Land and Environment Court of New South Wales CITATION : Agostino v Hawkesbury City Council [2009] NSWLEC 1422 APPLICANT Agostino PARTIES : RESPONDENT Hawkesbury City Council FILE NUMBER(S) : 10550 of 2009 CORAM: Dixon C KEY ISSUES: DEVELOPMENT STANDARDS :- prohibition Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 Hawkesbury Local Environmental Plan 1989 Hawkesbury City Council V Agostino [2009] NSWLEC176 Caterpillar of Australia Ltd v. Industrial Court of New South Wales Cranbrook School v. Woollahra municipal Council (2006) 66 NSWLR 379 North Sydney Municipal Council v. P. D. Mayoh Pty Ltd (1990) 71 LGRA 222 North Sydney Municipal Council v. P. D. Mayoh Pty Ltd (1990) 71 LGRA 222 CASES CITED: Blue Mountains CC v. Laurence Browning Pty Ltd [2006] 150LGRA 130 Woollahra Municipal Council v. Carr (1985) 62LGRA263 Kruf v Warringah Shire Council [1988] NSWLEC 102 Quinn O'Halon V Leichhardt MC (1989)68LGRA 114 Ford Mirvac Developments Pty Limited v Blacktown CC {1990] NSWLEC 3893 Kruf V. Warringah Shire Council (Supreme Court of New South Wales, Holland J. No 20027 of 1987,15 December 1988, unreported) North Sydney Municipal Council v. PD Mayoh Pty Ltd (no2) 1990 LGRA222 DATES OF HEARING: 26 November 2009 DATE OF JUDGMENT: 17 December 2009 APPLICANT Mr D Wilson (barrister) SOLICITOR A R Walmsley & Co Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths (solicitor) SOLICITOR Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Dixon C 17 December 2009 10550 of 2009 Agostino v Hawkesbury City Council JUDGMENT Introduction 1 I have been asked to determine whether clause 22 (2) of the Hawkesbury Local Environmental Plan 1989 is a prohibition of development for the purposes of a general store or a development standard which may be the subject of an objection pursuant to the provisions of State Environmental Planning Policy No 1. 2 Clause 22(2) says: Notwithstanding clause 9, the Council shall not grant consent to the carrying out of development for the purpose of any of the following on land which is in Zone No 7(d) or in the Mixed Agriculture, Rural Living, Rural Village, Environmental Protection-Agriculture Protection (Scenic) or Environmental Protection-Mixed Agriculture (Scenic) zone which has direct vehicular access to a main or arterial road: Bulky goods sales rooms or showrooms, car repair stations, caravan parks, commercial premises, general stores, hotels junk yards," 3 It is agreed that the land is zoned Rural Living under clause 9 of Hawkesbury Local Environmental Plan 1989 and fronts a main or arterial road and; for the purpose of this hearing it is accepted that the use is for a general store (although council reserves its position to argue it is a shop at any later hearing). 4 Furthermore, I note that on 19 October 2009 Lloyd J dealt with the class 4 proceedings in Hawkesbury City Council V Agostino [2009] NSWLEC176 and determined that the applicants had no existing use rights for a shop and ordered they abstain from using, permitting or suffering to be used the premises as a shop. Relevantly, those orders are postponed until 31 December 2009 to allow the determination of this development appeal for use of the land as a general store. 5 I have also been told that if I decide that clause 22(2) is a prohibition that will be determinative of the class 1 appeal because there is then no utility in proceeding with the merit hearing and the proceedings are to be dismissed. 6 Following a consideration of the law and the submissions I have decided that clause 22(2) of the Hawkesbury Local Environmental Plan 1989 is a prohibition and I dismiss this appeal. The applicant's submissions 7 The applicant relies on its written submissions filed with the court on the 23rd of November 2009 8 The applicant invites me to adopt the "contemporary approach to statutory construction" and "have regard to the context in which words appear." Caterpillar of Australia Ltd v. Industrial Court of New South Wales [2009] NSWCA 83 (17 April 2009) per Speiglman C.J with who Allsop P and Tobias JA agreed at [86]. 9 To that end the applicant submits that the meaning of the provision in an environmental planning instrument must be determined having regard to its context and purpose: Cranbrook School v. Woollahra Municipal Council (2006) 66 NSWLR 379 at 37-46 and 63; Interpretation Act 1987 s 33. 10 Furthermore the applicant says that permissible development is not necessarily to be determined by reference only to the traditional zoning table contained in the LEP. Permissible development is to be determined by reference to the instrument as a whole: North Sydney Municipal Council v. P. D. Mayoh Pty Ltd (1990) 71 LGRA 222 at 235.9 per Clark JA; Lowy V NSWLEC (2002) 123 LGRA 179 [2] per Mason P, and Giles JA [123] and Blue Mountains CC v. Laurence Browning Pty Ltd [2006] 150LGRA 130 at 148 [81] per Basten JA. 11 The applicant submits that questions of form and substance, although relevant should not divert attention from the ability, by appropriate drafting, to make a provision either a development standard or a prohibition. That is to say, "a legitimate concern about substance and form should not be allowed to blur the distinction between result and means" (per Basten JA in Browning at 147[79] and Woollahra Municipal Council v. Carr (1985) 62LGRA263 at 269.7 and Lowy at 188[37] 12 Furthermore, the applicant says that a development standard only has relevance to permitted development and must be external to development that is permitted: Lowy at [37] per Handley JA and Browning per Basten JA at [77]. 13 The applicant says that a zoning instrument may identify in its provisions characteristics of particular land to determine the admissibility of development as was the case in Mayoh but says that clause 22(2) does not do that rather it defines an aspect of the development. 14 The applicant in its written submissions compares the different approaches adopted by the court to determine if a provision is a development standard or prohibition. In Strathfield City Council v Poynting (2001) 116 LGERA 319 Giles J at [342-344] sets out a process to be undertaken in 2 steps, the first at [96] and the second at [97]. If a provision prohibits a development in question the process fails at the first step. Whether a provision specifies a requirement or fixes a standard in relation to an aspect of the (non prohibited) development is the second step." The court in Young v Parramatta [2007] NSWCA 82(27 March 2007) adopted the two stage approach but Basten JA in Browning at [41] found fault with that approach preferring to focus on the definition in the EPA Act 1979 and its application to the particular provision. 15 The applicant submits that both approaches in fact require a consideration of the EPA Act 1979, SEPP1 and the true construction of the EPI and therefore the different approaches are not inconsistent provided they reach the same ultimate question. The applicant says that despite Basten JA's criticism of the two step approach in Browning it is appropriate to use the two step approach in the present case." 16 The applicant says in the present case general stores are permissible with consent in the Rural Living zone by reference to the land use table . 17 Clause 22(1) has application to every zone established by the HLEP. In its terms, it does not prohibit permissible development, such as a general store 18 The sub clause specifies criteria to which the council is to have regard in determining any application to consent to carry out development when the land in that zone has frontage to a main or arterial road. 19 Clauses 22(2) and 22(3) have application to land, which has direct vehicular access to a main or arterial road. The land referred to by reference to zone and direct vehicular access to a main or arterial road in clause 22(2) is land included in clause 22(3) by reference to direct vehicular access from any land to a main or arterial road. 20 Furthermore, clause 22 (2) opens with the words " Notwithstanding clause 9" that is to say, clause 22(2) does not operate so as to exclude the application of clause 22(1) or clause 22(2) to a development application for a use which fronts a main or arterial road. 21 The applicant submits that clause 22(3) however, suggests, that if the council is satisfied that there is no reasonable alternative access from another road the council may consent to access to a main or arterial road. 22 The applicant says that clause 22(2) is a provision, which concerns an external aspect of the development namely: land which has direct vehicular access to a main road. The aspect referable to that word in the definition of "development standard" is "direct vehicular access." The applicant says that the decision of Kruf v Warringah Shire Council [1988] NSWLEC 102 can be distinguished and refers me to the decisions of Quinn O'Halon V Leichhardt MC (1989)68LGRA 114 and Ford Mirvac Developments Pty Limited v Blacktown CC {1990] NSWLEC 3893 April 1990). 23 The applicant submits the provisions of clause 22(2) of HLEP relate to an aspect of permitted development and not a zoning requirement. Therefore the provision is subject to provisions of SEPP 1 24 In the alternative, the applicant says that if clause 22(2) does prohibit the development there is a discretion within clause 22(3), which relaxes the prohibition in circumstances where " in the opinion of the Council there is no reasonable alternative access to the land from another road. If the council forms the requisite view the Council may consent to access to a main or arterial road if such access will be located and designed so as to minimise potential traffic hazards " Council's Submissions 25 Council relies on its written submissions filed on 19 November and 20 November 2009. 26 At the hearing it was made clear, despite raising other questions in its submissions, the only question council requires a determination of is whether clause 22(2) of HELP is a development standard. 27 Council relies on the reasoning in Kruf V. Warringah Shire Council (Supreme Court of New South Wales, Holland J. No 20027 of 1987,15 December 1988, unreported) to support its position that clause 22(2) is a prohibition and not development standard . 28 In Kruf the Court said at page 6: "In my opinion, clause 28A is a clear case of a provision that is not a development standard within the meaning of the legislation. Flexible though the definition development standard in section 4 (1) of the Environmental Planning and Assessment Act 1979 may be, it is not possible simply to say that an absolute prohibition on a form of development in the specified locality or under specified conditions is setting a standard for that form of development. It is saying that there shall be no such development, not that there may be such development only if it complies with certain requirements or standards. In terms of the definition, there cannot be 'requirements specified or standards fixed in respect of any aspect of that development' when there may not be any such development." 29 The Council submits that the extract from Kruf was quoted with approval by Clark JA in North Sydney Municipal Council v. PD Mayoh Pty Ltd (no2) 1990 LGRA222 at 236 and is particularly relevant to this question for determination because it deals with similar a planning provision that uses similar words. 30 It is council's submission that clause 22 (2) contains no provisions by or under which requirements are specified or standards are fixed in respect of any aspect of the development 31 The Council says that clause 22(2) prohibits development on land having specified characteristics. The prohibition is on land within nominated zones that has direct access to a main or arterial road, not to development that has such access. 32 The council says, adopting the reasoning of Mahoney JA in Mayoh at 234 that clause 22(2) is not a provision in relation to the carrying out of development. 33 The council says that in terms of the approach taken in Poynting clause 22(2) cannot be read as permitting a general store use albeit without access to the main or arterial road. By contrast, it is clause 22(3), which controls the access to the main or arterial road. 34 Applying the two step approach adopted in Poynting, Council submits that the questions would be as follows: Question: Is the development proposed in respect of the site prohibited in any circumstance by clause 22 (2) construed in the context of the LEP as a whole? Answer: Yes. There is an absolute prohibition on shops/general stores on land zoned Rural Living which has direct vehicular access to an arterial road. This is expressed to be "Notwithstanding clause 9" and clause 9 itself only applies "unless otherwise provided by this plan." Question: If it is not so prohibited, does clause 22(2) relevantly specify a requirement in respect of any aspect of the proposed development? Answer: Not applicable but, in any event, no, it does not. 35 The council submits that the outcome in Poynting may be distinguished on its facts. The subclause (41)(2) in Poynting did not contain words of exception such as clause 22(2) does here: "Notwithstanding clause 9". The subclause under consideration in Poynting subclause (41)(2) worked in a complementary fashion with the subclause (41)(1), which preceded it, and the clause that preceded it (41)(1) was a development standard. The contrary is the case with clause 22(1) in this instance. Clause 22(1) sets out requirements in addition to permissibility (a) for all development (b) in all zones (c) where land has frontage to an arterial road. 36 The council says that clauses 22 (1) and 22(2) work quite separately from each other and are mutually exclusive. 37 The council says clause 22 (3) applies to all development, in all zones, where land has access to an arterial road. The words in clause 22(3) clearly focus on an aspect of the development because it provides certain requirements or standards that, if complied with, would permit the granting of access provided council forms the opinion about the development has no reasonable alternative access and such access will be located and designed so as to minimise potential traffic hazard. 38 It is council's submission that if clause 22(2) is to be construed as a development standard then it has no work to do because Clause 22(1) and 22(3) have already done that work. 39 Council says that the proper and only sensible interpretation of clause 22(2) having regard to clauses 9, 22(1) and 22(3) is that clause 22(2) is a prohibition restricted to specific uses in specific zones on land bearing a specific characteristic. The clause demonstrates selectivity more consistent with a prohibition than a development standard. Findings 40 I accept that to answer the question it is necessary for me to have regard to the definition of development standard in section 4(1) of the Environmental Planning and Assessment Act 1979 and apply it to the particular words in clause 22(2) of HELP in the context of the whole planning instrument. 41 Furthermore I am mindful that Basten JA (Ipp and Tobias JJA agreeing) in Browning reasoned that the requirement in the definition of development standards that they be "in respect of any aspect of that development under section 4(1) of the EPA "…provided the surest foundation for distinguishing development standards from other provisions. The words "in respect of " indicated a nexus or connection between the requirement or standard and the development. The court applied Woollahra Municipal Council v Carr (1985 )62 LGRA 263 per McHugh JA at 269-270. in this regard. 42 If I accept the applicant's submission that the two step test in Poynting is an appropriate test for the particular circumstances of this case and is not inconsistent with the preferred approach advanced by Basten JA in the Browning the result is not favourable for the applicant. 43 .I repeat the council's submission in respect of that test: "Turning to that two step question approach adopted in Poynting, the questions would be as follows: 1. Question: Is the development proposed in respect of the site prohibited in any circumstance in clause 22 (2) construed in the context of the LEP as a whole? Answer: Yes. There is an absolute prohibition on shops/general stores on land zoned Rural Living, which has direct vehicular access to an arterial road. This is expressed to be "notwithstanding clause 9" and clause 9 only applies "unless otherwise provided by this plan." 2. Question: If it is not so prohibited, does clause 22(2) relevantly specify a requirement in respect of any aspect of the proposed development? Answer: Not applicable but, in any event, no it does not." 44 I accept the council's submission that the reasoning in Kurf approved of by Clarke JA in North Sydney V PD Mayoh (no2) 1990 71 LGRA 222 at236. is authority to support a finding that clause 22(2) is a prohibition not a development standard .Like clause 28A in Kruf clause 22(2) does not clearly fall within the definition of a development standard within section 4 of the EPA Act 1979 because the words in the clause prohibit development in specific zones for specific purpose where the land has particular features It does not regulate an aspect of the development but the land. 45 I cannot accept the applicant's submission that the decision in Kruf should be distinguished for the purposes of this appeal. I accept the council's submission that Kruf is authority for the submission that clause 22(2) of HELP is a prohibition and not a development standard. 46 Like the clause considered in Kruf clause 22(2) of HELP cannot sensibly be described as a development standard because it is "…an absolute prohibition on a form of development in a specified locality…".It is saying there shall be no such development, not that there may be such development if it complies with certain requirements or standards. 47 The decision of Ford Mirvac Development Pty Limited V Blacktown CC [1990] NSWLEC 38(3 April 1990) which did distinguish Kruf gives no comfort to the applicant it dealt with a very different clause. 48 I cannot accept the applicant's submission that Clause 22(2) is concerned with a feature of the particular development or an aspect or an essential element of the development because its focus is on a particular feature of the land. Only if the land has direct vehicular access to a main or arterial road does the clause 22(2) apply to prohibit particular development for a particular use (relevantly general store) and in particular zones (relevantly Rural Land). 49 The opening words of the clause "notwithstanding clause 9" acknowledge the fact that that clause 22(2) is overriding a zoning requirement not an aspect of the development. There is no reference to development in clause 22(2) it is concerned with particular land and particular uses . Furthermore, as the applicant points out, the words of clause 9 reserve the opportunity for further zoning criteria later in the HELP it says, ""Unless otherwise provided by this plan". 50 In my opinion Clause 22(2) cannot be said to deal with an aspect of development such as vehicular access to the development from the main or arterial road as does clause 22(3). 51 I accept the council's interpretation that Clause 22(3) is concerned with a permissible development in all zones and is subject to 22(2). 52 Clause 22(3) offers opportunity for vehicular access from a main or arterial road if council forms the opinion that there is no reasonable alternate access to the land from another road. and that access has been located and designed to minimise potential traffic hazards consent may be granted. 53 Clause 22(3) deals with an aspect of permissible development, namely; the design of access to the development in certain circumstances. It is not concerned with the type of development or the zone. It applies to all zones but seems to be relating back to clause 22(1) by relaxing the prohibition that might result if the criteria in that clause are not met. It is clearly a development standard because it deals with an aspect of the development namely the design of the access to the development. It invites council to form an opinion as to whether there is no reasonable alternative access to the land from another road for a particular development. 54 Clause 22(3) appears to compliment clause 22(1) by ensuring that the design of the development is appropriate. 55 Clause 22(3) asks for a judgement about the design of the access and therefore clearly defines an aspect of the development. 56 Relevantly, Council draws my attention to the words in clause 9(1) of the HLEP (the zoning criteria and the land use matrix clause); "…unless otherwise provided by this plan"; and the words in clause 22 (2); "Notwithstanding clause 9,.." and submits that the clauses anticipate each other to control use of particular land . 57 Having regard to the whole instrument, it is clear to me that the controls first identified in clause 9 are further defined, in this instance, by clause 22(2). The words " ..unless otherwise provided by this plan" can only be interpreted to mean that other clauses in the HLEP also control uses of land and clause 22(2) does just that it says "Notwithstanding clause 9," this development is prohibited . 58 Following a consideration of the evidence and submissions I make the following orders: 1. I determine that clause 22 (2) of the Hawkesbury Local Environmental Plan 1989 is a prohibition of development for the purposes of a general store. 2. I dismiss the appeal. ___________________ Susan Dixon Commissioner of the Court ljr 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. 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