Applicant v Respondent

The land is within zone 7(b) - Environmental Protection (Landscape Conservation) zone under the relevant environmental planning instrument, the Wingecarribee Local Environmental Plan 1989 ("the LEP"). Development which may be carried out with development consent in this zone includes "dwelling-houses" and "rural workers' dwellings". The development application in the present case is said to be for a rural worker's dwelling. A rural worker's dwelling is relevantly defined in clause 4(1) of the Environmental Planning & Assessment Model Provisions 1980, which is adopted for the purpose of the LEP. That definition is as follows: A dwelling which is on land upon which there is already erected a dwelling and which is occupied by persons engaged in rural occupation on that land.

Clause 13 of the LEP applies to land within certain non-urban zones, including zone 7(b). Sub-clauses (3) and (4) relevantly provide: (3) Subject to subclause (4), a dwelling-house may, with the consent of the Council, be erected on land to which this clause applies, but only if the land - (a) has an area of not less than 40 hectares;

(4) Not more than two additional dwelling-houses may, with the consent of the Council, be erected on land to which this clause applies which has an area of not less than 40 hectares if the Council is satisfied that each additional dwelling-house - (a) will be occupied by a person employed or engaged by the owner of the land in the use, for the purpose of agriculture, of that land or of land belonging to the owner which adjoins or is adjacent to that land; and

(b) will be located on the same allotment of land as the main dwelling-house.

Mr J J Bingham, who appears for the applicant, submits that the LEP does not contain any minimum allotment size for the erection of a rural worker's dwelling. A rural worker's dwelling is expressly permissible with consent in the 7(b) zone. By the definition of rural worker's dwelling the LEP imposes only two requirements: (a) that there is already erected a dwelling on the subject land, and (b) the dwelling will be occupied by persons engaged in rural occupation of that land. In the present case there is already erected a dwelling and there is evidence that the applicant intended to employ a resident property manager to live in the rural worker's dwelling and work on the property.

I do not agree with Mr Bingham's submission. It would mean that subclause 13(4) of the LEP has no work to do. That subclause must have a purpose. That purpose is clearly to control the number of dwellings on non-urban land. Mr Bingham's submission would mean that there could be any number of rural workers' dwellings on any allotment of land irrespective of size.

The definition of "rural worker's dwelling" applies "except insofar as the context or subject matter of the local environmental plan otherwise indicates or requires" (clause 4(1) of the Model Provisions). Moreover, the Interpretation Act 1987, s 6 provides: Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except insofar as the context or subject matter otherwise indicates or requires.

Clause 9 of the LEP, which contains the zoning table, applies "except as otherwise provided by this plan" (clause 9(2)). Although the zoning table enables development for the purposes of rural workers' dwellings with consent in the 7(b) zone, subclause 13(4) is a provision by which it is "otherwise provided" that the otherwise unrestricted right under the zoning table is restricted by that subclause.

Mr Bingham's submission is dependent upon there being a distinction between a person engaged in a rural occupation within the definition of rural workers' dwelling and a person employed or engaged for the purpose of agriculture within the meaning of subclause 13(4). Mr Bingham submits that a rural occupation is wider than an agricultural occupation: for example, mining, quarrying, water conservation, bush fire fighting and environmental protection are all rural occupations but not agricultural occupations. The terms are, he submits, not synonymous.

In my view clause 9 and the zoning table, and clause 13, must be read together. Neither is to be read in isolation. This follows from subclause 9(2) to which I have previously referred: "except as otherwise provided by this plan … ". When read together, the context requires that efficacy be given to subclause 13(4) so that it applies equally to dwelling houses to be used for rural workers as to agricultural workers.

If I am wrong in this conclusion, then this proposal is, in any event, in truth an application for a dwelling-house to be occupied by a person employed by the owner in the use, for the purpose of agriculture, of the land. That is to say, even if Mr Bingham is correct in his submission that a rural use and an agricultural use are not synonymous, the present proposal is for a particular kind of rural worker's dwelling, namely one to which subclause 13(4) applies. Mr Bingham refers to evidence which shows that it is the applicant's intention to hire a resident property manager to live in the proposed dwelling and to do the following work: look after 25 head of cattle on the property; re-fence the property with electric fences; clean out noxious weeds such as blackberries; engage in strip feeding of the cattle; carry out pasture improvement; pruning, spraying, netting and harvesting of fruit trees; tree planting; grass slashing and bushfire hazard control; ensure continuous water supply for the stock; maintain security on the property; maintain fences; and generally improve and maintain the property in immaculate condition.

Each of the categories of work in which the person occupying the proposed dwelling is to be employed is for the purpose of agriculture. None of those purposes are for non-agricultural purposes such as mining, quarrying or the like, within the wider definition of rural occupation. They are agricultural pursuits. If it is intended that the dwelling be occupied by a person who will be employed or engaged by the owner of the land in the abovementioned activities, and the evidence is that it is, then it is a use to which clause 13(4) applies.

Must the occupation of the dwelling by an agricultural worker be long-term?

The Commissioner was not satisfied that the dwelling will be occupied by an agricultural worker in the long-term. He came to this conclusion because the land was not an independently viable agricultural holding. The Commissioner accepted the respondent's case that the nature of the farming activity should justify a need for an on-site worker and that such a need must be long-term.

The applicant and her husband are persons of apparently substantial means. The Commissioner notes in his decision that the applicant's husband told the Court that he was anxious to have a manager on the land because he wanted to bring the farm up to model standards; and although he did not directly say so, it appears that the applicant's husband was not concerned about losing money in the process.

The applicant's case was that she and her husband wanted a resident property manager, that they could afford one and that was what they wanted the additional house for: it is irrelevant whether they were going to make any money from the arrangement.

Subclause 13(4) of the LEP refers only to the occupation of the dwelling house by a person employed or engaged by the owner of the land in the use of that land for the purpose of agriculture. The subclause says nothing about the need for an economically viable agricultural use. Neither does the subclause say anything about the need for the purpose to be the business of agriculture. For example, if an owner of land chose to devote one or two hectares to the growing of grapes to be used for the making of wine for his personal consumption (and perhaps the sale of a few bottles to his friends), then that seems to me to be just as much an agricultural use of that land as the largest commercial enterprise. And if such an owner wishes to employ a person to look after his vineyard, tend it, prune it, weed it, spray it, water it, harvest the crop and make it into wine then such employee would be engaged by the owner for the purpose of agriculture. No question of agricultural viability arises. The worker would not be described as a person other than an agricultural worker. It is also, of course, a notorious fact that many people choose to run their rural holdings at a loss so as to offset their taxable income from other sources.

As a matter of statutory construction there is no requirement under subclause 13(4) for the agricultural use of the land to be an economically viable enterprise. Neither is there anything in subclause 13(4) which refers to the period or length of time of such use. Provided the dwelling is occupied by a person employed or engaged by the owner in the use of the land for the purpose of agriculture, then the requirements of the clause are satisfied. Once any such employment or engagement ceases, however, then the occupation of the dwelling ceases to be lawful. If the consent authority has some concern about the possibility of the employment or engagement being of short duration, then the consent could be subject to an appropriate condition limited either as to use or as to time, or both.

I therefore find that Mr Bingham's argument is correct and that there is no need for the consent authority to be satisfied that the occupation of the dwelling by an agricultural worker will be long-term. The Commissioner erred in law in holding to the contrary. The applicant says that the proposed dwelling will be occupied by a person satisfying the description in subclause 13(4). There is nothing in the evidence to suggest that the applicant does not intend to fulfil that intention.

This conclusion does not, of course, resolve the appeal. Because the land has an area of less than 40 hectares, the proposed development may still not be carried out unless the provisions of State Environmental Planning Policy No 1 are applied to subclause 13(4).

Does State Environmental Planning Policy No 1 apply to subclause 13(4) of the LEP ?

Mr P D McClellan QC, who appears for the respondent (the appellant in this appeal), submits that neither subclauses 13(3) or (4) of the LEP are amenable to an objection under State Environmental Planning Policy No 1 ("the Policy"). This is said to be because neither subclauses 13(3) or (4) are a development standard but are an element of permissiblity.

The Policy enables development consent to be granted to a development which does not comply with a development standard which is shown to be unreasonable or unnecessary in the circumstances of the case. "Development standards" is defined in clause 4(1) of the Environmental Planning & Assessment Act 1979 as follows: development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, ….

Mr McClellan submits that subclause 13(4) is a precondition to permissibility and is not a development standard, so that before a consent authority has a capacity to deal with a development application it must be development on a site which has an area of not less than 40 hectares.

The question of what is and what is not a development standard for the purpose of the Environmental Planning & Assessment Act and the Policy was comprehensively considered by the Court of Appeal in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222.

In Mayoh, Mahoney JA (at 232-233) noted three things that may be said about the definition:

First , the definition applies only to provisions in relation to the carrying out of development, so that the definition deals with provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards to be observed. Secondly , that with which the definition deals is the details of a development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all. Thirdly , the matters detailed in subparagraphs (a) to (n) of the definition assume that development of a kind, for example, the erection of a residential flat building, can be carried out.

Mahoney JA also said (at 234): There is, in my opinion, a distinction in the provisions between a provision which in form provides: " on land of characterstic X no development may be carried out " and a provision which in form provides: "on such land development may be carried out in a particular way or to a particular extent ".

A provision of the former kind is not a development standard. A provision of the latter kind is a development standard.

Clarke JA said (at 235) that the question of what is and what is not a development standard is not to be resolved by assuming that the zoning table provides the exclusive code of land use. Clarke JA then gave consideration to clause 9 of the instrument with which he was concerned, in which the zoning table was incorporated and which was expressed to operate "except as otherwise provided". Clarke JA said: There is no requirement that all provisions regarding land use appear in clause 9. Indeed the opening words " Except as otherwise provided " make it plain that other provisions bearing on land use appear in the plan and are intended to have operative effect notwithstanding that there is a measure of inconsistency between those clauses and clause 9.

Clarke JA also said (at 236): There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development.

In Bell v Shellharbour Municipal Council (1993) 78 LGERA 429 Cripps JA said (at 433): There is, self-evidently, a difference between a clause absolutely prohibiting development on the one hand and a clause regulating development by specifying requirements or fixing standards on the other . Whether a particular clause in a local environmental planning instrument has the effect of regulating or prohibiting development is a matter of construction. In some cases the Court has held that the relevant clause was an absolute prohibition - in others it was held that the clause is regulatory. But, as was pointed out in Mayoh , the obligation of the Court is to interpret the clause in the instrument before it.

In interpreting the LEP which is before me, it is significant that the zoning table is contained within clause 9, which states that the zoning table applies "Except as otherwise provided by this plan" (clause 9(2)). It seems to me that subclauses 13(3) and (4) fall within the exception. Subclause (3) uses the language of a prohibition: " A dwelling-house may, with the consent of the Council, be erected on land to which this clause applies, but only if the land -

Subclause (4) is an exception to subclause (3): Not more than two additional dwelling-houses may, with the consent of the Council, be erected on land to which this clause applies which has an area of not less than 40 hectares, if … [the additional criteria are satisfied] .

Subclauses 13(3) and (4) are as much concerned with land use as clause 9. They prohibit the use of land having the specified characteristics for the named purpose. They qualify clause 9 because they prohibit the use of particular land for development which would otherwise be permissible under the zoning table and supplement clause 9 by making further provision in respect of land within nominated non-urban zones. The zoning provisions and subclauses 13(3) and (4) operate in conjunction. These sub-clauses lay down absolute prohibitions against the development of certain land within the relevant zones. A development standard, on the other hand, lays down standards or requirements which a proposed development must meet in the carrying out of that development. As Mahoney JA said in Mayoh , the distinction is between a provision which in form provides "on land of characterstic X no development may be carried out" and a provision which in form provides: "On such land development may be carried out in a particular way or to a particular standard". In the present case subclauses 13(3) and (4) are of the former kind and thus are prohibitions, whereas a provision of the latter kind is a development standard.

Mr Bingham submits, however, that when one looks at the definition of "development standards", paragraph (a) of the definition refers to requirements or standards in respect of "the area, shape or frontage of any land … ". Mr Bingham submits that an applicant has no control over this and if the definition of development standard is only to apply to things over which the applicant has control then this does not make sense. He submits that the very first item that is listed in the definition of development standards is something that is fixed and not amenable to change in the development application. So, therefore, the Court of Appeal's explanation in Mayoh of the distinction is not correct as far as paragraph (a) is concerned. Mr Bingham submits that in relation to the minimum 40 hectare requirement provision in clause 13 of the LEP, the Court cannot come to the conclusion on the basis of Mayoh that it is not a development standard. In Mr Bingham's submission it is a development standard: it is expressly said to be so.

I cannot agree with Mr Bingham's submission for two reasons. Firstly , it is not correct to say that the matters described in paragraph (a) of the definition are things over which an applicant necessarily has no control. For example, in Bell v Shoalhaven Municipal Council the Court was faced with a clause in a local environmental plan which provided that the Council shall not consent to a subdivision of land unless each allotment of land to be created by the subdivision would have a specified minimum area and a specified minimum frontage. It was held that this was a development standard amenable to the dispensing power under the Policy. The clause in question in that case was the setting of a development standard against which a proposed development must be measured. It was something to be observed in the carrying out of the particular development and something which was within the applicant's control and thus amenable to change in the development application.

Secondly , the judgments of Mahoney and Clarke JJA in the Court of Appeal in Mayoh are binding upon me. In applying the principles explained by Mahoney JA and by Clarke JA in that case, I am compelled to come to the conclusion that subclauses 13(3) and (4) of the LEP in the present case are prohibitions and are not development standards. Accordingly, the Policy has no application in the present case.

Before leaving this topic I refer to a submission by Mr Bingham that the question of whether clause 13(4) is a development standard or a prohibition to which the Policy may or may not apply was not raised before the Commissioner, so that it should not now be raised in this appeal. Mr Bingham relies on Page v Parkes Shire Council (1991) 72 LGRA 97. In that case Cripps J said (at 102): Leaving to one side questions of law going to jurisdiction and questions of law arising in a judgment for the first time, ordinarily it is not open to a litigant to raise a question of law on appeal not raised at the hearing.

I do not accept the statement as fully or accurately representing the law. A point not raised in the Court below may be raised on appeal if no further relevant evidence could have been given in that matter. In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 it was held that when a question of law is raised on a question of construction, or upon facts proved or admitted beyond controversy, it is not only competent but expedient to do so. In Coulton v Holcombe (1986) 162 CLR 1, it was held that it would be unfair on an appeal to an intermediate other court to allow a fresh allegation to be made whereby the other party would be subjected virtually to a new trial on an issue different from that already litigated. It was recognised, however, that there may be countervailing considerations where the new issue touches upon public law because it involves the interpretation of a public statute and thus involves the interests of the wider community. In Water Board v Moustakas (1988) 180 CLR 491, 62 ALJR 209, it was held that whilst a point cannot be raised for the first time on appeal when it could possibly have been met by the calling of evidence, where the case is one in which all the facts are established beyond controversy or the point is one of construction or of law, then a court of appeal may in the interests of justice entertain the point. In Holcombe v Coulton (1988) 17 NSWLR 71, McHugh JA explained the current state of the law as follows (at 75): In this country, the settled rule of practice is that an appellant will not be allowed to raise a point on appeal which is not taken in the court below if evidence could have been adduced which by any possibility could have prevented the point from succeeding: Suttor v Gundowda Pty Ltd (1951) 81 CLR 418 at 438 ; Coulton v Holcombe (at 7-8) and Water Board v Moustakas (1988) 62 ALJR 209 at 211; 77 ALR 193 at 196. But where all the facts which are relevant to a pure question of construction or law have been established, "in some cases" the interests of justice may require that the appellant be allowed to raise the new point of law or construction: O'Brien v Komesaroff (1982) 150 CLR 310 at 319, per Mason J .

In the present case Mr Bingham conceded that no further evidence could have been given on the question. The point is one of construction of an instrument having considerable importance within the Shire of Wingecarribee, particularly in view of the number of potential applications for dwellings or for additional dwellings on land having an area of less than 40 hectares. It is one which, in my view, should be allowed to be raised and determined in this appeal.

The conclusion that subclause 13(4) of the LEP is a prohibition and is not a development standard means that the Commissioner did not have the power to invoke the Policy and grant development consent in this case. The proposed development is prohibited. It follows that the appeal must be allowed and the orders of the Commissioner must be set aside.

37. Accordingly I make the following orders: 1. Appeal allowed.

2. The orders of the Commissioner made on 25 November 1998 are set aside.

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