Land and Environment Court of New South Wales CITATION: John Hatch trading as JMH Living Design v Sutherland Shire Council [1999] NSWLEC 88 PARTIES APPLICANT John Hatch trading as JMH Living Design RESPONDENT Sutherland Shire Council NUMBER: 10941 of 1998 CORAM: Cowdroy AJ KEY ISSUES: :- Development - development standards - cluster development - whether definition of cluster development incorporates a prohibition or a development standard Environmental Planning Instruments - planning controls - interpretation LEGISLATION CITED: Development - development standards - cluster development - whether definition of cluster development incorporates a prohibition or a development standard Environmental Planning Instruments - planning controls - interpretation DATES OF HEARING: 03/30/1999 DATE OF JUDGMENT DELIVERY: 04/16/1999 APPLICANT Mr A Galasso SOLICITORS Mr D Baird Dunhill Madden Butler LEGAL REPRESENTATIVES: RESPONDENT Mr G Newport SOLICITORS Mr S Berveling Envirolawyers JUDGMENT: Facts 1. The applicant has appealed to the court against the deemed refusal by the respondent of Development Application No. 98/1246 in respect of a proposed development and strata title subdivision for four cluster dwellings upon land known as 19 Binda Road, Yowie Bay ("the land"). The issue of law raised in the appeal concerns the interpretation of the definition of "cluster housing" contained in the Sutherland Shire Local Environmental Plan 1993 ("the LEP"), which provides as follows:- Cluster housing means three or more dwellings grouped on a site to take advantage of good building areas or views and to conserve large areas of open space. The number of dwellings on the site should be the same as the number of allotments that could be created through a conventional subdivision in the same zone. 2. The land is within a 2(e2) Residential zone under the terms of the LEP. Clause 22f(4) prescribes an area of 873 m2 as the minimum standard lot size for a dwelling house in such zone and 1012 square metres for an internal lot. An internal lot is defined in the LEP as one which has an access corridor or right-of-carriageway over another lot as the only means of access. The land contains an area of 2626 m. 3. Applying the standard allotment area pursuant to cl22f(4) a maximum of three standard allotments could be created upon the land. The applicant's proposal is for the development of the land into four cluster dwellings on the site, which exceeds by one the number of dwellings that could be created from a conventional subdivision. Council argues that the LEP's definition of "cluster housing" must be satisfied in all respects and that the number of cluster dwellings must be limited in accordance with the definition to three dwellings. The council submits that the proposal is not cluster housing as defined in the LEP by virtue of its failure to comply with the requests of the definition, and accordingly is prohibited development. Numerous authorities are relied upon by the council such as Woollahra Municipal Council v Carr (1987) 62 LGRA 263, which confirmed that in certain instances, a use may be permissible only if every aspect of its requirements were satisfied. 4. The respondent has submitted that a distinction must be drawn between matters of permissibility compared to matters which relate to the carrying out of a development. The applicant submits that the final sentence contained in the definition of cluster housing is a development standard and as such is amenable to an application under State Environmental Planning Policy No 1 ("SEPP 1"). Accordingly the applicant says that the proposal is not one which is prohibited but one which can be considered with a SEPP 1 objection. 5. Against this background the questions of law posed for determination are as follows:- 1. Is the proposed development prohibited development? 2. In the alternative, is the provision in the definition of "cluster housing" in Sutherland Shire Local Environmental Plan 1993 that "The number of dwellings on a site should be the same as the number of allotments that could be created through a conventional subdivision in the same zone" a development standard? The nature of a development standard 6. The critical issue is to establish whether the definition of "cluster housing" comprises a comprehensive definition, the failure to comply with any requirement thereof rendering the development prohibited as not being that type of development or whether it is a definition which includes a development standard. Section 4 of the Environmental Planning and Assessment Act ("the Act") defines development standards as follows:- Development standard means provisions of an environmental planning instrument or 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 not without limiting the generality of the foregoing, requirements or standards in respect of... 7. There are numerous authorities decided by this court and the NSW Court of Appeal concerning the interpretation of the above definition. In Challister Pty Limited v Blacktown City Council (1992) 76 LGRA 10, Talbot J reviewed certain authorities such as; Carr (supra); Napper v Shoalhaven Council (NSWLEC Stein J No. 40091 of 1987); North Sydney Municipal Council v P D Mayoh Pty Limited [No.2] (1990) 71 LGRA 222. His Honour (at pp 20-21) distinguished those cases in which the definition in question laid down an absolute prohibition compared to those which stated the manner in which a development may be carried out. In Mayoh the New South Wales Court of Appeal held that the particular provision was not a development standard because the effect of the clause was to prohibit a particular kind of building unless certain conditions were satisfied. The decision is consistent with its judgment in Carr (supra) and of Stein J in Meriton Apartments Pty Limited v Strathfield Council (NSWLEC: 40087 of 1995). In Napper , Stein J observed that the instrument permitted the use only if its requirements were satisfied. In Kruf & Anor v Warringah Shire Council (NSWLEC 20027 of 1987) Holland J observed of the instrument before him:- It is saying that there shall be no development, not that there may be such development only if it complies with certain requirements or standards. LEP definition 8. The first sentence of the definition defines explicitly what is meant by the term "cluster housing". The second sentence however is not compatible with the elements of a definition. It specifies an objective to be achieved in the fulfilment of such development by prescribing the desired density and is quite independent of the meaning of "cluster housing". The definition is not dependent upon the second sentence to give it efficacy unlike the standards which were considered in Carr and in Mayoh . In Carr , Priestley JA (supra at p 267) observed that the limitation upon the number of personnel was contained within the definition, and that such limitation had a dual function of both a development standard and part of the definition. He said at p267:- The proposed development could not be carried out under the Act because of the definition of professional consulting rooms. That definition, including the words which although on the present hypothesis are a development standard are nevertheless part of the definition, prevents the development which is proposed. 9. In contrast to the terminology considered in Mayoh and in Carr , the words in the second sentence do not imply a prohibition. Rather they are indicative of a standard sought to be achieved in development. The words " should be the same as the number of allotments that could be created " suggests that the requirement is not mandatory. In certain instances the term "shall" can be regarded as mandatory or directory. The answer can be gleaned from the context and from a construction of the statutory instrument (see Howard v Bodington (1877) 2 PD 203 at 211; Tasker v Fullwood [1978] 1 NSWLR 20 at 23, 24 (CA)). 10. The definition contained in the LEP of "Cluster housing" prescribes a minimum of three dwellings or more grouped on a site. Regard can be paid to the requirements of cl22F "Housing" in the 2(e2) Residential zone in the LEP The minimum site requirements prescribe for cluster housing are as follows:- (6) A minimum site area of 2000 sq. m. will apply to cluster housing development. 11. Council's argument assumes the minimum standard lot area requirement is 873 m2 is to apply to the calculation of site area when the definition is applied. Since by definition cluster housing must consist of three dwellings or more, the minimum area required for a cluster housing upon the council's argument would be 3 multiplied by 873 m2 which is equal to 2619 m2. This area exceeds the minimum area requirement prescribed by cl22F(6) of the LEP for cluster housing by 619 m2 and thereby produces an incongruous result. Council's argument is also predicated upon an assumption that the term "an allotment" is to be interpreted as a standard lot, but no foundation exists for such assertion. The term "conventional subdivision" is in itself a vague and undefined term. 12. There is a further ground which mitigates against council's interpretation. The council's Development Control Plan for Cluster Housing (the DCP) makes specific provision for the density of such development. Clause 8(3) provides:- Council will consider a variation to the density requirements in environmentally sensitive areas to encourage Cluster Housing as an alternative form of development to conventional subdivision. The parties are agreed that the land upon which the development is proposed is in an environmentally sensitive area, and in such location the DCP suggests that the council would wish to retain a degree of flexibility with respect to cluster housing development. 13. This analysis confirms the submission of the applicant that the terms "should be" is not to be read as "must be". Once this conclusion is reached the second sentence of the definition comprises a development standard and although located within the definition of cluster housing, it does not have a dual function, applying the approach of Priestley JA in Carr and of Pearlman J in Scott Revay and Unn v Warringal Council (1995) 88 LGERA 1 at p6. Accordingly the development proposal is not prohibited. Decision on questions of law 14. The answers to the questions asked of the Court are as follows:- 1. No 2. Yes 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.