Land and Environment Court of New South Wales CITATION : JSA Architects Pty Limited v Lake Macquarie City Council [2007] NSWLEC 94 APPLICANT: JSA Architects Pty Limited PARTIES : RESPONDENT: Lake Macquarie City Council FILE NUMBER(S) : 10897 of 2006 CORAM: Lloyd J KEY ISSUES: Question of Law :- preliminary question of law - statutory interpretation - zoning map - zone boundaries Environmental Planning and Assessment Act 1979 s 79C Hunter Regional Environmental Plan 1989 Lake Macquarie Local Environmental Plan 1984 cl 24A LEGISLATION CITED: Lake Macquarie Local Environmental Plan 2004 State Environmental Planning Policy (Seniors Living) 2004 cl 4(1), cl 4(2)(a), cl 5(3), Sch 1 Supreme Court Rules 1970 Pt 31 r 2 Uniform Civil Procedure Rules 2005 r 28.1 CASES CITED: DEM (Australia) Pty Ltd v Pittwater Council (2004) 136 LGERA 187; Unicomb Development Services Pty Ltd v Shellharbour City Council (2003) 125 LGERA 170 DATES OF HEARING: 06/02/2007 DATE OF JUDGMENT: 15 March 2007 APPLICANT: P M Lane (barrister) SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: G B Newport (barrister) SOLICITOR: Grant W Long JUDGMENT: - 1 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Thursday, 15 March 2007 LEC No. 10897 of 2006 JSA ARCHITECTS PTY LIMITED v COUNCIL OF THE CITY OF LAKE MACQUARIE [2007] NSWLEC 94 JUDGMENT 1 HIS HONOUR: On 19 July 2006 the applicant, JSA Architects Pty Limited, lodged a development application with the respondent, Lake Macquarie City Council, for the development of eight self-contained dwellings at Cooranbong. The development application was made under State Environmental Planning Policy (Seniors Living) 2004. On 15 September 2006 the council advised the applicant "that this application can only be refused given development pursuant to State Environmental Planning Policy - Seniors Living is not permitted within the 7(1) Conservation Primary) zoning". The council recommended to the applicant that the application be withdrawn and that a rezoning application be considered. 2 On 27 September 2006 the applicant appealed to the Court against the deemed refusal of the development application. The council has now raised a preliminary question for separate determination as follows: Whether the proposed development is prohibited by reason of clause 4(2)(a) of State Environmental Planning Policy – Seniors Living . 3 The applicant, however, has proffered an alternative form of the question as follows: Whether the respondent has power: (a) under State Environmental Planning Policy – Seniors Living ; or (b) under the Lake Macquarie Local Environmental Plan 2004; or (c) otherwise, to approve the proposed development. 4 The preliminary question, however phrased, is one which is appropriate for separate determination – permitted by Pt 31 r 2 of the Supreme Court Rules 1970, which continue to apply in this Court (cf Uniform Civil Procedure Rules 2005, r 28.1). An affirmative answer to the question raised by the council and a negative answer to the question raised by the applicant would be determinative and obviate a full hearing on the merits. 5 The proposed development straddles three zones under the Lake Macquarie Local Environmental Plan 2004 ("the LEP"): · Zone 2(2) Residential (Urban Living) zone · Zone 7(1) Conservation (Primary) zone · Zone 11 (Lakes and Waterways) zone. State Environmental Planning Policy (Seniors Living) 2004 ("the Policy") 6 The Policy prevails over any other environmental planning instrument to the extent of any inconsistency (cl 5(3)). For present purposes the relevant clause is cl 4: 4 Land to which Policy applies (1) This Policy applies to land within New South Wales: (a) that is zoned primarily for urban purposes or that adjoins land zoned primarily for urban purposes, and (b) on which development for the purpose of any of the following is permitted: (i) dwelling-houses, (ii) residential flat buildings, (iii) hospitals, (iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries. (2) This Policy does not apply to: (a) land described in Schedule 1 (Environmentally sensitive land), or … 7 Schedule 1 is headed "Environmentally sensitive land" and is as follows: Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions: (a) coastal protection, (b) conservation (but not land identified as a heritage conservation area in another environmental planning instrument), (c) critical habitat, (d) environment protection, (e) open space, (f) escarpment, (g) floodway, (h) high flooding hazard, (i) natural hazard, (j) high bushfire hazard, (k) scenic (but not land that is so identified if: (i) the land is within a residential zone in which development of two storeys or more in height is permitted, or (ii) an adjacent residential zone, also identified as scenic, permits development of two storeys or more in height), (l) water catchment, (m) natural wetland. Land identified on a bush fire prone land map certified under section 146 of the Act as "Bush fire prone land—vegetation category 1". Land shown cross-hatched on the bush fire evacuation risk map. 8 It is clear that so much of the development that is within zone 2(2) is permissible with development consent under cl 4(1) of the Policy. It is also permissible with consent under the zoning table for zone 2(2) in the LEP. In zone 7(1) development for the purpose of dwelling houses is permissible with consent under the zoning table in the LEP, and although the proposed development would thus be permissible under cl 4(1) of the Policy, it is excluded by cl 4(2)(a) and Sh 1. In zone 11, dwelling houses are permissible with development consent, but the proposed development would appear to be excluded by cl 4(2)(a) and Sh 1. The applicant's contentions 9 The provisions to which I have referred would appear to be determinative: only that part of the proposed development which is within zone 2(2) is permissible. 10 The applicant's submission, however, turns on the interpretation of the zoning map, which delineates the various zones in the LEP. The applicant submits that the zone boundaries on the zoning map are ambiguous in that they are not consistent with the objectives of the zone described in the zoning table in the LEP; neither are they consistent with the actual features of the land. It is thus submitted that a literal interpretation of the zone boundaries on the map should give way to a purposive interpretation having regard to the objectives of the zone and taking into account the actual extent of vegetation capable of protection in the 7(1) zone. If the zone boundaries were construed in a purposive way, then the whole of the proposed development would be within zone 2(2), since none of the land upon which buildings are to be erected answers the description of either the 7(1) zone objectives or the zone 11 objective set out in the zoning table. 11 A number of authorities are cited by the applicant in support of the adoption of a purposive interpretation of the zoning boundaries on the map, having regard to the beneficial purpose identified in the zoning objectives. Thus in DEM (Australia) Pty Ltd v Pittwater Council (2004) 136 LGERA 187, McColl JA said at 195 [48]: Where a beneficial statute is expressed in general terms, so far as possible within the text, decision-makers will construe the legislation to advance and achieve those beneficial purposes - not to frustrate and defeat their attainment: Marks v GIO Australia Holdings [(1998) CLR 494] per Kirby J; Boral Besser Masonry [(2003) 215 CLR 374] per Kirby J at [384]. This approach is reinforced in this case by the requirements of s 25 of the Environmental Planning and Assessment Act to which I have earlier referred. 12 Ms P M Lane, appearing for the applicant, points to a report in the statement of environmental effects (which was lodged with the development application) which states that the accuracy of the map cannot be verified, the zone boundaries were not "ground-truthed" for conformity with geographical features, the eastern boundary of zone 11 is not a true reflection of the alignment of the eastern bank of Dora Creek and the zone boundary of that zone should contain only those features that meet the intention established by the council in determining the extent and boundaries of the zones. The report goes on to state that the land within zone 7(1) would appear to be delineated within that zone based on an erroneous assessment of the extent of the waterways of Dora Creek, the nearest cadastral boundary and an interpretation of the extent of vegetation canopy in this part of the site. 13 Ms Lane also submitted that council has an entitlement, and indeed an obligation under s 79C of the Environmental Planning and Assessment Act 1979, to consider the question of whether the line on the map demarcating the boundary of a zone is in the location which does in fact express the objectives of the zone and carry them into effect. The flaws in the applicant's contentions 14 It seems to me that there are two answers to the applicant's submissions. The first, identified by Mr G B Newport, appearing for the council, is that the zone boundaries may have been intentionally located on the map for abundant caution so as to ensure protection of the environmentally sensitive lands: that is, to provide a buffer between the environmentally sensitive land and the residential land. 15 The second answer is that this LEP does not contain any provision allowing for any flexibility in the zoning boundaries. It is not at all uncommon to find, in local environmental plans, provisions of the kind considered in Unicomb Development Services Pty Ltd v Shellharbour City Council (2003) 125 LGERA 170. In that case the LEP contained a clause which was headed "Flexible zone boundaries" and which provided that development which was permissible within a particular zone may also, with development consent, be carried out on land within the adjoining zone and within 50 metres of the zone boundary. 16 Lake Macquarie is an area to which the Hunter Regional Environmental Plan 1989 ("the HREP") applies (cl 3). One of the aims of the HREP is to specify regional policies to guide the preparation of local environmental plans (cl 2(2)(b)). One of the policies specified in the HREP is that a local environmental plan should adopt provisions for flexible zone boundaries (cl 30(6)). 17 The LEP came into force on 19 March 2004 and it repealed the previous local environmental plan, Lake Macquarie Local Environmental Plan 1984 (cl 5). The 1984 LEP contained a clause relating to flexible zone boundaries, which provided that land within 20 metres of a zone boundary may be developed for any purpose for which land in the adjoining zone may be developed (cl 24A). 18 As noted above, the present LEP was made without containing any provision relating to flexible zone boundaries, such as cl 24A of the 1984 LEP. It can only be assumed that the omission was deliberate. That is, the council could have reserved the right to have a provision in its LEP relating to flexible zone boundaries but chose not to do so. The effect of what the applicant seeks to achieve is, in substance, a similar result to that which is expressly allowed by flexible zone boundary clauses. The fact such a provision may be included in a local environmental plan has been included in other local environmental plans, but has been deleted from the current LEP, suggests that there is no scope to do what the applicant suggests absent such a provision. 19 In another way, there is an express and well recognised mechanism for adopting the kind of flexibility for which the applicant contends and which has statutory force. If the applicant's submissions were right then there would appear to be no need for including clauses allowing for flexible zone boundaries in environmental planning instruments. 20 Despite Ms. Lane's thorough and careful argument, I am not persuaded by the applicant's submissions. It follows that the question for determination raised by the council must be answered in the affirmative and the question for determination raised by the applicant must be answered in the negative. Orders 21 The formal orders of the Court are: (i) Whether the proposed development is prohibited by reason of clause 4(2) of State Environmental Planning Policy – Seniors Living ? Answer: Yes (ii) Whether the respondent has power: (a) under State Environmental Planning Policy – Seniors Living ; or (b) under the Lake Macquarie Local Environmental Plan 2004, or (c) otherwise, to approve the proposed development? Answer: No I hereby certify that the preceding 20 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 15 March 2007 ************** 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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