Land and Environment Court New South Wales

• Medium Neutral Citation: Woodhouse v City of Sydney Council [2013] NSWLEC 182
• Hearing dates: 22 October 2013
• Decision date: 25 October 2013
• Jurisdiction: Class 4
• Before: Biscoe J

Decision

(1) Declaration that the canopy proposed by the respondent in drawing no FG-PU-TD-100 referred to as "Fitzroy Gardens Playground Upgrade" located in Kings Cross is not exempt development and requires development consent pursuant to s 76A(1) of the Environmental Planning and Assessment Act 1979. (2) Order that the respondent be restrained from constructing the said canopy unless it is modified so as to comply with the applicable development standards in Schedule 1 of State Environmental Planning Policy (Infrastructure) 2007 or unless a development consent has been granted for it in accordance with the requirements of the Environmental Planning and Assessment Act 1979. (3) Order that the respondent pay 25 per cent of the applicant's costs of the proceedings unless either party applies for a different costs order by letter delivered to the Registrar within 7 days accompanied by written submissions. (4) The exhibits may be returned.

• Catchwords: JUDICIAL REVIEW - whether respondent council's works for the upgrading of a playground in Fitzroy Gardens, Kings Cross is exempt development - whether classification as exempt development requires compliance with cl 20A and Sch 1 as well as cl 66 of State Environmental Planning Policy (Infrastructure) 2007 - whether under cl 20A and Sch 1 proposed canopy is not exempt development because it does not comply with development standards specified in Sch 1 - whether by virtue of cl 20A and Sch1 demolition element of the works is not exempt development.
• Legislation Cited: Environmental Planning and Assessment Act 1979 ss 36(1), 76, 76A, 76B, Part 5; State Environmental Planning Policy (Infrastructure) 2007 cll 5(1), 5(3)(g), 5(4), 8(1), 20, 20A, 65(3)(e), 66, Part 2 Division 4, Part 3, Sch 1; Standard Instrument (Local Environmental Plans) Order 2006 Dictionary; Sydney Local Environmental Plan 2012 cll 2.7, 5.10(2)(a)
• Cases Cited: Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15, (1957) 96 CLR 493; Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O'Keefe [1964] HCA 37, (1964) 110 CLR 529
• Category: Principal judgment
• Parties: Andrew Lance Woodhouse (Applicant); City of Sydney Council (Respondent)
• Representation: RESPONDENT: D Grieve QC and D Coulton (Applicant); P Clay SC and A Isaacs (Respondent); APPLICANT: N/A (Applicant); Council of the City of Sydney (Respondent)
• File Number(s): 40644/13

Judgment

1 In these judicial review proceedings, the applicant, Mr Andrew Woodhouse, contends that works (the Works) described as a playground upgrade on part of Fitzroy Gardens, Kings Cross by the respondent, the City of Sydney Council, require development consent. The applicant seeks a declaration to that effect and an injunction restraining the Council from carrying out the Works until development consent is obtained. The Council owns Fitzroy Gardens. No development consent has been sought or granted.

2 The applicant's case is that under cl 20A and Schedule 1 of State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) two elements of the Works are not exempt development within the meaning of s 76 of the Environmental Planning and Assessment Act 1979 (EPA Act) and therefore require development consent. The two elements are the demolition work and a canopy to be constructed over the playground. The Council contends that cl 20A and Schedule 1 are inapplicable and that the Works as a whole are exempt development under cl 66(1) of the ISEPP.

3 I uphold the applicant's canopy claim, do not accept his demolition claim, and propose to grant relief limited to the canopy.

FITZROY GARDENS

4 Fitzroy Gardens is a small urban public park in the Council's local government area. It is a public reserve for the purpose of the ISEPP. Fitzroy Gardens comprise the following main elements from different periods:

(a) The "El Alamein" fountain.

(b) The central part of the park, featuring planter boxes, mature trees, planting, lawn and gravel.

(c) A fenced children's playground in the north-eastern corner.

(d) A southern extension.

5 Under the ISEPP and the Sydney Local Environmental Plan 2012 (LEP), Fitzroy Gardens is a heritage item and is within a heritage conservation area, and the El Alamein fountain is a State heritage item.

THE WORKS

6 The Works are described on the plans as the "Fitzroy Gardens Playground Upgrade". On 24 June 2013 the Council approved tender plans and processes for the Works. The successful tenderer entered into a contract with the Council for the Works on 15 July 2013 and commenced the Works on 19 August 2013.

7 An understanding of the Works can be obtained by reference to two plans. Plan 100 is titled "General Arrangement Plan" and is an overall plan of the work to be carried out. Plan 200 is titled "Demolition Plan" and identifies that part of the Works which involve what can be generally described as demolition. Plan 200 shows the work to be done in preparation for the establishment of the new, larger playground and associated landscaping works shown in Plan 100.

8 The following is a summary of the Works:

(a) Removal of the existing playground enclosure, play equipment and shade cloth and structure.

(b) Construction of a new playground enclosure located partially to the west of the existing playground, and installation of new playground equipment, soft-fall and paving, lighting, furniture and shade structure.

(c) The playground will be fully fenced and accessible from the upper terrace, the lower terrace and the northern edge of Fitzroy Gardens.

(d) The playground will also include seating, two canopy trees, palms and a shade structure over the swings.

(e) Landscape works designed to integrate the new playground with the remaining fabric of Fitzroy Gardens, to mediate between the upper and lower terraces and provide public access around the playground. Associated landscape works include new planter boxes, widening existing stairs to the west of the playground, a new planter to the west of the playground, and new retaining walls, paving and plantings.

9 The Works are being carried out in two stages. Stage 1 comprises works to the west of a retaining wall adjacent to the western fence of the new playground. Stage 2 comprises those works directly associated with the playground and its surrounds. There is access between the sites of Stages 1 and 2 and a number of services, including cables for the lighting. At the present time, Stage 1 has been completed and Stage 2 has been commenced.

Legislative context

10 Development consent is required in order to carry out the Works unless they fall within s 76 of the EPA Act: see ss 76A and 76B of the EPA Act and cll 2.7 and 5.10(2) of the LEP.

11 Section 76 of the EPA Act provides:

76 Development that does not need consent

(1) General

If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies.

Note. Environmental assessment of the development may nevertheless be required under Part 5.

(2) Exempt development

An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.

(3) If development is exempt development:

(a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land:

(i) is critical habitat, or

(ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and

(b) Part 5 does not apply to the development.

A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies.

12 The LEP and the ISEPP are environmental planning instruments. Clause 2.7 of the LEP provides that "demolition of a building or work may be carried out only with development consent". Clause 5.10(2)(a) of the LEP provides that development consent is required for demolishing a heritage item. Under the ISEPP and the LEP, Fitzroy Gardens is a heritage item and is within a heritage conservation area. However, the ISEPP prevails over the LEP in the event of inconsistency: s 36(1) EPA Act, cl 8(1) ISEPP.

13 Division 4 titled "Exempt Development" of Part 2 titled "General" of the ISEPP comprises clauses 20 and 20A. Immediately under the title of Division 4 appear two Notes. Note 1 is as follows:

Note 1. Under section 76 of the Act, exempt development may be carried out without the need for development consent under Part 4 of the Act or for assessment under Part 5 of the Act.

The section states that exempt development:

(a) must be of minimal environmental impact, and

(b) cannot be carried out in critical habitat of an endangered species, population or ecological community (identified under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994), and

(c) cannot be carried out in a wilderness area (identified under the Wilderness Act 1987).

14 Clause 20 of the ISEPP provides in part:

20 General requirements for exempt development

(1) This clause applies to any development that this Policy provides is exempt development.

Note. Clause 20A and other provisions of this Policy identify kinds of development that are exempt development if they meet the requirements of this clause.

(2) To be exempt development, the development:

...

(e) if it is likely to affect a State or local heritage item or a heritage conservation area, must involve no more than minimal impact on the heritage significance of the item or area, and

...

15 The applicant contends that under cl 20A and Schedule 1 of the ISEPP the demolition work and the canopy to be constructed are not exempt development. Clause 20A provides:

20A Exempt development carried out by public authorities for purposes in Schedule 1

Development for a purpose specified in Schedule 1 is exempt development if:

(a) it is carried out by or on behalf of a public authority, and

(b) it meets the development standards for the development specified in Schedule 1, and

(c) it complies with clause 20.

16 Schedule 1 of the ISEPP is titled "Exempt development - general". It lists approximately 20 items under the heading "Development purpose", for which it specifies various "Development standards". Those "development purposes" include items that are or may be elements of the Works, such as fences, hoardings to restrict unauthorised entry to the construction sites, lighting, retaining walls and access ramps for persons with a disability. In contest in the present case are the following items in Schedule 1:

"Development purpose	Development standards
... Awnings, canopies, pergolas and storm blinds	... · Surface area must not exceed 20m2 (except for an educational establishment). · Height must not exceed 2.4m above ground level (existing). · Must maintain all required boundary setbacks for the associated building and no part of structure must be within 900mm of any property boundary.
... Demolition of buildings or structures (unless part of a heritage item or within a heritage conservation area) the erection of which is exempt development under this Policy	... · Must be carried out in accordance with AS 2601-2001, Demolition of structures and must not cover an area of more than 100m2."

17 Two matters should be noted:

(a) As regards the "canopies" development purpose in Schedule 1, a canopy over the playground is in Stage 2 of the Works and is well in excess of the maximum surface area and height prescribed by the applicable development standards in Schedule 1. Therefore, the applicant contends, the canopy is not exempt development.

(b) As regards the "demolition" development purpose in Schedule 1, in particular the words in parentheses, Fitzroy Gardens is a heritage item and is within a heritage conservation area. Therefore, the applicant contends, the demolition works in the present case is not exempt development.

18 Part 3 (cll 21-131) of the ISEPP is titled "Development controls". It has 26 Divisions dealing with different types of developments, which specify if and where they are permitted without consent or with consent or are exempt of complying development, and related matters. Division 12 (cll 64-66) is titled "Parks and other public reserves".

19 The Council contends that the Works are exempt development under cl 66(1)(a)(i) and (iv) read with cl 5(3)(g). Clause 66 provides:

66 Exempt development

(1) Development for any of the following purposes is exempt development if it is carried out by or on behalf of a public authority in connection with a public reserve or on land referred to in clause 65 (1), and if it complies with clause 20:

(a) construction, maintenance and repair of:

(i) walking tracks, boardwalks and raised walking paths, ramps, minor pedestrian bridges, stairways, gates, seats, barbecues, shelters and shade structures,

...

(iv) play equipment where adequate safety provisions (including soft landing surfaces) are provided, but only if any structure is at least 1.2m away from any fence,

...

(2) Development of a kind referred to in subclause (1) is exempt development if it is carried out on land referred to in clause 65 (2) by or on behalf of the person specified in respect of that land in that subclause, if the development:

(a) complies with clause 20, and

(b) involves no greater disturbance of native vegetation than necessary, and

(c) does not result in an increase in stormwater run-off or erosion, and

(d) for the purposes of implementing a plan of management adopted for the land under the Act referred to in clause 65 (2) in relation to the land.

20 Importantly, cl 5(3)(g) of the ISEPP extends the meaning of "construction" works in cl 66 to include "demolition":

(3) If this Policy provides that development for a particular purpose that may be carried out without consent includes construction works, the following works or activities are (subject to and without limiting that provision) taken to be construction works if they are carried out for that purpose:

...

(g)  demolition,

...

21 "Demolish" is defined to mean, in relation to a heritage item or a building or work within a heritage conservation area, "wholly or partly destroy, dismantle or deface the heritage item...building [or] work": cl 5(1) of the ISEPP, adopting the definition in the Standard Instrument (Local Environmental Plans) Order 2006.

22 Mention may also be made of cl 65 titled "Development permitted without consent" (ie as contemplated by s 76(1) of the EPA Act). Clause 65(3)(e) provides:

(3) Development for any of the following purposes may be carried out by or on behalf of a council without consent on a public reserve under the control of or vested in the council:

...

(e) landscaping,...

...

23 The Council pleaded and the applicant admitted in its written opening submissions that the Works fall within cl 66(1)(a)(i) and (iv). I agree.

AMENDMENT AT TRIAL

24 At the beginning of the trial the pleadings only disclosed the demolition issue but the applicant indicated in his opening address that he wished to add the canopy issue as a ground of challenge; and later in the trial the applicant filed with leave and without objection, a second further amended summons to raise the canopy issue.

25 During closing submissions, the applicant also applied for leave to further amend his summons to include a new alternative prayer that Stage 1 only was invalid and to resile so far as concerns Stage 1 only, from his admission that the works fall within cl 66(1)(a)(i) and (iv). Underlying this proposed new position was the notion that Stage 1 should be isolated from Stage 2 such that each should be regarded as a different development with a different purpose. Having regard to the following matters, I declined to permit the applicant to amend and change his position at such a late stage. The new issue was not raised until closing submissions and would have opened up a new and potentially large inquiry of fact and law. The inquiry would have included considering the Council's submissions, put in opposition to the leave application, that (a) Stage 1 and Stage 2 are not separate developments with different purposes but are integrated, with access and services between them; (b) alternatively, even if Stage 1 is separable from Stage 2, Stage 1 (viewed in isolation) is still exempt development under cl 66(1)(a)(i) or cl 66(1)(b) ("routine maintenance", defined in cl 5(4) to include "routine repairs to or replacement of equipment or assets" and "clearing of vegetation"), or does not require development consent under s 76(1) of the EPA Act because it falls within cl 65(3)(e) of the ISEPP ("landscaping"); and (c) in any event the proposed amendment would have no utility because the Stage 1 works have been completed. If Stage 2 (viewed in isolation) falls within cl 65(3)(e), the inquiry might also have to delve into whether the requirements of Part 5 of the EPA Act are satisfied. In the circumstances I considered that it would unduly disrupt the trial and be procedurally unfair to the Council to grant the leave sought.

SUBMISSIONS

26 The Council submits and the applicant disputes that:

(a) Clause 66 of the ISEPP is not subject to cl 20A.

(b) Clause 20A of the ISEPP does not apply to the works.

27 The applicant submits that cl 66 is subject to cl 20A because cl 66 is expressed to be subject to cl 20, and cl 20 is primarily directed to cl 20A, therefore the Works are subject to both cl 66 and cl 20A. As it is common ground that the canopy to be constructed far exceeds the maximum surface area and height prescribed by the development standard in Schedule 1, the applicant submits that construction of the canopy is not exempt development and should be injuncted. Further, the applicant submits that under Schedule 1 demolition of a building or structure is exempt development only if it satisfies two conditions: (a) it must not be part of a heritage item or be within a heritage conservation area; and (b) it must satisfy the prescribed development standard. Accordingly, since Fitzroy Gardens is a heritage item and is within a heritage conservation area, the applicant submits that under cl 20A the demolition works are not exempt development and should be injuncted.

28 In summary, the Council submits that the applicant's analysis fails in three respects:

(a) It ignores the operation of cl 5(3) of the ISEPP in permitting demolition as part of a construction process which is exempt development.

(b) The demolition of existing facilities and the like is in any event for the purposes of the construction of the new playground without regard to cl 5(3).

(c) As a corollary of (b), the Works (the development) or any part of them are not for the purposes of demolition, and cl 20A (read with Schedule 1) is not engaged.

29 With regard to (b) above, the Council invokes the following uncontroversial general principles to submit that cl 20A of the ISEPP is not engaged. In planning law, use must be for a purpose. The purpose is the end to which land is seen to serve. It describes a character which is imparted to the land on which the use is pursued: Shire of Perth v O'Keefe [1964] HCA 37, (1964) 110 CLR 529. The use of land involves no more than "physical acts by which land is made to serve some purpose": Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15, (1957) 96 CLR 493 at 508. The characterisation of the purpose of a use should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of detailed activities, transactions or processes: Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305. On the basis of these principles, the Council submits that the physical act of demolition is for the purpose of the construction of the playground facilities and is not a separate purpose; thus cl 20A is not engaged.

30 In summary, the applicant submits in reply that:

(a) Clause 5(3) is subject to cl 20A.

(b) The Council's argument strips cl 20A of any meaning because its argument comes down to this: if the purpose of development is identified in any clause of the ISEPP, such as cl 66, the mere fact that any works or activities to be carried out in the achievement of that purpose as described in column 1 of Schedule 1 is irrelevant.

(c) That unsatisfactory outcome is avoided by construing "purpose" in cl 20A as "activity or work".

31 Apparently in aid of its position, the applicant also submits that cll 20 and 20A of ISEPP fall under s 76(1) of the EPA Act (development not requiring development consent) whereas cl 66 falls under s 76(2) (exempt development).

CONSIDERATION

32 Clause 20A of the ISEPP, as its title and location within Part 2 (titled "General") indicate, applies generally to development carried out by public authorities for any of the "development purposes" listed in Schedule 1. Clause 66 applies more particularly to development in parks and other public reserves.

33 If, as the Council contends, cl 66 applies to the Works to the exclusion of cl 20A and Schedule 1, then it means that the elements of the Works answering the description of a development purpose in Schedule 1 are not subject to the development standards in Schedule 1. That is, according to the Council, the Works as a whole are exempt development under cl 66 even if none of its elements referred to in Schedule 1 comply with the applicable Schedule 1 development standards. For example, an element of the Works certainly answers the Schedule 1 description "canopies"; other elements answer the Schedule 1 descriptions "Fences", "Hoardings to restrict unauthorised entry to construction sites", "Lighting" and "Retaining walls"; and another element may perhaps answer the Schedule 1 description "Access ramps for persons with a disability". Nevertheless, according to the Council's submission, none of those elements are subject to the development standards in Schedule 1 in order for them to qualify as exempt development because the Works as a whole are exempt development under cl 66. Yet if the Council proposed to construct any of those elements as a separate development and not as part of the Works falling within cl 66, it would have to comply with the applicable development standards in Schedule 1 in order to qualify as exempt development under cl 20A. That result is so lacking in sense as to suggest that it is unlikely to be the intention of the ISEPP.

34 An element of a development for a purpose specified in cl 66 (and other similar provisions in Part 3) may answer the description of a more limited development purpose specified in Schedule 1. The general principle invoked by the Council that in planning law a use cannot have a host of limited purposes must yield to a particular statutory scheme, in this case the ISEPP. I think that the expressions "development for a purpose" in cl 20A and "development purpose" in Schedule 1 (on the one hand) and "development for any of the following purposes" in cl 66 (on the other hand) are not used in the same sense. As in the present case, works as a whole can be for a purpose specified in cl 66, but an element of the works can be for a purpose specified in Schedule 1. Schedule 1 of the ISEPP lists numerous development purposes that may either stand alone or be elements of a wider project. But not in all cases, for example the Schedule 1 development purpose "Hoardings to restrict unauthorised entry to construction sites" cannot stand alone and must always be part of a wider project involving a construction site. This scheme suggests that cl 20A and Schedule 1 apply whether or not an item answering the description of a "development purpose" in Schedule 1 stands alone or is part of a wider project.

35 I conclude, first, that cl 20A applies to any element of the Works that answers the description of a development purpose in Schedule 1. Secondly, if that element does not satisfy the relevant development standard specified in Schedule 1, it is not exempt development. Thirdly, subject to cl 20A and Schedule 1, the Works, including both construction and demolition, fall within cl 66(1)(a)(i) and (iv) of the ISEPP as extended by cl 5(3)(g) and therefore are exempt development.

36 It follows that as the canopy in this case does not comply with the development standards applicable to canopies in Schedule 1, it is not exempt development. The applicant therefore succeeds on the canopy issue.

37 In my opinion, the applicant fails on the demolition issue. The demolition purpose provision in Schedule 1 excludes from its ambit buildings or structures that are part of a heritage item or within a heritage conservation area - such as Fitzroy Gardens. That is understandable given the protection provided by cl 20(2)(e) which provides: "To be exempt development, the development:...(e) if it is likely to affect a State or local heritage item or a heritage conservation area, must involve no more than minimal impact on the heritage significance of the item or area". However, as Fitzroy Gardens is excluded from the ambit of the demolition purpose in Schedule 1, the demolition element forms part of the exempt development under cl 66(1)(a)(i) and (iv) read with cl 5(3)(g). The applicant's demolition case is itself demolished by cl 5(3)(g).

38 For completeness, although it does not affect this outcome, I should add that I do not accept the applicant's further submission that cll 20 and 20A of the ISEPP fall under s 76(1) of the EPA Act and that cl 66 falls under s 76(2). Section 76 distinguishes between development that does not require consent in s 76(1) and exempt development in s 76(2) and (3). The former is not exempt from Part 5 of the EPA Act whereas the latter is exempt from Part 5. Clauses 20 and 20A comprise Division 4 titled "Exempt development" of Part 2 (titled "General") of the ISEPP. Immediately under the title of Division 4 appears Note 1, set out above at [13], which indicates that Division 4 is only concerned with exempt development referred to in s 76(2). Each of cll 20 and 20A is expressly concerned only with exempt development. Clause 66 of ISEPP titled "Exempt development" is within Division 12 titled "Parks and other public reserves" of Part 3 entitled "Development Controls" of the ISEPP. Each Division of Part 3 is concerned with a specific type of development, of which Division 12 is one. Each Division of Part 3 prescribes in relation to the type of development with which it is concerned, when it is permitted with consent or (where applicable) without consent or where it is exempt development or complying development. Clause 66 both in its title and in its body is expressed to be concerned only with "exempt development". I conclude that cll 20, 20A and 66 all fall under the exempt development provisions of s 76(2) and (3) of the EPA Act and not under s 76(1).

ORDERS

39 The applicant has succeeded in establishing that cl 20A and Schedule 1 of the ISEPP have work to do in this case and that, consequently, the canopy is not exempt development because it does not comply with the applicable development standards in Schedule 1. I propose to make a declaration to that effect and to injunct the construction of the canopy unless it is modified to comply with the applicable development standards in Schedule 1 or unless development consent is obtained for its construction. The applicant did not succeed on the demolition issue. I do not consider (and it was not specifically submitted) that the mere fact that the canopy is not exempt development has a knock-on effect such that the remainder of the works are not exempt development.

40 The applicant's measure of success weighs in favour of a costs order of some sort in his favour. However, the quantum of the costs order should take into account that the applicant failed on the main issue, the demolition issue, which was the only issue prior to trial; that the applicant would have lost the case except for its late amendment at trial to introduce the canopy issue; and that success on the canopy issue was insufficient to establish that the entire Works required development consent, which was the main target of the proceedings.

41 Taking all this into account, I consider that the appropriate order is that the respondent pay 25 per cent of the applicant's costs. This is subject to considering any contrary submissions from the parties. As I have not heard the parties on costs, I will provide them with an opportunity to apply, if they wish, for a different costs order within 7 days.

42 The orders of the Court are as follows:

(1) Declaration that the canopy proposed by the respondent in drawing no FG-PU-TD-100 referred to as "Fitzroy Gardens Playground Upgrade" located in Kings Cross is not exempt development and requires development consent pursuant to s 76A(1) of the Environmental Planning and Assessment Act 1979.

(2) Order that the respondent be restrained from constructing the said canopy unless it is modified so as to comply with the applicable development standards in Schedule 1 of State Environmental Planning Policy (Infrastructure) 2007 or unless a development consent has been granted for it in accordance with the requirements of the Environmental Planning and Assessment Act 1979.

(3) Order that the respondent pay 25 per cent of the applicant's costs of the proceedings unless either party applies for a different costs order by letter delivered to the Registrar within 7 days accompanied by written submissions.

(4) The exhibits may be returned.

Decision last updated: 28 October 2013