Land and Environment Court of New South Wales CITATION : Allison and Anor v Gosford City Council [2001] NSWLEC 4 APPLICANTS Allison and Anor PARTIES : RESPONDENT Gosford City Council FILE NUMBER(S) : 10677 of 2000 CORAM: Pearlman J KEY ISSUES: Question of Law :- preliminary question of law - whether proposed development "cluster development" - prohibition or development standard - jurisdictional fact Environmental Planning and Assessment Act 1979 s 4 LEGISLATION CITED: Gosford Planning Scheme Ordinance Land and Environment Court Act 1979 s 39 State Environmental Planning Policy No 1 Bell and Anor v Shellharbour Municipal Council (1993) 78 LGERA 429; Bowen v Willoughby City Council (2000) 108 LGERA 149; CASES CITED: Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135; Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318; North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222; Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55 DATES OF HEARING: 16/11/2000 DATE OF JUDGMENT: 02/28/2001 APPLICANTS Mr A J J Thompson (Barrister) SOLICITORS Kernans LEGAL REPRESENTATIVES: RESPONDENT Mr P J Donnellan (Solicitor) SOLICITORS P J Donnellan & Co JUDGMENT: IN THE LAND AND 10677 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 28 February 2001 ROBERT ALLISON AND PAMELA ALLISON Applicants v GOSFORD CITY COUNCIL Respondent JUDGMENT Introduction 1. Three preliminary questions of law have arisen for determination in class 1 proceedings. They are as follows: 1. Whether the proposed development is a "cluster development" within the meaning of the Gosford Planning Scheme Ordinance; 2. If the answer to 1 is "yes", do the provisions of clause 27A(3) of the Gosford Planning Scheme Ordinance constitute a prohibition or development standard?; 3. If the answer to 1 is "no" and on the assumption that clause 48BA of the Gosford Planning Scheme Ordinance applies to the proposed development, is the proposed development subject to the development standards prescribed in clause 28? 2. The questions have arisen in relation to an appeal brought by the applicants against the refusal of Gosford City Council ("the council") to grant consent to the demolition of an existing building and the erection of what is described in the applicants' statement of environmental effects as three "townhouse style units". The land upon which the proposed development is to take place is described as lot 54 DP 12468 ("the site") which has a frontage to Auld Street, Terrigal, and is known as No 4 Auld Street. The site extends from Auld Street through to Miller Road. 3. The site is within zone no. 2(a) Residential under the Gosford Planning Scheme Ordinance ("the PSO"). In that zone, cluster development is a purpose which is permissible with development consent. However, if the proposed development is in fact cluster development, then cl 27A of the PSO applies. Clause 27A provides as follows: Cluster Development 27A(1) This clause applies to land within Zone No. 2(a). (2) A person shall not, except with the consent of the Council, carry out development for the purposes of cluster development on land to which this clause applies;- (3) The Council shall not grant any such consent unless - (a) the area of the land on which the development is proposed to be carried out is not less than 3500 square metres; and (b) the ratio of the width of the land at the building line to the depth of the land is not less than 1:2 and not more than 2:1. 4. It is not in dispute that sub-cl (3)(a) would apply, if the proposed development is cluster development, since the area of the site is less than 3500 square metres. That then raises the question of whether, if the proposed development is cluster development, the provision in sub-cl (3)(a) is a prohibition or a development standard. Cluster development? 5. The competing claims of the parties are as follows. The council contends that the proposed development is cluster development, and that, accordingly, cl 27A applies. The applicant, on the other hand, contends that the proposed development is not cluster development, but is a residential flat building, a use which is prohibited in the 2(a) zone, but is permitted by virtue of cl 49BA. Clause 49BA, the "rubber boundary provision", makes permissible with consent development which is otherwise prohibited in the particular zone if it is carried out within 50 metres of the boundary of a zone (in this case, zone 2(b)) where that development is permissible with consent. 6. The following definitions in cl 3(1) of the PSO are relevant: 'Cluster development' means the erection on a single allotment of land of three or more dwellings in the form of: (a) dwelling-houses; or (b) buildings of the kind commonly known as town houses or villa homes, or any combination of these. 'Residential flat building' means a building containing 2 or more dwellings but does not include anything elsewhere defined in this Ordinance. 7. Evidence was given by two consultant town planners, Mr D H C Kettle on behalf of the council, and Mr P J De Fina on behalf of the applicants. They each dealt with the question as to whether, taking into account the plans submitted with the development application, the proposed development could be described as cluster development. 8. Mr Kettle directed his attention to town houses and villa homes. He said that normally town houses are regarded as being two storeys in height and villa homes as being one storey in height, but a characteristic of both is that they have their own courtyards or private open space and access at ground level. By contrast, a residential flat building normally involves horizontal differentiation between flats rather than vertical separation, and it also involves shared facilities, such as access. By reference to the plans of the proposed development, Mr Kettle characterised the proposed development as a cluster development comprising three town houses, each with a separate courtyard and each having access from ground level, although the initial access to units 2 and 3 is via a shared stairs leading up into the separate dwellings. 9. However, an important element of Mr Kettle's evidence was his opinion that the proposed development constitutes one building by reason of the fact that units 2 and 3 are joined to unit 1 by a retaining wall. Since the proposed development constitutes three dwellings, it can also be characterised as a residential flat building, taking that expression to mean "a building containing 2 or more dwellings". Mr Kettle nevertheless had regard to the definition of "residential flat building" in the PSO, and concluded that, as the proposed development fell within the definition of "cluster development" it could not fall within the definition of "residential flat building" since it comprised something "elsewhere defined" in the PSO. 10. Mr De Fina's opinion was that the proposed development was a residential flat building. He relied on the fact that it was a building comprising two or more dwellings, but he also relied upon the 1982 publication of the then Department of Environment and Planning entitled Technical Bulletin No 15 "Residential Development Standards". Section 3.3 of that document defined "cluster housing" as "a group of unattached houses which share communal open space or driveway". 11. Mr A J J Thompson, appearing for the applicants, submitted that the characterisation of the proposed development must be derived from both the definition of "cluster development" and cl 27A. In his submission, both must be read together, so that a development is only a cluster development if it comprises three or more dwellings in the form of town houses or villa homes erected on a site having an area of not less than 3500 square metres. He relied upon the evidence of Mr De Fina to submit that the proposed development was a residential flat building, but, even if it was to be regarded physically as three town houses, it did not fall within the definition of "cluster development" read with cl 27A, because the area of the site is about 700 square metres. 12. Ultimately, the evidence comes to this. Both experts were of the opinion that the proposed development could physically be regarded as a residential flat building because it is a building containing three dwellings. But the definition of "residential flat building" in the PSO makes it clear that the proposed development could only fall within that definition if it was not "elsewhere defined". Mr Kettle thought it was "elsewhere defined" because it comprises three dwellings "in the form of buildings of the kind commonly known as town houses". Mr De Fina concentrated on a definition of "cluster housing" which focussed upon the importance of communal open space and shared access. Contrast the definition of "cluster development" in the PSO, which expressly refers to "town houses". Mr Kettle gave evidence that a feature of town houses is that they have private open space. He focussed on the specific words of the definition in the PSO of "cluster development", that is, the reference to "town houses". The definition in the PSO is the primary definition, and accordingly I accept Mr Kettle's opinion that the proposed development is "cluster development". 13. I reject Mr Thompson's submission that, if the proposed development comprises town houses, it nevertheless falls outside of the definition of "cluster development" because it is to be erected on a site of less than 3500 metres. It is true that the PSO must be read as a whole, and the term "cluster development" appears in only three places - the definition, the 2(a) zoning table, and cl 27A. However, the context points to the proper construction. "Cluster development" is defined in cl 3. Clause 27A presupposes that the proposed development to which it is directed falls within that definition, and it operates to prescribe conditions about that type of development which may amount to a prohibition or a development standard. The language of cl 27A does not lend itself to an assumption that it is directed to a further or expanded definition of "cluster development". It is about permissibility or prohibition, not about definition. It is not correct, therefore, to read the definition in s 3 in an expanded way so that it incorporates the two conditions specified in cl 27A. 14. For these reasons, I hold that the proposed development is "cluster development" within the meaning of the PSO. Accordingly, cl 49BA has no application. Prohibition or development standard 15. The expression "development standards" is defined in s 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") as follows: 'development standards' means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of - [sub-cls (a) to (o)]. 16. Subclauses (a) to (o) of the definition comprise a number of matters, of which sub-cl (a) is relevant to this case, and is relevantly as follows: (a) the area … of any land … 17. If a particular provision is a development standard, it is amenable to variation under State Environmental Planning Policy No 1 ("SEPP 1"). 18. It is unnecessary, I think, to refer to the numerous cases in this Court and in the Court of Appeal where the question of whether particular provisions amounted to a development standard or a prohibition was dealt with. Most of the significant cases were conveniently collected by Bignold J in Bowen v Willoughby City Council (2000) 108 LGERA 149. Suffice it to say that the definition of "development standards" in s 4 deals with provisions relating, not to whether development may be carried out at all, but to the standards or requirements to be observed in the carrying out of development (North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222). Whether a particular provision regulates development by prescribing standards or requirements to be observed in carrying it out, or whether it prohibits development, involves the task of construing the relevant instrument (Bell and Anor v Shellharbour Municipal Council (1993) 78 LGERA 429). 19. I turn then to the PSO. Clause 10 conventionally provides that development that does not require consent, or that needs consent, or that is prohibited, is set out in the zoning table in relation to each zone. Clause 10 is expressly stated to be "subject to the other provisions" of the PSO. It is to be noted that cluster development is shown as development which is permissible with consent in the 2(a) zoning table, but it is not mentioned in any other zoning table. In other words, cluster development is permissible with consent in the 2(a) zone, subject to any other provision of the PSO. 20. Clause 27A is the only other provision of the PSO where cluster development is mentioned, save for the definition of that term in cl 3. Despite the use of some words of prohibition ("shall not"), cl 27A read as a whole is obviously concerned with permissibility. It speaks in the negative, but it speaks about permissible development. Thus it provides that a person shall not carry out cluster development except with the consent of the council, and it provides that the council shall not grant such consent unless two particular conditions are met. Therefore, although cl 27A is a provision in the PSO to which cl 10 is expressly subject, it does not operate to prohibit what cl 10 and the zoning table make permissible. Clause 27A operates, instead, in a fashion complementary to cl 10. It does this by prescribing the conditions to which development made permissible by cl 10 is subject, relevantly, in this case, an area condition. Accordingly, cl 27A prescribes a requirement or standard which must be observed in carrying out cluster development which is otherwise permissible. It does not prohibit that development. Clause 27A is therefore a development standard which is amenable to variation under SEPP 1. (In reaching this conclusion, I have respectfully had regard to a similar analysis (of a somewhat different provision) undertaken by Bignold J in Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318 at 328 - 329). 21. I reject the alternative argument put by Mr P J Donnellan, appearing for the council. He contended that, rather than being characterised as either a prohibition or a development standard, cl 27A must be regarded as a jurisdictional fact, or, perhaps more precisely, a condition precedent to the exercise of the power of the council to consent to cluster development. If the land upon which such development is proposed to take place is less than 3500 square metres, then the condition precedent is not met and the council is not empowered to grant consent. Mr Donnellan cited Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55 and Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135 in support of his proposition. 22. As was pointed out by Spigelman CJ in Timbarra v Ross Mining at pp 63 - 64, the issue as to whether a particular factual reference is a jurisdictional fact is one of construction of the relevant statute. It is here, in my opinion, that Mr Donnellan's argument principally fails. 23. The PSO (which was gazetted in 1968) is a deemed environmental planning instrument under the EP&A Act and by virtue thereof it is an environmental planning instrument for the purposes of that Act (s 4). An environmental planning instrument may make provision for protecting the environment and controlling development (s 26). The word "control" is widely defined in s 4 to mean, in relation to development, "consent to, permit, regulate, restrict or prohibit that development …" and to confer upon a consent authority functions with respect to those matters. Such control is achieved in the scheme of the EP&A Act, at least in part by s 76A which provides that, if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person shall not carry out that development unless such consent has been obtained and is in force. Section 124 provides for orders remedying or restraining breaches of the EP&A Act, and s 125 provides for offences under that Act. 24. It is the case, then, that persons wishing to carry out development must observe the requirements stipulated in an environmental planning instrument, and councils must observe those requirements in granting or refusing consent under any such instrument. But SEPP 1 provides for the relaxation of those requirements where they constitute a development standard within the meaning of the EP&A Act. The combined effect of cls 6 and 7 of SEPP 1 is that an applicant for development approval may object to a development standard on the ground that it is unreasonable or unnecessary in the circumstances of the case, and, if the council considers the objection to be well-founded, it may grant consent to that development despite the development standard which would otherwise prevent the carrying out of the development (see the analysis by Bignold J as to the effect of SEPP 1 in Fencott Drive v Lake Macquarie at pp 329 - 330). 25. The scheme of the EP&A Act, as I have outlined it, contemplates that some provisions of an environmental planning instrument may prohibit development but some may regulate development by prescribing requirements or standards, and the latter provisions may be varied by application of SEPP 1. It is not justifiable, therefore, to ignore the character or nature of particular provisions and instead to search for a jurisdictional fact. 26. The very existence of the dispensational power in SEPP 1 leads to the conclusion that the legislature intended that the factual basis for a development standard is not a jurisdictional fact. It would be otherwise if SEPP 1 did not exist, since environmental planning instruments contain provisions which must be observed and in respect of which failure to do so may invalidate action taken under that Act (see Timbarra v Ross Mining at p 64). But SEPP 1 does exist, and it prevails over any inconsistency between it and any other environmental planning instrument (cl 5). Accordingly, if cl 27A is properly construed as a development standard (as it must be, for the reasons I have set out), then it cannot be a jurisdictional fact, having regard to the scheme of the EP&A Act. If, on the other hand, cl 27A was to be regarded as a prohibition, then it is a jurisdictional fact in the sense that the council would not then be empowered to grant development consent. 27. However, I am bound to say that any issue of jurisdictional fact at this stage of the process of the applicant's development application is premature. The concept of jurisdictional fact has been developed out of analysis of the extent of the limits of jurisdiction to review administrative action (see the judgment of Gaudron J at pp 156 - 159 in Enfield City v Development Assessment Commission and see also Spigelman CJ at p 64 in Timbarra v Ross Mining). But this case is not concerned with a review of the council's decision in order to determine if it has acted in accordance with the law, and no council decision is here under challenge as to its validity. Instead, these proceedings, in class 1 of the Court's jurisdiction, constitute an appeal against the decision of the council to refuse the applicants' development application, and such an appeal is not a review of the council's decision, but a fresh hearing on the merits (s 39 Land and Environment Court Act 1979). It follows that if the Court, in hearing the merit appeal, finds that a SEPP 1 objection has not been made, or, if made, is not well-founded, then the development consent must be refused on the basis that the proposed development does not comply with cl 27A. Conclusion 28. For the foregoing reasons, I provide the following answers to the first two preliminary questions of law, and the third preliminary question of law does not arise: Question 1: Whether the proposed development is a "cluster development" within the meaning of the Gosford Planning Scheme Ordinance? Answer: Yes. Question 2: If the answer to 1 is "yes", do the provisions of clause 27A(3) of the Gosford Planning Scheme Ordinance constitute a prohibition or development standard? Answer: Clause 27A(3) constitutes a development standard. 29. The proceedings should proceed to hearing upon the basis of the answers I have provided. They should be stood over for a callover before the Registrar for directions as to their further disposition. 30. The exhibits may be returned. 31. I make no order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.