Land and Environment Court New South Wales Medium Neutral Citation: Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83 Hearing dates: 1 April 2015 Decision date: 21 May 2015 Jurisdiction: Class 1 Before: Pain J Decision: The answer to the question posed in paragraph 1, is the "no dwellings" specification for "Buffer area 1m" in the table to cl 6.1(3) of the Pittwater Local Environment Plan 2014 (PLEP) a "development standard" to which clause 4.6 of the PLEP applies, is no. Catchwords: QUESTION OF LAW – statutory construction of environmental planning instrument - no dwelling control in buffer area not a development standard but a prohibition Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4, 26, 33A, 97 Pittwater Local Environment Plan 1993 (repealed) cl 30C Pittwater Local Environmental Plan 2014 cll 1.2, 2.3, 4.5A, 4.6, 4.8, 5.4, 6.1, 7.3 Standard Instrument – Principal Local Environment Plan Cases Cited: Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 31; (2006) 67 NSWLR 672 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 152 LGERA 400 Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222 Lowy v Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 LGERA 179 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319 Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12; (2014) 201 LGERA 232 Category: Principal judgment Parties: Karimbla Constructions Services (NSW) Pty Ltd (Applicant) Pittwater Council (Respondent) Representation: Counsel: Mr F Corsaro SC with Mr J Doyle (Applicant) Mr L Waterson (Respondent) Solicitors: General counsel Meriton Group (Applicant) King and Wood Mallesons (Respondent) File Number(s): 11105 of 2014 Judgment Separate question of law in Class 1 appeal 1. Karimbla Constructions Services (NSW) Pty Ltd (the Applicant) has appealed under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of its development application (DA N0431/14) by Pittwater Council (the Council). By order made on the Council's motion in these Class 1 appeal proceedings the following question has been listed for separate hearing: Is the "no dwellings" specification for 'Buffer area 1m' in the table to clause 6.1(3) of the Pittwater Local Environment Plan 2014 ("PLEP") a 'development standard' to which clause 4.6 of the PLEP applies? 1. The Applicant is a private company within the Meriton group of companies, being a large national residential apartment developer. 2. Development standard is defined in s 4 of the EPA Act as: development standards means provisions of an environmental planning instrument or the regulations 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: … (e) the intensity or density of the use of any land, building or work, … 1. Section 26(1)(b) of the EPA Act provides: 26 Contents of environmental planning instruments Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: … controlling (whether by the imposing of development standards or otherwise) development, … 1. It is necessary to consider the overall structure and individual provisions of the Pittwater Local Environmental Plan 2014 (PLEP) in some detail in order to address the separate question. Pittwater Local Environmental Plan 2014 1. The table of contents is partially extracted as follows: Part 1 Preliminary … 1.2. Aims of plan … Part 2 Permitted or Prohibited Development 2.1. Land use zones 2.2. Zoning of land to which Plan applies 2.3. Zone objectives and Land Use Table Land Use Table … Zone R3. Medium Density Residential … Part 3 Exempt and Complying Development … Part 4 Principal Development Standards 4.1. Minimum subdivision lot size 4.1AA. Minimum subdivision lot size for community title schemes 4.1B. Minimum lot sizes for dual occupancies 4.2. Rural subdivision 4.2A. Minimum subdivision lot size for strata plan schemes in certain rural, residential and environment protection zones 4.3. Height of buildings 4.4. Floor space ratio 4.5. Calculation of floor space ratio and site area 4.5A. Density controls for certain residential accommodation 4.6. Exceptions to development standards Part 5 Miscellaneous Provisions … Part 6 Urban Release Areas 6.1. Warriewood Valley Release Area 6.2. Development requiring the preparation of a development control plan Part 7 Additional Local Provisions … 7.3 Flood planning Dictionary 1. Individual clauses provide: Part 1 Preliminary 1.2 Aims of Plan This Plan aims to make local environmental planning provisions for land in Pittwater in accordance with the relevant standard environmental planning instrument under section 33A of the Act. The particular aims of this Plan are as follows: to promote development in Pittwater that is economically, environmentally and socially sustainable, to ensure development is consistent with the desired character of Pittwater's localities, to support a range of mixed-use centres that adequately provide for the needs of the Pittwater community, to retain and enhance land used for employment purposes that is needed to meet the economic and employment needs of the community both now and in the future, to improve access throughout Pittwater, facilitate the use of public transport and encourage walking and cycling, to encourage a range of housing in appropriate locations that provides for the needs of the community both now and in the future, to protect and enhance Pittwater's natural environment and recreation areas, to conserve Pittwater's European and Aboriginal heritage, to minimise risks to the community in areas subject to environmental hazards including climate change, to protect and promote the health and well-being of current and future residents of Pittwater. … Part 2 Permitted or Prohibited Development … 2.3 Zone objectives and Land Use Table The Land Use Table at the end of this Part specifies for each zone: the objectives for development, and development that may be carried out without development consent, and development that may be carried out only with development consent, and development that is prohibited. The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In the Land Use Table at the end of this Part: a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. This clause is subject to the other provisions of this Plan. Land Use Tables Zone R3 Medium Density Residential: 1 Objectives of zone To provide for the housing needs of the community within a medium density residential environment. To provide a variety of housing types within a medium density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To provide for a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses. 2 Permitted without consent Home businesses; Home occupations 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Child care centres; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Group homes; Health consulting rooms; Home-based child care; Home industries; Multi dwelling housing; Neighbourhood shops; Places of public worship; Residential flat buildings; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Serviced apartments; Veterinary hospitals 4 Prohibited Any development not specified in item 2 or 3 … Part 4 Principal Development Standards … 4.5A Density controls for certain residential accommodation The objectives of this clause are as follows: to achieve planned residential density in certain zones, to ensure building density is consistent with the desired character of the locality. Development consent must not be granted to development for a purpose specified in Column 1 of the table to this clause on land in the zone shown opposite that development in Column 2 of that table unless the development complies with the density requirements specified in Column 3 of that table. This clause does not apply to land in the Warriewood Valley Release Area. In this clause: Warriewood Valley Release Area means the area identified as Warriewood Valley Release Area on the Urban Release Area Map. Column 1 Column 2 Column 3 Specified development Zone Density Attached dwellings R3 Medium Density Residential A maximum of 1 dwelling per 200 square metres of site area. Multi dwelling housing R3 Medium Density Residential A maximum of 1 dwelling per 200 square metres of site area. Residential flat buildings R3 Medium Density Residential A maximum of 1 dwelling per 200 square metres of site area. Semi-detached dwellings R3 Medium Density Residential A maximum of 1 dwelling per 200 square metres of site area. … 4.6 Exceptions to development standards The objectives of this clause are as follows: to provide an appropriate degree of flexibility in applying certain development standards to particular development, to achieve better outcomes for and from development by allowing flexibility in particular circumstances. Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Development consent must not be granted for development that contravenes a development standard unless: the consent authority is satisfied that: the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and the concurrence of the Director-General has been obtained. … This clause does not allow development consent to be granted for development that would contravene any of the following: a development standard for complying development, a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, clause 5.4. … Part 6 Urban Release Areas 6.1 Warriewood Valley Release Area The objectives of this clause are as follows: to permit development in the Warriewood Valley Release Area in accordance with the Warriewood Valley Strategic Review, to ensure that development in that area does not adversely impact on waterways and creek line corridors, protects existing native riparian vegetation and rehabilitates the creek line corridors, to facilitate the mitigation of odours from the Warriewood Sewage Treatment Plant on the users and occupiers of residential development in a buffer area. This clause applies to the land in the Warriewood Valley Release Area. Development consent must not be granted for development on land in a buffer area or sector or at an address mentioned in Column 1 of the table to this clause unless the consent authority is satisfied that the total number of dwellings shown opposite that buffer area, sector or address in Column 2 of that table will be erected. Column 1 Column 2 Buffer area, sector or address Number of dwellings to be erected Sector 1 Not more than 209 dwellings or less than 195 dwellings Sector 101 Not more than 4 dwellings Sector 2 Not more than 54 dwellings or less than 49 dwellings Sector 3 Not more than 34 dwellings Sector 301 Not more than 53 dwellings or less than 42 dwellings Sector 302 Not more than 84 dwellings or less than 66 dwellings Sector 303 Not more than 29 dwellings or less than 23 dwellings Sector 5 Not more than 94 dwellings or less than 75 dwellings Sector 8 Not more than 140 dwellings Sector 801 Not more than 38 dwellings or less than 19 dwellings Sector 901A Not more than 192 dwellings or less than 156 dwellings Sector 901B Not more than 36 dwellings or less than 12 dwellings Sector 901C Not more than 22 dwellings or less than 17 dwellings Sectors 901D and 901E Not more than 16 dwellings Sector 901F Not more than 14 dwellings Sector 901G Not more than 6 dwellings Sector 10 Not more than 134 dwellings Sector 10B Not more than 45 dwellings or less than 28 dwellings Sector 11 Not more than 163 dwellings or less than 147 dwellings Sector 12 Not more than 180 dwellings or less than 163 dwellings Sector 12A Not more than 19 dwellings Sector 20 Not more than 72 dwellings Buffer area 1a Not more than 17 dwellings or less than 15 dwellings Buffer area 1b Not more than 24 dwellings or less than 17 dwellings Buffer area 1c Not more than 18 dwellings or less than 13 dwellings Buffer area 1d Not more than 1 dwelling Buffer area 1e Not more than 15 dwellings or less than 11 dwellings Buffer area 1f Not more than 21 dwellings or less than 14 dwellings Buffer area 1g Not more than 23 dwellings or less than 17 dwellings Buffer area 1h Not more than 1 dwelling Buffer area 1i Not more than 39 dwellings or less than 27 dwellings Buffer area 1j Not more than 40 dwellings or less than 26 dwellings Buffer area 1k Not more than 21 dwellings or less than 14 dwellings Buffer area 1l Not more than 67 dwellings or less than 43 dwellings Buffer area 1m No dwellings Buffer area 2 Not more than 113 dwellings Buffer area 2a Not more than 29 dwellings or less than 20 dwellings Buffer area 3a Not more than 186 dwellings Buffer area 3b Not more than 9 dwellings or less than 7 dwellings 9 Fern Creek Road No dwellings Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the proposed development will not have any significant adverse impact on any of the following: opportunities for rehabilitation of aquatic and riparian vegetation, habitats and ecosystems within creek line corridors, the water quality and flows within creek line corridors, the stability of the bed, shore, and banks of any watercourse within creek line corridors. In this clause: buffer area means land identified as "buffer area" on the Urban Release Area Map. creek line corridor means land identified as "creek line corridor" on the Urban Release Area Map. sector means land identified as "sector" on the Urban Release Area Map. Warriewood Valley Release Area means the land identified as Warriewood Valley Release Area on the Urban Release Area Map. … Part 7 Additional Local Provisions … 7.3 Flood planning The objectives of this clause are as follows: to minimise the flood risk to life and property associated with the use of land, to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, to avoid significant adverse impacts on flood behaviour and the environment. This clause applies to land at or below the flood planning level. Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: is compatible with the flood hazard of the land, and will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and incorporates appropriate measures to manage risk to life from flood, and will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause. In this clause: flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metres freeboard, or other freeboard determined by an adopted floodplain risk management plan. floodplain risk management plan has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published in April 2005 by the NSW Government. 1. The Dictionary to the PLEP includes: dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers' dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, but does not include tourist and visitor accommodation or caravan parks. site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan. Pittwater Local Environment Plan 1993 1. Clause 30C of the Pittwater Local Environment Plan 1993 (1993 PLEP) provides: 30C Dwelling Yield The Council shall not grant consent to residential development on land to which clause 30B applies unless it is satisfied that the total number of dwellings to be erected in a particular sector or buffer area will comply with the following: … Buffer 1m – no dwellings … Statement of Agreed Facts 1. The parties agreed a statement of facts relevant parts of which are summarised. Karimbla Properties (No 32) Pty Ltd (another company within the Meriton Group) owns No 2 Macpherson Street Warriewood (Lot 25 Section C DP 5464) (the Macpherson Street property). The Macpherson Street property measures approximately 2.1 hectares. 2. The Macpherson Street property lies within the R3 Medium Density Residential zone within the Warriewood Valley Release Area (the Release Area) to which cl 6.1(3) of the PLEP applies. The Macpherson Street property is located within buffer area 1m in the Urban Release Area Map as defined for the purposes of cl 6 of the PLEP. 3. The results of the Warriewood Valley Strategic Review (the Strategic Review) referred to in cl 6.1 of the PLEP are set out in the Warriewood Valley Strategic Review Report (Review Report) which was adopted by the Council on 12 June 2013. Following the Strategic Review, the 1993 PLEP was amended with effect from 6 December 2013 including in relation to cl 30C. Buffer area 1m for the purposes of cl 30C of the 1993 PLEP as the same as buffer area 1m for the purposes of cl 6.1(3) of the PLEP. 4. The Applicant lodged DA N0431/14 for the construction of 30 semi-detached dwelling houses and associated infrastructure works with the Council in relation to the Macpherson Street property on 27 November 2014. The material submitted with DA N0431/14 included a written request from the Applicant that sought to justify the contravention by the proposed development of the requirement of cl 6.1(3) of the PLEP by demonstrating the requirements of cl 4.6(3). 5. The Council refused the DA by notice of determination dated 18 December 2014, with the reasons for refusal including the following: The proposed development is inconsistent with the objectives of clause 6.1 of Pittwater Local Environment Plan 2014, specifically the need for development to be undertaken in accordance with the Warriewood Valley Strategic Review, which identifies that the subject site has no capacity for residential development. The "no dwellings" yield prescribed by clause 6.1(3) of Pittwater Local Environmental Plan 2014 prohibits residential development on the site, and cannot be varied pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014. Evidence 1. The Court book (exhibit A) contained: 1. Further Amended Summons dated 1 April 2015; 2. Statement of Agreed Facts dated 19 March 2015; 3. The Council's submissions dated 24 March 2015; 4. Applicant's submissions dated 27 March 2015; 5. The PLEP and extracts form the Urban Release Area Map (from 13 February 2015 to date); 6. Affidavit of Ms Malouf, solicitor, dated 18 February 2015; 7. Warriewood Valley Strategic Review Report dated November 2012; 8. Clause 30B and cl 30C of the 1993 PLEP in force from 6 December 2013 to 26 June 2014; 9. Standard Instrument (Local Environment Plans) Order 2006 in force from 10 January 2014 to 13 July 2014; and 10. The Council's submissions in reply. Applicant's submissions 1. A summary of the Applicant's case was provided as follows. The detailed written submissions are referred to in my finding. Two principal approaches emerge from the authorities concerning the identification of a development standard to which cl 4.6 of the standard instrument would apply (see competing judgments of Tobias JA and McClellan CJ in CL in Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380). 2. Whichever test is chosen from the competing appellate authorities, a distinction is drawn between those controls which determine what planning purposes are permitted (such as zoning controls) and those which impose requirements in relation to development for those permitted purposes. 3. The PLEP is to be interpreted having regard to the structure, form and purpose of the instrument as a whole (Lowy v Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 LGERA 179 at [2]). The PLEP is structured to clearly distinguish between those provisions which are concerned with the permissibility on the one hand, and requirements in respect of permitted development on the other. 4. Built density is an aspect of the permitted purpose of residential accommodation (in its different built forms) which is regulated through requirements contained in the tables in cl 4.5A and cl 6.1(3), which are clauses with very similar wording. They are both clauses which impose numerical requirements in relation to built density which (applying the definition at s 4 of the EPA Act) are development standards. 5. The "no dwelling" reference is but one "number of dwellings" of many from the range found in the table adopted by cl 6.1(3) with which it sits "cheek by jowl". It should not lightly be found to have a different character to the other entries in the list (Lowy at [2]). 6. Development is for the purposes of a building if it subserves the purposes of the building (see cl 2.3(3) of the PLEP and Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 152 LGERA 400 at [27]). Accordingly, development for the purpose of residential accommodation in its various built forms can occur without the erection of a dwelling, for example a swimming pool, garaging, landscaping or a carpark. It follows that a requirement that "no dwelling" be erected on residentially zoned "buffer area 1m" does not prohibit residential occupation (in the form of a residential flat building, or a dual occupancy for example) but instead imposes a requirement in relation to that permitted purpose. 7. The requirement in cl 6.1(3) meets the definition of "development standard" in s 4 of the EPA Act. The requirement for Council satisfaction "that the total number of dwellings shown… in Column 2…will be erected": 1. is a provision of an environmental planning instrument; 2. relates to the carrying out of development; and 3. specifies a requirement in respect of an aspect of the permitted purpose of development of the land (Applicant's submissions par 71). 1. Clause 4.6 of the PLEP specifies particular provisions which the clause is not to apply to, but not cl 6.1(3). Council's submissions 1. The approach of Pepper J in Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12; (2014) 201 LGERA 232 following my decision in Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 should be adopted. The two step approach in Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319 applies. Clause 6.1 of the PLEP states that it will permit development in the Release Area in accordance with the Strategic Review. The Strategic Review is not specifically defined in the PLEP. The land in buffer area 1m was identified by the hydrology study commissioned for the Strategic Review as being unsuitable for further development due to the flood depth and flow characteristics of that land. It was recommended in the Review Report that the area retain its existing nil density allocation: see p 246 of exhibit A. That buffer area is within the R3 Medium Density Residential zone, where multi-dwelling housing, inter alia, is permissible. No dwelling specification for Buffer area 1m in table 1 cl 6.1(3) of the PLEP not a development standard 1. The Applicant seeks to draw upon the flexibility allowed to the Council or the Court on appeal by cl 4.6 of the PLEP to approve a DA which contravenes a development standard. That flexibility is only available if the no dwelling control in buffer area 1m in table 1 of cl 6.1(3) is a development standard (and assuming other requirements in cl 4.6 can be satisfied, about which I need make no finding). 2. The Applicant's submissions identify a number of conflicting Court of Appeal decisions which have considered this issue but there is little utility in further analysing these. The approach to the determination of whether a provision of an LEP is a development standard is the subject of conflicting views in the Court of Appeal as expressed in ratio and in obiter judgments. This was identified most recently by Pepper J in Wilson Parking at [33]-[41]. Her Honour opted to take the approach I took in Huang (No 2) of adopting the two step approach set out in Poynting as refined in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360. The most recent decision on this issue by the Court of Appeal in Agostino is also binding on me. The majority (Tobias, Giles JJA concurring, McClellan CJ at CL dissenting) essentially adopted Poynting at [50]. 3. The two step approach in Poynting as refined in Chase Property Investments will be applied. The test in Poynting poses the following questions: 1. Does the provision prohibit the development in question under any circumstances? 2. Does the provision specify a requirement or fix a standard in relation to an aspect of the (non-prohibited) development? An affirmative answer to both questions is necessary for the provision to be properly characterised as a development standard (see Poynting per Giles JA at [96]-[98]). 1. The "refinement" of this test set out in Chase Property Investments is a series of eight propositions as follows (see Chase Property Investments at [60]-[61] per Tobias JA with whom Giles JA agreed): [60] The first appellant referred to the distillation of the relevant principles by Jagot J in Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 at [26]–[31] which her Honour had derived from Poynting, Lowy and Woollahra Municipal Council v Carr (1985) 62 LGRA 263 and which she recently reiterated in McCabe v Blue Mountains City Council (2006) 145 LGERA 86 at 101–2. [61] It is convenient to set out the following propositions adopted by her Honour as I regard them as accurately summarising the principles articulated by Giles JA in Poynting: The provision in question must be 'seen as part of the environmental planning instrument as a whole' (Poynting at 342 [94]). The 'wider context' of the provision, as part of the instrument overall, should be considered in construing the provision (Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182–183 [2] per Mason P). If a provision falls within one of the matters in subparas (a) to (o) of the definition of 'development standard', that fact alone does not mean that the provision is thereby a development standard. The provision must be 'in relation to the carrying out of development' and must fix requirements or standards in respect of an aspect of the development (Poynting at 333–334 [58]). Although [there is a distinction] between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between 'regulation' and 'prohibition' cannot replace the definition in the EPA Act. As this conceptual division 'will bring finely divided decisions', 'care must be taken lest form govern rather than substance' (Poynting at 342 [93]). A provision that prohibits the development under any circumstances controls development, but is not a development standard (Poynting at 343 [96] and [98]). If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then 'in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development'. Hence: Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard. (Poynting at 343 [98]). It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269–270 per McHugh JA and Poynting at 343 [97]). An essential condition of the definition of 'development standard' is that the 'requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development' (Carr at 269–270 per McHugh JA). Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in subparas (a) to (n) of the definition of 'development standard' shows that 'a broad view of what is an aspect of a development should be taken' (Poynting at 343 [99]). 1. Subclause 3 of cl 6.1 provides that development consent must not be granted in a buffer area or sector or at an address identified in column 1 unless the consent authority is satisfied that the number of dwellings specified in the corresponding line in column 2 will be satisfied. The table provides a long list of numbers of dwellings ranging from nil to 209 for numerous specified areas. "No dwellings" is specified for one buffer area (1m) and one address (9 Fern Creek Road). The Applicant relies on (e) "the intensity or density of the use of any land, building or work" of the definition of development standard in s 4 of the EPA Act. It submits that cl 6.1(3) is a development standard as it meets the definition in s 4 being a provision of an environmental planning instrument, relates to the carrying out of development and specifies a requirement in respect of the intensity or density of the use of land. That the control in buffer area 1m of nil dwellings can be described in the terms identified in the definition of development standard in s 4 of the EPA Act is not conclusive, per Chase Property Investments at [61(2)]. 2. I agree with the Council that the control for buffer area 1m is not a development standard for the following reasons, which largely adopt the Council's submissions. First Poynting step – cl 6.1(3) has the character of a prohibition 1. On its face cl 6.1(3) imposes a prohibition in the opening words "consent must not be granted" on granting development consent for development on specified land. The prohibition can only be lifted if the Council is satisfied that no more than the total specified number of dwellings in column 2 is proposed to be built on that land. For buffer area 1m that is nil dwellings. This gives the provision the character of prohibiting the Applicant's development, the first step in Poynting, because of the effect on the land in buffer area 1m. 2. This provision is similar to that in Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 31; (2006) 67 NSWLR 672 which adopted prohibitory language in requiring consolidation of lots as a precondition to any permissible development. The provision applied indiscriminately to every permissible development within the area covered: at [93]. The Court of Appeal unanimously found that the provision in question was not a development standard. That a provision is prohibitory alone is not decisive. As the Applicant submitted, it is common for clauses including development standards to adopt prohibitory words as cl 4.5A(2) does. For example, in Lowy a majority of the Court of Appeal (Giles JA, Mason P concurring and Handley JA dissenting) held that a provision prohibiting erection of a building between the foreshore building line and the high water mark, except in accordance with a development consent, was a development standard. In the context of cl 6.1(3) of the PLEP, the particular PLEP provisions must be closely considered and applied so that direct application of other cases is rarely appropriate. 3. The structure, as well as individual clauses, of the PLEP must be considered as a whole in order to determine whether the control of nil dwellings for buffer area 1m in the table in cl 6.1(3) is a development standard, which can be varied if certain requirements in cl 4.6(3) and (4) are satisfied, or a prohibition which cannot be varied (Chase Property Investments at [61(1)]). That cl 6.1(3) which includes buffer area 1m in the table is prohibitory is confirmed when the whole of the PLEP as well as individual clauses are considered. 4. The PLEP relevantly contains Part 1 - Preliminary, Part 2 - Permitted or Prohibited Development which includes the land use table for the R3 Medium Density Residential zone and Part 4 - Principal Development Standards which includes cl 4.5A and cl 4.6. In Pt 4 cl 4.5A specifies density controls for certain residential accommodation including the R3 Medium Density Residential zone. Importantly, subclause (3) specifies that the clause does not apply to land in the Release Area. Clause 4.6 provides for exceptions to development standards. Part 6 Urban Release Areas includes the Release Area provisions in cl 6.1 which include cl 6.1(3). 5. The Council submitted correctly that cl 1.2(1) is relevant. It provides that the standard environmental planning instrument made under s 33A of the EPA Act is adopted. The standard instrument has fixed categories of zoning in cl 2. The land use table in cl 2 could not be varied to create a particular zone for the buffers in the Release Area. Direction 2 of the Standard Instrument – Principal Local Environment Plan specifies uses may be added to the list in the land use table of developments that are permitted or prohibited in a zone. Clause 6.1(3) is the means of imposing prohibitions in the Release Area. 6. That residential development is not prohibited in the R3 Medium Density Residential zone does not mean that the controls in cl 6.1(3) are development standards. The land use table for R3 Medium Density Residential referred to in cl 2.3 is expressly stated in subclause (4) to be subject to the other provisions of the PLEP. This includes provisions which have the effect of prohibiting some or all of specified kinds of development, such as cl 6.1(3). 7. Unlike cl 4.6 which applies where a development standard would be contravened, cl 6.1(3) is a condition precedent to the permissibility of development, namely the Council must be satisfied of the matters set out in that clause for the relevant area of land identified in column 1. To refer to contravention of such a provision is inapt as the Council submitted. 8. The Applicant compared the structure of cl 4.5A in Pt 4 headed Principal Development Standards specifying density controls for certain residential accommodation as specified under subclause (4) in column 3 of the table, with the structure of cl 6.1 in the Release Area. The density controls specified in cl 4.5A are development standards, despite subclause (2) being worded as an imperative (must not). By analogy the density controls for the Release Area are located in cl 6.1 and include a table where the "no dwellings" limit is identified along with other density controls and must also be development standards according to the Applicant. The controls for buffer area 1l for example are similar to those in cl 4.5A. The Applicant submitted that cl 6.1(3) clearly imposed a requirement that the Council must be satisfied about the density for a permissible form of development. In cl 6.1(3) the required state of satisfaction is as to the number of dwellings to be erected on land in a buffer area or sector as a whole, not in relation to a particular development proposal. This requirement is quite different to the application of cl 4.5A which is directed to the site area (also defined in the PLEP) of a particular development. Clause 4.5A(3) also provides explicitly that the clause does not apply to the Release Area, further support for the Council's position. 9. In cl 4.6(8) the application of cl 4.6 is excluded in certain defined circumstances, such as cl 5.4. Part 6 or cl 6.1 is not included in cl 4.8. That cl 5.4 is expressly excluded from the operation of cl 4.6, the Applicant considered favoured its construction of the PLEP. This was said to show that the drafters of the PLEP were careful to identify controls in other parts of the PLEP which were not considered to be development standards. I cannot agree. Viewed as a whole the PLEP is identifying Pt 6 as a separate regime for the development of the Release Area from Pt 2 controls. That it is not referred to in cl 4.8 in Pt 2 does not assist in establishing the controls in issue are a development standard. As the Council submitted, the reason cl 4.6(8) does not refer to cl 6.1(3) is that the latter is not a development standard. 10. The Applicant's submission that the objectives in cl 4.6(1) referring to the provision of flexibility to achieve better planning outcomes were also intended to apply to the density controls in cl 6.1(3) cannot be correct for the reasons stated above in par 37. Further, cl 6.1 specifies objectives for the Release Area to which that clause is entirely directed. The scheme of the PLEP suggests cl 6.1 is a "stand alone" section of the PLEP. 11. The Applicant submitted that objective (a) of cl 6.1(1) of permitting development in the Release Area in accordance with the Strategic Review supported its approach as that goal is more likely to be promoted by the flexible application of the number of dwellings standard than a rigid prohibition. That submission relies on a finding of an implied objective or purpose. Supporting development through a flexible approach to dwelling numbers is not stated expressly in cl 6.1(1)(a). It is but one objective of cl 6.1. Subclause (1)(b) refers to ensuring that development in the Release Area does not adversely impact on waterways and creek line corridors inter alia. That objective was emphasised by the Council. The objective in cl 6.1(1)(a) is to permit development in the Release Area in accordance with the Strategic Review. There is no basis for implying into that subclause the implicit purpose contended for by the Applicant. 12. I conclude that for the numerous reasons above cl 6.1(3) is a prohibition on the development in question under any circumstances (Chase Property Investments [61(4)], [61(5)]). This conclusion means that cl 6.1(3) does not satisfy the first step in Poynting and therefore is not a development standard. Nevertheless, for completeness I will consider cl 6.1(3) in the context of the second step in Poynting. Second Poynting step – no specification in relation to an aspect of the development 1. Clause 6.1(3) does not pass the second step in Poynting because it does not specify a requirement or fix a standard in relation to an aspect of a development. I agree with the Council that cl 6.1(3) is a provision which provides that "on land of characteristic X no development may be carried out", to use the words of Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222 at 234. "No dwellings" for buffer area 1m in cl 6.1(3) is not a matter relating to a development standard but to the carrying out of development at all on that land. 2. It is also necessary to identify the particular development in question in order to apply this step and determine whether the provision is directed to an aspect of that development (Chase Property Investments [61(6)], [61(8)]). The particular development the subject of the DA is characterised in the Applicant's submissions as the erection of "semi-detached dwellings". Whether or not this is correct (or whether the proposed development comprises the erection of "multi-dwelling housing" as the proposed dwellings are not to be located on separate lots according to the Council), cl 6.1(3) does not specify a requirement or fix a standard in relation to an aspect of that or any other development. 3. The pre-condition in cl 6.1(3) operates by reference to the number of dwellings to be erected on the whole of the land comprising the relevant sector or buffer area. It does not operate by reference to the number of dwellings to be erected as part of a particular development. Thus, cl 6.1(3) imposes a requirement comprising the Council's satisfaction as to the existence of an attribute of the whole of the land comprising the relevant sector or buffer area within which a proposed development is to be carried out. It does not impose a requirement relating to the carrying out of an aspect of a proposed development. Whether or not the Council is satisfied that the relevant area of land has the required attribute determines whether a proposed development is permissible at all, but it cannot be properly regarded as a requirement relating to the carrying out of an aspect of that development. 4. This is made clear when it is recognised that cl 6.1(3) applies to "development" of any kind, unlike cl 30C of the 1993 PLEP which only applied to "residential development". There are a number of kinds of development permissible in the R3 Medium Density Residential zone which do not involve the erection of a "dwelling" for example "neighbourhood shops" and "child care centres". It is therefore plain that cl 6.1(3) (which operates by reference to the erection of specified numbers of "dwellings") cannot be regarded as specifying a requirement or fixing a standard in relation to an aspect of these kinds of development. 5. The Applicant submitted that, as the density controls with variable dwelling numbers in cl 6.1(3) being development standards (which I have not accepted above), were immediately next to buffer area 1m such close proximity supported its approach. As the Council submitted that is not the correct comparison of proximity of provisions in the PLEP. Part 4 Principal Development Standards is clearly separated from Part 6 Urban Release Area, the relevant comparison for proximity. 6. There are additional arguments made by the parties which are not necessary to my finding but which I refer to for completeness. The Council sought to rely on parts of the Strategic Review which is referred to directly by name in cl 6.1(1), although not defined in the PLEP, to identify that the Macpherson Street area identified in buffer area 1m is subject to flooding. The criterion of no dwellings, it was submitted, was worked out carefully following specific detailed studies and public consultation resulting in a conclusion that no residential development should be permitted in that area. As the Applicant submitted there is no reference explicitly to this intention in the PLEP. For that submission to have effect such an inference must be available from the terms of the PLEP. The objects in cl 6.1(1)(b) provide some support and no dwellings in a buffer area suggest a likelihood of flooding of that area. That cl 7.3 deals with flooding explicitly does not mean that that clause is the only place in the PLEP which can be construed as addressing flooding issues contrary to the Applicant's submission. 7. The Applicant submitted that introducing flexibility in appropriate cases to a no dwelling "density control" in cl 6.1(3) does not mean that a development will be approved under cl 4.6 given subclauses (3) and (4). That does not assist in the statutory construction of cl 6.1(3) viewed in the context of the PLEP as a whole. 8. The Applicant also submitted that as cl 2.3(3)(a) specifies that use of land for the purposes of a building does not require a dwelling (building) to be constructed, the identification of different types of dwellings as permissible in the land use table in cl 2.3 therefore includes use of land for the purpose of a dwelling. This could include ancillary uses (and structures) such as a swimming pool where residential accommodation is permitted in the R3 Medium Density Residential zone. Development in a buffer area can be associated with residential use without an actual dwelling being constructed on it. This was said to support a finding that the no dwelling requirement in cl 6.1(3) is a requirement in relation to a permitted purpose, and therefore supports a finding that it is a development standard. This construction does not fit with my findings above of how the scheme applies with the Release Area in a separate part of the PLEP. I do not consider I should change my finding that cl 6.1(3) is not a development standard based on this submission. 9. The answer to the question posed in paragraph 1, is the "no dwellings" specification for "Buffer area 1m" in the table to cl 6.1(3) of the Pittwater Local Environment Plan 2014 (PLEP) a "development standard" to which clause 4.6 of the PLEP applies, is no. ********** 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. Decision last updated: 25 May 2015