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Land and Environment Court
New South Wales
Case Name: Camden Council v Cranney
Medium Neutral Citation: [2018] NSWLEC 127
Hearing Date(s): 3 and 6 July, further written submissions 31 July and 3 and 7 August 2018
Date of Orders: 24 August 2018
Decision Date: 24 August 2018
Jurisdiction: Class 1
Before: Robson J
Decision: See orders at [138]
Catchwords: APPEAL – appeal against Commissioner’s judgment on a question of law – whether Commissioner misconstrued clause 2.6(3) of Appendix 1 of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 – whether Commissioner erred in providing consent where consent was not required – whether Commissioner erred in granting consent in the absence of a clause 4.6 variation request – whether Commissioner erred by failing to consider or to give reasons in respect of a submission – whether Commissioner erred by failing to take into account provisions of a Development Control Plan – appeal upheld
Legislation Cited:
Government and Related Employees Appeal Tribunal Act 1980 (Cth) s 54Environmental Planning and Assessment Act 1979 (NSW) s 4.16Interpretation Act 1987 (NSW) s 68Land and Environment Court Act 1979 (NSW) ss 39, 56AOran Park Precinct Development Control Plan 2007 cl 7.7.1State Environmental Planning Policy (Sydney Region Growth Centres) 2006 App 1 cll 2.6, 4.1AStrata Schemes Development Act 2015 (NSW)Strata Schemes (Freehold Development) Act 1973 (NSW)Strata Schemes (Leasehold Development) Act 1986 (NSW)Strata Schemes Management Act 2015 (NSW)Uniform Civil Procedure Rules 2005 (NSW) r 42
Cases Cited:
4nature Inc v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191Beale v Government Insurance Office of (NSW) (1997) 48 NSWLR 430Bellenger v Randwick City Council [2017] NSWLEC 1Butler Street Community Network Inc v Northern Region Joint Regional Planning Panel [2017] NSWLEC 51; (2017) 226 LGERA 213Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379;
[2006] NSWCA 155; (2006)Cranney v The Council of Camden [2018] NSWLEC 1036Currey v Sutherland Shire Council and Russell [2003] NSWCA 300; (2003) 129 LGERA 223Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173; (2017) 228 LGERA 342Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118ISPT Pty Ltd v Valuer General [2009] NSWCA 31; (2009) 165 LGERA 25Metropolitan Water Sewerage & Drainage Board v Histon (1982) 2 NSWLR 720Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310Seltsam Pty Limited v Ghaleb [2005] NSWCA 208Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379Wingecarribee Shire Council v De Angelis [2016] NSWCA 189
Texts Cited: Macquarie Dictionary (6th ed, 2013)
Category: Principal judgment
Parties:Camden Council (Appellant)Robert Cranney (Respondent)
Representation:
Counsel:S Nash (Appellant)C Ireland (Respondent) Solicitors:Swaab Attorneys (Appellant)McKees Legal Solutions (Respondent)
File Number(s): 2018/00075605
Decision under appeal:
Court or Tribunal: Land and Environment Court of New South Wales
Jurisdiction: Civil
Citation: [2018] NSWLEC 1036
Date of Decision: 02 February 2018
Before: Brown C
File Number(s): 2017/00287689
JUDGMENTThe development application
1 On 1 September 2016, Robert Cranney (‘respondent’) lodged Development
Application 2016/1034/1 (‘DA’) for strata subdivision, the change of use of an
existing dwelling and secondary dwelling to semi-detached dwellings, and
minor amendments (‘proposed development’) of the land known as 14
Davidson Street, Oran Park (‘site’). The DA was refused by Camden Council
(‘Council’).
2 The respondent’s appeal to the Land and Environment Court was heard on 24
January 2018. On 2 February 2018, Commissioner Brown delivered his
findings upholding the appeal in Cranney v The Council of Camden [2018]
NSWLEC 1036 (‘primary judgment’). Council appeals from the Commissioner’s
decision.
3 For the reasons that follow, I find that the appeal should be upheld and the
matter remitted to a Commissioner of the Court for determination according to
law.
Appeal on a question of law
4 On 8 March 2018, Council commenced this appeal by way of summons
pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (‘LEC
Act’). That section provides:
56A Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners
(1) A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.
(2) On the hearing of an appeal under subsection (1), the Court shall:
(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or
(b) make such other order in relation to the appeal as seems fit.
(3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.
5 In ISPT Pty Ltd v Valuer General [2009] NSWCA 31; (2009) 165 LGERA 25
(‘ISPT’), Allsop P (as his Honour then was) explained the concept of an “appeal
on a question of law” at [3]:
The nature of this process was discussed at length in Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78; 51 NSWLR 673 and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [57]-[79]. It is the “decision” not the “appeal” which must be on a question of law: B & L Linings at [70], citing Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [139]. Such an appeal is “on” a question of law, not limited, however, “to an error of law”: Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314 at [27]; and see Peak at [139].
6 In Metropolitan Water Sewerage & Drainage Board v Histon (1982) 2 NSWLR
720 (‘Histon’), Samuels JA considered the words “on a question of law” as
found in s 54 of the Government and Related Employees Appeal Tribunal Act
1980 (Cth) and stated, at 725:
…As a matter of grammar the words on a question of law qualify “any decision of the Tribunal”, and not the words “appeal to the Supreme Court”. It follows that the ordinary meaning of this language is that an appeal lies against any decision of the tribunal which is a decision on a question of law…
7 Each of these passages from ISPT and Histon was recently cited with approval
by Beazley P in Dial A Dump Industries Pty Ltd v Roads and Maritime Services
(2017) 94 NSWLR 554; [2017] NSWCA 73 at [6]-[7].
8 The summons identifies eight grounds of review, although the fifth ground is no
longer relied upon:
1. The Commissioner erred in law in finding at Judgment [19 and 22] that clause 2.6(3) of Appendix 1 of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) permitted strata subdivision of the proposed development without consent.
2. In the alternative, if the Commissioner did not err in law in finding that clause 2.6(3) of Appendix 1 of the Growth Centres SEPP permitted strata subdivision of the development without consent, then he erred in law in that there was no power to grant consent to strata subdivision in circumstances where no consent was required.
3. In granting development consent to strata subdivision, the Commissioner erred in law in approving the development in circumstances where Lot 1 had an area of 191m² which therefore breached the development standard at clause 4.1A(1)(e) of Appendix 1 of the Growth Centres SEPP in the absence of a clause 4.6 objection request.
4. The Commissioner erred in law in granting consent to an application for development, being the subdivision of land, that would, if carried out, result in a contravention of an environmental planning instrument in relation to that development (s 4.16(2) of the Environmental Planning and Assessment Act 1979). The contravention is with respect to the minimum lot size development standard of 200m² per semi-detached dwelling at clause 4.1A(1)(e) of Appendix 1 of the Growth Centres SEPP and in the absence of a clause 4.6 objection request.
5. The Commissioner erred in law in granting consent to an application for development, being the subdivision of land, that would, if carried out, result in a contravention of an environmental planning instrument in relation to other development (s 4.16(2) of the Environmental Planning and Assessment Act 1979). The contravention is permitting subdivision of a principal and secondary dwelling which by definition of the Growth Centres SEPP must be located on the same allotment.
6. The Commissioner erred in law by failing to make any findings, or to give any reasons, in relation to contention 10 of the Statement of Facts and Contentions filed on 30 October 2017.
7. The Commissioner erred in law at Judgment [34] by failing to take into consideration controls for abutting dwellings under s 7.7.1 of the Oran Park Precinct Development Control Plan 2007.
8. The Commissioner erred in law by failing to make any findings, or to give any reasons, in relation to contention 12 of the Statement of Facts and Contentions filed on 30 October 2017.
9 Council submits that the appeal should be upheld and the appeal against the
DA’s refusal disposed of in one of the following ways:
(1) Development consent should be refused and the DA dismissed if Grounds 3 or 4 are upheld, irrespective of the result on the other grounds of appeal because there is no cross-appeal in respect of the Commissioner’s decision to refuse the tender of a cl 4.6 request on the basis that it was filed out of time; or
(2) If Grounds 1, 3 and 4 are not upheld, but Ground 2 is upheld, the Court should make an order excising the strata subdivision component from the development consent and remitting the matter including to the extent any of Grounds 6, 7 or 8 may also be upheld; or
(3) If Ground 1 is upheld but Grounds 2, 3 and 4 are not upheld, the matter should be remitted to the extent any of Grounds 6, 7 or 8 are upheld.
The Commissioner’s decision
10 The Commissioner heard the appeal against the DA’s refusal on 24 January
2018. The DA sought the strata subdivision of an existing lot containing an
attached primary and secondary dwelling. The Commissioner observed that
the site was generally rectangular in shape and located in an exclusively
residential area comprising single and two storey residential dwellings,
including a strata-titled dual occupancy development on Davidson Street.
11 In addition to the strata subdivision, the DA sought a “change of use” from
“dwelling house and secondary dwelling to a semi-detached dwelling” and
minor amendments. The Commissioner described the proposed minor
amendments at [2] of the primary judgment:
The minor amendments proposed involve:
• change of one garage to an open carport with a pergola structure at the entrance,
• redefined entry through the carport, and
• minor internal changes to accommodate the new entry.
12 Both “secondary dwelling” and “semi-detached dwelling” are defined in the
Dictionary to the State Environmental Planning Policy (Sydney Region Growth
Centres) 2006 (‘Growth Centres SEPP’), which provides:
…
secondary dwelling means a self-contained dwelling that:
(a) is established in conjunction with another dwelling (the principal dwelling), and
(b) is on the same lot of land as the principal dwelling, and
(c) is located within, or is attached to, or is separate from, the principal dwelling.
…
semi-detached dwelling means a dwelling that is on its own lot of land and is attached to only one other dwelling, but does not include a studio dwelling.
…
13 The Commissioner summarised what he considered to be the major issues in
the case at [3] of the primary judgment:
The dispute centres largely on whether the proposed development is appropriate as “semi-detached dwellings” and also whether the strata subdivision is permissible, without consent.
14 The Commissioner first considered whether the strata subdivision required
development consent. This involved the question of the correct construction of
cl 2.6 of Appendix 1 of the Growth Centres SEPP, which provides:
2.6 Subdivision—consent requirements
(1) Land to which this Precinct Plan applies may be subdivided, but only with consent.
Note. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 specifies certain subdivision development as exempt development.
(2) (Repealed)
(3) Despite subclause (1), consent is not required for subdivision under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, except:
(a) in the case of a building to which Part 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 applies, or
(b) where the building has been designed or approved for occupation as a single unit.
15 The Commissioner summarised the submissions of the parties on the question
of the construction of cl 2.6(3)(b) at [14]-[15] as follows:
[14] Mr McKee, for the applicant, submits that in statutory construction, the words must be given their plain meaning and in this case, it is clear that the consent is not required by s 2.6(3) for the proposed development as it does not fall within either of the two exemptions in s 2.6(3)(a) and (b).
[15] Mr McFadzean, for the council, submits that It would be a strange town planning outcome if a land use could be changed from one use to another without obtaining development consent and in the absence of the change being exempt development. It would be stranger still if the resultant land use happened to be prohibited in the relevant zone. For example, Mr McFadzean states that If principal and secondary dwellings could be strata subdivided without consent, the resultant subdivision would have the effect of changing the use of the dwellings to "semi-detached dwellings" if they are attached or two "dwelling houses", if they are detached. Similarly, it would not be appropriate to strata subdivide “studio dwellings”.
16 The Commissioner’s finding in respect of the statutory construction question is
recorded at [17]-[19] of the primary judgment:
[17] It was agreed that consent is not required for strata subdivision except for those matters in s 2.6(3)(a)and (b). The point of conflict lies with the wording in s 2.6(3)(b) and not s 2.6(3)(a). Section 2.6(3)(b) states:
(b) where the building has been designed or approved for occupation as a single unit
[18] Put simply, consent is required for strata subdivision “where the building has been designed or approved for occupation as a single unit”. Conversely, consent is not required for strata subdivision “where the building has (not) been designed or approved for occupation as a single unit”.
[19] I am satisfied that proposed development has not been “designed or approved for occupation as a single unit ” as the application seeks two separate tenancies (or two units in the words of s 2.6(3)(b) the Growth Centres
SEPP) and as such, consent is not required for strata subdivision. While the words “single unit” are not defined in the Growth Centres SEPP, it is likely in my view that was a deliberate attempt to a provide a generic term that fitted a range of different circumstances but within the overall intent of the clause to provide flexibility in instances where strata subdivision may be carried out, without the need for consent.
17 At [20] of the primary judgment, the Commissioner rejected the submission of
Mr McFadzean, who appeared for Council, that this construction should be
rejected because it might create problems with respect to permissibility:
Even though Mr McFadzean pointed out examples where the strata subdivision of some permissible uses may potentially create problems with permissibility, I am not satisfied that this sufficient to adopt his approach. If this was the intention of the draftsperson then these uses could have easily been included with the other exceptions in the clause. While Mr McFadzean may well be correct for the examples he highlighted; this does not affect the interpretation required for this particular matter. The Court is required to determine whether the application falls within the exemptions from allowing strata subdivision without consent rather than the applicability of cl 2.6(3) in all applicable situations.
18 At [21], the Commissioner found that the decision of Preston CJ of LEC in DM
& Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173; (2017) 228
LGERA 342 (‘DM & Longbow’), which was relied upon by Council, was of little
assistance because of the different statutory context considered in that case.
19 Therefore, at [22] of the primary judgment, the Commissioner found that, in the
circumstances, development consent was not required for the strata
subdivision component of the DA.
20 The Commissioner then proceeded to consider whether the proposal was
“acceptable as ‘semi-detached dwellings’”. The Commissioner identified three
outstanding merit issues which related to lot width, orientation, and
streetscape/character.
21 At [27], the Commissioner reached the following finding with respect to lot
width:
In consideration of the different evidence of Mr Apps and Ms Sedgmen, I am satisfied that the proposed frontage to Lot 1 is acceptable for a number of reasons. First, the matter of the lot width is a moot point given that I have found that consent is not required for the proposed strata subdivision. Second, and while I accept that DCP 2007 provides a link between density, (expressed as dw/Ha) and lot frontage, I can only say that this link is tenuous, at best. In my view, the matters of density and lot frontage relate to different aspects of the development process and may need to be considered independently of
each other. For example, the proposed development does not provide an increase in density; the approval of the dwelling and secondary dwelling achieved this with the approval by the council on 22 October 2015. The current development does not seek to alter this but only to subdivide the general form of that approved by the council. Practically, it is largely irrelevant which density band the site falls into given that two dwellings already exist on the site. Third, and as agreed by Mr Apps and Ms Sedgmen, the subdivision will have no discernible change in appearance when viewed from the street. In relation to the comparison with the pictorial streetscapes in Figure 31 and the respective densities; there is little, if any change to that approved by the council in 2015.
22 With respect to orientation, the Commissioner found at [29]:
On this question, there was unfortunately little, if any evidence, oral or written, to confirm or reject this concern. While the orientation of the two courtyards will likely allow sunlight after midday and into the afternoon, the fencing of the courtyards will restrict this solar access. Presumably, the council considered this question with the approval of the dwelling and secondary dwelling. Given that there is no change proposed to this part of the building with the current application I accept that solar access to the rear courtyards is acceptable.
23 The Commissioner reached his findings on streetscape and character at [33]-
[35] of the primary judgment:
[33] I am satisfied that the proposed development is acceptable in its context and how it appears in the streetscape for a number of reasons. First, and importantly, it is an existing building that sits comfortably in its setting amongst other similar dwellings. The question of whether the building looks like the popularly conceived view of semi- detached housing is largely irrelevant; the relevant matter is whether the building satisfies the definition of “semi-detached dwelling” in the Growth Centres SEPP.
[34] Second, any reliance on controls for “attached or abutting dwellings” is inappropriate given the lack of a definition in DCP 2007 and the lack of any reference to this form of development in the Growth Centres SEPP. The importation of a definition for ‘abutting dwellings” from another planning document from another area is also inappropriate. Clearly, people would have a greater understanding of what is required for lodging and assessing a development application if there was greater consistency in land uses between the Growth Centres SEPP and DCP 2007.
[35] Third, I have little trouble in concluding that the proposed development “creates an architecturally consistent street character”. It could not be said that the approved development creates any inconsistency in the streetscape and the minor changes proposed do not change this acceptable association with other dwellings in the area. Given that the application seeks to change the use of an existing building, the control requiring garages to be located at the rear of the site cannot be reasonably enforced.
24 Accordingly, at [36], the Commissioner indicated that he would uphold the
appeal subject to an alteration of the plans to remove the words “Torrens title
subdivision”. The approval was subject to conditions annexed to the judgment
(‘Court Consent’).
The conduct of the appeal
25 The hearing of the s 56A appeal proceeded before the Court on 3 and 6 July
2018. On the second day of hearing, I advised the parties of two matters in
respect of which the Court would be assisted by further submissions. Those
matters were:
(1) Whether cl 2.6 in Appendix 1 of the Growth Centres SEPP applies to the new strata legislation; and
(2) If the Commissioner was correct that development consent was not required for strata subdivision and consequently did not grant it, what was the effect of his decision? (This question related in part to my concern as to whether the descriptor “change of use” was apposite to what was actually sought in the DA.)
26 The parties each provided further written submissions on 31 July 2018. Council
provided written submissions in reply on 3 August 2018, and the respondent
provided written submissions in reply on 7 August 2018. It is appropriate to
deal briefly with the first question before turning to the discrete grounds raised
in the appeal by the appellant. In light of my findings, it is unnecessary to
consider the purported effect of the Court Consent.
The application of cl 2.6
27 Clause 2.6(3) of Appendix 1 of the Growth Centres SEPP provides:
…
(3) Despite subclause (1), consent is not required for subdivision under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, except…
…
28 Each of the Strata Schemes (Freehold Development) Act 1973 (NSW) and the
Strata Schemes (Leasehold Development) Act 1986 (NSW) has been
repealed. In their place, Parliament has enacted the Strata Schemes
Development Act 2015 (NSW) (‘Strata Development Act’) and the Strata
Schemes Management Act 2015 (NSW). The Strata Development Act applies
to both freehold and leasehold strata schemes, so the question in effect is
whether cl 2.6 should be read as applying to the Strata Development Act,
which contains the power to strata subdivide previously contained in the two
repealed Acts referred to by the clause.
29 The parties submit, and I find, that cl 2.6 should be read as applying to the
Strata Development Act. Section 68 of the Interpretation Act 1987 (NSW)
(‘Interpretation Act’) provides as follows:
68 References to amended or repealed Acts and instruments
(1) In any Act or instrument, a reference to some other Act or instrument extends to the other Act or instrument, as in force for the time being.
(2) Subsection (1) applies to a reference to an Act or instrument:
(a) whether or not the reference includes a reference to subsequent amendments of the Act or instrument, and
(b) whether or not the reference is to a mode of citation that includes 2 calendar years.
(3) Notwithstanding subsection (1), in any Act or instrument:
(a) a reference to an Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act, as in force for the time being, and
(b) a reference to an instrument that has been repealed and re-made, with or without modification, extends to the re-made instrument, as in force for the time being,
and a reference to a provision of the repealed Act or instrument extends to the corresponding provision of the re-enacted Act or the re-made instrument, as the case may be.
….
30 Section 68(3) of the Interpretation Act in particular relates to the present
position. Although it might be thought that the changes to the legislative
scheme relating to strata developments are not as simple as an Act being
repealed and remade, I note that there is no great difference between the
scheme provided by the Strata Development Act and the repealed Acts, and
that in any case s 68(3) applies irrespective of whether there has been any
modification.
31 Moreover, I accept that it would be an unusual and unsatisfactory outcome for
cl 2.6 to be rendered inutile by such a legislative change and find that cl 2.6
applies to the Strata Development Act in the same way that it applied to the
repealed Acts to which it refers. Accordingly, I now go on to consider each
ground of appeal raised by Council.
Ground 1
32 Ground 1 relates to the Commissioner’s alleged error of construction in respect
of cl 2.6 of Appendix 1 of the Growth Centres SEPP. Council submits that the
Commissioner erred in this respect because:
(1) The Commissioner asked himself the wrong question. The question was not whether “the proposed development has been designed or approved for occupation as a single unit”, as the Commissioner recorded at [19] of the primary judgment, but rather whether “the building has been designed or approved for occupation as a single unit”;
(2) This error of construction was material to the Commissioner’s ultimate findings. Having substituted a different test and having asked himself the wrong question, the Commissioner was distracted by an enquiry into the subject matter of the DA before him, which involved the creation of two dwellings in semi-detached form;
(3) The language of cl 2.6 should be read in context and having regard to the objective which it was designed to promote. The objective of cl 2.6 was not to permit the subdivision of a proposed new building without development consent, but rather to require development consent where a potential subdivision may affect the provision of affordable housing and the building was originally contemplated as comprising a single unit;
(4) The language “the building” in the Growth Centres SEPP refers to a building which is existing as opposed to a proposed building. Where the Growth Centres SEPP intends to refer to a “proposed development”, it uses that nomenclature; and
(5) Through the above analysis, the Commissioner reached an erroneous conclusion and consequently constructively failed to determine the DA according to law.
33 Council submits that if the Commissioner had asked himself the right question,
the only conclusion available to him was that the building (being the existing
building) had been designed or approved for occupation as a single unit.
Council submits that this is clear from the fact that as originally designed and
approved, the second dwelling was a “secondary dwelling” and therefore must,
according to the definition of that term in the Dictionary to the Growth Centres
SEPP, be established “in conjunction with” another dwelling and must be on
the same lot of land as the “principal dwelling”.
34 The respondent submits that, contrary to Council’s submissions, the
Commissioner was clearly correct on this point. The respondent submits that
on any fair reading of [19] in the primary judgment, the Commissioner found
that the building had not been designed or approved for occupation as a single
unit as the application relates to two separate tenancies and the building as it
currently stands is also designed for occupation as two units because of the
secondary dwelling.
35 The respondent submits that the use of the term “proposed development” in
[19] does not mean that the Commissioner failed to ask himself whether the
building was so designed or constructed. The respondent says the submission
of Council to this effect is a pernickety and unfair approach to the
Commissioner’s reasoning. Alternatively, the respondent submits that the
alleged error in expression does not give rise to a material error of law because
if the word “building” were substituted for “proposed development” in [19], the
paragraph would be correct. This is because before the proposed development
there is a primary and secondary dwelling, and afterwards, two semi-detached
dwellings.
36 The respondent further submits that the only evidence before the
Commissioner and before the Court on appeal is that the existing building was
designed and approved as other than a single unit because it contained a
secondary dwelling. The respondent submits that just because the secondary
dwelling is in conjunction with, and on the same lot as, the primary dwelling
does not mean that the two dwellings are a “single unit” or occupied as a
“single unit” for the purposes of the Growths Centre SEPP.
37 In reply, Council submits that its approach cannot be called “pernickety” if the
approach taken by the Commissioner gave rise to an erroneous answer. It
submits that substituting the word “building” for “proposed development” does
not cure the Commissioner’s error because the existing secondary dwelling on
the site cannot be lawfully used or occupied otherwise than in conjunction with
and on the same lot as the primary dwelling, and the two dwellings taken
together therefore constitute a single unit.
38 Council submits that this interpretation accords not only with the natural
meaning of the text, but also the town planning purpose of cl 2.6, which it says
recognises that in some cases development consent for strata subdivision
should not be required because the merit assessment which would otherwise
be required has already been undertaken as part of the approval process of the
existing building or design. Council submits that in the context of the present
DA that town planning purpose is not applicable because the existing building
was designed as a single unit.
Consideration
39 In my view, cl 2.6 directs attention towards the existing building as opposed to
the proposed development. This is made abundantly clear by the fact that cl
2.6 places emphasis on the “building” as opposed to the “development”.
40 Consideration of Ground 1 therefore first requires analysis of Council’s
submission that the Commissioner asked himself the wrong question. It is clear
that at [19] of the primary judgment the Commissioner used the words
“proposed development” and “application” instead of the correct formulation
“building”. I consider this indicative of the Commissioner having misdirected
himself as to the correct test to apply.
41 I find this in spite of the fact that [19] follows on directly from [18], where the
Commissioner correctly stated the test. In those circumstances, had the words
“proposed development” been the only indication that the Commissioner
applied the wrong test, the respondent’s argument that it was a mere slip may
have been compelling. However, I consider that the reference to “the
application”, which the Commissioner noted “seeks two separate tenancies”,
meant the DA presently before him and is further indication that he asked
himself the wrong question.
42 I have not placed reliance upon the fact that the Commissioner’s reasoning
was expressed in the past tense, which the respondent submitted was
indicative of the fact that he was examining the existing building instead of the
proposed development, because the past tense could be equally apposite to a
building which has been constructed or something which has merely been
proposed.
43 It appears that the Commissioner placed reliance on the word “designed” in cl
2.6. Indeed, the correct construction of the clause, giving the word “designed”
appropriate work to do, is not without difficulty. However I am comfortably
satisfied that where strata subdivision is sought for an existing building, the
relevant inquiry (which determines whether development consent is required
for strata subdivision) is directed at the existing building as it was previously
designed or approved, as opposed to the design prepared for the proposed
strata subdivision. If it were otherwise, cl 2.6 would have a circular operation
such that, in seeking strata subdivision, the building would necessarily be
(re)designed as other than a single unit.
44 Even if my conclusion that the Commissioner misdirected himself is incorrect,
and he appropriately considered the existing building to determine whether
development consent was required to effect strata subdivision, I find that he
nevertheless fell into legal error because I find that, on a correct reading and
application of cl 2.6, adopting the principles below, the existing building was
“designed or approved as a single unit”.
45 The correct approach to the interpretation of delegated legislation is now
generally considered to be that general principles relating to the interpretation
of primary legislation are equally applicable to interpretation of environmental
planning instruments: Cranbrook School v Woollahra Municipal Council (2006)
66 NSWLR 379; [2006] NSWCA 155 at [36].
46 I also note that whilst environmental planning instruments should be construed
in a practical manner, rather than undertaking a meticulous examination of their
terms, this does not override the basic principles of statutory construction
which require that the Court pay attention to the language of the instrument
and its apparent purpose: Wingecarribee Shire Council v De Angelis [2016]
NSWCA 189 at [20]; Tovir Investments Pty Ltd v Waverley Council [2014]
NSWCA 379 at [54].
47 Whilst a different approach to the interpretation of delegated legislation may be
appropriate where it appears that the draftsperson has been less than
fastidious in his or her choice of language (4nature Inc v Centennial Springvale
Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [106]), I consider that
this is a case where the draftsperson’s language is precise such that the
ordinary principles of statutory construction should apply: DM & Longbow at
[23].
48 Accordingly, the focus must be on the terms of cl 2.6, and in particular what is
meant by the word “unit”. I accept Council’s submission that the word unit is
used in contradistinction to the word dwelling, which is used in numerous
places elsewhere in the Growth Centres SEPP. Therefore the fact that the
existing building comprises two dwellings is not determinative. However, in
many cases a separate dwelling will comprise a separate unit. Whether it so
qualifies will be a matter of fact and degree in each case.
49 The Macquarie Dictionary (6th ed, 2013) relevantly defines “unit” as follows:
unit n. 1. a single thing or person; any group of things or persons regarded as an individual. 2. one of the individuals or groups making up a whole, or into which a whole may be analysed. 3. any magnitude regarded as an independent whole; a single, undivided entity… 6. Also, home unit. a. one of a number of dwelling apartments in the same building, each owned under separate title, frequently by the occupier. Compare flat² (def 1). b. (pl.) a block of such units… 12. a self-contained suite of rooms, as in a motel…
50 In common parlance the word unit expresses something considered as an
individual thing. Given that unit is used in cl 2.6 in contradistinction to the term
dwelling, I do not consider that much assistance is gained from the meaning
the word unit has in a technical town planning sense, though it is interesting to
note that, at least in the Macquarie Dictionary definition, a separate title is
required for a dwelling to be considered a unit in its own right.
51 Carefully reading the language employed in cl 2.6(3)(b), the words “designed
or approved” and “for occupation” indicate that the design, consent, and use of
the building are the key considerations in determining whether something is a
“unit” for the purposes of the clause.
52 Development consent for the existing building was issued on 22 October 2015
for “Construction of Proposed Dwelling, Attached Secondary Dwelling and
Associated Works”. The Dictionary in Appendix 1 of the Growth Centres SEPP
relevantly defines a secondary dwelling as “a self-contained dwelling that: (a) is
established in conjunction with another dwelling (the principal dwelling), and (b)
is on the same lot of land as the principal dwelling, and (c) is located within, or
is attached to, or is separate from, the principal dwelling” (emphasis added).
53 The two italicised portions in the definition of secondary dwelling provide a
strong textual basis for the view that a primary and a secondary dwelling
should be considered a “unit” for the purposes of cl 2.6, especially given the
emphasis placed upon design and approval in the clause. It is clear that in
approving a “Proposed Dwelling, Attached Secondary Dwelling and Associated
Works” the consent authority was granting consent to two dwellings which
could only be used in conjunction with each other. I find that, despite the fact it
contains two dwellings, the building therefore meets the description of a unit in
the terms of cl 2.6(3)(b).
54 I consider that this conclusion accords with the ordinary meaning of the word
unit, once it is appreciated that a secondary dwelling cannot be used
independently from its principal dwelling. This is not a merely technical
distinction but one of crucial importance to the design, approval and occupation
of the building, matters to which cl 2.6 requires the Court to have regard.
55 Although it is not determinative, I am comforted in this view by the fact that the
construction I have reached gives effect to the town planning purpose of cl 2.6,
as Council submitted. It is plainly envisaged by cl 2.6 that consent for strata
subdivision is not required where consent has already been granted for a
building which contains separate units. However, where the consent was
predicated upon a primary dwelling and a secondary dwelling being used in
conjunction with each other and on the same lot, merit considerations arise in
the subdivision of the dwellings such that it makes sense that consent would be
required.
56 Accordingly, I have determined that Ground 1 ought to be upheld. Although this
finding is dispositive of the appeal, I deal with the other grounds because they
have been the subject of full and proper argument before the Court and
because Council submits that the proper disposition of the appeal depends
upon my findings in relation to the other grounds of appeal.
Ground 2
57 Ground 2 is pleaded in the alternative to Ground 1, and is advanced on the
basis that Council submits that notwithstanding the Commissioner’s finding that
the strata division component of the DA did not require consent, he
nevertheless proceeded to grant consent at [37] in the primary judgment.
58 Council submits that, even if the Commissioner’s construction of cl 2.6 of
Appendix 1 of the Growth Centres SEPP is correct, such that development
consent was not required for the strata subdivision component of the DA, he
fell into error by granting development consent for development, being the
strata subdivision, which did not need consent. Council submits that the strata
subdivision component was a separate, independent and significant
component of the DA, and that a “subdivision” is a discrete form of
development.
59 The respondent submits that Ground 2 takes an unacceptably pernickety and
fine tooth-comb approach to the primary judgment. The respondent says that it
is clear from the orders at [37] that what is approved is a change of use from
the existing approved dwelling and secondary dwelling to semi-detached
dwellings.
60 The respondent submits that, although the orders at [37] in the primary
judgment include the words “strata subdivision”, on a fair reading of the primary
judgment as a whole it is clear that the Commissioner concluded that no
development consent was required or granted for the subdivision. The
respondent says that this is made abundantly clear by [36] of the primary
judgment, in that the Commissioner said the words “Torrens title subdivision”
should be removed from the plans, which the respondent submits only has
meaning if the Commissioner was not granting consent to the subdivision.
61 The respondent submits that the Commissioner has approved only the part of
the DA dealing with a change of use and that this is a power exercisable by
him pursuant to s 4.16 of the Environmental Planning and Assessment Act
1979 (NSW) (‘EPA Act’). The respondent further submits that the fact the
Commissioner did not refer to s 4.16 of the EPA Act does not affect the fact
that the power was available to him and that he was not required to refer to it in
reaching his decision.
62 The respondent submits that the Commissioner’s reference to the strata
subdivision element of the DA in Order 2 of [37] merely represents the
Commissioner’s description of the application to which he is granting approval.
In other words, the respondent says Order 2, in effect, should be read:
“Development Application 10.2016.1034.1… is approved subject the conditions
in Annexure A.”
63 The respondent acknowledges that the conditions of consent include steps to
be taken before the issue of a strata plan of subdivision, but says these are
similar to the steps required to be taken before the issuing of an occupation
certificate. The respondent submits that just as the Court Consent does not
grant an occupation certificate, neither does it grant consent for strata
subdivision. The respondent submits that the conditions of consent are
consistent with there being no grant of consent for strata subdivision because
none is required.
Consideration
64 Although it is not strictly necessary to consider Ground 2 given my finding in
relation to Ground 1, had I been of the view that strata subdivision was not
required for the strata subdivision component of the DA, for the reasons that
follow I would not have found the legal error alleged in Ground 2 dispositive of
the appeal.
65 The Commissioner’s orders are at [37] of the primary judgment:
The Courts final orders are:
(1) The appeal is upheld
(2) Development Application 10.2016.1034.1 for the change of use of an existing approved dwelling and secondary dwelling to semi-detached dwellings, minor amendments and the strata subdivision of the two dwellings at 14 Davidson Street Oran Park is approved subject the conditions in Annexure A.
(3) The exhibits are returned with the exception of exhibits 1, A and B.
(4) The applicant is to pay costs pursuant to s97B of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
66 Council referred the Court to Conservation of North Ocean Shores Inc v Byron
Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52 (‘Conservation of
North Ocean Shores Inc’), in which Preston J said at [14]:
Environmental planning instruments made under the Environmental Planning and Assessment Act 1979 (NSW) classify development into three broad categories: development that does not need development consent, development that needs development consent, and development that is prohibited. A development application may be made seeking development consent only for development that is classified as needing consent (see ss 77(a), 76A(1) and 78A(1)). A consent authority has no power to grant development consent to development that does not need consent (see ss 76(1) and 77(a) and Parramatta City Council v Precision Rubber Service Pty
Ltd [1995] NSWLEC 34 (10 March 1995)) or development that is prohibited (see ss 76B and 77(a) and Chambers v Maclean Shire Council (2003) 57 NSWLR 152 at 169 [117]; 126 LGERA 7 at 25 [117] and Currey v Sutherland Shire Council (2003) 129 LGERA 223 at 231 [34]).
67 In Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC
34 (‘Precision Rubber’), the case which Preston J cited for the proposition that
a consent authority has no power to grant consent when it is not required,
Pearlman J said:
If no consent is required to a development pursuant to the provisions of the relevant environmental planning instrument, then a person will not be in breach of the Act if that person carries out that development. If no consent is required, then the council has no function in relation to that development. It is not empowered to grant development consent where no development consent is required. If it purports to do so, as happened in the circumstances of this case, its grant of consent is superfluous and has no legal effect. It is not a development consent under div 1 of pt IV to carry out development.
68 A consent authority’s lack of power to grant development consent where it is
not required does not mean that a development application for development
which does not require consent is “invalid”. As Spigelman CJ said in Currey v
Sutherland Shire Council and Russell [2003] NSWCA 300; (2003) 129 LGERA
223 (‘Currey’) at [35]:
I see very little, if any, scope in this legislative scheme for the concept of a “valid” application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process.
69 In Butler Street Community Network Inc v Northern Region Joint Regional
Planning Panel [2017] NSWLEC 51; (2017) 226 LGERA 213, I found, based on
the principles in Currey and Precision Rubber, that a development application
which includes elements for which development consent is required as well as
elements for which development consent is not required is a valid application
(in relation to those elements which require consent) which gives rise to the
jurisdiction of the Court to hear an appeal based on its refusal and further that
a development consent given to such an application will be valid to the extent it
relates to the elements which require consent.
70 Accordingly, I find that, to the extent the Commissioner fell into legal error of
the kind alleged in Ground 2, as opposed to simply making a fulsome reference
to the nature of the DA to which he was granting consent, the elements of the
orders so affected were merely superfluous, and do not meet the description of
a vitiating error.
71 Accordingly, and again, although not determinative given my finding in relation
to Ground 1, I find that Ground 2 has not been made out.
Ground 3
72 Clause 4.1A(1)(e) of Appendix 1 of the Growth Centres SEPP relevantly
provides:
4.1A Minimum lot sizes for other development
(1) Development must not be carried out on a lot in Zone R1 General Residential or Zone R3 Medium Density Residential for any of the following purposes if the area of the lot is less than the area specified below in relation to those purposes:
…
(e) semi-detached dwelling—200m²,
...
73 Council submits that there is no doubt that this constitutes a “development
standard” within the meaning of that term in s 1.4 of the EPA Act and that
proposed Lot 1 in the DA has an area of 191m².
74 Council submits that, as such, cl 4.6 of Appendix 1 of the Growth Centres
SEPP operates to require a written request in order to vary the 200m²
development standard. Council submits that the application of cl 4.6 was a
principal contested issue in the appeal and that, as there was no cl 4.6 request,
the Commissioner was without power to grant the development consent.
75 The respondent submits that the only lot to which cl 4.1A could apply is the
existing lot of 451m², as the proposed future strata lots are not created by the
Court Consent (this submission being predicated upon the assumption that no
consent is required for the strata subdivision and that the Commissioner did not
grant such consent).
76 Further, the respondent submits that on a proper construction of cl 4.1A, the
clause is not referring to lots that may arise from a subdivision, as many
development applications to which cl 4.1A applies may have no subdivision
component at all but the reference to lot size must be given work to do. The
respondent says that the context in which cl 4.1A arises, appearing after two
clauses specifically dealing with subdivision and expressly stated to be a
clause dealing with “other development”, reinforces what the respondent says
is the correct construction of the reference to “lot” in cl 4.1A, being a reference
to the existing lot rather than a lot arising from subdivision.
77 Accordingly, the respondent submits that it is irrelevant that the Commissioner
noted at [1] in the primary judgment that the proposed Lot 1 had an area of
191m². The respondent submits that the area of lot where the subdivision is
sought to be carried out is the existing lot of 451m², and that as this lot had not
been subdivided at the date of the primary judgment, it is impossible that the
development standard in cl 4.1A was breached.
78 Moreover, the respondent submits that even if the area of Lot 1 is relevant,
there was no error of law made by the Commissioner as the evidence
supported a finding that the lot had an area of greater than 200m². It says that
the plans suggest the area of “Lot A” (also referred to as “Lot 1”) is over 200m²
as there is an “exclusive use” area of 3m² in addition to the 198m² shown on
“revision plan G”. The respondent notes that the town planning experts at
paragraphs 48 and 49 of their joint report agree that the area of “Lot A” is over
200m² and therefore compliant with cl 4.1A. The respondent submits that in
those circumstances there is no error of law in the primary judgment of the kind
alleged in Ground 3.
79 In reply, Council submits that it is not correct to say that cl 4.1A only refers to
existing lots, because it refers to “attached dwellings” and “semi-detached
dwellings” which by definition cannot be on only one lot of land. Therefore,
Council submits that the phrase “area of the lot” refers to the area of each lot
containing an individual dwelling following the implementation of the proposal,
or else the clause does not work.
Consideration
80 The “development” the subject of the DA is clearly strata subdivision with some
minor consequential amendments. The subdivision (that is, the development)
must be “carried out” on the existing lot. The size of the lots created by the
subdivision cannot be the relevant minimum lot size for the purposes of cl 4.1A
because until the time the subdivision is carried out, the lots do not exist.
81 I am comforted in this view by the fact that cl 4.1 of Appendix 1 of the Growth
Centres SEPP provides a specific development standard in respect of
minimum subdivision lot sizes. Clause 4.1 provides:
4.1 Minimum subdivision lot size
(1) The objectives of this clause are as follows:
(a) to ensure that the minimum size for lots is sufficient for the provision of usable areas for building and open space,
(b) to facilitate and encourage a range of residential lot types, in particular, small lot housing,
(c) to encourage the efficient use of land for residential purposes.
(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Precinct Plan.
(3) The size of any lot resulting from any such subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
(4) This clause does not apply in relation to the subdivision of individual lots in a strata plan.
82 On a clear reading of Appendix 1 of the Growth Centres SEPP, it is the
development standard in cl 4.1 which applies to the situation of subdivision and
not the development standard in cl 4.1A. This is because, although cl 4.6(3)
provides that development consent “must not be granted for development that
contravenes a development standard unless the consent authority has
considered a written request from the applicant that seeks to justify the
contravention of the development standard,” no development is being
undertaken that contravenes the development standard in cl 4.1A which
stipulates that development must not be undertaken on a lot smaller than the
sizes stipulated for each development type.
83 However, as I have explained, where the development is a form of subdivision
the relevant lot size must be size of the lot which is to be subdivided. No
development which would contravene the 200m² lot size for a semi-detached
dwelling was sought in the DA. Therefore I find that no cl 4.6 request was
required in respect of the development standard in cl 4.1A.
84 Accordingly, I find that Ground 3 has not been made out.
Ground 4
85 Council submits that Ground 4 is a separate ground of appeal, but says that it
is “in substance” the same as Ground 3. Ground 4 relies upon s 4.16(2) of the
EPA Act which provides:
4.16 Determination
(cf previous s 80)
…
(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
86 Council submits that by reason of the fact that Lot 1 did not comply with cl 4.1A
(“minimum lot sizes for other development”), there resulted in a contravention
of an ‘environmental planning instrument’ (being the Growth Centres SEPP)
contrary to s 4.16 of the EPA Act. In the absence of a written request under cl
4.6 of Appendix 1 of the Growth Centres SEPP, the Court was, by operation of
s 4.16(2), required to refuse the application. However, the Commissioner
approved the application.
87 Council submits that the application of cl 4.6 was a principal contested issue
between the parties, and that the Commissioner’s determination to grant
consent to the subdivision was therefore beyond power.
88 To the extent that Ground 4 raises the same issues as Ground 3, the
respondent relies upon its submissions made under that ground. However, the
respondent additionally submits that a further reason for rejecting Ground 4 is
that s 4.16 of the EPA Act only applies to development for the subdivision of
land, which the respondent says is not a description of the DA, which is for a
change of use and not for subdivision (this argument is again advanced on the
basis that the strata subdivision component of the DA is permissible without
consent).
Consideration
89 Given my finding in relation to Ground 1 that consent is required for strata
subdivision in the context of the proposed development, I am not persuaded by
the respondent’s submission that the DA, properly understood, does not seek
consent for strata subdivision.
90 However, I do not consider that a cl 4.6 request is required in relation to the
alleged breach of the development standard in cl 4.1A on the basis that, for the
reasons given at [80]-[83], the development is proposed to be carried out on
the existing lot with the consequence that cl 4.1A properly understood is not
applicable to the strata subdivision.
91 Accordingly, I find that Ground 4 has not been made out.
Ground 5
92 Ground 5 is no longer relied upon by Council, and the Court therefore did not
hear submissions in this regard.
Ground 6
93 Council submits that one of the principal contested issues in the appeal was
the failure of the proposed Lot A (that is, the existing secondary dwelling after
its conversion to a proposed semi-detached dwelling) to provide legible and
convenient front door access, and the failure to encourage casual surveillance
of the street. Council says that this was reflected in Contention 10 of Council’s
Statement of Facts and Contentions and was one of 12 separate and
independent contentions which Council argued before the Commissioner
should have led to refusal of the development application.
94 Council further submits that the Commissioner made no findings in relation to
this contention and that the adequacy of reasons involves a question of law for
the purposes of s 56A of the LEC Act. Council submits that the failure to
provide any reasons on a principal contested issue in the proceedings was a
material error of law.
95 The respondent submits that this submission would be rejected on the basis
that the parties and the Commissioner are taken to have understood the issues
between them, including the Statement of Facts and Contentions, and that it is
not necessary in these circumstances for express findings to be made in
relation to each contention.
96 The respondent submits that the Commissioner, at [24] in the primary
judgment, expressly turned his mind to identifying the principal issues which
remained in dispute. The respondent submits that Contention 10 was not a
principal contested issue as it merely occupied a few lines of transcript in
Council’s closing submissions. As such, the respondent submits that the
Commissioner was not required to give express reasons in relation to this
issue, as it could not on any fair view of the case founded a refusal.
97 The respondent further submits that the Commissioner gave adequate reasons
as to why he found the Lot 1 frontage acceptable in any event at [27] of the
primary judgment. The respondent submits that the Commissioner was not
required to give reasons which addressed each aspect of the minutiae raised in
Contention 10, but rather was entitled to address the matter in substance by
finding that the frontage was acceptable for specified reasons.
98 The respondent also submits that the Commissioner was entitled to take an
approach, relying on Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [78]
(‘Seltsam’), of identifying streetscape as the key issue in the proceedings and
deciding the case on that basis provided that he informed the parties that this
was his intention.
Consideration
99 I deal first with the respondent’s submission that the Commissioner was
entitled to decide the case on the basis of streetscape impact alone provided
that he communicated his intention to do so to the parties. In Seltsam, Ipp JA,
with whom Mason P agreed, reviewed the case law relating to procedural
fairness and said at [78]:
These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
100 I do not consider that Seltsam assists the respondent. Seltsam refers to a
situation in which a judge (or other decision-maker) has an alternative basis
upon which to dispose of a case which has not been the subject of
submissions by the parties. In those circumstances, it is open to a judge to
decide the case on that basis, but only after canvassing it with the parties.
101 The requirement to put the alternative basis to the parties is a matter of
procedural fairness. This is made clear by the judgment in Seltsam at [79],
where Ipp JA said:
A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.
102 The importance of according procedural fairness was recently explained by
Preston J in the context of a s 56A appeal in Initial Action Pty Ltd v Woollahra
Municipal Council [2018] NSWLEC 118 at [126]-[133]. Those principles are
only indirectly relevant here.
103 For present purposes, it is sufficient to observe that the principle in Seltsam
does not permit a Commissioner to narrow the issues between the parties by
ignoring certain submissions that were put in favour of what he or she might
perceive the “real issues” to be. If a Commissioner is minded to uphold an
appeal and grant development consent, it is incumbent that he or she reaches
a state of satisfaction in respect of each contention that would independently
warrant the development’s refusal.
104 However, each independent ground warranting refusal will not necessarily be
coterminous with the way in which the grounds are expressed in a council’s
statement of facts and contentions. It is not necessary for a Commissioner to
deal with each contention that is raised, but necessary rather to deal with each
“principal contested issue”.
105 I draw the nomenclature of “principal contested issue” from the Court of
Appeal’s decision in Segal v Waverley Council (2005) 64 NSWLR 177; [2005]
NSWCA 310 (‘Segal’). In that case, Tobias JA, which whom Beazley JA (as her
Honour then was) and Basten JA agreed, said at [99]:
Accordingly, I would summarise my views on this aspect of the matter as follows:
(a) Although a Commissioner of the Land and Environment Court is obliged to consider the principal contested issues before him or her, each of those issues is the genus of which the various arguments in favour or against the resolution of the issue in a particular way are species.
(b) It is unnecessary for a Commissioner or a judge of the Court to consider each of the species provided he or she has considered the genus. It is that which must be addressed in the Commissioner's or judge's reasons. Those reasons must be adequate to explain, by way of findings and reference to the evidence supporting the findings, the reasoning process adopted by the Commissioner or judge and which has led to his or her conclusion.
…
106 Whether an issue constitutes a “genus” or a “species” thereof is a matter of fact
and degree in each case. In the circumstances of Ground 6, the question is
whether Contention 10, or the alleged failure of proposed Lot A to “provide
legible, convenient, front door access” and the alleged failure to “encourage
casual surveillance of the street”, was a principal contested issue, as Council
contends, or whether it was a subset of the acceptability of the frontage, as
contended by the respondent.
107 The respondent notes that Contention 10 only occupied a few lines of the
transcript in Council’s closing submissions before the Commissioner. Council
submits that the amount of time spent on the issue is irrelevant and it was a
central and separate reason why the DA was not approved.
108 From [24] of the primary judgment onwards, the Commissioner turned his mind
to the outstanding merit matters, having concluded that the strata subdivision
component of the DA was permissible without consent. He identified three
outstanding matters: lot width; orientation; and streetscape/character. In
relation to the last of these, the Commissioner gave three reasons for finding
that “the proposed development is acceptable in its context and how it appears
in the streetscape” at [33]-[35].
109 It is true that none of these reasons specifically addresses the issue of front
door legibility or casual surveillance in as many words. However, it is not
necessary for the Commissioner to have given explicit reasons in this regard if
he considered the issue in substance: Bellenger v Randwick City Council
[2017] NSWLEC 1 (‘Bellenger’) at [33].
110 I consider that the issues relating to front door legibility and street surveillance
are properly considered “species” of the genus of the issue relating to
streetscape and frontage and that the Commissioner therefore dealt in
substance with those issues. In particular:
(1) The Commissioner found at [33] that the proposed development did not need to appear in conformity with the “popularly conceived” view of what constitutes a semi-detached dwelling provided that it met the definition of “semi-detached dwelling” in the Growth Centres SEPP; and
(2) The Commissioner found at [35] that “it could not be said that the approved development creates any inconsistency in the streetscape and the minor changes proposed do not change this acceptable association with other dwellings in the area. Given that the application seeks to change the use of an existing building, the control requiring garages to be located at the rear of the site cannot be reasonably enforced”.
111 The second of these findings is the more significant in the context of
Contention 10. The Commissioner approached the DA on the basis that the
existing building was already there and the fact that the garage was at the front
of the premises was in those circumstances unavoidable. The fact of the
garage being at the front clearly has impacts for front door legibility and casual
surveillance, but the Commissioner did not consider that sufficient reason for
the DA to be refused.
112 In this regard I note that the entrance to what was the secondary dwelling was
proposed to be moved from the side of the premises to the front and the
garage was to be converted into a carport. I consider that in those
circumstances, there was sufficient evidence before the Commissioner to
conclude that the matters relating to front door legibility and casual surveillance
were part of and included in his finding that the streetscape impacts of the
proposed development were acceptable.
113 Accordingly, I find that Ground 6 has not been made out.
Ground 7
114 Council submits that a development control plan should be a “fundamental
element” in or a “focal point” of the decision-making process and that, in the
hearing before the Commissioner, the application of cl 7.7.1 of the Oran Park
Precinct Development Control Plan 2007 (‘OPPDCP’) was a principal
contested issue.
115 Clause 7.7.1 of the OPPDCP provides:
7.7.1 Attached or Abutting Dwellings
Additional controls for attached or abutting dwellings are outlined below, and should be read in conjunction with those in Clause 7.6.
Objectives
a. To ensure that the development of attached or abutting dwellings creates an architecturally consistent street character.
Controls
1. It is preferred that garages for attached dwellings are located at the rear of the lot. Where attached dwellings have frontage to a collector road, all vehicle access and parking is to be located at the rear of the lot.
2. Attached or abutting dwellings should have a pleasing rhythm and order when seen together as a group, rather than appear as a random arrangement of competing dwellings. Each dwelling should benefit from the unified design of the whole form, a co-ordinated style and base colour palette. Individuality can be added as small details or accent colours, rather than strikingly different forms.
116 Council submits that the Commissioner erred in law because:
(1) He wholly discounted the importance and application of cl 7.7.1 in the assessment of the DA due to the absence of any definition in the OPPDCP of the term “abutting dwellings”. It was incumbent on the Commissioner, in those circumstances, to define the term himself and apply that definition to the facts and circumstances of the application so as to give meaning, and work to do, to cl 7.7.1 of the OPPDCP; and
(2) He was influenced by the absence of controls in the Growth Centres SEPP relating to “abutting dwellings”. It was immaterial that the Growth Centres SEPP did not contain provisions relating to “abutting dwellings”. It remained incumbent on the Commissioner to apply the controls in the OPPDCP because those controls were "fundamental elements" in or a "focal point" of the decision-making process.
117 The respondent submits that Ground 7 cannot be supported as the
Commissioner clearly dealt with cl 7.7.1 of the OPPDCP at [31]-[35] of the
primary judgment. The respondent submits that the Commissioner’s reasoning
was that there was no definition of “abutting dwellings” in the OPPDCP and
that the objective of the cl 7.7.1 control was met in any event, and that this
approach was open on the evidence. The respondent says Ground 7 appears
to be a thinly veiled attack on the merits of the Commissioner’s reasoning in
that regard.
Consideration
118 The Commissioner’s use of the word “inappropriate” at [34] is somewhat
infelicitous given that the OPPDCP does apply to the site, however it is clear
from the context that the Commissioner is giving voice to a concern that there
is some doubt that what the Growth Centres SEPP refers to as “semi-detached
dwellings” meets the description of “attached or abutting dwellings” in the
OPPDCP.
119 In any event, the most relevant passage of cl 7.7.1 provides “[i]t is preferred
that garages for attached dwellings are located at the rear of the lot. Where
attached dwellings have frontage to a collector road, all vehicle access and
parking is to be located at the rear of the lot”.
120 The Commissioner understood and considered both the “objectives” and
“controls” in cl 7.7.1 and each of the town planning experts’ views in respect of
them. Irrespective of the Commissioner’s comment at [34], he went on to deal
with cl 7.7.1 at [35], holding that it was unreasonable to apply control 1 in
circumstances where the building had already been built with the garage at the
front.
121 I find that it was open for the Commissioner to make this finding, particularly
given that cl 7.7.1 is expressed in the loose language of a “preference”, which
in the present case was difficult to achieve.
122 Therefore, I find that Ground 7 has not been made out.
Ground 8
123 Council submits that one of the principal contested issues in the appeal was
that the proposed development would not promote the objects of the EPA Act
and was therefore not in the public interest. Council says that this was reflected
in Contention 12 in its Statement of Facts and Contentions and was one of 12
separate and independent contentions which Council argued should have led
to refusal of the development application.
124 Council submits that the Commissioner made no findings in relation to this
contention and that the adequacy of reasons involves a question of law for the
purposes of s 56A. Council submits that the failure to provide any reasons on a
principal contested issue in the proceedings was a material error of law.
125 The respondent submits that the Commissioner decided the case in a way that
did address Contention 12, which alleges non-compliance with the controls for
semi-detached dwellings, as he found that the proposed development was an
appropriate development which satisfactorily complied with the controls for
semi-detached dwellings. The respondent submits that in those circumstances,
the Commissioner was entitled to deal with Contention 12 without reproducing
it in his judgment and without expressly addressing parts that were not
dispositive of his decision.
126 The respondent further submits that not every argument is tenable or needs to
be addressed in the reasons for judgment and that the particulars to
Contention 12 fall within that category to the extent that they allege anything
other than non-compliance with the development controls, an issue which the
respondent says was adequately addressed at [15] and [23]-[35] of the primary
judgment.
127 In particular, the respondent says that to the extent that Contention 12 alleged
the development was a sham and did not promote the objects of the EPA Act
and was therefore not in the public interest, this submission was very shortly
addressed in Council’s closing submissions before the Commissioner. The
respondent submits that on a fair reading of the primary judgment as a whole,
the Commissioner did not find that the proposed development was a sham or
that it did not serve the public interest. In those circumstances, the respondent
submits that it was not necessary for there to be an express rejection of
Contention 12 as it could be inferred from his surrounding findings.
Consideration
128 I do not consider that the contention that the proposed development would not
promote the objects of the EPA Act and was therefore not in the public interest
is, in itself, one of the principal contested issues between the parties in the
sense required by Segal. My reasons may be shortly stated.
129 First, it is clear that the question of whether the proposal was in the public
interest is a consideration which was implicitly at the centre of the
Commissioner’s merit consideration of the DA. In Bellenger at [32], Preston J
found that a Commissioner had not fallen into legal error by failing to refer
explicitly to s 79C(3A)(b) of the EPA Act, which contained the matters for
consideration now largely replicated in s 4.15 of that Act. It is not necessary for
a Commissioner to refer to each part of the legislative scheme governing the
consent process provided that each substantive issue is addressed. Reasons
for decisions need not be lengthy or elaborate: Beale v Government Insurance
Office (NSW) (1997) 48 NSWLR 430 at 443.
130 Secondly, as Tobias JA said at [93] in Segal, the concept of a principal
contested issue is confined to the “essential ground or grounds upon which the
decision rests”. It would be an unusual case where a Commissioner was
satisfied in respect of each individual merit issue raised but nonetheless found
that the application should not be approved due to a general concern about the
“public interest”. That is not to say that such cases do not exist, but in
circumstances (like the present case) where the public interest is employed as
a “catch-all” for the concerns otherwise expressed by a council, I do not
consider it is an error of law for reasons not to deal with that ground discretely.
131 Thirdly, and similarly, the particulars to Contention 12 do nothing more than
restate the issues relating to the semi-detached dwelling controls which were
already the subject of other contentions and which the Commissioner gave
reasons for rejecting.
132 Therefore, I find that Ground 8 has not been made out.
The appropriate disposition of the appeal
133 I have therefore determined that Ground 1 should be upheld but that none of
the other grounds are made out. In essence, I have concluded that the
Commissioner erred in finding that the proposed development before him did
not require consent for strata subdivision.
134 In those circumstances, I consider that the appropriate disposition of the
appeal is for the matter to be remitted to a Commissioner of the Court for
determination of whether consent should be granted to the DA in light of my
finding that development consent is required for the strata subdivision
component.
135 Although in the circumstances of my findings it is unnecessary to form a
concluded view as to whether a “change of use” is required, I note that it
seems a primary and secondary dwelling could not be converted to semi-
detached dwellings simply by way of an application seeking “change of use”
because the latter requires separate lots whereas the former must be on the
same lot.
136 In other words, an application seeking “change of use” cannot alone convert a
primary dwelling and secondary dwelling to semi-detached dwellings because
the dwellings will remain on the same lot, but once any subdivision is effected,
the building can no longer be considered a primary and secondary dwelling. To
the extent any change of use is required, it would need to “run together” and
come into effect simultaneously with the application for subdivision.
137 The ordinary course in s 56A appeals is for costs to follow the event as per r
42.1 and Sch 1 of the Uniform Civil Procedure Rules 2005 (NSW). That is the
order I am inclined to make, but I grant leave to the parties to make any
alternative costs application within 14 days should they wish to do so.
Orders
138 The Court orders that:
(1) The appeal is upheld.
(2) The decision and orders of Commissioner Brown of 2 February 2018, apart from Orders (3) and (4), are set aside.
(3) The proceedings are remitted to a Commissioner or Commissioners of the Court to be determined in accordance with these reasons for judgment.
(4) If an alternative order is not sought within 14 days, the respondent is to pay the appellant’s costs of the appeal.
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