Land and Environment Court of New South Wales CITATION : Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council [1989] NSWLEC 183 APPLICANT Quinn O'Hanlon Architects Pty Ltd PARTIES : RESPONDENT Quinn O'Hanlon Architects Pty Ltd FILE NUMBER(S) : 10230 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Act Environmental Planning and Assessment Act Woollahra Municipal Council v. Carr 62 LGRA 263; Napper v. Shoalhaven Shire Council (1988); CASES CITED: Kruf & Anor v.Warringah Shire Council (1988) ; King v Goussetis 60 LGRA 121; Wade v Burns 115 CLR 537 DATES OF HEARING: DATE OF JUDGMENT: 05/01/1989 LEGAL REPRESENTATIVES: JUDGMENT: His Honour: This is an appeal pursuant to s 56A of the Land and Environment Court Act against the decision of an assessor published on 19 October 1988 dismissing a development application appeal from the Leichhardt Municipal Council. The grounds of appeal are that: Assessor erred in law in deciding that the building line was not a "development within the meaning of section 4 of the 2. The Assessor erred in law in deciding that he was to grant development consent to the because the development for which of the land under the Leichhardt Local 3. The Assessor erred in law in deciding that the pursuant to the provisions of State Planning Policy No 1 made by the was not made out and that in the circumstances with the requirement to observe the and did not tend to hinder the objectives of the 4. ... ". On 24 November 1987, the appellant appealed to the Court against a conditional consent granted by the Council on 26 April 1988 for the alterations and additions to an existing residential building to a dual occupancy at 54 Louisa Road, Balmain. It was common ground that the conditional approval granted by the Council was tantamount to a refusal because the conditions would require extensive modifications to the proposed development if they were to be complied with. The Council asserted that it was not lawful for consents to be granted because part of the building work was to be constructed between the Foreshore Building Line and the foreshore. It also objected to the plans as presented on general planning grounds. Foreshore Building Line Clause 7 of LEP 20 provides that: "'foreshore building line' means the broken line shown on the map marked 'Leichhardt Local Environmental Plan No 20 - Foreshore Building Line Map,' being the line generally following the foreshores of the Municipality". Clause 22 of LEP 20 - Leichhardt provides: to subclauses (2) and (3), a building not be erected between a foreshore building 2. The council may, after taking into consideration probable aesthetic appearance of the proposed or work in relation to the foreshore, (a) the erection of baths, boat sheds, dressing (b) the extension, alteration or rebuilding of a which encroaches the foreshore line, on land between a foreshore that 3. The Council shall not grant consent under subclause in respect of any alteration, extension or (a) the total encroaching floor area will be by more than 10% over the floor area as it was on the (b) the building as altered, extended or rebuilt be closer to the foreshore than the I have said, the Council submitted that the application as presented could not be consented to because of the provisions of cl 22. The appellant lodged an objection pursuant to the provisions of SEPP No 1 that compliance with cl 22 was unnecessary or unreasonable in the circumstances of the case. It is common ground that unless the objection were upheld, the development could not be permitted because of the provisions of cl 22. No question of law was referred to a judge for determination in the proceedings and the submission as to the availability of SEPP No 1 was disposed of in a short judgment by the assessor in which he expressed the opinion that: No 1 does not apply as a matter of law assessor considered that cl 22 was a "prohibition on development beyond the Foreshore Building Line" and that State Environmental Planning Policy No 1 could not be used to "vary that line". He then considered the issues going to merit and concluded that, on grounds of amenity and aesthetics, the application should be refused. Although it might be said that the asessor did not correctly articulate the ground that needed to be established or the test that needed to be applied to establish the correct ground if dispensation under SEPP No 1 were to be obtained, it is clear that when considering the question of planning merit he assumed that the objection had been been made out viz. that compliance with cl 22 was unreasonable or unnecessary. His final conclusions were expressed as follows: "(1) It is proposed to construct the alterations and additions closer to the foreshore than the existing building one was, on the appointed day, in contravention of cl 22(3)(b) of the Local Environmental Plan No. 20/Leichhardt. In the event that S.E.P.P. 1 may apply in terms of this policy cl 22 of L.E.P. 20 is not 'unreasonable and unnecessary' in the circumstances of this case; as it has not been shown that a development of the site cannot otherwise be constructed in conformity with the planning instrument. 2. The proposed building would have the effect of reducing the amenity of adjoining and nearby properties by increasing the amount of overlooking resulting in a loss of privacy and would restrict oblique water views, increase overshadowing and would appear to be of greater bulk than the existing building and a building which would conform with the requirements of L.E.P. 20/Leichhardt. 3. The design and external appearance of the proposed building is out of character with No. 56 Louisa Road (the other half of the semi-detached existing building) when viewed from the street and the waters of Parramatta River and is inappropriate to the site and the surrounding locality". Notwithstanding that the Council had granted consent, the assessor dismissed the appeal. The assessor, believed, apparently, that because he was not prepared to vary the conditions of consent, it was better that the appeal be dismissed. Mr Grogan, on behalf of the Developer, has submitted that relevantly cl 22 is a development standard and the assessor was obliged to consider the objection. Further, it was submitted that it need not be shown that compliance with the development standard is unreasonable and unnecessary - it is sufficient, if it is established, that it is "unreasonable or unnecessary". Finally, it is submitted that to obtain dispensation under SEPP No 1, it is not, as is stated by the assessor, necessary for a developer to show that development of the site cannot otherwise be constructed in conformity with the planning instrument. On behalf of the Council, Mr Ayling has submitted that cl 22 is not, nor is any part of it, a development standard. He submits that cl 22 is a prohibition on development and that SEPP No 1 can have no application to it. He submits, however, that if there is a standard to be found with respect to the Foreshore Building Line, it is not 22(1) but it is to be found in 22(2) and 22(3). He submits, that if ss 22 and 23 are the relevant standards it would follow that it could not be said that the subject development could, but for any development standard, be carried out under the Act within the meaning of cl 6 of SEPP No 1 because if cl 22(2) and (3) were ignored there would be a total prohibition on development. Finally, he submits that there would be no utility in determining the appeal and it ought be dismissed for the reason that the assessor determined the planning merits of the application upon the assumption that cl 22 did not prohibit the development and came to the conclusion in the clearest possible terms that development consent should be refused on planning merit grounds alone. Development standards are defined in the Environmental Planning and Assessment Act by s 4 as being: "provisions of an environmental planning instrument 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 without limiting the generality of the foregoing, requirements or standards in respect of - (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works or the distance of any land, building or work from any specified point; (b) the proportion or percentage of the area of a site which a building or work may occupy; (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work; (d) the cubic content or floor space of a building; (e) the intensity or density of the use of any land, building or work; (f) the provision of public access, open landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment; (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvering, loading or unloading of vehicles; (h) the volume, nature and type of traffic generated by the development; (i) road patterns; (j) drainage; (k) carrying out of earthworks; (l) the effect of development on patterns of wind, sunlight, daylight or shadows; (m) the provision of services, facilities and amenities demanded by the development; (n) the emission of pollution and means for its prevention or control or mitigation; and (o) such other matters as may be prescribed;" Mr Grogan submits that cl 22 is a standard within the meaning of the definition in s 4 being a provision "by or under which requirements are specified or standards are fixed in respect of any aspect of that development" (ie the erection of a building) within the meaning of that section. Clause 6 of State Environmental Planning Policy No 1 provides: "Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection". The subject land is zoned Residential 2b. Because the land is within the forshore scenic protection area, Council's consent is necessary for the erection of a dwelling house. In my opinion, the facts in this case are significantly different from those in Woollahra Municipal Council v Carr 62 LGRA 263 relied on by the Council. In Carr's case, the Court rejected an argument that for the purpose of SEPP No 1 the development could be characterised as the use of a building for a dental surgery. McHugh JA held that for the purpose of cl 6 of SEPP No 1, the relevant development was that of professional consulting rooms, being a use referred to in the zoning tables. As McHugh JA pointed out in Carr, a dental surgery with three employees could not be carried out even if the requirement that no more than three people were employed were eliminated because there was no other category in the Woollahra Ordinance permitting a dental surgery with more than three employees in the residential zone. It was held that the use of premises as a dental surgery with more than three employees was not a use of the building for professional consulting rooms. McHugh JA was of the opinion that "the essential c ondition that the requirements specified or a standard fixed in respect of any aspect of development must be requirements or standards which, ex hypothesi, are external to the aspect of that development". In His Honour's opinion, a provision is a not specified requirement or fixed standard "in respect of" an aspect of a development until the development and its aspects are defined. His Honour instanced the example of two storeys in a duplex building and said that they are not in any relevant sense requirements specified or standards fixed in respect of any aspect of the use of the duplex. McHugh JA pointed out that he reached his conclusions with no enthusiasm and noted that council had conceded that if the prohibition against employing more than three persons had been contained in the body of the Ordinance and not as part of the definition, it would be relevantly a "development standard" within cl 6 of SEPP No 1. In the present case, as I have said, the erection of a dwelling house is permissible in the zoning tables over the whole of the land except that that which is permitted (ie a dwelling house) may not, subject to certain exceptions, be erected over part of the land. It would seem to me, in the absence of any authority to the contrary, that the fixing of a building line as a special provision in a planning ordinance would be relevantly a development standard and one being "in respect of an aspect of the development" viz the siting of a permissible building on the land. Mr Ayling, on behalf of the Council, has submitted two decisions of this Court should lead me to a contrary conclusion. Napper v Shoalhaven Shire Council 12 February 1988 and Kruf & Anor v Warringah Shire Council 15 September 1988. In my opinion, both Napper and Kruf are distinguishable. In Napper, Stein J held that the relevant clause (said to be a standard) served a zoning function. That is, His Honour treated the relevant clause of the Sholhaven Local Plan as, in effect, having the function of zoning the land to exclude dwellings and held that, conformably with Carr, the dispensing power in SEPP No 1 could not be granted (see Carr p 237 per Priestly J). In Kruf, the developer wished to erect a motel. Motels were permissible with the consent of council. However, by cl 28A it was provided: "A person shall not, on any land within Zone No 1(a), carry out development for a purpose specified in Schedule 9A if any means of vehicular or pedestrian access exists between that land and - (a) main road; or (b) any part of any public road (other than a main road) that is within 90 metres of the intersection of that road with a main road". Motels were contained within Schedule 9A. The applicant contended that 28A imposed a development standard which was unreasonable and unnecessary. The objection was dismissed not on the ground of discretion but on the ground of power. Holland J said: "Flexible though the definition of 'development standard' in s 4(1) of the Environmental Planning and Assessment Act, 1979 may be, it is not possible sensibly to say that an absolute prohibition on a form of development in a 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 an aspect of that development' when there may not be such development". It is to be noted that the "prohibition" in Kruf extended to the whole of the land the subject of the application. In the present case, the "prohibition" applied only to that part of the land on the foreshore side of the line. I do not understand Napper as determining that a special provision in a local plan with respect to setbacks cannot be relevantly a "development standard" and one amenable to the dispensing power within SEPP No 1. If Kruf is authority for the proposition that a setback provision is not a "standard" which might, in appropriate circumstances, be dispensed with under SEPP No 1, then I must respectfully decline to follow it. In my opinion, part of the difficulty is caused by the use of the word "prohibition". In Kruf's case, motels were not "absolutely prohibited" within zone 1(a). To the contrary, they were permitted. However, the land was required to have, inter alia, a means of vehicular access more than 90 metres from the intersection of the road frontage and the main road. In my opinion, and with the greatest respect to those who view the matter otherwise, cl 28A was relevantly a "requirement specified or standard fixed in respect of that development". The present case demonstrates how unjust the result would be if a narrow approach to interpretation is adopted and how inconsistent that approach would be with the objectives of the Environmental Planning and Assessment Act. The subject foreshore building line generally follows the foreshore until it reaches the subject property and then it runs almost at right angles and up to the road before it angles off to follow the foreshore further to the east. No explanation could be given in evidence as to why the line was drawn in the way it was and the evidence before the assessor made it plain that if the foreshore building line were placed where any ordinary planner would expect it to be placed, it would have been well below the area the applicant wished to build upon. Although I have concluded the assessor was in error in his observation that "S.E.P.P. No 1 does not apply as a matter of law and is out of power", I am nonetheless of the opinion that the appeal should be dismissed. It is made clear by the well reasoned decision that upon the assumption that what was proposed was permissible with Council's consent, it should not be consented to. As I have said, Assessor Watts dealt exhaustively with all matters of planning merit and, in my opinion, made it perfectly plain that for reasons expressed on pages 3, 4 and 5 of the judgment, he was of the opinion that the application should be refused on the ground of planning merit. Indeed, in his conclusions, he refused development consent for the planning reasons referred to above. He was of the opinion that the proposed building would reduce the amenity of adjoining and nearby properties by increasing the amount of overlooking resulting in loss of privacy and restriction of water views. It would increase overshadowing and appear to be of greater bulk than the existing building. Furthermore, he was of the opinion that the design and external appearance of the proposed building is out of character with No 56 Louisa Road when viewed from the street and the waters of Parramatta River and that the development was inappropriate to the site and surrounding locality. To remit the matter to the assessor with the opinion that it was open to the assessor to dispense with compliance with cl 22 would simply be a waste of time. I am of the opinion that the error concerning the test to be applied under SEPP No 1 and the use of the conjunctive "and" instead of the disjunctive "or" had no effect on the assessor's planning decision. Had I been left in any doubt that the assessor had not properly discharged his planning function, the matter would have been remitted to him. The findings and conclusions by the assessor on matters of planning merit were not, in my opinion, relevantly "anticipatory" remarks (see King v Goussetis 60 LGRA 121 and Wade v Bur ns 115 CLR 537). In the present case, the assessor held, in terms, that the proposed building would have the effect of reducing the amenity of adjoining and nearby properties etc and that its design and external appearance were out of character with No 56 Louisa Road (conclusions 2 and 3 referred to above). For the abovementioned reasons, I am of the opinion that the appropriate order is that the appeal be dismissed. Costs reserved. 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.