Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: McGinn v Ashfield Council [2012] NSWCA 238
• Hearing dates: 5 July 2012
• Decision date: 06 August 2012
• Before: McColl JA at [1], Sackville AJA at [31],Gzell J at [33]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[This judgment has been modified in accordance with the Supreme Court's policy in identity theft prevention and anonymisation]

• Catchwords: ENVIRONMENT AND PLANNING - building control - dual occupancy - where council required to consider development control plan when determining development application - where development control plan permitted dual occupancy as attached buildings - whether grant of development consent for detached building at rear of property valid - whether consent achieved objectives of development control plan; WORDS AND PHRASES - "street frontage" - "frontage"
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Supreme Court Act 1970
• Cases Cited: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; Attorney-General (QLD); Ex Rel Duncan v Andrews [1979] HCA 24; (1979) 145 CLR 573; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512; City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353; Langford v Copmanhurst Shire Council [1994] NSWLEC 48; (1994) 82 LGERA 262; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
• Texts Cited: Oxford English Dictionary Online; Macquarie Dictionary Online; Shorter Oxford English Dictionary
• Category: Principal judgment
• Parties: Sophia McGinn (Appellant); Ashfield Council (Respondent)
• Representation: Counsel: S McGinn in person (Appellant); P McClay (Respondent); Solicitors: Wilshire Webb Staunton Beattie Lawyers (Respondent)
• File Number(s): CA 2011/239285
• Publication restriction: Nil

Decision under appeal

• Jurisdiction: 9106
• Citation: McGinn v Ashfield Council [2011] NSWLEC 84; McGinn v Ashfield Council [2011] NSWLEC 105
• Date of Decision: 2011-07-04 00:00:00
• Before: Biscoe J
• File Number(s): LEC 2010/40554

Judgment

1 McCOLL JA: The facts of this matter substantially appear from Gzell J's reasons which I have read in draft. I shall only refer to the facts for contextual purposes. I agree with the orders Gzell J proposes for the following reasons.

2 Sophia McGinn, the appellant, brought proceedings in the Land and Environment Court pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (the "EPA Act") seeking a declaration that a development consent granted by Ashfield Council, the respondent, to the owner of a property in XXXX XXXX [Street] to construct a detached dwelling at the rear of the property was invalid and of no effect. The substantial basis of that challenge was her assertion that the respondent erred in forming a positive opinion that the proposed development was consistent with the relevant objectives of the Ashfield Development Control Plan 2007 (the "DCP"). Biscoe J dismissed the appellant's application: McGinn v Ashfield Council [2011] NSWLEC 84 (the "principal judgment").

3 At a hearing listed to deal with costs issues, the primary judge permitted the appellant, without objection by the respondent, to re-open and to amend her points of claim to raise a new ground of challenge to the validity of the development consent to the effect that the respondent's "opinion" that the proposed development was consistent with the DCP was based on incorrect information. His Honour rejected that challenge also: McGinn v Ashfield Council [2011] NSWLEC 105 (the "second judgment").

4 Although there are a number of grounds of appeal all turn in substance on the question whether the primary judge erred in concluding that the development consent was not invalid.

Legislative framework

5 In determining the development application pursuant to s 80(1) of the EPA Act, the respondent was required to take into consideration such of the matters of relevance to the development as set out in s 79C of the EPA Act. Those matters included any environmental planning instrument (s 79C(1)(a)(i)) and the DCP: s 79C(1)(a)(iii).

6 The relevant provisions of the applicable environmental planning instrument, the Ashfield Local Environmental Plan 1985 ("LEP"), and the DCP were set out by the primary judge in the principal judgment (at [18]-[20]) as follows:

"PLANNING INSTRUMENTS

[18] The Property is zoned 2(a) Residential under the Ashfield Local Environmental Plan 1985 (LEP). Clause 13(1) provides:

13 Dwelling-houses-dual occupancy

(1) Subject to subclauses (2) and (3), a person may, with the consent of the Council, within Zone No 2 (a), 2 (b) or 2 (c):

(a) alter or add to a dwelling-house erected on an allotment so as to create 2 dwellings, or

(b) erect 2 attached dwellings on an allotment, or

(c) erect 2 dwelling-houses on an allotment, or

(d) erect a second dwelling-house in addition to one already erected on an allotment, or

(e) alter or add to a dwelling-house or to any other building erected on an allotment so as to create 2 dwelling-houses,

if, but only if, not more than 2 dwellings will be on the allotment as a result of the development being carried out.

[19] Part A of the DCP deals with preliminary matters including the following:

Variation of Development Standards

Development standards aim to achieve the objectives of this DCP. It is also imperative for a development application to satisfy the objectives of this DCP. Mere compliance with the development standards will not necessarily secure approval for a development application.

Where a variation is sought due to special circumstances, a development application must document the reasons and extent of the variation for Council's consideration.

[20] It is common ground that the 'objectives' referred to in that provision insofar as they concern dual-occupancy dwellings, appear in the following provisions in Section 3 of Part C 15 of the DCP:

In order to avoid potential amenity problems for neighbouring properties attached dual-occupancies are preferred (mandatory in heritage conservation areas). This is because both dwellings can be designed to appear as one large dwelling, and there are no 'isolated' houses placed where there would otherwise be rear gardens. Each dwelling can also have a front address and rear access to its own private garden. This fits in with the 'pattern of development' and the 'single house' look."

I will refer to the last paragraph of this extract as the "objectives clause".

The Council officer's report for the development application

7 There was no issue at trial that the respondent granted development consent on the basis of the matters set out in a report prepared by Mr Johnston, a Development Assessment Officer, to a meeting of the respondent held in November 2010. The plans for the proposed development were attached to the report.

8 The primary judge recorded the relevant parts of that report as follows:

"[40] The Council officer' s report for the ... DA stated under the heading 'Summary Recommendation' as follows:

The provision of a two storey detached dual-occupancy larger than 40 square metres, as opposed to an attached dual-occupancy, fails to comply with Section 3.3 and 3.4 of the Houses and Dual-Occupancies Development Control Planning (Part C15 of the Ashfield DCP 2007). However, detached dual-occupancies may be considered for approval under the Ashfield Local Environmental Plan (LEP) 1985 and it is considered that this form of development is acceptable as the proposal achieves the overall objectives of the DCP.

With the exception of Clause [sic, Section] 3.3 and 3.4 of the abovementioned DCP control, the proposal complies with all other relevant controls [and is] therefore recommended for conditional approval. (emphasis added)

[41] Later in that report it was stated:

The proposal achieves the objectives of DCP 2007 and also the objectives stipulated in Section 3 of Part C15 DCP in that column -

(a) the proposal will not result in an 'isolated' house placed where there would otherwise be rear gardens for the main reason that the subject site has two street frontages. Therefore, the proposed dwelling will have its own street frontage thus ensuring that each dwelling [has a front] address and rear access to its own private garden...

(b) the proposal fits with the 'pattern of development' and the 'single house' look.

The location of the dwelling is not considered to be out of context with the pattern of development in the area. Indeed, townhouses located to the rear near Park Lane, exist next door in 16 - 18 Brunswick Parade. Given the diversity of residential development in the area, and in the particular presence of this three storey residential flat building development immediately next door, the proposal does not seem to be isolated or inconsistent with the pattern of existing development. (emphasis added)"

9 Sections 3.3 and 3.4 of the DCP provided:

"3 Dual occupancies shall be attached buildings, so as to have the appearance of one house. Detached dwellings, eg placed at the rear of a site, are not permitted.

4 Clause 3 does not apply to 'granny flats' which are no larger than 40sqm and are single storey."

The principal judgment

10 The appellant's primary invalidity argument at the first hearing was that the statement in the Council officer's report that "the proposal achieves the objectives of [the DCP]" was incorrect because, taken literally, the proposal could not comply with each "requirement" of the objectives clause. The primary judge (at [45]) rejected that construction of the objectives clause. His Honour said that the clause "should be construed in a global or holistic [manner]", then continued:

"45... The manner in which the Council report addressed those objectives is consistent with this construction: see [41] above. When the DCP states that 'there are no "isolated" houses placed where there would otherwise be rear gardens', if that is viewed as a discrete or disjunctive objective (as the applicant suggests), then the proposed new house is placed where there would otherwise be rear gardens and there would be a breach of that 'objective'. However, when that statement is read in context, I construe it to mean that there should not be a second detached house in the rear garden of an existing house where the second house in the rear garden is 'isolated' in the sense that it does not have its own street access. That is why the DCP in the quoted passage refers to each dwelling having a front address and rear access to its own private garden. That is what is proposed with this development. It will have a front address on XXXX XXXX [Lane] (not XXXX XXXX [Street] and access to its own private garden: see [3] above.

46 Looking at the evidence of adjacent developments, I consider that it was open to the Council to take the view that the proposed dwelling fitted in with the 'pattern of development' referred to in the DCP and the 'single house' look."

The second judgment

11 His Honour recorded (at [2]) that the second judgment should be read with the principal judgment.

12 The new ground of challenge to the development consent the subject of the second judgment concerned the appellant's complaint that paragraph (a) of the Council report his Honour had extracted at [41] (see [8] above) was incorrect insofar as it referred to "the proposed dwelling [having] its own street frontage". His Honour noted, "[t]he proposed dwelling will have one frontage, to XXXX XXXX [Lane]". He observed that there was what he described as a "conflicting and erroneous statement on the next page of the report that the new dwelling does not address the laneway but is accessible from XXXX XXXX [Street]": second judgment (at [3]).

13 The appellant argued that "a lane is not a street and therefore it was an error for the report to have referred to two 'street' frontages". She relied on the NSW Housing Code Appendix B Glossary which states: "Lane means a public road, with a width greater than 3 m, but less than 7 m that is used primarily for access to the rear of the premises ...". The primary judge noted that it was not suggested that that Code had any particular standing under the DCP: second judgment (at [4]).

14 His Honour rejected the new ground saying (at [5]):

"Assuming (without deciding) that it is inaccurate to refer to a lane as a street, it is apparent from the whole of the material before the Council that it was not misled and knew that one of the 'two street frontages' was a lane, XXXX XXXX [Lane]; and knew that it was approving a proposed dwelling which had a frontage only to a lane, XXXX XXXX [Lane]. I am not satisfied that the applicant has proved that the Council based its decision on incorrect information. I therefore do not accept the new ground. I note that there was no ground of challenge that the Council did not have power to grant consent to a dwelling which has a frontage to a lane."

Consideration

15 Some preliminary matters should be noted at the outset. First, as Gzell J has pointed out, the DCP was not an environmental planning instrument with the implications that would carry if the development consent had resulted in a contravention of its terms: s 80(2), EPA Act. However the DCP was a matter the respondent was required to take into consideration in determining the development application (s 79C(1)(ii)) and was, accordingly, "entitled to significant weight in the decision making process" although it was not determinative: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 (at [75]) per Spigelman CJ (Meagher and Beazley JJA agreeing).

16 Secondly, the declaratory relief the appellant sought was a form of judicial review which "ordinarily does not extend to findings of fact as such" (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (at 341)) or to "the merits of administrative action, to the extent that they can be distinguished from legality": Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 (at 36) per Brennan J.

17 Thirdly, the primary judge (and this Court) "should not read the Council's assessment and the reasons of the decision maker with an eye finely tuned for error": Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 291).

18 Fourthly, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power, save in circumstances where it may be apparent that the decision is "manifestly unreasonable": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (at 41) per Mason J.

19 Fifthly, the primary judge's decision as to whether to grant declaratory relief was a discretionary one. Such a decision will not be overturned on appeal "solely on the basis of the appellate court's mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions, the decision of the judge first exercising the discretion falls within a reasonable range, and no error on his part can be shown": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (at 48) per Mason J, referred to with approval in the joint judgment in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (at [23]).

20 Finally it must be recalled that the DCP was only a matter the respondent was obliged to take into consideration and was not definitive: see [15] above. Further, the objectives clause was explaining the reasons attached dual occupancies were preferred, rather than the circumstances in which detached dual occupancies might be approved. That was relevant to the weight the respondent chose to ascribe to the various matters to which the objectives clause referred when determining whether to exercise its discretion to grant development consent to a detached dwelling. However, the respondent was not obliged to refuse development consent if the application would contravene the DCP: Zhang (at [74]).

21 It is notable that the appellant does not challenge the primary judge's conclusions, that the objectives clause should be construed in a global manner, and that this was the approach the respondent had adopted. The primary judge's reasons have to be understood in that context.

22 The Council report described the proposed dwelling as having "its own street frontage" and its own "front address". The primary judge (principal judgment at [45]) also referred to the development having "a front address on XXXX XXXX [Lane]", taking up the reference in the objectives clause to the desirability of such a factor. It was these matters which the appellant complained were fundamental errors such as to invalidate the grant of development consent.

23 The appellant's complaint that the proposed dwelling would not have "its own street frontage" turned on two propositions. First, that the Lane was not a "street". Secondly and in any event, "frontage" meant facing the front and the proposed dwelling would not "front" upon the Lane. In the latter respect she pointed to the plans which showed a door marked as "entry", access to which was from a patio abutting the northern courtyard rather than the Lane.

24 The meaning of the word "frontage" is one in respect of which reasonable minds might differ as illustrated by Attorney-General (QLD); Ex Rel Duncan v Andrews [1979] HCA 24; (1979) 145 CLR 573. Depending upon which dictionary is used, its definition is, relevantly, "land which abuts ... on a road" (Oxford English Dictionary Online) or "land abutting on a ... street" (Macquarie Dictionary Online). In Langford v Copmanhurst Shire Council [1994] NSWLEC 48; (1994) 82 LGERA 262 (at 264) Pearlman CJ concluded that a restrictive meaning should not be placed on the word "road" as it appeared in the definition of "frontage" in the Shorter Oxford English Dictionary. It was sufficient, in her Honour's view, for the purposes of an environmental planning instrument which required a proposed development be disallowed unless it had a frontage to a "road", that the proposed development abut a parcel of land which had "the physical characteristics of and [was] used as a road".

25 It is apparent, in my view, that the Council report was using the word "frontage" in the sense that the primary judge inferred, namely that the land on which the proposed dwelling was to be constructed abutted the XXXX XXXX [Lane], whereas the existing dwelling abutted the XXXX XXXX [Street]. More importantly, however, the context in which the expression was used has to be considered. The point the Council report was making was that the proposed dwelling would not be an "isolated" house "placed where there would otherwise be rear gardens" (objectives clause) but, rather that it would have street access via its own street frontage.

26 The appellant's reliance on the definition of "lane" in the NSW Housing Code being part of the State Environmental Planning Policy 2008 was, in my view, misplaced. In using the term "street", the Council report was not deploying a term of art found in the DCP or any planning instrument relevant to the respondent's consideration as to whether to grant the subject development consent. Rather it was using that expression in the sense Pearlman CJ adopted in Langford v Copmanhurst Shire Council, that the Lane had "the physical characteristics of and [was] used as a road". A "road" is "a way over which all members of the public are entitled to pass and repass on their lawful occasions...": City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353 (at 363) per Windeyer J; cited with approval in the joint judgment of Gaudron, McHugh, Gummow JJ in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 (at [119]). It was incontrovertible that the XXXX XXXX [Lane] was used, as the Council report stated, "by the residents of XXXX XXXX [Street] and XXXX XXXX [Lane] to access their garages which face the laneway".

27 The appellant also complained that the statements in the Council report which the primary judge quoted (principal judgment at [45]) that the proposed dwelling would "have a front address on XXXX XXXX [Lane]" and "have one frontage, to XXXX XXXX [Lane]" (second judgment at [3]) were misleading having regard to the plans showing the property's postal address was to be XX XXXX XXXX [Street] and that its front would face the Street.

28 It is plain that the statement in the Council report that the proposed dwelling would have "its own street frontage thus ensuring each dwelling has a front address" was inaccurate to the extent it conveyed that the proposed dwelling would have a postal address on the Lane. A later statement in the report made plain that the proposed dwelling's "mailbox ... [is] located within the front portion of the site", in a context which made it apparent the "front" was the Street side of the property. This was also apparent from the plans attached to the report, which show the proposed dwelling as having a postal address on the Street rather than the Lane. The same can be said of the fact that the plans showed the entry door to the proposed dwelling was on its north (Street) side and that the driveway was shown as "rear lane access". These matters must have been manifest to the respondent when it granted development consent. It was entitled to determine the weight to be accorded to them. Its apparent decision that they did not detract from granting development consent having regard to the overall proposal was not, in my view, manifestly unreasonable.

29 Moreover it is not apparent that these matters were fundamental to the respondent granting development consent. Rather, as the primary judge concluded (principal judgment at [45] - [46]), literal inconsistencies between the approved dwelling and discrete sentences of the objectives clause statements did not detract from the overall conclusion that the development consent was not invalid. It was consistent with the objectives clause insofar as it would not permit the erection of an "isolated" house in the rear garden of the existing allotment. To reiterate, isolation, in that sense, meant that the proposed dwelling would have its own street access: principal judgment (at [45]). Moreover, (at [46]) his Honour concluded it was open to the respondent to form the opinion that the proposed development fitted in with the "pattern of development" and the "single house look". The appellant did not take issue with the latter conclusion.

30 The primary judge was entitled to conclude that the respondent had given the DCP the consideration s 79C(1)(iii) of the EPA Act required. The appellant has not demonstrated that his Honour erred in a manner which would attract appellate intervention.

31 SACKVILLE AJA: I have had the advantage of reading the judgments of Gzell J and McColl JA.

32 I agree with the orders prepared by Gzell J and with his Honour's reasons. I agree also with the additional reasons given by McColl JA for the orders.

33 GZELL J: The respondent granted development consent for the construction of a detached dwelling at the rear of an existing dwelling on an allotment in its area. The appellant, who appeared in person in this Court, resides next door to the proposed development.

34 The appellant brought proceedings in the Land and Environment Court seeking a declaration that the development consent was invalid and of no effect. Biscoe J dismissed her application. She appeals to this Court under the Land and Environment Court Act 1979, s 58(1). The appeal is by way of rehearing under the Supreme Court Act 1970, s 75A(5).

35 The central issue in the proceedings was whether the proposed development met the objectives of the Ashfield Development Control Plan 2007 (DCP).

36 The appellant brought proceedings against an earlier development consent with respect to the allotment. That consent was surrendered and the current consent was substituted for it. Nothing now turns on this.

37 One of the grounds put by the appellant in the Land and Environment Court, with respect to the second development application (DA), was:

"The Council erred in forming a positive opinion of consistency for the Second DA with the objectives of the DCP and this positive opinion is an error in law."

38 Biscoe J allowed the appellant, who appeared in person, to reopen her case to amend this ground to the following:

"Council erred in forming a positive opinion of consistency with the objectives of the DCP because it was based on incorrect information."

39 His Honour dismissed that ground. It is the subject of the appeal to this Court. None of the appellant's other grounds before the Land and Environment Court are the subject of this appeal.

40 The allotment runs north to south. On its northern boundary it has a frontage to XXXX XXXX [Street] Its southern boundary abuts XXXX XXXX [Lane] The existing dwelling is towards the north of the allotment. The proposed dwelling is to the south of the allotment facing the Lane. A driveway from the Lane to a garage on the eastern part of the dwelling is proposed. To the north of the proposed dwelling is a garden area.

41 A driveway from the Street along the eastern boundary of the allotment is proposed. It turns about halfway along that boundary to a new double garage towards the western side of the allotment. This driveway defines the northern boundary of the garden of the proposed dwelling and the southern boundary of the garden to the rear of the existing building.

42 Thus each dwelling has its own garden. Notwithstanding the appearance on the plans of a path to the proposed dwelling from the driveway, the appellant said there was no access to the proposed dwelling from the Street.

43 It was common ground before Biscoe J that the relevant objectives of the DCP in relation to dual occupancy dwellings is to be found in part of paragraph 1 of Section 3 of Part C15 as follows:

"In order to avoid potential amenity problems for neighbouring properties attached dual occupancies are preferred (mandatory in heritage conservation areas). This is because both dwellings can be designed to appear as one large dwelling, and there are no 'isolated' houses placed where there would otherwise be rear gardens. Each dwelling can also have a front address and rear access to its own private garden. This fits in with the 'pattern of development' and the 'single house' look." (emphasis in original)

44 In her written submissions in this Court the appellant said it was common ground that if the proposed dwelling had a front address on the Lane, not the Street, it would be consistent with the objectives of the DCP.

45 The appellant argued that the proposed dwelling had a frontage to the Street and not to the Lane.

46 First, it had, or proposed to have, a postal number in the Street of 15a. The allotment had a postal address in the Street of 15.

47 Secondly, the door of the proposed dwelling marked "entry" opened onto a patio on its northern side adjacent to its garden.

48 Thirdly, the driveway from the Lane was described as "rear lane access driveway" in the approved plans.

49 The appellant argued that these features meant that the frontage of the proposed dwelling was to the Street. It was numbered on the Street, it faced the Street and the access to the Lane was not described as front access.

50 The appellant pointed to a statement in the Development Assessment Report to the respondent as confirming her submission:

"The new dwelling is to be located to the rear of the property, off XXXX XXXX [Lane]. The lane way is mainly used by the residents of XXXX XXXX [Street] and XXXX XXXX [Lane] to access their garages which face the laneway. The new dwelling does not address the laneway, ie, the dwelling, its entrance and its mailbox do not front the laneway. Instead, the dwelling's main entrance is accessible through the XXXX XXXX [Street] frontage of the site. In addition, the secondary dwelling's mailbox and stormwater detention area are both located within the front portion of the site."

51 It does not seem to me that the respondent erred in concluding that the proposed dwelling had a frontage to the Lane and his Honour was entitled to so find.

52 First, an arrangement with the postal authorities for an address on the Street does not alter the fact that one side of the proposed dwelling faced the Lane and the proposed dwelling had ingress from and egress to the Lane. Those features suggest that the proposed dwelling has a frontage to the Lane. That is where its structure is, proximate to and facing the Lane, and the Lane is its access way.

53 Secondly, the attribution of an entry to one of the doors in the approved plans of the proposed dwelling does not mean that the proposed dwelling cannot have a frontage to the Lane. There is to be a patio on the southern side of the proposed dwelling facing the Lane. There is to be a door from that patio into the main portion of the ground floor. Further, there is a door from the garage to the dwelling that is also a method of entry. Since there is no access to the proposed dwelling from the Street, it is more logical to regard the southern door as the main entrance. On that basis, there could be no doubt that the dwelling faces the Lane.

54 Thirdly, the description of the rear lane access driveway does not mean that there is no frontage to the Lane. The proposed dwelling has access to the Lane by that driveway. It has no access to the Street. The Lane abutted the southern boundary of the allotment and the southern patio was adjacent.

55 So far as the statement in the Development Assessment Report to the respondent is concerned, on the immediately preceding page of the same report the following was stated:

"The proposal will not result in an 'isolated' house placed where there would otherwise be rear gardens for the main reason that the subject site has two street frontages. Therefore, the proposed dwelling will have its own street frontage thus ensuring that each dwelling has a front address and rear access to its own private garden."

56 The statements conflict. One must be rejected. Biscoe J rejected the statement on the later page of the report. He did not err in doing so.

57 The appellant submitted that that statement should be accepted because the DA failed to comply with the design principles for dual occupancies in the same section of the DCP. It contained the following:

"2 The Design Principles and their requirements referred to in Sections 2 of Part C15 apply to 'dual occupancy' development.

3 Dual occupancies shall be attached buildings, so as to have the appearance of one house. Detached dwellings, eg placed at the rear of a site, are not permitted.

4 Clause 3 does not apply to 'granny flats' which are no larger than 40 sqm and are single storey."

58 The proposed development was a two storey dwelling with a gross floor area of 125 sqm.

59 The Development Assessment Report to the respondent acknowledged this failure but recommended approval of the DA nonetheless:

"The provision of a two story detached dual occupancy larger than 40 sqm, as opposed to an attached dual occupancy, fails to comply with Section 3.3 and 3.4 of the Houses and Dual Occupancies Development Control Plan (Part C15 of the Ashfield DCP 2007). However, detached dual occupancies may be considered for approval under the Ashfield Local Environmental Plan (LEP) 1985 and it is considered that this form of development is acceptable as the proposal achieves the overall objectives of the DCP."

60 His Honour was aware of this. He commenced his investigation of planning instruments by referring to cl 13(1) of the Ashfield Local Environment Plan 2010 (LEP). The allotment was zoned 2(a) residential under the LEP:

"13 Dwelling-houses - dual occupancy

(1) Subject to subclauses (2) and (3), a person may, with the consent of the Council, within Zone No 2(a), 2(b) or 2(c):

(a) alter or add to a dwelling-house erected on an allotment so as to create 2 dwellings, or

(b) erect 2 attached dwellings on an allotment, or

(c) erect 2 dwelling-houses on an allotment, or

(d) erect a second dwelling-house in addition to one already erected on an allotment, or

(e) alter or add to a dwelling-house or to any other building erected on an allotment so as to create 2 dwelling-houses,

if, but only if, not more than 2 dwellings will be on the allotment as a result of the development being carried out."

61 A DCP is not an environmental planning instrument. The definition of that term in the Environmental Planning and Assessment Act 1979 (EPA Act), s 4 includes a State environmental planning policy (SEPP) and an LEP, but excludes a DCP.

62 In performing its functions under the EPA Act, s 80 in determining a DA the respondent was required under the EPA Act, s 79C to take into consideration any environmental planning instrument and any DCP. Since the DCP was concerned with dual occupancy, the subject of the DA, the respondent was required to give it significant weight.

63 In Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589, this Court considered DCP 23 adopted by the Council. Its purpose was to set objectives and standards for brothel development within the city. Brothels were allowed in business zones with Council approval. Among the standards it prescribed was that a brothel should not be located adjoining or within 200 metres walking distance of any place of worship or a school. It was held that the standard was not addressed by asking whether it had been shown that the presence of a brothel had an adverse impact on the relevant church or school.

64 Spigelman CJ with whom Meagher and Beazley JJA agreed, said at 602 [74]-[75]:

"A development control plan is not an 'environmental planning instrument': see definition in s 4. Accordingly, the requirement in s 80(2) that a consent authority 'must refuse' an application that would 'result in a contravention of' such an instrument does not apply to a development control plan. Furthermore, the proscription, by s 76B, of any development prohibited by an environmental planning instrument, does not extend to a prohibition in a development control plan. Nor can such a plan contain a 'non-discretionary development standard' which, if complied with, would take away a consent authority's discretion under s 79C(2).

The consent authority has a wide ranging discretion ― one of the matters required to be taken into account is 'the public interest' ― but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a 'fundamental element' in or a 'focal point' of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative."

65 The respondent clearly took the DCP into account. The Development Assessment Report to the respondent gave the DCP due prominence. It was noted that notwithstanding non-compliance with sections 3.3 and 3.4 the objective of the DCP was achieved by the development.

66 The respondent was entitled to form that view. It was not required to refuse consent to the DA. And his Honour was entitled to form the view that he did. The simple fact was that the provisions of the DCP were addressed. They were taken into consideration.

67 His Honour said of the objectives of the DCP set out above:

"However, when that statement is read in context, I construe it to mean that there should not be a second detached house in the rear garden of an existing house where the second house in the rear garden is 'isolated' in the sense that it does not have its own street access. That is why the DCP in the quoted passage refers to each dwelling having a front address and rear access to its own private garden. That is what is proposed with this development. It will have a front address on XXXX XXXX [Lane] (not XXXX XXXX) [Street] and access to its own private garden."

68 The appellant has failed to demonstrate that Biscoe J's analysis of the DCP and its objectives was in error.

69 The appellant referred to a definition of the term "lane" in the NSW Housing Code being part of SEPP 2008. A lane is there defined to be a public road with a width greater than 3m but less than 7m. The appellant submitted that a lane is not a street and therefore the proposed development does not have street frontage.

70 A public road of narrow dimensions is within the definition. There was no dispute in this case that the lane relevantly was a public road. Accordingly, assuming that the definition in the NSW Housing Code is relevant to the issues in the present case, the lane was a "street".

71 In dealing with this issue in light of the amended ground, that the Council erred in forming a positive opinion of consistency with the objectives of the DCP because it was based on incorrect information his Honour said this:

"Assuming (without deciding) that it is inaccurate to refer to a lane as a street, it is apparent from the whole of the material before the Council that it was not misled and knew that one of the 'two street frontages' was a lane, XXXX XXXX [Lane]; and knew that it was approving a proposed dwelling which had a frontage only to a lane, XXXX XXXX [Street]. I am not satisfied that the applicant has proved that the Council based its decision on incorrect information. I therefore do not accept the new ground. I note that there was no ground of challenge that the Council did not have power to grant consent to a dwelling which has a frontage to a lane."

72 It has not been shown that his Honour erred in this conclusion. I would dismiss the appeal with costs.

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Decision last updated: 07 August 2012