Lloyd v Wollongong City Council [2015] NSWLEC 146

Land and Environment Court New South Wales

Medium Neutral Citation: Lloyd v Wollongong City Council [2015] NSWLEC 146 Hearing dates: 29 September 2014 Date of orders: 08 September 2015 Decision date: 08 September 2015 Jurisdiction: Class 1 Before: Pepper J Decision: The separate question is answer "no". The Class 1 appeal is dismissed. See orders at [67]. Catchwords: SEPARATE QUESTION: whether development consent could be granted by council under new local environmental plan for the erection of a dwelling house on land that did not meet certain development standards concerning lot size - whether erection of dwelling house was permissible under repealed local environmental plan immediately before the commencement of new local environmental plan – separate question answered in the negative.

STATUTORY CONSTRUCTION: construction of environmental planning instruments – applicable principles – use of dictionaries – meaning of "permissible". Legislation Cited: Environmental Planning and Assessment Act 1979, s 79C Interpretation Act 1987, s 33 Land and Environment Rules 2007, r 3.7 State Environment Planning Policy No 1 – Development Standards Wollongong Local Environmental Plan 1990, cls 4, 9, 14 Wollongong Local Environmental Plan 2009, cls 1.2, 1.8, 1.8A, 1.9, 2.3, 4.1, 4.2A, 4.6 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104 Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; 78 NSWLR 43 Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 379 Commissioner of Taxation v Consolidated Media Holdings (ACN 009 071 167) Ltd [2012] HCA 55; (2012) 250 CLR 503 Cranbrook School v Woollahra Council [2006] NSWCA 155; (2006) 66 NSWLR 379 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Fencott Drive Pty Ltd v Lake Macquarie City Council [2000] NSWLEC 146; (2000) 110 LGERA 318 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Olsson v Goulburn Mulwaree Council & Minister Administering the Crown Land Act 1989, Olsson v Minister Administering the Crown Land Act 1989 [2010] NSWLEC 169; 176 LGERA 71 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473 Thiess v Collector of Customs [2014] HCA 13; (2014) 250 CLR 669 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 Texts Cited: Category: Principal judgment Parties: Timothy Francis Lloyd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: Ms H Irish (Applicant) Ms S Duggan SC(Respondent)

Solicitors: RMB Lawyers (Applicant) Wollongong City Council (Respondent) File Number(s): 14/10440

Judgment

Is the Proposed Erection of a Dwelling on Land at Otford Permissible Under the Earlier LEP? 1. Before the Court is the following question for separate determination in an appeal filed in Class 1 of the Court's jurisdiction against the refusal by the respondent, Wollongong City Council ("the council"), to grant development for the erection of a dwelling-house on vacant land: Is the erection of a dwelling house on Lot 3 DP 242135 ("the subject lot") permissible for the purposes of cl 4.2(A)(b) of Wollongong Local Environmental Plan 2009 as: a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, having regard to the provisions of cl 14 of the Wollongong Environmental Plan 1990 (being the Plan in force immediately prior to the coming into force of Wollongong Local Environmental Plan 2009) where: (1) the subject lot is an allotment to which the provisions of cl 14(1)(a), (b) or (d) do not apply; (2) the subject lot is an allotment of a size less than the 40 hectares development standard in cl 14(1)(c) to which the dispensational power under SEPP 1 would apply; (3) the grant of consent to the erection of a dwelling house was also contingent upon the Council being satisfied of the matters in cl 14(1)(e)-(g) namely: (e) adequate vehicular access will be provided to the site of the proposed dwelling – house or dwelling; (f) the erection of the proposed dwelling-house and associated activities on the allotment will not detract from the environment by way of a visual intrusion vegetation clearance, drainage pollution of bushfire risk, and (g) the proposed dwelling house will be provided with an adequate water supply and means of disposal sewage; (4) the Council had a discretion under cl 14(3) to require, as a condition of its consent to the erection of a dwelling-house, the consolidation of the allotment with any other adjacent allotment in the same ownership. 1. As formulated, the separate question seeks to determine whether the development application the subject of the appeal to construct a dwelling-house on a parcel of land at Otford (Lot 3 DP 242135, or "the Lot") is an application for the erection of a dwelling-house that was permissible before the commencement of the Wollongong Local Environmental Plan 2009 ("the 2009 LEP") on 26 February 2010. The question raises for consideration the proper construction of, in particular, cl 4.2A(2)(b) of the 2009 LEP. 2. The applicant, Mr Timothy Lloyd, contends that the question should be answered in the affirmative and in his favour. That is to say, that the erection of a dwelling on the Lot is, for the purposes of cl 4.2A(2)(b) of the 2009 LEP, "a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement". 3. The council submits that the separate question should be answered in the negative. In its written submissions the council sought to paraphrase the separate question as follows: The separate question as formulated seeks to determine whether the development application the subject of the appeal to construct a dwelling house on a parcel of land at Otford is development which is capable of being granted consent pursuant to the provisions of the Environmental Planning and Assessment Act, 1979 ("EP&A Act). 1. I agree with the submission of Mr Lloyd that, as framed, this question is broader than the question ordered to be determined separately by the Court on 14 August 2014 (quoted above). The council's question is wider because it includes considerations of merit under s 79C of the Environmental Planning and Assessment Act 1979 ("the EPAA"), which will ultimately, if the question is answered in the affirmative, be a matter of determination by the Court, as the consent authority, in the Class 1 appeal. I therefore propose to answer only the more narrow separate question ordered for determination by the Court. 2. If the answer to the question is "yes" this will dispose of contention 1 of the Class 1 appeal before the Court, and the balance of the contentions in the appeal may be listed for case management. If, however, the answer to the question is "no", then the parties agree that this will dispose of the appeal in its entirety. 3. In my opinion, for the reasons given below, the separate question is to be answered in the negative, with the consequence that the Class 1 appeal must be dismissed.

Factual and Statutory Background Governing the Disposition of the Separate Question 1. The following facts are not in dispute. They emanate from a statement of agreed facts and a bundle of agreed documents. 2. The Lot was created upon registration of DP 242135 on 6 March 1972. 3. Development application no DA-2013/825 ("the DA") seeks consent for the erection of a dwelling-house on the Lot. The Lot has an area of 2.023 ha. 4. Pursuant to the 2009 LEP the Lot is land within Zone E3 Environmental Management ("Zone E3"). 5. Pursuant to cl 2.3(1) of the 2009 LEP and the Land Use Table, development for the purpose of "dwelling-houses" is development that may only be carried out with development consent on land within Zone E3, otherwise the development is prohibited. 6. Clause 2.3 Zone objectives and the Land Use Table is "subject to the other provisions of" the 2009 LEP (cl 2.3(4)). 7. Clause 4.2A of the 2009 LEP is such a provision. It regulates the erection of dwelling-houses on land in zones, including, relevantly, Zone E3 (cl 4.2A(1)). 8. Subclause 4.2A(2) of the 2009 LEP is central to the determination of the separate question. It provides that (emphasis added): 4.2A Erection of dwelling houses on land in certain rural and environmental protection zones … (2) Development consent must not be granted for the erection of a dwelling house on land to which this clause applies, and on which no dwelling house has been erected, unless the land is: (a) a lot created in accordance with clause 4.1, or (b) a lot created before this Plan commenced that met the minimum lot size specified to permit the erection of a dwelling house under Wollongong Local Environmental Plan 1990 in effect immediately before that commencement, or (c) a lot created before this Plan commenced that is at least the minimum lot size specified for that lot by the Lot Size Map, or (d) land that will be a lot in a subdivisions for which development consent was granted or approval under Part 3A of the Act was given before this Plan commenced and on which the erection of a dwelling house would have been permissible immediately before that commencement, or (e) an existing holding with an area of not less than 10 hectares, or (f) a lot that was created after 30 April 1971 but before 23 February 1984 and which has an area of not less than 20 hectares, or (g) a lot that was created on or after 23 February 1984 but before the commencement of this Plan and which has an area of not less than 40 hectares, or (h) a lot that was created before the commencement of this Plan, but only if the subdivision requirements for the land, or number of dwelling houses to be erected on the land, were specified in Schedule 2 to the Wollongong Local Environmental Plan 1990 immediately before that commencement. 1. At this juncture two observations may be conveniently made about the application of cl 4.2A(2) to the Lot. First, if the Lot is "a lot created in accordance with cl 4.1" of the 2009 LEP, then development consent may be granted for the erection of a dwelling-house (cl 4.2A(2)(a) of the 2009 LEP). However, cl 4.1 contains a minimum lot size development standard applicable to "a subdivision of any land shown on the Lot Size Map that requires development consent that is carried out after the commencement of" the 2009 LEP. The DA itself does not, however, involve subdivision. 2. Second, if the Lot is a lot created before the 2009 LEP commenced "that is at least the minimum lot size specified for that lot by the Lot Size Map", then development consent may be granted for the erection of a dwelling-house (cl 4.2A(2)(c) of the 2009 LEP). But it was common ground that the minimum lot size specified for the subject lot by the Lot Size Map is 39.99 ha, whereas, as stated above, the Lot has an area of only 2.023 ha. 3. Pursuant to cl 1.9(2) of the 2009 LEP, the dispensational power conferred by State Environmental Planning Policy No 1 – Development Standards ("SEPP 1") does not apply to land to which the 2009 LEP applies. Moreover, cl 4.6 of the 2009 LEP does not allow development consent to be granted for development that would contravene cl 4.2A. 4. Immediately prior to the commencement of the 2009 LEP on 26 February 2010, the Lot was zoned Zone No 7(d) (Hacking River Environmental Protection Zone) ("Zone 7(d)") under the Wollongong Local Environmental Plan 1990 ("the 1990 LEP"). 5. Under the 1990 LEP, development for the purpose of "dwelling-houses" was development that could be carried out with development consent pursuant to the Land Use Table referred to in cl 9(2) relating to Zone 7(d). 6. Clause 14 of the 1990 LEP regulated the erection of "dwelling-houses" on an allotment of land within, amongst others, Zone 7(d). It relevantly stated that: 14 Dwelling-houses in Zone No 1, 7 (b) or 7 (d) (1) The Council shall consent to the erection of a dwelling-house on an allotment of land within Zone No 1, 7 (b) or 7 (d) only if there is no dwelling-house on the allotment and if the allotment: (a) is an existing holding which has an area of not less than 10 hectares, or (b) is an allotment: (i) which was created after 30 April 1971 but before 23 February 1984, and (ii) which has an area of not less than 20 hectares, or (c) is an allotment of not less than 40 hectares, or (d) is an allotment which was created before or after the appointed day: (i) by a subdivision approved by the Council not more than 2 years before that day, or (ii) (Repealed) and if the Council is satisfied that: (e) adequate vehicular access will be provided to the site of the proposed dwelling-house or dwelling, (f) the erection of the proposed dwelling-house and associated activities on the allotment will not detract from the environment by way of visual intrusion, vegetation clearance, drainage pollution or bushfire risk, and (g) the proposed dwelling-house will be provided with an adequate water supply and means of disposal of sewage. … (3) The Council may, as a condition of its consent to the erection of a dwelling-house on an allotment of land within Zone No 1, 7 (b) or 7 (d), require the consolidation of the allotment with any other adjacent allotment in the same ownership. 1. The Lot is an allotment to which the criteria in cl 14(1)(a), (b) or (d) of the 1990 LEP do not apply. 2. The Lot is an allotment of a size less than the 40 ha development standard referred to in cl 14(1)(c) of the 1990 LEP to which the dispensational power under SEPP 1 applied. 3. The grant of consent to an erection of a dwelling-house under the 1990 LEP was, in addition, contingent upon the council being "satisfied" of the matters in cl 14(1)(e), (f) and (g) of that LEP. 4. Furthermore, the council had a discretion under cl 14(3) of the 1990 LEP to require, as a condition of consent to the erection of a dwelling-house, the consolidation of the allotment with any other adjacent allotment in the same ownership. 5. Finally, as at 26 February 2010 (the date the 2009 LEP commenced), no application had been made to the council for consent to erect a dwelling-house on the Lot.

Issue for Determination 1. The issue for determination is beguilingly short in compass, namely, whether the Lot is a lot on which the erection of a dwelling house was permissible immediately before the commencement of the 2009 LEP. Or put even more simply, whether the Lot is a lot on which the erection of a dwelling house was permissible under the 1990 LEP. 2. In short, the council submitted that immediately before the commencement of the 2009 LEP, the Lot did not meet the minimum lot size under cl 14 of the 1990 LEP, pursuant to which the council could have consented to the erection of a dwelling-house on an allotment of land in Zone 7(d) of the 1990 LEP, and because there had been no lawful dispensation from that development standard under SEPP 1, the development was prohibited under the 1990 LEP, and hence, was not "permissible" as required by cl 4.2A(2)(b) of the 2009 LEP. 3. The council further argued that because the grant of consent to the erection of a dwelling-house under the 1990 LEP was also subject to the preconditions to the exercise of its power contained in cl 14(1)(e)-(g) of the 1990 LEP, these preconditions not having been met, the power of the council to grant approval had not been enlivened and the erection of the dwelling-house remained prohibited, and thus not "permissible" pursuant to cl 4.2A(2)(b) of the 2009 LEP. 4. Mr Lloyd submitted that cl 14 of the 1990 LEP was not a provision which prohibited development under any circumstances, and in particular, cl 14(1)(c) did no more than fix a standard in respect of an aspect of the development which was amenable to the dispensation power conferred by SEPP 1. Thus the Lot was a lot on which the erection of a dwelling-house while not 'permitted' was nevertheless "permissible" immediately before the commencement of the 2009 LEP for the purpose of cl 4.2A(2)(b) of the 2009 LEP. 5. Furthermore, Mr Lloyd argued that to the extent that the council contended that cl 14 of the 1990 LEP also required the council's satisfaction of the matters in sub-cls 14(1)(e)-(g), these preconditions did not derogate from the existence of the power to grant consent and did not render prohibited that which was permissible. In other words, none of the matters in sub-cls 14(1)(e)-(g) affected the existence of the power to grant development consent (that is to say, permissibility), only the exercise of that power (that is to say, whether permission would be granted). 6. Finally, Mr Lloyd relied upon the existence of cl 14(3) of the 1990 LEP allowing the council to require the consolidation of the Lot with any other adjacent lot in the same ownership, to argue that this supplemented the dispensation power conferred on the council by SEPP 1 and meant that any consent could be conditioned as a matter of merit to provide for permissibility.

Applicable Principles of Construction of the LEPs 1. The following general legal principles govern the ascertainment of the proper construction of the environmental planning instruments the subject of these proceedings: 1. first, as a statutory instrument, an environmental planning instrument such as the 1990 or 2009 LEP should be interpreted in accordance with general principles of statutory interpretation (Cranbrook School v Woollahra Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [36]-[46] and [63], Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58 at [32]-[33] and Olsson v Goulburn Mulwaree Council & Minister Administering the Crown Land Act 1989, Olsson v Minister Administering the Crown Land Act 1989 [2010] NSWLEC 169; 176 LGERA 71 at [22]); 2. second, the task of construction must begin with the consideration of the text itself and only then should recourse be had to its context, which will include the general purpose and policy of the provision in question and of the enactment itself (see s 33 of the Interpretation Act 1987). The determination of the purpose of the particular provision or statute may be found not only in an express statement of the purpose in the statute itself, but also by reference to textual and structural indicators, and where appropriate, by reference to extrinsic material. The task is one of ascertaining the objective, and not the subjective, intention of those who drafted and promulgated the legislation (see generally the principles summarised in Commissioner of Taxation v Consolidated Media Holdings (ACN 009 071 167) Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39], Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 379 at [23]–[26], Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473 at [65]–[66], Thiess v Collector of Customs [2014] HCA 13; (2014) 250 CLR 669 at [22] and [23] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]); 3. third, having said this, it must nevertheless be acknowledged that planning instruments are not always drafted with pellucid clarity or with a keen eye to taxonomy (Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 331 per Meagher JA). Furthermore, "any attempt to always find planning logic in planning instruments is generally a barren exercise" (Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104 at [25] and Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [9]); and 4. fourth, words that are not defined in statutory instruments are, subject to the principles of interpretation adumbrated above, generally given their ordinary meaning, to which reference to a dictionary may provide assistance. Having said this, "judges no longer approach a statute with scissors in one hand and a dictionary in another" (Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 78 NSWLR 43 at [88] per Spigelman CJ). The words of caution sounded by Mason P in House of Peace Pty Ltd v Bankstown City Council should be borne in mind ([2000] NSWCA 44; (2000) 48 NSWLR 498 at [26]-[29]): 26 It has been said that "words are only pictures of ideas on paper" (Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 at 276, citing Wilmot CJ in Dodson v Grew [1767] EngR 23; (1767) Wilm 272 at 278[1767] EngR 23; , 97 ER 106 at 108). Jackson J once remarked that "dictionaries are the last resort of the baffled judge" (Jordan v De George [1951] USSC 76; 341 US 223, 234 (1951)). 27 Nevertheless, dictionaries are frequently used, and this approach to statutory interpretation has support from the highest authority (see, eg State Chamber of Commerce and Industry v Commonwealth [1987] HCA 38; (1987) 163 CLR 329 at 348). Few judges emulate Lord Wilberforce, who never used dictionaries for the purpose of determining the common understanding of words and shut his ears if they were referred to in court (see Bennion, Statutory Interpretation 3rd ed, 1997 p946). 28 A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose. I agree with the following remarks of Judge Randolph of the United States Court of Appeals for the District of Columbia Circuit ("Dictionaries, Plain Meaning, and Context in Statutory Interpretation" (1994) 17 Harv Jo L PP 71 at 72): ...citing ... dictionaries creates a sort of optical illusion, conveying the existence of certainty - or "plainness" - when appearance may be all there is. Lexicographers define words. Words in the definition are defined by more words, as are those words. The trail may be endless; sometimes, it is circular. Using a dictionary definition simply pushes the problem back. 29 The limitations of dictionaries are discussed with magisterial clarity by Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1971) 25 NSWLR 541 at 560-1. Because the passage is lengthy I do not set it out. However, I respectfully agree with what his Honour has written there.

The Separate Question Should be Answered in the Negative 1. The term "permissible" is neither defined in the EPAA, the 1990 LEP, nor the 2009 LEP. 2. The Oxford English Dictionary (on-line ed) defines the word as "that can or ought to be permitted; allowable". The Macquarie Dictionary (on-line ed) is more succinct, with its definition comprising a single word: "allowable". 3. What is instructive from these definitions is that the term "permissible" includes both that which is presently allowed, or has been allowed, and that which will be allowed in the future, or that which is allowable. In other words, it will be sufficient for the purposes of cl 4.2A(2)(b) of the 2009 LEP if the erection of the proposed dwelling-house was either allowed or was allowable under the 1990 LEP. 4. The council did not fundamentally dispute this position but took issue with the logical corollary of Mr Lloyd's case that all that was required to be established to claim the benefit of cl 4.2A(2)(b) of the 2009 LEP was "a prospect or a chance" that the use may be allowed "no matter how remote that chance". The council contended instead that in order for cl 4.2A(2) of the 2009 LEP to be met, what was required was a provision contained in the 1990 LEP that could objectively determine whether the erection of a dwelling was permitted and which did "not rely on chance" or a "contingency". 5. Several observations should be made concerning the text of cl 4.2A(2)(b) of the 2009 LEP because, as the council correctly identified, the interpretative exercise demands focusing, as a matter of primacy, on the meaning of cl 4.2A(2)(b) of the 2009 LEP, and not cl 14 of the 1990 LEP. 6. First, while the chapeau of cl 4.2A(2) contains a prohibition against development consent being granted in Zone E3, that prohibition may be relaxed if any of the conditions provided for in paragraphs (a)-(h) are met. The text of the subclause, at least in part, accordingly expressly envisages and embraces the very contingency about which the council is critical. It is, therefore, somewhat circular and incomplete to suggest, as the council did, that because subclause 4.2A(2) prohibits, as its starting point, development consent for the erection of a dwelling house on Zone E3 land, the proposed construction of a house on the Lot is prima facie not permissible. With respect, this begs the very question the subject of this proceeding. 7. Second, as the dictionary definitions make plain, provided that the erection of a dwelling-house on the Lot is allowable, even if as a matter of futurity (and not merely as already 'allowed'), immediately before the commencement of the 2009 LEP, this will suffice. 8. Accepting this latter proposition in turn compels an examination of the 1990 LEP, and in particular, the text of cl 14 of that instrument. 9. Although the erection of a dwelling-house is development requiring consent within Zone 7(d) of the 1990 LEP, cl 14 is expressed in mandatory terms ("shall consent"). In other words, if the conditions in cl 14 are met, then the council must grant development consent to the erection of a dwelling-house. It should be acknowledged that to some extent this ameliorates the uncertainty about which the council complains, transforming that which is remote into a state of affairs that is considerably more proximate. 10. However, as the council correctly contends, cl 14 demands the council's "satisfaction" of the matters in subclause 14(1)(e)-(g), and these preconditions do affect the existence of the power to grant consent. But once that opinion is attained, and assuming the matters in cl 14(1)(a)-(d) are demonstrated, the erection of the dwelling-house within Zone 7(b) is not only permissible, it must be permitted, thereby satisfying cl 4.2A(2)(b) of the 2009 LEP. 11. Does the fact that the council has not yet directed its attention to whether or not these matters have been satisfactorily established mean that the erection is not "permissible" in the sense of not 'allowable'? In my opinion, it does. The criteria in cl 14(1)(e)-(g) are in addition to the matters demanded by sub-cl (1)(a)-(d). Therefore, until such time as the council is satisfied of their existence, its power, albeit to be mandatorily exercised, is not engaged and does not exist. Absent any power to grant consent, the erection of a dwelling-house can neither be allowed nor is allowable under cl 4.2A(2)(b) of the 2009 LEP. 12. It was not a matter of controversy that the Lot did not, as a matter of fact, satisfy the criteria in cl 14(1)(a)-(d) due to its size (its area being less than 40 ha). 13. Does, therefore, this fact also compel the conclusion that, for the purpose of cl 4.2A(2)(b) of the 2009 LEP, the erection of a dwelling-house on the Lot was not permissible? 14. Unarguably it would but for the agreed fact that cl 14(1)(c) of the 1990 LEP is a development standard to which the dispensational power under SEPP 1 was available (see the definition of "development standards" in s 4(1) of the EPAA). As such, it could not be said that cl 14 is a provision that prohibits the erection of a dwelling-house on a lot, including the Lot the subject of this Class 1 appeal, in any circumstances. However, in my opinion, this does not render the development "permissible" for the purposes of cl 4.2A(2)(b) of the 2009 LEP. 15. The nature and function in the planning regime established by the EPAA of a requirement specified, or a standard fixed, by a development standard was relevantly articulated by Bignold J in Fencott Drive Pty Ltd v Lake Macquarie City Council ([2000] NSWLEC 146; (2000) 110 LGERA 318 at [56]-[59]): 56. Firstly, the "imposition" of a development standard in an environmental planning instrument is a means of "controlling development": s 26(1)(b) where the Act defines in a very comprehensive manner the terms "control" and "development" (s 4(1)). 57. But for the existence of the dispensational power conferred by SEPP No 1, any such "requirement" specified or "standard" fixed, must be obeyed--vide: s 76(1), 76A(1) and s 122 - s 125 (inclusive)--not only by all persons wishing to carry out development, but by consent authorities in determining any development application to carry out development. 58. The dispensational power conferred by SEPP No 1, applies in terms (vide cl 6) to cases "where development could, but for any development standard, be carried out under the Act" and where the dispensational power is exercised, it empowers the grant of development consent "notwithstanding the development standard". It is thus clear beyond argument, that a development standard which is not relaxed by dispensation granted under SEPP No 1, prohibits the carrying out of development. 59. It is also to be noted, the SEPP No 1 "prevails over any inconsistency between it and any other environmental planning instrument whenever made": vide cl 5. This can only mean that a development standard in force under an environmental planning instrument would prohibit the carrying out of the development, but for the operation of SEPP No 1, which prevails in the case of inconsistency with other planning instruments. 1. There is nothing in the subsequent consideration of Fencott in Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319 (at [85]-[94]), and the decisions concerning development standards discussed therein, that was to the to the contrary of the propositions articulated by Bignold J in Fencott. 2. Therefore, a development standard that requires a lot to be not less than 40 ha and which is not relaxed by a dispensation granted under SEPP 1, prohibits the carrying out of development, in the present case, in the form of the erection of a dwelling-house on a lot where that standard is not met. 3. No real assistance to the contrary can be derived by Mr Lloyd from Biscoe J's decision in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170. In that case, his Honour dealt with a clause almost identical to cl 4.2A(2) of the 2009 LEP. But the decision did not turn upon the interpretation of the equivalent provision in that local environmental plan to cl 4.2A(2)(b) of the 2009 LEP. And, in any event, his Honour accepted the council's submission that because consent to the development application could not be granted, the development was therefore impermissible under the local environmental plan. Indeed, Biscoe J held that when the development standard was read in context, it did not expand the circumstances in which development consent was permitted under the relevant Land Use Table (at [32]). 4. In this case, where there has been no development application lodged under the 1990 LEP (that is, lodged prior to 26 February 2010) to erect a dwelling-house on the Lot and where no dispensation has been sought from the application of the development standard contained in cl 14(1)(c) of the 1990 LEP, the development is prohibited. Put another way, the development has neither been allowed nor is it currently allowable, or in other words "permissible". 5. Does the fact that a DA has been lodged by Mr Lloyd after 26 February 2010 alter this conclusion? In my opinion, it does not. After that date, the DA was subject to the provisions of the 2009 LEP, and cl 1.9(2) of that LEP expressly excludes the application of SEPP 1 (reinforced by cl 4.6(8) of the 2009 LEP). 6. The context surrounding cl 4.2A(2)(b) of the 2009 does not compel a different result. First, when regard is had to the aims of the 2009 LEP contained in cl 1.2(2), the clear intent of that instrument is to repeal all environmental planning instruments previously applying to the land to which the 2009 LEP applies (cls 1.8 and 1.8A), and to exclude the application of SEPP 1 (cl 1.9(2), and more specifically in respect of cl 4.2A: cl 4.6(8)(ca)). It is, moreover, apparent that the objective of the 2009 LEP in relation to Zone E3 is to prohibit the erection of new dwelling-houses in that zone unless the development can avail itself of savings provisions in cl 1.8A, or it can obtain the benefit an accrued right under cl 4.2A. 7. To construe cl 4.2A(2)(b) in the manner posited by Mr Lloyd would be plainly contrary to these aims and objectives and would encourage the very mischief the 2009 LEP seeks to avoid by producing the unintended consequence that dwelling-houses that are now clearly prohibited under the 2009 LEP would be rendered permissible provided the control was capable of being varied by a SEPP 1 objection, but absent the need for the SEPP 1 objection to be tested. The result would be to make permissible a dwelling-house that would never have been capable of approval under the 1990 LEP. 8. Were, in the alternative, a notional determination of a SEPP 1 objection under the 1990 LEP be necessary in order to ascertain permissibility, the council would be required to undertake a double assessment of any development application for the erection of a dwelling-house on land under both the 1990 and the 2009 LEP. This would be contrary to the aims of both LEPs (see cl 4 of the 1990 LEP and cl 1.2 of the 2009 LEP). 9. Second, and contrary to Mr Lloyd's submission, to require the grant of a lawful disposition under SEPP 1 to the development standard concerning the minimum lot size requirement in cl 14(1)(c) of the 1990 LEP in order to render the erection of the proposed dwelling-house permissible for the purposes of cl 4.2A(2)(b) of the 2009 LEP would not rob that subclause of the work it was intended to do. In the present circumstances there was no SEPP 1 objection for determination and the development was therefore prohibited immediately before the commencement of the 2009 LEP. Had there been such a pending or actual lawful dispensation, cl 4.2A(2)(b) would have been actively employed both in the context of the 1990 and the 2009 LEP. Even in the absence of a SEPP 1 objection cl 4.2A(2)(b) would nevertheless be required in order to determine if the erection of a dwelling-house was permissible immediately before the commencement of the 2009 LEP, to resolve whether or not development consent "must not" be granted pursuant to cl 4.2A of the 2009 LEP. 10. To the contrary, if Mr Lloyd's construction of cl 4.2A(2)(b) of the 2009 LEP were accepted, not only would cl 14(1)(e)-(g) of the 1990 LEP be rendered largely otiose in any assessment of "permissibility", cl 4.2A(2) would be effectively denuded of force. Provided there existed the possibility of making a SEPP 1 objection for the purposes of rendering the erection of a dwelling-house permissible, subclause 4.2A(2)(a), (c)-(h) would be superfluous. A construction of this kind should not be adopted (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [97]). 11. Third, the Land Use Table in cl 2.3 of the 2009 LEP provides that within the E3 Zone, dwelling houses are "permitted with consent" (not that they are 'permissible') and that any other development not specified in item 2 or 3 (that is to say, development that is permitted without consent or where consent has been granted) is "prohibited". It is therefore not accurate to say, as Mr Lloyd did, that development that requires consent is, in the absence of that consent being granted, nevertheless permissible for the purpose of cl 4.2A. On the contrary, cl 2.3 plainly states that it is prohibited. Furthermore, the use described in the Land Use Table is subject to the other provisions of the 2009 LEP (cl 2.3(4)), which includes cl 4.2A. 12. Fourth, to construe "permissible" in cl 4.2A(2)(b) of the 2009 LEP in the manner contended for by the council will not create conflict with the use of that term elsewhere. For example, in cl 4.2A(2)(d) where the phrase "would have been permissible" is used, in conformity with the reasons given above, "permissible" can harmoniously mean 'allowable' (likewise the use of this term in cls 2.4(2)(b) and 3.2(3)(a) of the 2009 LEP). 13. In any event, the qualification of the concept by the words "would have been" in cl 4.2A(2)(d) arguably strengthens the conclusion reached above in respect of the proper interpretation of cl 4.2A(2)(b) insofar as it imports a more tenuous possibility that the erection of a dwelling-house would be allowed. This may be contrasted by the more definite conclusion as to permissibility by the past tense contained in the latter clause, namely, that the described development "was" permissible. 14. Finally, I do not understand how, especially given the circumstances of this case, the existence of cl 14(3) of the 1990 LEP assists Mr Lloyd. The fact remains that the Lot was less than 40 ha and there was no condition of consent (because there was no development application made prior to 26 February 2010) requiring the consolidation of the Lot with any other adjacent lot also owned by Mr Lloyd. The imposition of any obligation for consolidation pursuant to cl 14.3 is a merit matter conditioning the grant of its consent, whereas the requirements imposed by cl 14(1) in respect of land in Zone 7(d) are preconditions to the grant development consent which must be met, or lawfully dispensed with, in order to enliven the council's power to approve the development. 15. It follows that the separate question as ordered must be answered in the negative. As the parties agreed, this will dispose of the Class 1 appeal in its entirety.

Costs 1. As this separate question is determined in Class 1 of the Court's jurisdiction, costs do not necessarily follow the event (r 3.7 of the Land and Environment Rules 2007, "the Rules"). Consideration of the permissibility of the grant of development consent would ordinarily not, in the context of Class 1 proceedings, of itself, be sufficient to displace the presumption (Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 at [9]-[10]) in r 3.7(2) of the Rules that no order as to costs ought to be made (Olsson at [44]). This is so notwithstanding that r 3.7(3)(a) of the Rules provides that one circumstance in which the Court might consider the making of a costs order to be fair and reasonable is where the proceeding have, as in present the case, involved as a central issue a question of law, the resolution of which has been determinative of the proceedings and was preliminary to an evaluation of the merits of the proceedings. 2. Had no separate question been ordered and this contention were decided during the course of the Class 1 appeal, then, provided none of the circumstances referred to in r 3.7(b)-(f) were established, it is likely that each party would have borne their own costs of the appeal. Given this, in my view, no different result should presently prevail. I am therefore disinclined to order Mr Lloyd to pay the council's costs in the absence of any disentitling conduct on his behalf. His conduct leading up to and during the hearing of proceedings does not appear to have been unreasonable and his claims were at all times highly arguable. 3. Nevertheless, the question of costs not having been fully argued before me, I shall provide the parties with the opportunity of seeking an alternative costs order if they desire.

Conclusion and Orders 1. Consistent with the reasons given above, I therefore answer the question posed for separate determination "no" and the orders of the Court are: 1. the Court answers the following separate question "no": Is the erection of a dwelling house on Lot 3 DP 242135 ("the subject lot") permissible for the purposes of cl 4.2(A)(b) of Wollongong Local Environmental Plan 2009 as: a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, having regard to the provisions of cl 14 of the Wollongong Environmental Plan 1990 (being the Plan in force immediately prior to the coming into force of Wollongong Local Environmental Plan 2009) where: (1) the subject lot is an allotment to which the provisions of cl 14(1)(a)(b) or (d) do not apply; (2) the subject lot is an allotment of a size less than the 40 hectares development standard in cl 14(1)(c) to which the dispensational power under SEPP 1 would apply; (3) the grant of consent to the erection of a dwelling house was also contingent upon the Council being satisfied of the matters in cl 14(1)(e)-(g) namely: (e) adequate vehicular access will be provided to the site of the proposed dwelling – house or dwelling; (f) the erection of the proposed dwelling-house and associated activities on the allotment will not detract from the environment by way of a visual intrusion vegetation clearance, drainage pollution of bushfire risk, and (g) the proposed dwelling house will be provided with an adequate water supply and means of disposal sewage; (4) the Council had a discretion under cl 14(3) to require, as a condition of its consent to the erection of a dwelling-house, the consolidation of the allotment with any other adjacent allotment in the same ownership; 1. each party is bear their own costs of the proceedings, unless within 14 days of the publication of these reasons, application is made by either party for an alternative costs order; 2. the Class 1 appeal is dismissed; and 3. the exhibits are to be returned. ********* 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: 08 September 2015