Land and Environment Court New South Wales

• Medium Neutral Citation: Hornsby Shire Council v Trives [2014] NSWLEC 171
• Hearing dates: 20 October 2014
• Decision date: 20 October 2014
• Before: Craig J

Decision

(1)The separate questions posed for determination on 21 August 2014 be answered in the manner indicated in [32].

(2)The proceedings be stood over for further directions to Friday 14 November 2014.

(3)The First Respondent must pay the Applicant's costs of and associated with the determination of the separate questions.

• Catchwords: ADMINISTRATIVE LAW - judicial review proceedings - separate question - whether complying development certificates validly issued - whether proposed development properly characterised as "detached studio" under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 - meaning of "ancillary development" - whether proposed structure was ancillary to the existing dwelling house - structure proposed comprised a suite of rooms capable of being used as a separate domicile - whether development for separate purpose of additional dwelling house - whether development for that purpose permissible with consent in the land use zone applicable to the proposed development - whether upon erection of the proposed structure there would be more than one dwelling house on the same lot - cll 1.18, 3.5 and 3.8 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 - complying development certificates not validly issued
• Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW); Hornsby Local Environmental Plan 2013; State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW); State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
• Category: Separate question
• Parties: Proceedings 14/40215; Hornsby Shire Council (Applicant); Simon Trives (First Respondent); Lachlan Bardo (Second Respondent); Jing Yan (Third Respondent); Proceedings 14/40259
• Representation: Proceedings 14/40215; M J Astill (Applicant); K Gourlie (solicitor) (First Respondent); Proceedings 14/40215; Storey & Gough Lawyers (Applicant); Watson & Watson (First Respondent); Hunt & Hunt (Second Respondent); Hunt & Hunt (Third Respondent)
• File Number(s): 40215 of 2014, 40259 of 2014, 40277 of 2014

EX TEMPORE Judgment

1 In three separate proceedings, Hornsby Shire Council (the Council) seeks judicial review of decisions by Simon Trives, an accredited certifier, to issue complying development certificates for a new structure to be erected on each of three residential properties. The respective properties are owned by the Second and Third Respondents nominated in each proceeding.

2 The orders sought by the Council in each proceeding are to the same effect. The Council seeks a declaration that each complying development certificate is "void and of no effect" together with an order restraining the Second and Third Respondents in each proceeding from carrying out work or carrying out further work, as the case may be, in reliance upon the respective certificates issued by Mr Trives.

3 On 21 August 2014, Sheahan J ordered, pursuant to Pt 28, r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), that a question to the following effect be first determined in each of the proceedings:

                Did the First Respondent issue valid complying development certificates for development to be carried out

                on each property identified in those certificates?

 

It is the determination of that question, as it relates to each proceeding, that is the subject of this judgment. The precise question framed in each proceeding and which is the subject of his Honour's orders will be identified later in these reasons.

4 While the Second and Third Respondents in each proceeding have been separately represented, none have sought to be heard on the separate question. However, they do seek to be heard before any orders are made in the proceedings, other than an order by way of dismissal.

5 In each case, the complying development certificate was issued by Mr Trives on the basis that the development proposed was "complying development" within the meaning of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (the Complying Development SEPP). For each property the "proposed complying development" described in each certificate was "detached studio". The Council contends that, properly characterised, the development proposed could not be so described.

6 The three proceedings with which I am concerned, the respective second and third respondents to the proceedings, the properties to which each proceeding relates and the date of each complying development certificate are identified in the following table:

 

 

 

 

 

Proceeding Number	Owners/Second and Third Respondents	Address	Date of CDC
14/40215	Lachlan Bardo Jing Yan	14 Railway Parade, Hornsby	22 January 2014
14/40259	Charles Huynh Cassie Lin	231 Midson Road, Epping	29 January 2014
14/40277	Kevin Sum Yun Yu Yim	46 Pennant Parade, Carlingford	5 February 2014

7 For the purpose of determining the separate questions, the parties have agreed upon a Statement of Facts in each proceeding and upon the documents relevant to be considered. They agree that characterisation of the development for the purpose of determining whether the complying development certificates were lawful is an issue of jurisdictional fact to be determined by the Court (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at [88]). Thus, the need to consider the evidence that has been tendered by consent.

Background

8 At the time at which each certificate was issued by Mr Trives, there was an existing dwelling house erected and used as such on each property. The relevant land use controls applicable to each property were those found in Hornsby Local Environmental Plan 2013 (NSW) (the LEP). Each property was zoned R2 Low Density Residential under the LEP.

9 Relevantly, within the R2 Zone a number of nominated purposes of development were permissible with the consent of the Council. Those purposes included dwelling houses. Other than the purposes nominated as permitted without consent or permissible with consent, all other purposes of development were prohibited. Neither "dual occupancies" nor "secondary dwellings", as defined in the LEP, were nominated purposes of development in the R2 Zone, with the consequence that they were prohibited.

Proposed structures

10 Each complying development certificate issued by Mr Trives identified the plans that were the subject of that certificate. In each case, those plans included a site plan and a floor plan. In each case the respective site plans demonstrated that the new structure was to be separated from the existing dwelling but located within the boundaries of the property on which the existing dwelling house was erected. Having recorded that fact as common to each development that is the subject of a complying development certificate, it is necessary to describe in more detail what the floor plans for each new structure depicted.

11 For the Epping property, a building of irregular shape was proposed, containing three bedrooms, a bathroom with shower, basin and toilet, an entry foyer, a living and dining area and a kitchen shown as providing for kitchen benches with designated spaces for a refrigerator, hot plates and sink. Attached to the new building but included under the roof of that building is a garage with internal access through the laundry into the building's entry foyer. A patio beneath the roof for the entire structure is shown leading to the entry door. The BASIX certificate issued by the Department of Planning annexed to the complying development certificate and which is stamped and signed by Mr Trives, identified the "project type" as being "a separate dwelling house".

12 The floor plans for the Carlingford property show a rectangular building internally configured with three bedrooms, a separate bathroom and laundry with shower, basin and toilet, a large rectangular living/dining area and a kitchen, again depicting space not only for benches, but for refrigerator, hot plates and kitchen sink. A covered patio area also leads to the entry door. Once again annexed to that certificate is the BASIX Certificate, stamped and signed by Mr Trives and identifying the proposed development as a "separate dwelling house". The BASIX Certificate is one of the documents, identified on page 3 of the complying development certificate signed by Mr Trives, as that to which the latter certificate relates.

13 The plans for the Hornsby property again show a building of rectangular shape divided internally by what is described as a fire rated wall. To the west of that wall is drawn an area with one bedroom, a bathroom/laundry with shower, toilet and washbasin and a living/dining area with kitchen, again depicting the features I have earlier described for the other buildings. There is no access available between that area and the area of the building to the east of the dividing fire rated wall.

14 East of the fire rated wall, the building is shown as having two bedrooms, one of which is shown as having an ensuite bathroom with shower and toilet, a second bathroom with a bath, sink and toilet and then a separate laundry cupboard, a living/dining area and a separate kitchen with facilities as indicated before. Annexed to the complying development certificate is the BASIX Certificate describing the project type as being a "separate dwelling house".

The statutory and regulatory provisions

15 Provision is made in s 76A(5) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) for an environmental planning instrument to allow development "that can be addressed by specified pre-determined development standards [as] complying development." Pursuant to Div 3 of Pt 4 of the EPA Act, a person may carry out complying development if there has first been issued a complying development certificate (s 84A(1a)). That certificate may be issued by, among others, an accredited certifier who has received an application for that certificate. However, prior to issuing such a certificate, the certifier is required to consider and determine, among other matters, that the development proposed is complying development. Clearly enough, that requirement, imposed by s 85A(3)(a), is one that, in the present case, required that each proposed structure be characterised in order to determine that each accorded with the provisions of the Complying Development SEPP.

16 Clause 1.17 of the Complying Development SEPP provides:

"1.17 What development is complying development?

(1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy.

(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out."

Part 3 of the Complying Development SEPP is headed "General Housing Code" (the Housing Code).

17 Clause 3.5 of the Housing Code provides that the erection of "new ancillary development, or alterations or additions to existing ancillary development, is development specified for this code if the development is ancillary to a dwelling house." Thus, there are two matters identified in that clause that must be addressed. First, one must identify what is "ancillary development" and second, it is necessary to determine that the development proposed is ancillary to a dwelling house.

18 The expression "ancillary development" is defined in cl 1.5 of the Complying Development SEPP. The opening words of the definition exclude any of the listed structures or activities that are not exempt development under that Policy. No one has submitted that what is currently proposed is "exempt development".

19 Among the various structures listed in the definition of "ancillary development" is that identified in paragraph (d1) as "detached studio". As will be remembered from my earlier description of the complying development certificates signed by Mr Trives, that is the description of the structure that he purported to certify in each case. The expression "detached studio" is defined in cl 1.5 of the Complying Development SEPP in the following way:

"detached studio means ancillary development that is habitable and is:

(a) established in conjunction with a dwelling house,

(b) on the same lot of land as the dwelling house, and

(c) separate from the dwelling house."

Consideration

20 There can be no doubt that what is proposed in respect of each of the three properties is a building separate from the existing dwelling house and on the same lot of land as that dwelling house. The question to be determined and that which calls for characterisation is whether or not the proposed structure satisfies the definition of "detached studio", understood in the context of the Complying Development SEPP.

21 Despite the fact that cl 1.5 seeks to define the term "detached studio", that definition affords no assistance in assigning a meaning to the word "studio". Its defined attributes, namely that such a structure must be ancillary development, that it be habitable and that it must be ancillary to the dwelling house on the land is made clear. It is also apparent by reference to the other structures comprehended by the definition of "ancillary development" in cl 1.5 and which make reference to a "dwelling house", that what is intended by the concept of "detached studio" is not a further dwelling house.

22 A "studio" would normally describe an area or space within a building and within which some separate activity is carried out by an artisan or artist. Whether use of the term "studio" is intended to be so specific in the present circumstances need not be determined and I do not confine my consideration to that concept. However, what must be apparent from the provisions of the Complying Development SEPP, particularly those that pertain both to the definition of "ancillary development" and the definition of "detached studio", is that whatever habitable structure is able to be built, it must be established in conjunction with an existing dwelling and it must be ancillary to that dwelling. So much is required by cl 3.5.

23 Development that is "ancillary" to other development is a concept that is well understood in planning law. It identifies a structure or use, the purpose of which is subservient to some other development purpose against which it must be measured and which it must be seen to subserve. That is, it must be subordinate to the purpose against which it is being considered, in this case an existing dwelling house (Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 per Glass JA at 161). Likewise, the use of the phrase "in conjunction with" in the definition of "detached studio" identifies the need for there to be a functional nexus between the existing dwelling house on each property and the new structure to be erected.

24 As I understand the submission made on behalf of Mr Trives, essentially it focuses upon the aspect of habitability and the fact that the building proposed in each case will be of a lesser area than that occupied by the existing or principal dwelling on each property as justifying its characterisation as a "detached studio". I can accept that a "studio", within the meaning of the Complying Development SEPP, is not necessarily confined to a single room. It is clear that it must be a room or perhaps rooms that by application of modern building standards, such as those found in the Building Code of Australia, provide sufficient space, height, light and air circulation so as to render the room "habitable" (cp definition of "habitable room" in cl 1.5 of the Complying Development SEPP). No question arises in the present case as to the habitability of the structures that are the subject of the complying development certificates. Nonetheless, questions of degree will arise as to the extent to which a proposed new structure satisfies the definitional requirements of the Complying Development SEPP when that Policy is read as a whole. Identifying the structure as "habitable" does not address all of the requirements of either the definition or of the Policy.

25 Having regard to the Complying Development SEPP, what is apparent is that the intention of the drafter of the instrument cannot have been one to accommodate, under the rubric of "detached studio", something that is both separate from and can be used independently of the existing dwelling house on the land in respect of which the application is made. As the cases that have addressed the general concept of ancillary development make clear, comparison of areas of use where two purposes of use are shown to exist or to be intended is likely to have little relevance when determining whether one of those purposes is ancillary to or subserves the other (Foodbarn Pty Ltd v Solicitor-General at 161).

26 Here, the separate building or "detached studio" in each case is capable of being used as a separate dwelling house or separate dwellings in the case of the Hornsby property. So much is acknowledged in the Statement of Facts that has been tendered in each case by agreement and which states at [6]:

"The structure approved under the CDC contains a unit comprising a suite of rooms which is capable of being used as a separate domicile."

When that statement is considered with the more detailed description that I have given to the building intended in each case and, more particularly, to the manner in which each such building is internally configured, there can be no doubt that these structures are, in truth, properly characterised as serving the purpose of separate dwellings or "dwelling houses" within the meaning of the latter expression found in cl 1.5 of the Complying Development SEPP. The meaning of the latter phrase is further informed by the definition of "dwelling" in the Standard Instrument (cf cl 1.5(2) of the Complying Development SEPP).

27 Clause 1.18 of the Complying Development SEPP requires that to qualify as complying development for the purpose of the Policy, the proposed development must, among other things, be permissible with consent in the land use zone in which it is to be carried out. That is, for present purposes, it must be use for a purpose that is permissible within the R2 Zone under the Hornsby LEP. If it is not properly characterised as development for the purpose of a "detached studio" within the meaning of the Complying Development SEPP, then, having regard to the characteristics of each structure, it can properly be characterised as a form of housing accommodation, engaging purposes of development defined within the LEP. Relevantly, those definitions in the LEP potentially engaged are "dual occupancy detached", defined to mean two detached dwellings on one lot of land, or "secondary dwelling", which is defined to mean a self-contained dwelling that is established in conjunction with another dwelling, a principal dwelling, on the same lot of land and located within or attached to or separate from the principal dwelling (Dictionary to the LEP).

28 I need not stay to wrestle with the distinction between a "secondary dwelling" and "dual occupancy" as defined in the LEP. Suffice it is to say that upon the proper characterisation of development in contemplation in each case before me, as reflected in the plans attached to the certificates signed by Mr Trives, it is apparent that the development proposed not only falls outside the "detached studio" definition in the Complying Development SEPP but also falls within either one of the definitions of "dual occupancy" or "secondary dwelling" in the LEP. If I am correct in that regard, as I believe I am, then cl 1.18 is not satisfied, with the consequence that the Complying Development SEPP is not engaged in the present case. As I have already recorded, neither development for the purpose of a "dual occupancy" nor for a "secondary dwelling" is permissible in the R2 Zone.

29 I have already referred to cl 3.5 of the Complying Development SEPP as it identifies "ancillary development" to be development specified in the Housing Code. Clause 3.8 of the Policy also needs to be noticed. It provides that development specified for the Housing Code may only be carried out on a lot that "at the completion of the development will have only one dwelling house". If each of the three properties in question is developed in accordance with the complying development certificates issued by Mr Trives, completion of the "detached studios" in accordance with the plans that he has certified will result in more than one dwelling house on each lot. That being the case, cl 3.8 operates so as to exclude "ancillary development" specified in cl 3.5 from engaging the provisions of the Complying Development SEPP.

30 Mr Astill, who appeared for the Council, also drew attention to the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (Affordable Housing SEPP) which addresses a particular form of dual occupancy or additional housing referred to as "secondary dwelllings" on a single allotment of land. That Policy identifies development of that kind as "complying development" but only if it complies with the standards fixed by the Policy. As Mr Astill submitted, it would be an odd result if what is presently proposed does not comply with the standards of the Affordable Housing SEPP for secondary dwellings, as is acknowledged to be the case in respect of the structures that are the subject of the complying development certificates, yet if Mr Trives is correct, those structures, comprising separate dwellings, would be complying development on the subject properties by dint of the Complying Development SEPP. Although there is some substance to that submission, I need not determine whether it justifies the result for which Mr Astill contends.

31 I have identified three bases upon which the proposed "detached studios" do not engage the provisions of the Complying Development SEPP and therefore do not comprise development that is lawfully able to be the subject of the complying development certificates in question. First, development proposed in each case is not ancillary to the existing dwelling house on each property; that development does not comply with cl 1.18 of the Complying Development SEPP and further it does not comply with cl 3.8 of that instrument.

32 For the reasons that I have expressed, the questions posed in each proceeding must therefore be answered in the following manner:

Proceedings 40215 of 2014

Q. "Did the First Respondent validly issue the Complying Development Certificate to the Second Respondent in relation to land at 14 Railway Parade, Hornsby on 22 January 2014?"

A. No

Proceedings 40259 of 2014

Q. "Did the First Respondent validly issue the Complying Development Certificate to the Second Respondent in relation to land at 231 Midson Road, Epping on 29 January 2014?"

A. No

Proceedings 40277 of 2014

Q. "Did the First Respondent validly issue the Complying Development Certificate to the Second Respondent in relation to land at 46 Pennant Parade, Carlingford on 5 February 2014?"

A. No

33 In light of my answers to the separate questions posed for determination, it is clearly necessary for the Second and Third Respondents in each set of proceedings to be heard as to what, if any, orders should be made as a consequence of the proceedings having been instituted by the Council.

34 It is agreed, on behalf of the Council, that the matter should stand over to 14 November 2014 for the purpose of directions being made as to the further conduct of the proceedings. The Council, however, now seeks an order that its costs in respect of the separate question be paid by the First Respondent, Mr Trives. Mr Gourlie, who appears for Mr Trives, makes no submission in opposition to that order. Accordingly I order the First Respondent to pay the Council's costs of and in connection with the determination of the separate question.

35 The formal orders that I make therefore are:

(1) The separate questions posed for determination on 21 August 2014 be answered in the manner indicated in [32].

(2) The proceedings be stood over for further directions to Friday 14 November 2014.

(3) The First Respondent must pay the Applicant's costs of and associated with the determination of the separate questions.

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Decision last updated: 30 October 2014