Consideration
26It was common ground that:
(a) as at 4 June 1971 lots 1-55 in Section 3; lots 1-16 in Section 4; lots 1-16, and lots 18-26 in Section 5; and Section 6, were in common ownership;
(b) as at the date of lodgement of the development application, the applicant's land included lots 2-55 in Section 3; lots 1-16 in Section 4; lots 1-26 in Section 5; and lot 61 in section 6;
(b) the applicant acquired lot 1 in Section 3 by possessory title after the development application was lodged;
(c) there are two dwelling houses erected on the applicant's land: one on lot 61 of Section 6, and another on lot 17 of Section 5;
(d) Clarence Way and Summerland Way are included in Schedule 5 to the LEP.
27Guidance for the interpretation of a term used in a planning instrument was provided by Jagot J in Matic v Mid-Western Regional Council [2008] NSWLEC 113:
7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose ( Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] - [46] and [63]; s 33 of the Interpretation Act 1987). "Context" has a wide scope and may include the "mischief which...one may discern the statute was intended to remedy" so that, by this method, an alternative construction to the literal meaning may be preferred if it is "reasonably open and more closely conforms to the legislative intent" ( CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).
8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested "by the use of language" in the document to be construed ( Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly:
...it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred ( Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]).
9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for "some preconceived general notion of what constitutes planning" ( Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] "any attempt to always find planning logic in planning instruments is generally a barren exercise".
28Matic concerned the interpretation of a provision in the relevant LEP permitting subdivision for allotments intended to be used for the purpose of a dwelling. Clause 13(1)(a) of the Rylstone Local Environmental Plan 1996 required that each allotment have an area of not less than 40ha, subject to the proviso that "one concessional allotment of less than 4hectares but not less than 0.4 hectares may be created for a relative of the owner or for the owner", subject to additional qualifications. In holding that the clause permitted the subdivision into five lots of 40ha, one lot of 82ha, and five lots with an area of 4ha each, Jagot J emphasised (at [10]) the primacy of the text of the LEP, and noted:
13 In other words, there is nothing in the LEP, objectively assessed, founding the imputation of any intention or planning policy that the Council's arguments better fulfil than those of the applicant. Accordingly, the competing constructions fall for resolution by reference to the language of cl 13(1)(a), construed in the context of the LEP as a whole.
29In Atkins v Maitland City Council [2010] NSWLEC 36 Craig J considered cl 13 of the Maitland Local Environmental Plan 1993, which made provision for the erection of dwellings in rural zones. In addressing a submission that the relevant provision should be read as including a reference to a subdivision consolidating allotments within the meaning of another provision in the local environmental plan, Craig J referred to paragraph [10] of Matic , and held:
24 The principles that should govern the interpretation of a planning instrument were not in contest. Emphasis was placed by the respondent on the need to give the LEP and the particular provisions under consideration a purposive interpretation. These principles are well elucidated in authorities such as Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 and Matic v Mid-Western Regional Council ( supra). Application of these principles do not detract from my rejection of the Respondent's submissions. As I have earlier indicated, focus must be upon the text of the instrument itself and, subject to what follows, not upon some extraneous material which is unnecessary to give meaning to the language of the LEP itself, even considering its context ( Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380).
30Clauses 17 and 18 contain provisions relating to both subdivision and the erection of dwelling houses for land in the 1(a) zone. In considering the language used in cl 17, it should first be noted that until the 23 lots are consolidated there is not "an allotment" as that term is defined in the LEP. It is appropriate, for the purposes of considering this application, to read the references to an "allotment" to include a potential allotment which can be created without requiring any further development consent of the council. It was not in dispute that paragraphs (a), (c), and (d) of cl 17(3) do not apply to the proposed development site: the area of the proposed development site is less than 40 ha; the proposed development site is 23 separate lots, and is not an "allotment" (as defined in the LEP) created or approved by the Council before 30 March 1990, or created pursuant to subclauses (1) or (2) of cl 17. It was common ground that the proposed development site fronts Clarence Way which is a Class A road; accordingly cl 17(4) would not prevent the erection of a dwelling house on the proposed development site if it were otherwise permissible under cl 17.
31Construction of paragraph (b) of cl 17(3) requires reading the definitions of "existing parcel" and "parcel" together, to consider both the physical identification of an area of land and its ownership, and its ownership as at the relevant date. As at that date, the 23 lots that are the proposed development site that is the subject of this application were "adjoining or adjacent" land held in the same ownership; so too were all the lots identified at 26 above. The issue is whether the "area of adjoining or adjacent land held in the same ownership" in the definition of "parcel" is to be read as meaning the totality of lots in the same ownership, as the respondent submits, or any combination of them, as the applicant submits.
32To be an "existing parcel of land" the proposed development site must be the area of a "parcel of land" as at 4 June 1971. To be a "parcel of land", the proposed development site must be "any area of adjoining or adjacent land held in the same ownership". That term must be considered having regard to its context in the LEP, and its purpose, which is, applying Matic , to be determined by reference to the language of the LEP considered in context.
33Clauses 17 and 18 of the LEP apply to land in the 1(a) zone, and address both subdivision of land and the erection of a dwelling house on such land. Clause 17(1) and (2) apply only to subdivision of land, and establish two requirements: a minimum lot size of 40 ha, and minimum frontage of 400m where frontage of created allotments is to an arterial road. Clause 18 is an exception to those general requirements, for land which meets cl 18(1). Clause 18(2) and (4) permit the council to consent to an application for subdivision of such land together with an application for approval of a dwelling house on each allotment created by that subdivision, or a subsequent application to erect a dwelling house, only if all the requirements of (a)-(f) are met. While the proposed development site does have frontage to a road referred to in Schedule 5 to the LEP, the requirements of cl 18(2) are not met as there is no subdivision proposed nor an allotment of land created pursuant to cl 18(2).
34Clause 17(3) is the general provision for the erection of a dwelling house on land in the 1(a) zone. Clause 17(3)(a) permits the erection of a dwelling house on an allotment of not less than 40 ha; equally, because it would have to have met the requirements of cl 17(1), an allotment meeting the requirements of cl 17(3)(d) would be an allotment of not less than 40 ha. In the context of that general position, paragraph 17(3)(c) can be read as a an exception that maintains any entitlement to erect a dwelling house on an allotment that existed as at 30 March 1990, the date the LEP came into effect. Clause 18(3) is to similar effect, with the additional requirements applying to land with frontage to a road referred to in Schedule 5. Paragraph 17(3)(b) directs reference back to the earlier date of 4 June 1971, when the IDO 1 came into effect. On my reading of these provisions in the LEP, cll 17(3)(c),18(3), and 17(3)(b) operate as alternatives to meeting the otherwise applicable 40 ha minimum allotment size and are intended to preserve entitlements that may have been affected by the coming into force of first the IDO 1 and then the LEP.
35When considered in that context, in my view the use of the word "any" in the definition of "parcel" is not intended to be read as broadly as the applicant submits, and the first of the suggested dictionary definitions is apposite, namely, that it means "a" or "an". On that basis a "parcel of land" would be an area of adjoining or adjacent land held in the same ownership, namely the totality of such land. In the context of the definition of an "existing parcel", that interpretation fixes the area of land that retains the benefit of an entitlement to erect a dwelling house notwithstanding that the land is less than 40 ha. To accept the applicant's interpretation, namely giving the landholder the choice as to which of any two or more lots is to be regarded as a parcel of land, would not be consistent with the context of the control of development in the 1(a) Rural (General) zone. In my view, the amendments to the LEP referred to in paragraph [20] above do not assist the applicant. While they might be read as evidence of the changing character of the locality in the context of the council's future strategic planning, to the extent that it was necessary to amend the planning controls to permit development that would otherwise not meet the general minimum area requirements, the amendments support the construction adopted by the council.
36The conclusion that the "existing parcel" referred to in cl 17(3)(b) is the totality of adjoining or adjacent land held in the same ownership as at 4 June 1971 means that the proposed development site does not fall within cl 17(3)(b). The land that would be an "existing parcel" is the land identified at 26 above. The proposed development site is less than 40 ha, and does not meet the requirements of cl 17(3)(a). There being no objection to compliance with the development standard in cl 17(3)(a) under SEPP No 1, there is no power to consent to the proposed development: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; Wehbe v Pittwater Council [2007] NSWLEC 827.
37The applicant's representative raised two additional matters in written and oral submissions. First, the applicant submits that the s 82A review process was not properly carried out, as both notices of determination were sent in the name of "Clem Rhoden Manager Development Services". Whether or not the s 82A review process was properly carried out, the application to the court was lodged within the time specified in s 97 of the Act from the original Notice of Determination. The second issue raised by the applicant is that the council was asked for advice, and that in the meetings held with the Development Management Unit issues relating to cl 18 of the LEP, rather than cl 17, were discussed. Whether or not it was appropriate for the applicant to rely on discussions held with council officers, and if so, whether those discussions addressed the issues in the form now put before the court in the council's contentions, by virtue of s39(2) of the Land and Environment Court Act 1979 in determining the appeal the Court is exercising the functions and discretions of the council, and is bound by the requirements of the relevant legislation and planning controls.