Affordable Housing SEPP and Growth Centres SEPP – when two SEPPs clash on lot size does one prevail?

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Secondary dwelling applications commonly rely on the Affordable Housing State Environmental Planning Policy (SEPP) clauses which direct that the consent authority “must not refuse” a development application (DA) “on the basis of site area”. A recent Court of Appeal judgment has found this clause does not override the minimum lot size requirements in the Growth Centres SEPP. Although the judgment applies to the Blacktown Precinct, (Appendix 12) it has implications for secondary dwelling applications in all precincts under the Growth Centres SEPP.

In Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 the Court of Appeal considered the way two possibly conflicting SEPPs apply to a secondary dwelling DA:

  • Clause 22(4)(a) in State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) which provides that secondary dwelling applications must not be refused on the grounds of site area if the secondary dwelling is within the principal dwelling or the site is not less than 450sqm.
  • Clause 4.1AC in State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) (Appendix 12, Blacktown Precinct) which requires a minimum lot size of 450sqm for secondary dwellings in the zone.

The DA proposed a secondary dwelling within the principal dwelling, on a 250sqm lot.

Universal contended that there was no inconsistency, and that clause 4.1AC of the Growth Centres SEPP did not apply, and consent could not be refused on the basis of site area. The Council maintained there was an inconsistency between the two clauses.

The Court dismissed the appeal, finding that there is no conflict between the two instruments and the Affordable Housing SEPP provision does not derogate from the minimum lot size requirement in the Growth Centres SEPP. In other words, the minimum lot size requirement in the Growth Centres SEPP is engaged.

Effectively, this means for this type of DA on an undersized lot in the precinct (and possibly other precincts), an applicant must lodge a clause 4.6 submission in relation to the noncompliance with the minimum lot size development standard in the Growth Centres SEPP.

Inconsistency between planning instruments

This case takes a close look at how to resolve inconsistencies between two instruments of the same kind, such as two SEPPs, when assessing a DA.

In the leading judgment, Basten JA takes into account longstanding principles of statutory construction including:

  • A very strong presumption that a legislative authority does not intend to contradict itself. This needs to be considered in deciding whether there is “actual contrariety” between the two instruments 
  • The principle of harmonious operation, which “… gives preference to a reasonable construction of a statutory instrument if the result is consistent with the operation of another, where a different interpretation would create inconsistency.”

The exercise to be undertaken is then (in summary):

  • First identify whether there is an actual conflict or inconsistency between the instruments, and resolve that as a matter of statutory construction (is there an express intention for example in one that it overrides the other) 
  • If it cannot be resolved by statutory construction, is the earlier instrument impliedly repealed by the later

The appellant’s main argument was that clause 22(4) Affordable Housing SEPP prevented the DA from being refused on the basis of site area. Effectively, the Affordable Housing SEPP rendered the minimum lot size in the Growth Centres SEPP inapplicable. This was an implied intention, rather than express intention, of the Affordable Housing SEPP.

However, Basten JA observed that “… an implied intention should not be found absent “actual contrariety” and preferred an alternative reading of clause 22(4) that favoured a harmonious operation and would have the effect of preventing the consent authority from refusing consent on either of the two separate bases, without derogating from the standard with respect to minimum lot size (at [24]).

On this basis, the Affordable Housing SEPP did not impliedly intend to vary clause 4.1AC of the Growth Centres SEPP but could be read in conformity with it.

The Court also looked at the dates of the instruments and their respective paramountcy clauses. Basten JA agreed with Justice Moore’s finding (in the original judgment in the Land and Environment Court) in respect to timing, that if the clauses were found to be inconsistent, clause 22 of the Affordable Housing SEPP (introduced in 2009) could not be construed as impliedly repealing clause 4.1AC of the Growth Centres SEPP because the Precinct Plan in the latter was introduced in 2014 (some five years after the Affordable Housing SEPP) (at [33]).

More often than not, the legislature makes clear when a latter instrument intends to repeal an earlier introduced instrument. However, when in doubt, it is important to look at whether both provisions can operate together and where there is overlap, seek out legal advice for further clarification.

What are the implications for a DA?

Applicants lodging a DA for a secondary dwelling to which both SEPPs apply, and which doesn’t meet the minimum lot size requirement of the Growth Centres SEPP, in the Blacktown Precinct, cannot rely on clause 22(4) of the Affordable Housing SEPP to override the minimum lot size requirement in the Growth Centres SEPP. The minimum lot size requirement still applies, and so a clause 4.6 variation request must be submitted with the application to enable Council to grant consent. If lodging the same DA in another precinct under the Growth Centres SEPP, you will need to check whether the minimum lot size requirement is similar and whether a clause 4.6 is required.

Councils assessing this type of DA within any Growth Centre precincts need to be alert to the issue, and closely read the actual applicable minimum lot size requirements. If assessing an application that does not comply with the minimum lot size requirements under the Growth Centres SEPP, and to which clause 22 of the Affordable Housing SEPP also applies, a clause 4.6 submission will most likely be required to form part of the application.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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