which dwelling houses may be erected.
Mr Young nevertheless submitted that Commissioner Nott had, as it were, granted de facto subdivision consent and had approved the lot sizes for which he was contending when he granted consent back in 2004. Reliance was placed upon [42] of Commissioner Nott’s decision in which he said,
“In relation to the council’s objection to a new dwelling in the rear yard of the subject land the provisions relating to subdivision and the heritage DCP are indirectly relevant insofar as subdivision there’s usually one way of providing two dwellings on a parcel of land that originally had only one house. Of course, in the present case the application does not involve a formal subdivision but there is a de facto subdivision inasmuch as the cottage and the proposed new house will each be on its own curtilage with a fence separating them”.
However in [44] of his judgment the Commissioner noted that there was “no subdivision proposed at all”.
In my opinion Mr Young gains no comfort from the Commissioner’s expression of opinion that his grant of development consent created a de facto subdivision. Whether it did or not is really not to the point. The fact is that without the grant of consent to subdivision pursuant to cl 18 neither of the lots created by the de facto subdivision to which Commissioner Nott referred could be disposed of to third parties. The fact that the Commissioner suggested there was a de facto subdivision has no bearing upon the true construction of cl 18.
The next point raised by Mr Young was that the Land and Environment Court had, so he submitted, in a number of cases to which he refers in his written submissions approved concurrently the subdivision of land in respect of which it had at the same time granted development consent under SEPP 5. However Mr Young quite fairly conceded that in none of the cases upon which he relied and in which such concurrent consents had been granted had the issue of the true construction of cl 18 been raised and determined. Her Honour therefore considered that those decisions were irrelevant in the sense that they had no precedential effect and in my opinion she was correct in that view.
There was a suggestion in Mr Young’s written submissions that in so determining her Honour had failed to give reasons. However the reasons she gave seemed to me clear from what she had earlier said, namely, that the issue which had been placed fairly and squarely before her Honour by the preliminary question that she had been called upon by the parties to decide had not arisen in the cases relied on. I would therefore not accede to the submission that her Honour had failed to give reasons for not utilising or not having regard to the decisions upon which Mr Young relied in this respect.
The final point raised by Mr Young was a submission that cl 18 contained a development standard being a requirement that the land be used for a SEPP 5 development. This was a somewhat difficult submission to follow although it is true that on the construction of cl 18 to which I have referred, there is a condition precedent to the power of a consent authority or the Court on appeal to grant subdivision consent being that the development of the land the subject of a consent under SEPP 5 has been carried out.
If anything, the requirement that the development be carried out before there was power to grant subdivision consent constitutes a prohibition on the granting of such consent unless and until that condition is satisfied. At least based on the two stage test to which I referred in Blue Mountains City Council v Laurence Browning Pty Limited (2006) NSWCA 331 at [36], [46] and [47], a provision does not constitute a development standard where it is an essential element of the permissibility of the development of the relevant land. In my view the actual carrying out of the development to which Commissioner Nott approved consent is such an element. In other words cl 18 contains a requirement that the development to which it refers be carried out before the power to grant development consent is engaged. It was therefore an essential element of the permitted use of subdivision: see Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179. It follows that the requirement in cl 18 that the development the subject of the consent approved under SEPP 5 be carried out before the power to grant consent to the subdivision of the land to which that development relates is engaged, is not a development standard.
A number of other issues were raised by Mr Young in his written submissions including that of bias but in fairness to Mr Young, he has quite properly and fairly abandoned that ground of appeal, and he should be commended for so doing. Furthermore, notwithstanding the length and complexity of his written submissions, he was able during the course of his oral submissions to efficiently summarise the main points that he wished to advance before this Court which has greatly assisted in the determination of this appeal. Regrettably those points have been decided against him but he has said everything that could possibly be advanced in favour of the propositions for which he contended.
For the foregoing reasons, in my opinion the appeal should be dismissed with costs.
BEAZLEY JA: I agree.
BASTEN JA: I agree the appeal should be dismissed with costs and I agree with his Honour’s reasons. I would add two further comments. The first is that the primary judge in her first judgment, Young v Parramatta City Council (2006) NSWLEC 368 at [43] held that the Court did not “have power to consider this development application for subdivision.” She made a similar comment in the second decision (2006) NSWLEC 662 at [9]. This is in my view an infelicitous expression. There is no constraint on the jurisdiction of the court to consider the development application rather it is a constraint on the power to grant consent, or as Justice Tobias expresses it, a condition precedent to the grant of consent, and her Honour’s judgment should be so understood.
My second comment concerns a matter which need not be addressed further in these reasons, namely the correct approach to the identification of a development standard. Various comments were made as to that question in Blue Mountains City Council v Laurence Browning Pty Ltd to which his Honour has referred. I do not depart from what I said in that case in that regard.
BEAZLEY JA: The orders of the court are that the appeal is dismissed with costs.
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LAST UPDATED: 5 April 2007
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