Land and Environment Court of New South Wales CITATION: Malas Development Pty Ltd V Sutherland Shire Council [1999] NSWLEC 74 PARTIES Applicant Malas Development Pty Ltd Respondent Sutherland Shire Council NUMBER: 10765 of 1998, 10028 of 1999 &30021 of 1999 CORAM: Sheahan J KEY ISSUES: :- Development control plan - whether development comprises "dual occupancy" Preliminary Question of Law LEGISLATION CITED: Development control plan - whether development comprises "dual occupancy" Preliminary Question of Law DATES OF HEARING: 02/10/1999 DATE OF JUDGMENT DELIVERY: 03/31/1999 Applicant Mr S Brockwell (Barrister) LEGAL REPRESENTATIVES: Respondent Mr S Berveling (Solicitor) JUDGMENT: IN THE LAND AND Matter Nos: 10765 of 1998 ENVIRONMENT COURT 10028 of 1999 & 30021 of 1999 OF NEW SOUTH WALES Coram: Sheahan J 31 March 1999 MALAS DEVELOPMENTS PTY LIMITED Applicant v SUTHERLAND SHIRE COUNCIL Respondent 1. Introduction 1. There are two Class 1 and one Class 3 applications listed together for the determination of four preliminary questions of law, which could be decisive of all the proceedings. 2. The proceedings concern two adjacent lots of land, being Lot 3 of Deposited Plan 978584 (also known as 32 Burraneer Bay Road, Cronulla) ("Lot 3"), and Lot B of Deposited Plan 449014 (also known as 34 Burraneer Bay Road, Cronulla) ("Lot B"). 3. Both lots are within the Sutherland Shire Council local government area and subject to the Sutherland Shire Local Environmental Plan 1993 (Exhibit S3) ("the LEP"), as amended, under which both lots are zoned Residential 2(e1). Development for the purposes of a townhouse or a villa house is prohibited in that zone. 4. Malas Developments Pty Ltd ("Malas") sought the consent of Sutherland Shire Council ("Council") to erect four dwellings on the two lots, and to rearrange the lot boundaries by way of "re-subdivision". The two lots are currently aligned in a north westerly direction, facing Burraneer Bay Road, Cronulla, and it is proposed that they have an easterly orientation, fronting the adjacent Dodson Avenue (Exhibit S2) (see Annexure 'A' to this judgment). 5. The following four applications were lodged with the Council in relation to the proposal: (a) A development application dated 5 May 1998 relating to Lot 3, for a proposal "to build dual occupancy" (DA 980939); (b) A development application dated 5 May 1998 relating to Lot B, for a proposal "to build dual occupancy" (DA 980940); (c) A subdivision application dated 18 May 1998 under Part XII of the Local Government Act 1919; and (d) An application under State Environmental Planning Policy No. 4 ('SEPP 4') dated 18 May 1998 for an exemption from consent for a boundary adjustment between the two lots. 6. The plans which accompanied both DA 980939 and DA 980940 were identical and each set related to both Lot 3 and Lot B. 7. A notice of determination was issued by the Council on 29 October 1998 refusing both DA 980939 and DA 980940. These refusals led to the two Class 1 applications being filed on 5 November 1998 (matter number 10765 of 1998) and 15 January 1999 (matter number 10028 of 1999), both being appeals under section 97 of the Environmental Planning and Assessment Act 1979 ("EPAA"). 8. The Class 3 application, which was served on the day of the hearing (10 February, 1999), appeals against the deemed refusal of an application for subdivision under Part XII of the Local Government Act 1919. 2. The Questions to be Answered "2.1 Do the proposals comprise development for the purposes of dual occupancy? 2.2 If the answer to question a) above is in the negative, do the proposals comprise development for the purposes of townhouses or villa houses? 2.3 Is the proposed development prohibited development? 2.4 Can the proposed subdivision as noted in Appeal 30021 of 1999 obtain the benefit of clause 6 of SEPP 4?" 2.1 Can the proposed development be characterised as dual occupancy housing? 9. The LEP permits Dual Occupancy housing, with consent, in land zoned Residential 2(e1). 10. Clause 6 of the LEP defines dual occupancy housing to mean "two dwellings on one allotment". 11. The Council contends that since the lots have not been subdivided, they cannot qualify for dual occupancy development, as the arrangement of the proposed dwellings on the current lots has parts of each of the 3 proposed dwellings situated on Lot 3, with the remaining parts of those 3 dwellings and another complete dwelling on Lot B (see Annexure 'A'). Clearly such a configuration cannot conform with the LEP's definition of "dual occupancy housing". 12. The crux of this question is, therefore, whether the application for subdivision and the development applications are to be considered contemporaneously, or whether, as the Council argues, the subdivision approval should be obtained first, before it considers the two development applications. 13. Several authorities were cited to me in support of Council's proposition: Personal Design Projects Pty Limited v Hornsby Shire Council ("Personal Design") (Unreported, No. 10448 of 1990, Bignold J, 15 March 1991); Angelica Ting v Willoughby City Council (Unreported, No. 10534 of 1996, Bignold J, 13 November 1996); and Jennifer Doyle v Sutherland Shire Council (Unreported, No. 10714 of 1996, Talbot J, 12 February 1997). 14. Mr Berveling, for the Council, distinguished those cases from the present situation on the basis that they all involved situations where approval has already been given for the subdivision. He submitted that Council, when considering development applications, cannot simply assume the applicant's intention to subdivide. He suggested that the test of whether a subdivision application can be considered contemporaneously with a development application is whether one of the following 3 circumstances are present: (i) an approved (although not necessarily registered) plan of subdivision; (ii) an identifiable parcel of land; (iii) a development application for subdivision. 15. Council contends that since none of these three is present in this case, the development applications should not be considered by the Court as there is no basis for the court to suppose that there will be a subdivision. 16. Mr Brockwell, Counsel for Malas, rejected this line of reasoning, submitting that the application for subdivision and the two development applications are interrelated, but were necessarily submitted separately, because subdivision approval was required under Part XII of the Local Government Act 1919, and development consent required under Part 4 of the EPAA. Malas contends that they must be considered contemporaneously. 17. Alternatively, Mr Brockwell argued that as SEPP 4 applied to the land, there was a valid subdivision application. To support this submission, Mr Brockwell cited Personal Design, and S & I Investments Pty Limited v Pittwater Municipal Council (Unreported, No. 10366 of 1993 and 40150 of 1993, Talbot J, 13 October 1993) as authority for the proposition that the court should not look at the development applications in isolation, as such a process would be the "sterile legal debate" referred to by Bignold J in Personal Design. Rather, the court should consider the development applications in the light of any practical ramifications. 18. Both parties have drawn attention to the fact that if there were an approved and registered plan of subdivision, this would create a nonsensical situation of the boundary of the newly adjusted lots cutting through parts of existing buildings. Mr Brockwell maintains that this is a situation that should be avoided. He also submitted that Malas has the intention to subdivide when such a step is appropriate. Whilst this may well be correct, I have given little weight to this submission in the absence of any evidence of relevant action being taken. 19. In my opinion, the development applications and the subdivision application should be considered contemporaneously. In this case that will result in the proposed dwellings being properly characterised as dual occupancy development for the purposes of the determination of any relevant development applications. It is suggested by Mr Berveling that to protect the position of the Council, a condition should be imposed, stipulating that an approved plan of subdivision must be registered with the Land Titles Office before approved building plans are released. That suggestion would appear to have some merit. 20. The first question should be answered in the affirmative. 2.2 Do the proposals comprise development for the purposes of townhouses or villa houses? 21. Clause 6 of the LEP defines a townhouse or a villa house to mean "a dwelling on a site containing three or more dwellings, where each dwelling has an individual entrance and open space for the exclusive use of the occupants of the dwelling". 22. Whilst it was submitted by Council that the proposed dwellings each had their own separate driveway entrance and open space, I cannot agree with the proposition that any one development site in the proposal, viewed as a whole, contained "three or more dwellings". I have already held that the development applications should be considered contemporaneously with the subdivision application. 23. Although this question does not arise, I would answer the second question in the negative. 2.3 Is the proposed development prohibited? 24. Clauses 9.7 and 9.8 of the Sutherland Shire Dual Occupancy Development Control Plan ("the DCP"), which relates to design standards for "dual occupancy housing", relevantly provide: "9.7 Number of Storeys Development is limited to a maximum number of two (2) storeys. Where parking is provided under a building, and the ceiling of the parking area projects more than 1.0 m above natural ground, it is considered to be a storey. 9.8 Number of Levels Development on sloping sites is limited to a maximum of three (3) levels, or 11 m in elevation height from the lower point of the building to the highest ridgepoint, with no development exceeding two (2) storeys at any one point. Maximum height in any elevation is to be 11 m from natural ground at the lowest point of the elevation. Any garaging, even if below natural ground, is considered a level." 25. Each of the 4 proposed dwellings consists of 3 levels, the bottom level in each case being a garage. Mr Brockwell submitted that, since the bottom level is shown in the plans as being 900 mm in "height", it should not be considered a storey in accordance with clause 9.7. Mr Berveling submitted that the plans show that the distance between the garage ceiling and the kitchen floor level is 900 mm. This does not necessarily correspond to the natural ground level, as required by clause 9.7 of the DCP. The actual distance of the ceiling of the garage from natural ground level is 1.6 m and therefore the garage must be considered a storey for the purposes of clause 9.7. 26. I accept Mr Berveling's submissions in this regard. I find that the proposed development is for 3 storeys and consequently does not accord with the parameters of the policy stipulated in the DCP. 27. The DCP is a policy instrument and not an environmental planning instrument, as defined in the EPAA (section 4). Consequently, a DCP does not carry statutory force, being only persuasive. Section 79C (1)(a)(iii) of the EPAA provides that a consent authority must take into account the provisions of any relevant development control plan applying to the land to which the application relates when evaluating a development application. However, this falls short of the necessary basis for a finding that the proposed development is prohibited. 28. Under the LEP, residential zone 2(e1) permits dual occupancy housing with development consent. I accordingly find that the proposed development is not prohibited, and answer the third question in the negative. 2.4 Does SEPP 4 apply? 29. The fourth question, framed as a result of developments during the hearing, asks whether the proposed subdivision receives the benefit of clause 6 of SEPP 4. 30. Clause 6 of SEPP 4 relevantly provides: "(1) Where, in the absence of this clause, a subdivision of land could be carried out, but only with development consent, for t he purpose of - ... (b) making an adjustment to a boundary between allotments, being an adjustment that does not involve the creation of any additional allotment; the subdivision may be carried out without that consent." 31. Mr Berveling submitted that exemption from development consent for the subdivision of land could occur, within the provisions of the clause, only if it involved an adjustment to a boundary between allotments. He submitted that the proposed boundary changes in this case were not in fact an " adjustment ", which, connotes activity of a minor nature, within the meaning of the policy. In effect, Mr Berveling submitted that the Court should adopt a narrow interpretation of the clause. In support of this argument, Mr Berveling referred me to the Shorter Oxford English Dictionary (3rd edition), and its definition of adjust , which defines the word to mean to "arrange, compose, harmonise (differences, discrepancies, accounts)". 32. Mr Berveling stated that the proposed "re-division" in this case involved a 90 degree change to the current boundary and also a change to the frontage of the property. Thus, according to Mr Berveling, the boundary change could not be classified as an adjustment, as it was not "minor". The conclusion that Mr Berveling drew from this was, therefore, that since this was not a boundary adjustment, the proposal should not receive the benefit of SEPP 4, and development consent was required from the Council. 33. Mr Brockwell submitted that there was no basis for reading down clause 6 to require that an "adjustment" be of a minor nature. He maintained Malas' position that SEPP 4 applied to the proposed boundary changes, as the only relevant requirement of the clause was that no additional allotments are created. 34. Mr Brockwell referred me to the Pocket Macquarie Dictionary (2nd edition), which defined adjustment to mean "the act of adapting to a given purpose" and that this did not connote any concept of that adaptation being minor, fractional or marginal. In my judgment, this is the more appropriate construction of "adjustment" for the purposes of interpreting and applying clause 6. 35. Accordingly, I agree with the applicant's submissions on this point, and I find that clause 6 of SEPP 4 does apply to the proposed boundary adjustment. The answer to the fourth question of the amended questions of law is " yes ". 3. Orders 36. I accordingly answer the questions as follows: Question 1: Do the proposals comprise development for the purposes of dual occupancy? Answer: Yes Question 2: If the answer to question a) [sic] above is in the negative, do the proposals comprise development for the purposes of townhouses or villa houses? Answer: Although this question does not arise, in view of my answer to Question 1, the answer to it is No. Question 3: Is the proposed development prohibited development? Answer: No Question 4: Can the proposed subdivision as noted in appeal 30021 of 1999 obtain the benefit of clause 6 of SEPP 4? Answer: Yes 37. All the exhibits may be returned. 38. I direct that the three matters be included in the Registrar's callover list on Friday 9 April 1999, for their further disposition in accordance with the answers I have given to the questions of law. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN. Associate: Dated: 31 March 1999 Annexure A 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.