Land and Environment Court of New South Wales CITATION : Marchese & Partners Architects Pty Ltd v Warringah Council; Eugene Marchese v Warringah Council [2002] NSWLEC 41 APPLICANT Marchese & Partners Architects Pty Ltd RESPONDENT Warringah Council PARTIES : APPLICANT Eugene Marchese RESPONDENT Warringah Council FILE NUMBER(S) : 10511; 10850 of 2001 CORAM: Talbot J KEY ISSUES: Planning Instruments :- inconsistency between State Environmental Planning Policy No 1 and a Local Environmental Plan - part repeal or amendment of State Environmental Planning Policy No 1 by a Local Environmental Plan Construction and Interpretation:- whether the Local Environmental Plan repeals or amends State Environmental Planning Policy No 1 Environmental Planning and Assessment Act 1979, s 4, s 36, s 36(1), s 36(2), s 36(4), s 70, s 74(1) LEGISLATION CITED: State Environmental Planning Policy No 1 cl 5, cl 6 Warringah Local Environmental Plan cl 3(a), cl 3(c), cl 3(d), cl 5(1), cl 12 (1), cl 12(2), cl 12(2)(b), cl 18, cl 20(1) Bell and Another v Shellharbour Municipal Council (1993) 78 LGERA 429; Edward Listin Properties Pty Ltd v North Sydney Council [1999] NSWLEC 269, unreported; Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318; CASES CITED: Goodwin v Phillips (1908) 7 CLR 1; Kartinyeri and Another v The Commonwealth of Australia (1998) 195 CLR 337; Mathieson v Burton (1970 - 1971) 124 CLR 1; The King v Wallis and Another; Ex parte Employers Association of Wool Selling Brokers and Others; Ex parte H V McKay Massey Harns Proprietary Limited and Others (1949) 78 CLR 529 DATES OF HEARING: 18/03/2002 DATE OF JUDGMENT: 03/22/2002 APPLICANT Mr C W McEwen (Barrister) SOLICITORS Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr D P Wilson (Barrister) SOLICITORS Wilshire Webb JUDGMENT: IN THE LAND AND Matter No. 10511 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 22 March 2002 Marchese & Partners Architects Pty Ltd Applicant v Warringah Council Respondent IN THE LAND AND Matter No. 10850 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 22 March 2002 Eugene Marchese Applicant v Warringah Council Respondent REASONS FOR JUDGMENT 1. Identical questions of law are listed for determination in both of these proceedings. The Court agrees with Mr Wilson, who appears for the respondent, that in truth the central question is whether State Environmental Planning Policy No. 1 ("SEPP 1") applies to development that might be carried out in the Warringah area pursuant to provisions of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and the Warringah Local Environmental Plan 2000 ("the WLEP"). Nevertheless, for clarity, the separate questions are set out in an amended notice of motion filed in matter No 10511 of 2001 as follows:- (i) Are the development standards identified in clause 12(2)(b) of the Warringah Local Environmental Plan 2000 (' LEP ') in so far as they impose controls of 'Housing Density', 'Landscaped Open Space' and 'Building Height' of the 'Built Form' in the D1 Locality Statement, "development standards" within the meaning of section 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) ? (ii) Is clause 12(2)(b) of the LEP a 'development standard' within the meaning of s4(1) of the Environmental Planning and Assessment Act 1979 (NSW) ? (iii) If the answer to question (i) or (ii) is yes, to the extent to which development the subject of the present development application does not comply with those standards or that standard, is it open for the applicant to lodge in support of such development application, and for the consent authority to determine, an objection pursuant to clause 6 of State Environmental Planning Policy No. 1 ? 2. An amended notice of motion was also filed in matter No 10850 in the same terms with the exception of differing controls, namely "… controls of 'Housing Density', 'Front Building Setback', 'Rear Building setback', Side Boundary Envelope' and 'Building Height' of the 'Built Form' in the G8 Locality Statement…" . The provisions of the WLEP 3. The relevant parts of the WLEP are as follows:- 3 What are the purposes of this plan? The purposes of this plan are: (a) as far as possible to integrate into one document all environmental planning instruments affecting the development of land in Warringah and ensure that this plan is the sole environmental planning instrument applying to the land to which it relates, and (b) … (c) to establish limits to the exercise of discretion with regard to the control of developments, and (d) to provide decision-making processes appropriate to the nature and extent of discretion to be exercised. Note. The term development is defined broadly by the Environmental Planning and Assessment Act 1979 (the EP&A Act) and includes the erection of buildings, the carrying out of works, the use of land or of a building or work on that land, and the subdivision of land. 5 What effect has this plan on other environmental planning instruments? (1) Except as provided by subclause (2), the following environmental planning instruments do not apply to the land to which this plan applies while this plan has effect: State Environmental Planning Policies Nos 1, 4, 5, 6, 9, 11, 19, 21, 22, 33, 35, 44, 45 and 56, Sydney Regional Environmental Plan Nos 9, 20 and 21, Warringah Local Environmental Plan 1985. (2) … 12 What matters are considered before consent is granted? (1) Before granting consent for development the consent authority must be satisfied that the development is consistent with: (a) any relevant general principles of development control in Part 4, and (b) any relevant State environmental planning policy described in Schedule 5 (State policies). (2) Before granting consent for development, the consent authority must be satisfied that the development will comply with: (a) the relevant requirements made by Parts 2 and 3, and (b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out. (3) … Note. Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act. To assist with understanding: Category One development is development that is generally presumed to be consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally presumed to be inconsistent with the desired future character of the locality. 18 How will the built form of development be controlled? (1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement. (2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality. 20 Can development be approved if it does not comply with a development standard? (1) Notwithstanding clause 12 (2) (b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy. (2) … (3) … 4. In matter No 10850 of 2001 it is an agreed fact that the development standards which are applicable are:- …those standards as they relate to areas within the G8 Queenscliff Locality Statement outside the medium density areas. There are separate development standards within the locality statement that are applicable to areas within the Medium Density Area. The proposed development does not comply with the development standards as set out in the G8 Queenscliff Locality Statement for those areas outside the medium density area. 5. In matter No 10511 of 2001 it is an agreed fact that the proposed development specified in the development application:- …does not comply with the built form controls in respect to building height, housing density and landscaped open space within the D1 Locality Statement. The parties disagree as to whether the proposal complies with other provisions of the LEP 6. It is Warringah Shire Council's ("the council") contention that cl 20 of the WLEP covers the field addressed by cl 6 of SEPP 1. On the other hand, Mr McEwen, who appears for the applicant, contends to the contrary. 7. All of the relevant specifications in the respective Locality Statements are clearly development standards, not only by description in the WLEP itself, but also in accordance with the definition of "development standard" in s 4 of the EP&A Act. 8. Mr McEwen further contends that cl 12(2)(b) of the WLEP is itself a development standard. The applicant's argument 9. Mr McEwen relies on the analysis undertaken by the Court of Appeal in Bell and Another v Shellharbour Municipal Council (1993) 78 LGERA 429 for the correct approach to the interaction between SEPP 1 and the WLEP where Cripps said at p 432 as follows:- In my opinion, the effect of cl 16(3) is not to totally prohibit subdivision as submitted. Its effect is to qualify the operation of cl 16(2). Clause 16(2) prevents the Council from granting consent unless certain development standards are met. Clause 16(3) allows the Council to grant development consent notwithstanding the provisions of cl 16(2) and thereby create an area of less than 40 hectares if it is satisfied conditions 16(3)(a) and 16(3)(b) are met. Clause 16(3) does not prohibit subdivision. It permits subdivision in certain circumstances notwithstanding non-compliance with cl 16(2)(a). The effect of cl 16(3) is that there is power in the Council to grant development consent for subdivision where the area subdivided will be less than 40 hectares without resort to State Environmental Planning Policy No 1 if the allotment will be used for certain purposes and will have a frontage to a main or arterial road of more than 200 metres. That is to say, development consent in such a case can be granted without a finding that the standard in cl 16(2) of the local environmental plan is unreasonable or unnecessary in the circumstances of the case (cl 6 of State Environmental Planning Policy No 1) and without the necessity of obtaining the concurrence of the Director of Planning (cl 8 of State Environmental Planning Policy No 1). 10. Moreover, in accordance with the reasoning in Edward Listin Properties Pty Ltd v North Sydney Council [1999] NSWLEC 269, unreported, Mr McEwen argues that cl 20 is not to be regarded as changing the essential character of cl 12(2)(b) or its component parts. 11. Even if it is accepted that cl 20 was intended to replace SEPP 1, which is the council's position, nevertheless, Mr McEwen says, that will not overcome the combined effect of s 36 of the EP&A Act and cl 5 of SEPP 1. 12. Accordingly, if the effect of the relevant provision in the WLEP is inconsistent with the provisions of SEPP 1, then s 36(2) of the EP&A Act applies with the consequence that SEPP 1, as a State environmental planning instrument, prevails over the WLEP to the extent of any inconsistency, as expressly provided in cl 5 of SEPP 1 as follows:- Relationship to other environmental instruments 5. This policy prevails over any inconsistency between it and any other environmental planning instrument, whenever made. 13. Section 36(2) of the EP&A Act provides as follows:- 16. A State environmental planning policy prevails over a regional environmental plan or a local environmental plan made before or after the policy to the extent of any inconsistency, if the policy expressly so provides. 14. The applicant argues that the prevalence established by s 36(2) can only be overcome by strict compliance with s36(4), namely that the WLEP must expressly amend SEPP 1 and then provide for the way in which an inconsistency between them is to be resolved. 15. Mr McEwen points out that cl 5(1) of the WLEP does not expressly amend SEPP 1. Rather, it asserts that SEPP 1 does not apply to the subject land, whereas SEPP 1 is expressed to apply to the State. Furthermore, cl 5(1) of the WLEP does not address the resolution of the inconsistency. Thus, notwithstanding the words of cl 5(1) of the WLEP or the stated purpose of the WLEP, to integrate into one document all environmental planning instruments affecting the development of land in Warringah, the statutory hierarchy established by s 36(2) of the EP&A Act has not been displaced and it remains open to the applicant to lodge and for the Court to determine a SEPP 1 objection. The Council's argument 16. Mr Wilson reiterates that in order for the provisions of SEPP 1 to apply, relevant development standards must be specified in an environmental planning instrument and development could, but for the relevant development standard, be carried out under the provisions of the EP&A Act. If these two elements occur an objection may be sustained under cl 6 of SEPP 1 if compliance with that development standard is unreasonable or unnecessary in the circumstances of the case. He relies on the following observations made by Bignold J in Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318, as follows:- But for the existence of the dispensational power conferred by SEPP No 1, any such "requirement" specified or "standard" fixed, must be obeyed, vide: ss 76(1), 76A(1) and 122-125 (inclusive), not only by all persons wishing to carry out development, but by consent authorities in determining any development application to carry out development. The dispensational power conferred by SEPP No 1, applies in terms (vide cl 6) to cases "where development could, but for any development standard, be carried out under Act" and where the dispensational power is exercised, it empowers the grant of development consent "notwithstanding the development standard". It is thus clear beyond argument, that a development standard which is not relaxed by dispensation granted under SEPP No 1, prohibits the carrying out of development. 17. The council relies on the provisions in cl 3, cl 5(1), cl 12 and cl 20 of the WLEP to demonstrate that the provisions do not, when read as a whole, specify development standards which operate as a prohibition. In particular, cl 20 specifies the criteria which, if satisfied, permits development to occur even if the development does not comply with one or more of the development standards. Furthermore, development standards, either individually or collectively, in the WLEP are not such standards which prohibit the carrying out of development. Clause 12(2) must be read contextually with cl 20(1), which conditionally provides for the granting of consent even if the development does not comply with one or more development standards. Therefore, the WLEP cannot be read on the basis that "development could, but for any development standard, be carried out under the Act" . Clause 20 takes away the restraint otherwise imposed by the application of the development standard through cl 12 (2). 18. Mr Wilson distinguishes Bell and Listin on the basis that the subject clauses under consideration in those cases did not cover the field of SEPP 1 in the way that cl 20(1) of the WLEP does by allowing the development to be carried out notwithstanding the development standard. 19. The test in cl 20(1) is consistency "with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy", whereas the test for support of a written objection made pursuant to cl 6 of SEPP 1 is that "compliance with that development standard is unreasonable or unnecessary in the circumstances of the case". It is critical to the council's argument in this respect, that the two tests be regarded as the same or essentially to the same effect. 20. Alternatively, the council argues that because there is no inconsistency between SEPP 1 and the WLEP, s 36 of the EP&A Act has no application because the "indirect express amendment" of SEPP 1 in cl 5 of the WLEP effects a partial repeal of SEPP 1, albeit the text of SEPP 1 is unchanged (F.A.R. Bennion Statutory Interpretation, 3 rd ed, 1997, p 214, Goodwin v Phillips (1908) 7 CLR 1 at 7, Mathieson v Burton (1970-1971) 124 CLR 1 at 10 and Kartinyeri and Another v The Commonwealth of Australia (1998) 195 CLR 337 at 353 – 4). 21. However, if the Court is satisfied there is an inconsistency then, relying on what Griffith CJ said at p 7 in Goodwin, SEPP1 "is repealed by implication". Furthermore, relying again on what Griffith CJ said at p 7, "if the provisions are not wholly inconsistent, they may become inconsistent in their application to particular cases, then to that extent the provisions of the former… are accepted where their operation is excluded with respect to cases falling within the provisions of the later…". 22. Mr Wilson continues that it may be argued, and it is so submitted, that absent cl 5(1) of the WLEP (insofar as it provides that SEPP 1 does not apply) there is a clear inconsistency as to the manner in which development standards are dealt with on the one hand in SEPP 1, cl 6 and cl 7, and the WLEP in cl 20 on the other hand. The inconsistency that arises as a consequence of each instrument providing for different procedures for the application of dispensing with the need to comply with the development standards is, in the council's view, resolved by the specific provision in cl 5(1) of the WLEP, namely that SEPP 1 does not apply to the land to which the plan applies. Finally, Mr Wilson contends that as there is a particular procedure designated in cl 20 of the WLEP for the purpose of overcoming the restraints of development standards, the other procedure provided by SEPP 1 is excluded ( The King v Wallis and Another; Ex parte Employers Association of Wool Selling Brokers and Others; Ex parte H.V. McKay Massey Harris Proprietary Limited and Others (1949) 78 CLR 529). The following quote from the judgment of Dixon J in Wallis at p 550 is relied upon:- …an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. 23. Finally, in relation to the construction of s 36(4) of the EP&A Act, Mr Wilson says that the provision does not provide an exclusive way in which an inconsistency between environmental planning instruments is to be resolved. It simply preserves the opportunity to do so by provision in the environmental planning instrument. 24. The disjunctive wording of sub-section 4 creates a difficulty for clear interpretation but the intention to allow for the later environmental planning instrument to provide for the way in which the inconsistency is to be resolved is reasonably apparent. The resolution of the argument 25. The applicant has concentrated on the consequences of there being an inconsistency, or lack of it, between the provisions of SEPP 1 and the WLEP. Although the council has addressed this issue, it also relies upon the effective repeal of SEPP insofar as it applies to land to which the WLEP applies. 26. The applicant's arguments may well be right, namely that cl 20 of the WLEP does not cover the entire field which is addressed in SEPP 1. Nevertheless, this ignores the effect of s 74(1) of the EP& A Act which provides as follows:- An environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type. There may also be substance in the argument propounded by Mr Wilson that cl 20 of the WLEP removes the element of prohibition from cl 12(2)(b), but it is not necessary to reach a final conclusion in respect of either argument. 27. There is a distinction to be made between inconsistency on the one hand and amendment in whole or part or repeal on the other hand. There is no room for inconsistency between SEPP 1 and the WLEP as a consequence of cl 5(1) of the latter. 28. Clause 5(1) of the WLEP clearly has the effect of an amendment to SEPP 1 by negating its application to land in the Warringah areas. The provisions of the WLEP cannot be discordant or incompatible with, that is, inconsistent, with SEPP 1, as contemplated by cl 5 of SEPP!, if in fact SEPP 1 has no application to land to which the WLEP applies. 29. The Court accepts that the relevant prescriptions found in the respective Locality Statements are development standards. 30. In the Court's opinion, cl 5(1) of the WLEP amends SEPP 1 insofar as it no longer applies to Warringah. In the light of s 70 of the EP&A Act, which vests power to make a local environmental planning instrument in the Minister as found in Pt 2 Div 2, and the role of the Minister in making State environmental planning policies it cannot be suggested that the Minister, when making the WLEP, did not understand the effect of cl 5(1) on the application of SEPP 1. 31. It follows, therefore, that dispensing power in respect of the development standards can only be found within the WLEP itself. The answers to the specific questions Question 1 32. Are the development standards identified in cl 12(2)(b) of the WLEP insofar as they impose controls in the D1 and G8 Locality Statements, "development standards" within the meaning of s 4(1) of the EP&A Act? 33. The answer to question 1 is yes. Question 2 34. Is cl 12(2)(b) of the WLEP a "development standard" within the meaning of s 4(1) of the EP&A Act? 35. Answer: Although cl 12(2)(b) requires that development standards must be complied with, it is not in itself strictly a development standard in that it does not fix the standards. That is done by the relevant Locality Statement. Question 3 36. If the answer to question one or two is yes, to the extent to which development the subject of the present development application does not comply with those standards or that standard, is it open for the applicant to lodge, in support of such development application and for the consent authority to determine, an objection pursuant to cl 6 of SEPP 1? 37. Answer: The consent authority has no power to determine an objection pursuant to cl 6 of SEPP 1 in respect of land to which the WLEP applies while the WLEP has effect. 38. If necessary, both matters will be referred for further call over before the Registrar at a date convenient to the parties. 39. The exhibits may be returned 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.