Anderson v Snowy Monaro Regional Council

Representation: Counsel:
R White (Applicant)
Submitting appearances (First and Second Respondents)
Solicitors:
Keypoint Law (Applicant)
Lindsay Taylor Lawyers (First Respondent)
Maddocks Lawyers (Second Respondent)

File Number(s): 2024/00327445

Publication restriction: Nil

JUDGMENT

Nature of proceedings

1. The Applicant seeks judicial review of Snowy Monaro Regional Council’s (First Respondent or Council) decision to grant two development consents for the subdivision of land in Cooma (collectively, the Decision).

2. The primary issue for determination is whether the First Respondent’s Decision authorised the subdivision of land in excess of the maximum permissible amount of lots under the Cooma – Monaro Local Environmental Plan 2013 (the LEP), resulting in jurisdictional error.

3. Each of the Respondents entered submitting appearances save as to costs. The First Respondent made its appearance on condition that its Statement of Reasons would be tendered in the proceedings. The relevant parts of that statement are reproduced at [18] below.

4. The Applicant did not press Ground 2 of the Summons claiming a breach of procedural fairness.

Facts

Stage 1 – Development Application

5. The Stage 1 DA applied to land at Old Dry Plains Road in Cooma NSW 2630 (Stage 1 Parent Parcel) that was zoned as R5 – Large Lot Residential (R5 Zone) under the LEP. The Stage 1 Parent Parcel comprised the following lots:

| Title | Area (ha) | | Lot 156 DP 750024 | 15.05 | | Lot 213 DP 750024 | 64.42 | | Lot 141 DP 750024 | 0.79 | | Lot 188 DP 750024 | 15.17 | | Total area | 95.43 |

6. A minimum lot size of 8ha is required for any subdivision of land in the R5 Zone, pursuant to cl 4.1 of the LEP.

7. A smaller lot size of 2ha in a subdivision is permissible under cl 4.1B of the LEP, provided the total number of lots created from the subdivision do not exceed the number of lots that could have been created under cl 4.1(3).

8. The maximum permissible number of lots that could be approved of the Stage 1 Parent Parcel under the LEP was 11.

9. On 4 October 2018, the First Respondent approved Cavallo Projects Pty Ltd’s (Second Respondent) development application DA2018.1222.1 (Stage 1 DA) for the subdivision of land, creating 11 lots.

10. A plan of the Stage 1 DA is as follows:

Figure 1: Stage 1 DA Plan

11. The Applicant accepts that the subdivision was within power and does not challenge the grant of that consent.

Stage 2A – Development Application

12. On 16 May 2024, the First Respondent approved the Second Respondent’s development application DA10.2021.325.1 (Stage 2A DA) for the subdivision of land, creating 31 lots.

13. The land subject to the Stage 2A DA was within the R5 Zone and comprised the following lots (Stage 2A Parent Parcel):

| Lot | DP | | Lot 1 | DP 737275 | | Lot 11 | DP 1266312 | | Lot 157 | DP 750524 | | Lot 158 | DP 750524 | | Lot 159 | DP 750524 | | Lot 189 | DP 750524 | | Lot 197 | DP 750524 | | Lot 211 | DP 750524 | | Total area | 251.93ha |

14. The total area of the land that Stage 2A DA applied to included part of the land to which the Stage 1 DA related.

Stage 2B – Development Application

15. On 16 May 2024, the First Respondent approved the Second Respondent’s development application DA10.2021.321.1 (Stage 2B DA) for the subdivision of land, creating 8 lots. The land subject to the Stage 2B DA included part of the land the subject of the Stage 2A DA.

16. The total area of the land subject to the Stage 2B DA was 159.24ha, which included 62.1ha of the Stage 2A DA which had also been part of the Stage 1 DA.

17. The average lot sizes for the Stage 1 DA, Stage 2A DA and Stage 2B DA on land within the R5 Zone were identified by the Applicant as follows:

| 1. Total Stage 1 area for development | 95.43ha | | 11 lots, including residue lot 11 (which comprises 72.19ha) | | | 2. Total development area for Stages 2A and 2B | | | Stages 2A and 2B stated to be 251.93 ha, but this includes 72.19 ha of Stage 1, so the total area of Stages 2A and 2B, excluding lot 11, was 179.74ha (251.93 – 72.19 = 179.74 ) | 179.74ha | | 3. Total available R5 land | 275.17ha | | 4. Lot numbers in stages 1, 2A and 2B | | | Stage 1 Residential lots | 10 | | Residual lot (subsequently absorbed into Stage 2A) | 1 | | Stage 2A Residential lots | 30 | | Residual lot (subsequently absorbed into Stage 2B) | 1 | | Stage 2B Residential lots | 7 | | Residual lot | 1 | | Total number lots | | | Residual lot | 47 | | Residual lots remaining | 1 | | Total lots | 48 | | 5. Maximum compliant lot yield Stages 2A and 2B permissible under cl.4.1(3) (275.17 / 8) = | 34 | | 6. Density of lots per hectare approved by Stages 2A and 2B (275.17 / 48) = | 5.73 |

18. The First Respondent’s Statement of Reasons referred to at [3] above included the following:

Reasons for Decision

The Council determined to grant development consent to each of the Stage 2A DA and the Stage 2B DA, because in each case:

a. It considered that the application proposed development that was permissible with consent, having regard to the zoning of the land and the subdivision lot size controls applicable to it under the Cooma Monaro Local Environmental Plan 2013 (CMLEP), including clause 4.1B,

b. It considered various merits issues arising from the proposed subdivision, both as to benefits and impacts, and against specific provisions of the CMLEP and the Cooma Monaro Development Control Plan 2014 (DCP),

c. It considered written submissions made by or on behalf of objectors, including a submission made by Mr Peter Anderson dated 11 July 2023, a submission made by Mr Peter Andersons dated 12 July 2023, a submission prepared by Keypoint Law dated 2 May 2024 on behalf of Mr Peter Anderson, and a subsequent email from Keypoint Law dated 13 May 2024.

d. Weighing all of the above matters, determined it was appropriate to grant development consent, subject to the specified conditions of consent.

Material Questions of Fact

The Council found in relation to each of the Stage 2A DA and the Stage 2B DA, that:

a. each lot to be created by the particular subdivision for land in Zone R5 would have an area of at least 2 hectares, and, for land in Zone C4 would have an area of at least 10 hectares,

b. in the case of the Stage 2A DA:

…

ii. one residue lot was also to be created for the portion of land zoned C4 Environmental Living,

iii. the total number of lots that could be created under clause 4.1(3) from the land subject of the DA (being both the R5 Large Lot Residential zone and C4 Environmental Living zone) was 32, and

iv. the total number of lots to be created from the Stage 2A subdivision would not exceed the number of lots that could be created under clause 4.1(3).

c. in the case of Stage 2B DA:

i. the total number of lots to be created on land in the R5 Large Lot Residential zone by the subdivision was 8, being 7 new lots and a residue lot,

ii. the total number of lots that could be created under clause 4.1(3) was 19,

iii. the total number of lots to be created from the Stage 2B subdivision would not exceed the number of lots that could be created under clause 4.1(3).

Relevant provisions of LEP

19. The Applicant’s case turned primarily on the proper construction of cl 4.1B of the LEP. Each of the Stage 2A and Stage 2B DAs relied upon this clause to authorise the development for which consent was sought. Clause 4.1B was in the following terms:

4.1B Subdivision using average lot sizes

(1) The objectives of this clause are to facilitate alternative subdivision controls that—

(a) facilitate a subdivision design that takes into consideration the values and constraints on the land and achieves the best environmental and agricultural outcomes possible, and

(b) limit the subdivision of land in certain circumstances where the lots created are proposed to be used for residential accommodation.

(2) This clause applies to land in the following zones (other than land identified as “Area A” on the Lot Size Map)—

(a) Zone RU1 Primary Production,

(b) Zone R5 Large Lot Residential,

(c) Zone C4 Environmental Living.

(3) Despite clause 4.1, development consent may be granted for the subdivision of land to which this clause applies if—

(a) the total number of lots created from the subdivision will not exceed the number of lots that could be created under clause 4.1 (3), and

(b) for land in Zone RU1 Primary Production, each lot created by the subdivision will have an area of at least 20 hectares, and

(c) for land in Zone C4 Environmental Living, each lot created by the subdivision will have an area of at least 10 hectares, and

(d) for land in Zone R5 Large Lot Residential, each lot created by the subdivision will have an area of at least 2 hectares.

(4) Development consent must not be granted for the subdivision of a resulting lot unless the consent authority is satisfied that—

(a) the lots to be created will not be used for the purpose of residential accommodation, and

(b) the subdivision will not result in any significant adverse environmental impacts on the land being subdivided.

(5) In this clause, resulting lot means a lot created under this clause being land in Zone RU1 Primary Production or Zone C4 Environmental Living.

20. Clause 4.1B referred to both cl 4.1 and the Lot Size Map in the LEP. The relevant provisions of the Lot Size Map referred to in cl 4.1(2) as it related to the R5 zoned land showed a minimum size of 8ha. Clause 4.1 was in the following terms:

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows—

(a) to allow for the limited subdivision of agricultural land for residential purposes,

(b) to protect and maintain environmentally sensitive land,

(c) to ensure the efficient use of employment and residential land.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4) This clause does not apply in relation to the subdivision of any land—

(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or

(b) By any kind of subdivision under the Community Land Development Act 2021.

21. In addition, cl 2.6 of the LEP provided that subdivision could only be carried out with development consent.

Consideration

22. The issue raised by the Applicant for determination turns upon whether the larger of the lots created in each subdivision is capable of being subdivided again and used for the purposes of the averaging of lot sizes pursuant to clause 4.1B(3) of the LEP in each subsequent subdivision.

23. From the facts as outlined above, it is apparent that:

24. Each of the relevant subdivisions referred to as Stage 1, Stage 2A and Stage 2B created a subdivision that complied with the requirements of cl 4.1B of the LEP in that each subdivision, considered in isolation, created no more lots than that which would have been provided under cl 4.1, and no lot had less than 2ha in area;

25. To achieve compliance each subdivision proposed a number of small lots and a single larger lot;

26. Absent the single larger lot, the subdivision would not have achieved the “averaging” required by cl 4.1B;

27. Each of the subdivisions known as Stage 2A and Stage 2B further subdivided the larger lot in the earlier subdivision;

28. The consequence of the three subdivisions when considered in conjunction was that there were more lots created than would have been permitted under the averaging provisions of cl 4.1B(3); and

29. Alternatively, absent utilising the land area of the previously created larger lot in each earlier subdivision the subdivision proposed was non-compliant with the averaging provisions of cl 4.1B(3).

30. The question is whether, upon a proper construction of the LEP, was each of the subdivisions known as Stage 2A and Stage 2B, within the power conferred by cll 4.1 and 4.1B of the LEP.

31. The principles of statutory construction are well settled. As Robson J observed in Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75 at [42]-[45], (which statement of the principles I adopt):

42 This ground raises questions of statutory construction of the [LEP]. While the applicable legal principles when undertaking the task of statutory construction in relation to environmental planning instruments are well known, some brief comment can be made at the outset.

43 The object of statutory construction is to construe the relevant statutory provision, so it is consistent with the language and purpose of the statue when considered as a whole. As a result, the statutory provision may, in certain (limited) circumstances, not be read in a way that reflects the literal or grammatical meaning of the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], [78]. As stated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (citations omitted)

44 These general principles are applicable to the interpretation of environmental planning instruments: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]. In this respect, while environmental planning instruments should be interpreted in a practical manner (such that meticulous examination of language is avoided), it is clear that this does not override general principles of statutory interpretation nor require “laxity or flexibility” when construing environmental planning instruments: Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45].

45 The approach described above is also consistent with the strictures of s 33 of the Interpretation Act, which applies to environmental planning instruments by virtue of s 5(6) of the Interpretation Act, and provides:

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

26. The provisions of the LEP to which the Applicant primarily refers do not expressly prevent, in the R5 Zone, the further subdivision of lots created utilising the averaging provisions in cl 4.1B of the LEP. However, such an observation does not answer the relevant statutory construction question raised in this case. It is necessary to have regard to the context and purpose of the provision in order to determine its meaning and effect. In this case, the stated objectives of cl 4.1B(1) make it apparent that the operation of the clause was to limit the total number of lots created by a subdivision, particularly when it is proposed that such lots be used for residential purposes. This object was reinforced by the operational provisions of cl 4.1B(3)(a) that limited the total number of lots to that identified in the Lot Size Map. That is, whilst the lot sizes may be less than that shown in the Lot Size Map, the total number of lots were limited to the total number of lots that could be achieved applying the Lot Size Map.

27. The objective of limiting subdivision is further reinforced by the objectives identified in cl 4.1(1) of the LEP. In addition, there are provisions in the LEP that: control and manage the use of subdivided land for residential uses (see for example cl 4.2B); and limit the capacity to subdivide land otherwise than in accordance with the relevant development standards (see for example, cl 4.6(6) and 4.2D). When viewed as a whole, the LEP can be seen to be limiting the extent of subdivision, particularly for residential development, whilst providing a flexibility within the stated limitations.

28. It is to be noted that cl 4.1B(4) and (5) of the LEP does make express provision for the limitation of further subdivision of lots created utilising the lot averaging provisions of cl 4.1B and that such limitation does not apply to R5 zoned land. I accept the Applicant’s submission that such a provision does not undermine or alter the otherwise apparent intention of the LEP to limit subdivision. The limitation in cl 4.1B(4) and (5) only applies to RU1 and C4 zoned land and to any further subdivision of a resulting lot (as defined) whether or not a further subdivision of that lot would result in the total number of lots exceeding the number of lots anticipated by the Lot Size Map. Further, the limitation only applies if the further subdivision is intended to be for residential purposes or have an unacceptable environmental impact. Therefore, the limitation is not intended to represent the overall limitation to be determined from an understanding of the context and purpose of the LEP as identified above.

29. Finally, the telling feature that supports the construction contended for by the Applicant (and which I accept) is that if a single development application was lodged for the subdivision of the land that resulted from the three development applications lodged, the Council would have no power to approve the development on a proper application of cl 4.1B(3) of the LEP as the total number of lots would exceed the number of lots that could be created under cl 4.1(3). Therefore, it is only by a device of splitting the development into separate sequential applications that an asserted mathematical compliance can be achieved. The creation of the sequential device indicates an undermining of the object and purpose of the provision sought to be relied upon to render the development capable of consent.

30. For the above reasons, I find that the proper construction of cl 4.1B(3) of the LEP limits the total number of lots produced by a subdivision to the number that would be produced applying the Lot Size Map and that such lots cannot be further subdivided to produce a number of lots less than that provided for in the Lot Size Map. Accordingly, the First Respondent’s approval of the two development applications for the subdivision of Stage 2A and Stage 2B was contrary to the provisions of the LEP and beyond power. Accordingly, it is appropriate that I make the declaration and orders sought by the Applicant in paragraphs 1, 2, 3 and 4 of the Summons.

31. In considering the duty imposed by s 25E of the Land and Environment Court Act 1979 (NSW) it would be inappropriate to make any order for the conditional validity of the development consents as the breach that I have found relates to the fundamental issue of power to grant the development consent rather than the manner in which the consent was granted.

32. The Respondents have each made submitting appearances save as to costs. In proceedings such as these the usual order for costs would apply and the Applicant, having been successful in the proceedings would be entitled to an order that the Respondents pay the Applicant’s costs. However, I will reserve costs in the event that either party wishes to make submissions that the usual order should not be made.

Conclusion and orders

33. For the reasons outlined above, I make the following declarations, orders and directions.

34. The Court declares that development consent No.10.2021.325.1 granted by the First Respondent by Resolution No: 128/24 on 16 May 2024 for a Proposed Large Lot Residential Subdivision, Stage 2A (Lots 201-230) at Old Dry Plains Road Cooma 2630 (Lot 1 DP 737275, Lot 11 DP 1266312, Lot 157 DP 750524, Lot 158 DP 750524, Lot 159 DP 750524, Lot 189 DP 750524, Lot 197 DP 750524, Lot 211 DP 750524) is void and of no effect.

35. The Court declares that development consent No.10.2021.321.1 granted by the First Respondent by Resolution No: 128/24 on 16 May 2024 for a Proposed Large Lot Residential Subdivision, Stage 2B (Lots 231-237) at Old Dry Plains Road Cooma 2630 (Lot 1 DP 737275, Lot 11 DP 1266312, Lot 157 DP 750524, Lot 158 DP 750524, Lot 159 DP 750524, Lot 189 DP 750524, Lot 197 DP 750524, Lot 211 DP 750524) is void and of no effect.

36. The Court orders that the development consents No.10.2021.325.1 and No.10.2021.321.1 are quashed.

37. An order that the Second Respondent, by itself, its agents or contractors, be restrained from taking any action pursuant to the development consents referred to in paragraphs 1 and 2 above.

38. Costs are reserved.

39. The matter is listed for mention on the question of costs before Duggan J on 23 June 2025 at 9.30am.

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