Land and Environment Court of New South Wales CITATION : Multicraft Developments Pty Ltd v Holroyd City Council [2009] NSWLEC 53 APPLICANT Multicraft Developments Pty Ltd (previously Tso, Simon) PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 10456 of 2008 CORAM: Preston CJ KEY ISSUES: APPEAL :- error of law - misdirection as to applicable DCP - misdirection material LEGISLATION CITED: Land and Environment Court Act 1979 s 56A DATES OF HEARING: 15 April 2009 EX TEMPORE JUDGMENT DATE : 15 April 2009 APPELLANT Sandra Duggan (barrister) SOLICITORS Conomos Legal LEGAL REPRESENTATIVES: RESPONDENT Richard K Graham (solicitor) SOLICITORS HWL Ebsworth JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 15 APRIL 2009 10456 OF 2008 MULTICRAFT DEVELOPMENT PTY LTD (PREVIOUSLY SIMON TSO) v HOLROYD CITY COUNCIL JUDGMENT 1 HIS HONOUR: The applicant appeals under s 56A of the Land and Environment Court Act 1979 against the decision of two Commissioners who constituted the court to refuse development consent to the applicant's development application for the erection of eighteen apartments at 17-23 Dressler Court, Holroyd Gardens and, accordingly, to dismiss the applicant's appeal to the court under s 97 of the Environmental Planning and Assessment Act 1979. Appeals under s 56A are limited to questions of law. 2 The applicant submits that the Commissioners erred in law in that they misdirected themselves by relying on an aspect of a master plan as having been imported as an element of the applicable development control plan when in law such aspect of the master plan had not been imported. The misdirection was material in that the Commissioners found that the proposed development was significantly different to the aspect of the master plan and that there were no compelling reasons to vary the master plan or to otherwise approve the proposed development without varying the master plan. 3 The Council has made a submitting appearance on the appeal. 4 I am satisfied that the Commissioners did misdirect themselves as to the applicable development control plan and such misdirection was material. 5 The applicable development control plan is Holroyd Development Control Plan No 30-Guidelines for the Development of Holroyd Gardens ("the DCP"). As the name suggests, it is a site specific development control plan which deals with the redevelopment of land known as "Holroyd Gardens" that was the former Goodlet & Smith Brickworks site. The applicant's land is a component of this site. 6 As subs 1.9.1 of the DCP explains, the DCP is formulated in six sections. The first section, designated s 2, provides the overarching objectives for the DCP and highlights the key issues involved in the design and redevelopment of the Holroyd Gardens site. The remaining sections of the DCP address requirements for specific components of any development on the Holroyd Gardens site. Section 3 deals with open space and describes principles and requirements for the design of individual elements of the open space system, including parks, pedestrian and cyclist facilities. Section 4 identifies key principles of the street system envisaged for the site and includes requirements for street dimensions, parking and landscape. Section 5 deals with built form. It contains principles and requirements for the form, location and appearance of buildings within the Holroyd Gardens site. This section is of relevance in this appeal. I will explain this section in more detail shortly. Section 6 deals with disabled access and adaptable housing. Section 7 deals with ancillary issues. 7 Subsection 1.9.2 of the DCP explains how the DCP should be used. It states that each major section of the DCP should be addressed in terms. Specifically the following steps are to be taken: "1. Read and understand the overarching objectives and urban design concept and approach of the site (Section 2). This sets the overall context for development. 2. Recognise the relationship of an individual site to the wider open space system and establish appropriate design parameters (Section 3). 3. Recognise the relationship of an individual site to the street system and street character. Identify the appropriate guidelines appearing in Section 4 and apply to the site. 4. Within the overarching parameters established by previous sections, apply the more detailed controls and guidelines appearing in Section 5, Built Form. This also involves identifying whether an individual site is located within one of the four specific precincts which have been identified and ensuring that these specific controls have also been met. 5. Ensure that the more specific and ancillary controls appearing in Section 6 and 7 are addressed and achieved within, and additional to, the context of the building envelope and appearance defined by all previous sections." 8 Again, the step of relevance to this appeal is step four, that of applying the more detailed controls and guidelines appearing in Section 5, Built Form. 9 Section 5, Built Form, states, at the outset, that it: "outlines the key principles, and identifies controls relevant to the form and appearance of buildings to be developed on the site. The section consists of a range of controls which will apply to all development on the site, in addition to specific, and more detailed controls applying to significant areas of the site." 10 The key principles are set out in subs 5.1. Subsection 5.2 is entitled "Housing". It consists of two bullet-pointed paragraphs. The first paragraph specifies the types of uses over the site. It states: "With the exception of the Heritage Precinct, the site will be developed for residential and activities ancillary to such residential development, such as open space and home offices." 11 The second paragraph in subs 5.2 is the paragraph on which the Commissioners fastened and considered imported a Master Plan. The second paragraph states: "Based on the current indicative Master Plan, this DCP envisages that the site will have a maximum density of 260-280 dwellings, comprised of a mix of detached, semi-detached and medium density multi unit housing. Council may at its discretion consider and approve a variation to the Master Plan where compelling economic, environmental or social grounds are present, and where the overarching objectives and principles of this DCP can be achieved." 12 The reference in the first sentence of the second paragraph to "the current indicative Master Plan" is a reference to a one page document called "Indicative Master Plan" for "Holroyd Gardens" dated "February 99" and drawn by Delfin. This document was exhibit F at the hearing before the Commissioners. In the top left-hand corner of that plan a development breakup is given of a total number of dwellings of 262. The Council had, from time to time, approved variations to that Indicative Master Plan. The Master Plan that was current at the time of the hearing before the Commissioners was a document simply entitled "Master Plan" dated October 2003 and drawn by Nettleton Tribe. That Master Plan had been approved by the council at its meeting of 21 October 2003. It was exhibit 6 before the Commissioners. 13 I will come back to deal with this second paragraph of subs 5.2 in a moment after I finish explaining the balance of the controls in s 5. 14 Subsection 5.3 deals with building envelopes under two parameters, setbacks (s 5.3.1) and building height (s 5.3.2). In relation to the latter, the DCP specifies that the building height of buildings on the site "must conform with the Master Plan approved by Council." The paragraph continues noting that "a revised Master Plan may be accepted and approved by Council from time to time." 15 The Indicative Master Plan of 1999 displayed on many building allotments on the site a number in a circle, such as 5, 6, 7 or 9. This was a reference to the number of storeys, and hence the building height, permitted on the allotment on which the number was shown. The current Master Plan approved by the Council in 2003 also depicted the building height, but used a different method of showing different colours for building footprints on allotments, the different colours representing different heights. The building height control of the DCP, therefore, did incorporate by reference the Master Plan, but only the aspect of the Master Plan that specified building height. 16 Subsection 5.4 of the DCP deals with building form, specifically roof form (s 5.4.1), massing and fenestration (s 5.4.2) and orientation (s 5.4.3). Subsection 5.5 deals with building appearance, specifically streetscape (s 5.5.1), colours and materials (s 5.5.2), entries and porches (s 5.5.3) and front yards (s 5.5.4). 17 Subsection 5.6 provides specific precinct controls such as in and around the Heritage Precinct. Subsection 5.7 deals with site development issues, specifically on-site open space (s.5.7.1), privacy and overlooking (s.5.7.2), access and parking (s.5.7.3) and flooding and stormwater disposal (s.5.7.4). 18 It was common ground between the parties that the development proposed by the applicant (in its ultimate amended form) complied with each of the key principles in subs 5.1 and each of the controls relevant to form and appearance of the development in subs 5.3-5.7 of the DCP. Specifically, the proposed development complied with the building height control in subs 5.3.2 and, in particular, the building height of the proposed development conformed with the Master Plan approved by the Council (the current one being the 2003 Master Plan). The Commissioners so found in their judgment. 19 The proposed development also was of a use that conformed with the housing uses specified in the first paragraph of subs 5.2 of the DCP. 20 The Commissioners considered, however, that the proposed development did not conform with the second paragraph of subs 5.2 of the DCP in that the proposed development was inconsistent with the use and built form proposed on the Master Plan approved by the Council in 2003 for the site. The 2003 Master Plan showed the applicant's land as having four separate dwellings on four allotments. The proposed development, however, was for a residential flat building on one consolidated lot. 21 The second paragraph of subs 5.2, on a proper construction, does not, however, incorporate the aspect of the approved Master Plan specifying the built form on the allotments shown. 22 The first sentence of the second paragraph of subs 5.2 is declaratory of the fact that the DCP envisages that the overall site will have a maximum density of 260-280 dwellings, comprising a mixture of detached, semi-detached and medium density multi-unit housing. The first sentence states that this vision for the site is based on the Indicative Master Plan of 1999. That sentence does not incorporate the Indicative Master Plan as such. It does not state that development must conform to the type of residential development or be at the location for types of residential development shown on the Indicative Master Plan. The contrast in language between this first sentence of the second paragraph of subs 5.2 and the first sentence of the second paragraph of subs 5.3.2 is revealing. 23 Hence, the first sentence of the second paragraph of subs 5.2 does not import any requirement stemming from the Indicative Master Plan as to the type of residential development or location of development shown on the Indicative Master Plan. Of relevance to this proposed development, the first sentence does not import a requirement that there be four separate dwellings on four allotments on the applicant's land. 24 The second paragraph of s 5.2 is facultative in that it permits the Council to approve a variation to the Master Plan. It also, arguably, prescribes a process by which the Council should exercise its discretion to approve a variation of the Master Plan. However, it is only enlivened when a variation of the Master Plan is required. One situation where a variation of the Master Plan would be required is if the proposed building height of a proposed development did not conform with the building height in the Master Plan approved by the Council. Subsection 5.3.2 notes that the Council may accept and approve a revised Master Plan in relation to building height. Arguably, the process by which the Council should exercise its discretion to vary the Master Plan is that stated in the second sentence of the second paragraph of subs 5.2 of the DCP. 25 In the case of the applicant's proposed development, however, there is no lack of conformity with the building height specified in the Master Plan approved by the council. There also was no other control in the DCP with which the proposed development failed to comply. There was, therefore, no need for any variation of the Master Plan approved by the Council. As I have already noted, the aspect of the Master Plan which depicted types of developments on allotments on the site, in this case the four separate dwellings on four allotments of the applicant's land, was not incorporated into any control or principle in the DCP. There could not be any non-conformity in this respect. 26 The Commissioners were, therefore, in error in holding that the aspect of the Master Plan approved by the Council that showed types of development on allotments had been imported as an element of the DCP by virtue of the provisions of subs 5.2 of the DCP. It follows that there was no need for the Commissioners to ask themselves whether a variation of the Master Plan was required and, in particular, to ask themselves whether there were any compelling economic, environmental or social grounds present which would justify a variation of the Master Plan approved by the Council. 27 Accordingly, the Commissioners erred in law in determining the appeal. The error was material. The Commissioners refused the proposed development on the basis that variation of the Master Plan could not be justified in terms of the second sentence of the second paragraph of subs 5.2 of the DCP and, furthermore, that to depart from the Master Plan could not otherwise be justified. 28 For these reasons, the appeal should be upheld. 29 The Court orders: 1. The appeal is upheld. 2. The decision and the orders of the Commissioners dated 30 September 2008 are set aside. 3. The matter is remitted to the Commissioners to be determined according to this judgment. 4. The remitted matter is fixed for hearing before the Commissioners on 27 April 2009. 5. Each party is to pay their own costs of the appeal. 6. Leave is granted to the applicant's solicitor to uplift exhibits G and 4. 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.