Land and Environment Court of New South Wales CITATION : Australand Holdings Limited v Lane Cove Council [2004] NSWLEC 260 APPLICANT: Australand Holdings Limited PARTIES : RESPONDENT: Lane Cove Council FILE NUMBER(S) : 10498 of 2003 CORAM: Lloyd J Appeal :- decision of commissioner - application of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development - no error of law KEY ISSUES: Appeal: - decision of commissioner - environmental planning instrument - weight to be accorded - not a question of law Land and Environment Court Act 1979 s 56A State Environmental Planning Policy No. 1 - Development Standards LEGISLATION CITED: State Environmental Planning Policy No. 53 - Metropolitan Residential Development State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development Pt 2 Lane Cove Local Environmental Plan 1987 cl 19I Attorney-General (NSW) v X (2000) 49 NSWLR 653. ; BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274; CASES CITED: Hely & Horne Architects Pty Ltd v Parramatta City Council [1974] 1 NSWLR 690; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 DATES OF HEARING: 23/04/2004 EX TEMPORE 04/23/2004 JUDGMENT DATE : APPLICANT: Mr M G Craig QC and Mr J E Robson (barrister) SOLICITORS: Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT: Mr J A Ayling SC, Ms S A Duggan (barrister) and Mr A E Maroya (barrister) SOLICITORS: Pike Pike & Fenwick JUDGMENT: - 4 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10498 of 2003 Lloyd J 23 April 2004 AUSTRALAND HOLDINGS LIMITED Applicant v LANE COVE COUNCIL Respondent EX TEMPORE JUDGMENT HIS HONOUR: 1 This is an appeal by the applicant, Australand Holdings Limited, against a decision of Commissioner Brown, such appeal being limited to a question of law: s 56A of the Land and Environment Court Act 1979. The applicant had appealed against the refusal by the respondent, Lane Cove Council, of a development application for the demolition of fourteen dwelling houses and the erection of four residential flat buildings at Nos. 1-16 Duntroon Avenue, St Leonards. The Commissioner dismissed the appeal. 2 The relevant facts may be briefly described. Numbers 1 to 16 Duntroon Avenue are subject to Lane Cove Local Environmental Plan 1987 ("the LEP") under which the land is zoned 2(a1). That zoning allows, with consent, dwelling-houses, dwellings used in conjunction with shops, and villa homes; but it prohibits residential flat buildings. 3 State Environmental Planning Policy No. 53 - Metropolitan Residential Development ("SEPP No. 53") applies to the land. By Amendment No. 6 to SEPP No. 53, published in the New South Wales Government Gazette on 8 November 2002, Sch 6 was added to SEPP No. 53. That schedule in turn inserted a new cl 19I into the LEP. 4 Clause 19I is a site-specific provision: it applies only to Nos. 1 to 16 Duntroon Avenue, St Leonards. It allows development for the purpose of residential flat buildings with development consent on the land. Sub-clauses (5) to (10) of cl 19I also specify development standards which apply to the erection of residential flat buildings on the land. In particular, sub-cl (5)(a) states that any residential flat building on the land must comply with the dimensions, building envelopes, building alignments and maximum building heights set out in the Duntroon Avenue Reference Plan. That is a document that identifies a detailed design strategy for buildings in the form of residential flat buildings to be erected on the land. 5 Sub-clause (11) of cl 19I relevantly states: Nothing in this clause limits the operation of: (a) State Environmental Planning Policy 1 - Development Standards or (b) State Environmental Planning Policy 65 - Design Quality of Residential Flat Developmen t, with respect to the erection of residential flat buildings on the subject land… 6 In his consideration of the appeal the Commissioner considered a number of objections that were made under State Environmental Planning Policy No. 1 – Development Standards ("SEPP No. 1"). Having determined those objections favourably to the applicant, the Commissioner then expressly considered the design principles set out in Pt 2 of State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development ("SEPP No. 65"). The Commissioner applied the various design principles in SEPP No. 65 to the proposed development and then set out his conclusion, which in turn led to his refusal of the application, as follows in par [85]: In considering the matters contained within SEPP 65 and for the reasons mentioned in the preceding paragraphs, I find that the proposed development is not of good design and inconsistent with the aim of achieving "better built form and aesthetics of buildings and of the streetscapes and the public spaces they define" (cl 2(b)). 7 The applicant submits that the correct construction of a document involves a question of law; that is, the construction of an environmental planning instrument wrongly involves an error of law. In this context reference is made to Hely & Horne Architects Pty Ltd v Parramatta City Council [1974] 1 NSWLR 690 and also to Attorney-General (NSW) v X (2000) 49 NSWLR 653. 8 The applicant submits that the Commissioner fell into legal error because, as I understand it, he sought to apply SEPP No. 65 independently of and without regard to the provisions of Sch 6 of SEPP No. 53 which inserted cl 19I into the LEP. It is submitted that no sense can be made of cl 19I if, in applying SEPP No. 65, one did so blind to the detailed planning for the site. It is submitted that the only legally proper way of applying the two statutory instruments together is to apply the principles in Pt 2 of SEPP No. 65 to the context of a building generally conforming to the specific site controls. The approach of the Commissioner is said to be tantamount to undermining or at least challenging the specific statutory controls for the site by reference to the general provisions of SEPP No. 65 notwithstanding the rule known as generalia specialibus non derogant (general things do not derogate from special things). 9 In accepting that the correct construction of an environmental planning instrument involves a question of law, there are, however, two simple answers to the applicant's submissions which demonstrate that there has been no error. 10 The first is found in cl 19I itself, sub-cl (11) of which states that nothing in this clause limits the operation of SEPP No. 65 with respect to the erection of residential flat buildings on the subject land. Sub-cl (11) does not say, for example: "Subject to the preceding subclauses of this clause, nothing in this clause limits the operation of State Environmental Planning Policy No. 65". SEPP No. 65 is expressly stated as applying without limitation. This is consistent with the express aim of Amendment No. 6 to SEPP No. 53, namely: "to facilitate the erection of well-designed residential flat buildings on certain land at St Leonards". 11 The second answer is found in SEPP No. 65 itself. Clause 6 of SEPP No. 65 states: In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this policy prevails to the extent of the inconsistency. 12 These words are plain and unambiguous. SEPP No. 65 thus prevails over cl 19I of the LEP. When considered with sub-cl (11) of cl 19I of the LEP and the express application of SEPP No. 65 without limitation to the erection of residential flat buildings on the subject land, it is clear that the Commissioner's approach to the apparent inconsistency between the two instruments was exemplary. 13 If it can be said that there is any question of weight, it is settled law that the weight to be given to a particular consideration or planning instrument does not involve a question of law. It is generally for the decision-maker (in this case the Commissioner) and not the Court on an appeal to determine the appropriate weight to be given to matters which are required to be taken into consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 and 42 per Mason J, BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279 per Mahoney JA and Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 206 per Mason P. 14 In the present case, no error of law is demonstrated. It is apparent that the Commissioner formed the view that the proposed building was not well designed as required by the express aim of Amendment No. 6 to SEPP No. 53 and contrary to SEPP No. 65. 15 The formal orders of the Court are: (1) The appeal is dismissed. (2) The applicant must pay the respondent's costs. I hereby certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate ********** 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.