Asquith v Clarence Valley Council

Issues 5The central issue in dispute between the parties is whether the erection of a dwelling house on the consolidated area, being an area of land less than 40ha, is permissible under the Copmanhurst Local Environmental Plan 1990 (the LEP). It was common ground that the consolidation of the 23 lots comprising the proposed development site is not "subdivision" and does not require development consent: s 4B(3)(e)(i) of the Act. 6The respondent's Amended Statement of Facts and Contentions (Ex 1) identifies four contentions: conflict with the provisions of the LEP; interpretation of the term "existing parcel of land" as used in the LEP; the need for an objection under SEPP No 1; and contentions relating to the interpretation of cl 17(3)(b) of the LEP. It would appear that at the first directions hearing the possibility of a preliminary question being raised was discussed, and a direction made that the respondent file a Notice of Motion by 2 May 2011; on the documents before me no such application was made. 7At the hearing Mr McInerney for the respondent submitted that in addition to the issue of the application of cl 17(3)(b) of the LEP, an additional basis on which the development application should be refused is non compliance with the requirements of Schedule 1 to the Environmental Planning and Assessment Regulation 2000. That issue was not put in contention in either the original Statement of Facts and Contentions filed on 19 April 2011, or the Amended Statement of Facts and Contentions filed on 27 May 2011 pursuant to leave granted by the Acting Assistant Registrar. The issue was not raised in the original Notice of Determination or the Notice of Review under s82A of the Act, and it would appear that the first time it was raised was in a Supplementary Outline of Submissions filed on behalf of the respondent on 13 July 2011, which included the submission that the development application ...did not contain sufficient information to allow an assessment of the development proposal under s79C of the EPA Act. In particular, there was no site plan showing the proposed location of the dwelling; or design/construction plans for the dwelling. 8It being apparent at the hearing that the applicant's representative was not prepared to address that issue, the parties agreed that the question of permissibility under the LEP should be determined first, and that if I concluded that consent could be granted to the erection of a dwelling house on the proposed development site, the parties would be provided with the opportunity to identify and address any other issues.

Planning controls 9The applicant's land is zoned 1(a) Rural (General) Zone under the Copmanhurst Local Environmental Plan 1990 (the LEP). Development for the purposes of agriculture (other than intensive animal keeping); bushfire hazard reduction; forestry; home occupations, is permissible without requiring consent. A dwelling house is permissible with development consent. 10The objectives of the 1(a) zone are: (a) to enable development for purposes that are: (i) appropriate in a rural location, and (ii) sympathetic to the environmental characteristics of the land and the costs of providing public services and amenities, and (b) to promote efficient, sustainable, agricultural utilisation of agricultural land, particularly prime crop and pasture land, and (c) to control development that may restrict the function of, or create traffic hazards along, arterial roads in rural localities, and (d) to encourage the protection and conservation of: (i) soil stability (by controlling development in accordance with soil capability), and (ii) forests of commercial value for timber production, and (iii) valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development to enable the efficient extraction of those deposits, and (iv) water resources. 11Clauses 17 and 18 of the LEP are relevant to subdivision and erection of a dwelling house on land in the 1(a) Rural (General) Zone. 17 Subdivision and dwelling-houses in Zone No 1 (a)-40 hectare allotments (1) The council shall not consent to the subdivision of land within Zone No 1 (a) unless the area of each allotment to be created will be not less than 40 hectares. (2) Where allotments are to be created in accordance with this clause and will have frontage to an arterial road, that frontage shall be not less than 400 metres. (3) The council shall not consent to the erection of a dwelling-house on an allotment of land within Zone No 1 (a) unless the allotment: (a) has an area of not less than 40 hectares, or (b) is an existing parcel of land and is consolidated into one allotment, or (c) was lawfully created or approved by the Council before, and is one on which a dwelling-house could lawfully have been erected immediately prior to, 30 March 1990, or (d) was created pursuant to subclauses (1) and (2). (4) The council shall not consent to the erection of a dwelling-house on an allotment of land within Zone No 1 (a) unless the allotment has frontage to a Class A road or a Class B road. 18 Subdivision and dwelling-houses on certain land in Zone No 1 (a)-allotments less than 40 hectares (1) This clause applies to land within Zone No 1 (a) which has frontage to a road referred to in Schedule 5. (2) Notwithstanding clause 17, the council may consent to subdivision of land to which this clause applies into allotments having an area of less than 40 hectares, and the erection of a dwelling-house on each allotment created by the subdivision, but only if: (a) in the case of an allotment of land having an area of not less than 5 hectares-the allotment has frontage to a Class A Road or Class B Road and vehicular access to the nearest town or village is by means of a Class A Road or Class B Road, and (b) in the case of an allotment of land having an area of less than 5 but not less than 2 hectares-the allotment has frontage to a Class A road and vehicular access to the nearest town or village is by means of a Class A road, and (c) each allotment to be created will have frontage to an arterial road of not less than 200 metres or to a road listed in Schedule 5 which is not an arterial road of not less than 150 metres, and (d) the number of allotments to be created by the subdivision will not exceed a ratio of more than one for each 10 hectares of land proposed to be subdivided, and (e) the total number of lots created under this clause and clause 25A (except the single residue allotment referred to in clause 25A (3)) in any one year does not exceed the number specified in writing by the council, and (f) the total number of direct access points from the land onto an arterial road does not exceed 2, or to a road listed in Schedule 5 which is not an arterial road does not exceed 4, for each existing parcel of land proposed to be subdivided. (3) The council may consent to the erection of a dwelling-house on an allotment of land lawfully created or approved by the council before, and on which a dwelling-house could lawfully have been erected immediately prior to, 30 March 1990, provided that there is frontage to: (a) a Class A road for lots with an area of not less than 2 and not more than 5 hectares, or (b) a Class B road for lots with an area greater than 5 hectares. (4) The council may consent to the erection of a dwelling-house on an allotment of land created pursuant to subclause (2). 12Relevant definitions in the LEP are: allotment means any lot or portion which has been lawfully created existing parcel means the area of a parcel of land as at 4 June 1971 parcel , in relation to land, means any area of adjoining or adjacent land held in the same ownership 13The applicable planning instrument was until 30 March 1990 the Copmanhurst Shire Council Interim Development Order No 1 (IDO 1), which came into force on 4 June 1971. The applicant's land was zoned 1(a), and the applicable provision relating to subdivision was cl 13. Clause 13A provided for the erection of a dwelling house: 13A (1) A dwelling-house shall not be erected on a parcel of land within Zone No 1(a) or 1(b) or 1(c) unless the parcel- (a) has an area of not less than 40 hectares; (b) comprises an allotment created by subdivision in accordance with subclause (2) or (4) of clause 13 and unless the use of the dwelling-house is ancillary and subsidiary to the development of such allotment; (c) comprises an allotment created by subdivision in accordance with clause 13(3) and unless the dwelling-house is intended for occupation by any of the persons specified in that subclause; (d) comprises an allotment lawfully created prior to the appointed day which allotment could have been created in accordance with the provisions of clause 13 if those provisions were in force at the time such allotment was created; or (e) comprises an allotment in a subdivision to which consent has been given pursuant to the provisions of this order as in force at any time before the 5 th July, 1974. 14The draft Clarence Valley Local Environmental Plan 2010 (the draft LEP), which adopts the Standard Instrument format and consolidates the local planning controls for the five former local government areas that make up Clarence Valley, has been on exhibition. It was common ground that under the draft LEP the applicant's land is zoned RU2, and that in this zone the minimum lot size for the erection of a dwelling house is 40ha.

Evidence 15The applicant relied on a copy of the Certificate of Title for the applicant's land showing notations of transactions for the various lots; an extract from a local newspaper in 1886 noting the proposed auction of lots in what was described as "the first subdivision of Mountain View"; and a rezoning proposal for Junction Hill as part of an urban land release strategy for the Clarence Valley. 16The council relied on documents relevant to the holdings, including a rate notice for the year 1971; the Clarence Valley Settlement Strategy dated March 1999; the Department of Planning Mid North Coast Regional Strategy dated March 2009. The respondent tendered 7 photographs taken by one of its officers, agreed by the applicant to provide an accurate indication of the proposed development site and the surrounding development (Ex 4).

Applicant's submissions 17The applicant submits that cl 17(3)(b) of the LEP applies to the proposed development site. The applicant referred to the definition of "any" in the Macquarie Dictionary: Adjective 1. one, a, an, or (with plural noun) some, whatever or whichever it may be: if you have any witnesses, produce them . 2. in whatever quantity or number, great or small: have you any butter?; have you any blank disks? 3. every: any schoolchild would know that . 4. ( with a negative ) none at all. 5. a great or unlimited (amount): any number of things . Pronoun 6. ( construed as singular ) any person; anybody 7. ( construed as plural ) any persons: he does better than any before him; unknown to any . 8. any single one or any one's; any thing or things; any quantity or number: I haven't any . Adverb 9. in any degree; to any extent; at all: do you feel any better?; will this route take any longer? Phrase 10. any one ..., any single or individual (person or thing): any one part of the town . 11. get any, Colloquial to have sexual intercourse: are you getting any? 18The applicant submits that only the third definition as adjective gives the meaning as "every", and that the word "any" in the phrase "any area of adjoining or adjacent land" in the definition of "existing parcel of land" has an element of choice and selection. The applicant illustrated this interpretation as follows: If asked to take any cards from a pack of 52, there is a choice of taking between 1 and 52 in any combination. If asked to take all cards, there is only the option of taking 52. Hence the word "any" includes the possible choice of selecting all 52 without the obligation to do so. "Any" may include "all" by choice but without obligation. 19The applicant submits that if the word "all" was the intended meaning of the legislation then the word "all" should have been used. The word "all" means "all" on every occasion: "all" means obligation and "any" gives choice. 20The applicant submits that the literal interpretation of cl 17(3)(b) would allow the council to consent to a dwelling house, and that this does not fail the purpose test applied by s 33 of the Interpretation Act 1987 (the Interpretation Act). The LEP should be considered with its latest amendments, 12 and 13. The final version of Amendment 13 became cll 25E and 32A in the LEP, relating to the rezoning of parcels of land at Junction Hill originally zoned 1(a), 1(b) and 1(d) to provide for a village core for Junction Hill. The applicant submits that the proposed 2.75 ha development is consistent with the "park residential" development concept of 4000 sq m lots. Amendment 12 became cl 25D of the LEP, which permits the erection of a dwelling house on a specified lot in the 1(a)(Rural (General) Zone). The applicant submits that, based on these amendments and the rezoning proposal for Junction Hill, the ethos of the LEP is to allow an amendment that converts 155 ha of regionally significant farmland into a village heart with over 1000 residences, supporting an argument that the essence of the LEP is to allow, in the same area, dwelling eligibility on 2.75 ha of land that could well continue its current hobby farm type agricultural use. Further, the land to east of the proposed development site has been identified as "proposed employment lands" on the Mid North Coast Farmland Mapping Project (Ex D). The development proposal is consistent with the purpose of the LEP, as amended, in relation to the Junction Hill area. 21The applicant submits that assistance in interpreting the term "parcel" in the LEP can be gained from its use in other legislation, including the Real Property Act 1900 and the Conveyancing Act 1919. 22The applicant accepts that on the preferred interpretation, consolidation of any two of the 23 lots in the proposed development site would fall within cl 17(3)(b). However, that would fail the test of complying with the purpose of the LEP. The proposal is, however, consistent with and meets the purpose of the subdivision controls in cl 18.

Respondent's submissions 23The respondent submits that the proposed development site is not "an existing parcel of land" within the meaning of cl 17(3)(b), and that cl 17(3)(b) refers to the totality of land held in one ownership as at 1971. Referring to the Macquarie Dictionary definition, when read in context the word "any", where used in the definition of "parcel" in the LEP, means "every". In the alternative, "any" where used in the definition of "parcel" means "one". That construction would promote the purpose or object underlining the planning considerations relevant to land in the 1(a) zone. Limiting the number of dwellings that can be permitted gives effect to the objectives of the 1(a) zone. That construction is also consistent with a contextual analysis of cl 17(1), (2) and (3)(a), (c) and (d) of the LEP. The effect of cl 17(1), (2) and (3)(d) is that the council is not permitted to consent to the erection of a dwelling house on an allotment of land created pursuant to a subdivision within zone 1(a) unless the area of each allotment created by the subdivision is not less than 40 ha, and unless each allotment has a frontage to an arterial road of not less than 400 m. Otherwise, under cl 17(3)(a), the council is not permitted to consent to the erection of a dwelling house on an allotment of land within zone 1(a) unless the allotment has an area of not less than 40 ha, except in two circumstances: (a) the allotment is "an existing parcel of land and is consolidated into one allotment" (cl17(3)(b)); or (b) the allotment "was lawfully created or approved by the Council before, and is one on which a dwelling house could lawfully have been erected immediately prior to, 30 March 1990" (cl17(3)(c)). 24The respondent submits that the consequence of accepting the applicant's submission would be that a landowner of two or more lots held in the same ownership as at 4 June 1971 would be able to obtain consent to erect a dwelling house on the consolidation of those lots into one allotment, notwithstanding that the effect from a planning perspective would be that a large number of landowners would have an entitlement to obtain consent for the erection of a large number of dwelling houses on allotments significantly smaller than 40 ha. 25The respondent submits that the proposed allotment has not been consolidated, with the consequence that cl 17(3)(b) does not apply in any event.

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.

Conclusion 38The orders of the Court are:

1. The appeal is dismissed.
2. Development application DA2010/0428 for the erection of a dwelling on lots 7-19 and 41-50 of Section 3, DP1882 at Mountain View, is refused.
3. The exhibits are returned except for exhibit 1. Linda Pearson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2011