1 HIS HONOUR: The applicant is the owner of land at Oakhampton in the Hunter Valley of New South Wales, being Lot 100 in Deposited Plan 1083305 (Lot 100). The Deposited Plan reflected a subdivision to which development consent was granted by the respondent on 8 December 2004. The plan of subdivision was registered in the office of the Registrar General on 11 July 2005. That plan, as registered, bears the following notation in its right hand margin:
"PLAN OF SUBDIVISION OF LOTS 1, 2, 3, AND 4 D.P. 217178 AND PART OF THE LAND IN CONV 950 BK 3692".
2 Lot 100 has an area of 9.73 hectares. While there is a farm shed presently standing on the Lot, there is no dwelling erected upon it.
3 The applicant sought development consent from the respondent to erect a single storey dwelling on Lot 100. That application was refused by the respondent on 12 November 2009. In consequence of that refusal, the applicant has appealed to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
4 By its Statement of Facts and Contentions dated 14 January 2010, the respondent has contended that the erection of a dwelling house on Lot 100 is prohibited development. On the basis of that contention, the parties agreed that the question of permissibility should be determined by a judge of the Court, separately from the two merit issues which the respondent's Statement of Facts and Contentions also identifies.
5 It is unnecessary for present purposes to identify the process by which the separate question came to be listed before me for determination. Suffice to record that at the commencement of the hearing and with the consent of the parties I made an order pursuant to Part 28 rule 2 of the Uniform Civil Procedure Rules 2005 for the separate determination of an issue in the following terms:
"Whether, upon the proper interpretation of Maitland Local Environmental Plan 1993, the erection of a dwelling house on land at Oakhampton, being Lot 100 in Deposited Plan 1083305 is prohibited development."
It is to that question that this judgment is directed.
Planning Controls
6 The planning controls relevant to be considered for present purposes are those found in Maitland Local Environmental Plan 1993 (the LEP). By operation of the LEP, Lot 100 is said to be zoned in Part 1(a) Prime Rural Land and in Part 1 (b) Secondary Rural Land (the 1(b) Zone). The dwelling house for which development consent has been sought by the applicant is to be located wholly within the I (b) Zone.
7 Part 2 of the LEP contains those provisions of the instrument which generally relate to and control development upon the four rural zones which it identifies. The land use tables for each of those four zones are to be found in cl 10, within Part 2.
8 In the third paragraph of cl 10, immediately preceding the commencement of the four land use tables, the consent authority is enjoined from granting development consent "… if the proposed development does not satisfy the objectives of the zone in which it is intended to be carried out". Paragraph (1) of the land use table for the I (b) Zone is in the following terms:
"(1) Objectives of the zone
(a) To provide for agricultural uses and animal establishments.
(b) To permit appropriate agriculture-related land uses and certain non-agriculture related land uses which will not adversely affect agricultural productivity.
(c) To control development that could:
(i) have an adverse impact on rural character,
(ii) create unreasonable or uneconomic demands for the provision or extension of public amenities and services, or
(iii) be subjected to physical limitations such as erosion hazard, bushfire risk and flooding.
(d) To prevent the establishment of traffic generating development along classified roads."
9 Paragraph (2) of the same land use table describes the zone as one that "contains all rural land which is either not of prime agricultural value or has not been set aside for rural residential development."
10 It is paragraph (5) of the table which is of particular significance. It is that paragraph which identifies development within the 1(b) Zone which is prohibited. Relevantly, it includes as prohibited development the following:
"Dwelling House (other than dwellings for which consent is permitted by Clause 13); …"
11 Clause 13 of the LEP (also within Part 2) relevantly provides as follows:
" 13 What are the requirements with respect to the erection of dwellings in rural zones?
(1) In this clause:
Separate parcel means and allotment of land in existence on 3 September 1993 or the aggregation of two or more joining or adjacent allotments of land if they were in common ownership on 3 September 1993.
…
(2) The Council may consent to the erection of a dwelling house on:
…
(b) a separate parcel in Zone 1(b) where the separate parcel has a minimum area of 4000 m².
(3) Notwithstanding subclause (2), Council may consent to the erection of a dwelling house on land in Zone 1(a), 1(b), 1(c) or 1(d) if:
(a) the land comprises an allotment the subdivision of which was approved by Council after 7 December 1960, or
…
(4) Subclause (3)(a) does not apply to an allotment created before or after the commencement of this subclause by a subdivision consented to by the Council for a purpose set out in clause 8 (2) (a), (b), (c), (d) or (f), except an allotment with a minimum area of 40 hectares created by a subdivision consolidating allotments."
12 The incorporation within cl 13(4) of reference to cl 8 of the LEP necessitates the recitation of the latter clause. It provides as follows:
" 8 What subdivision controls apply?
(1) Land to which this plan applies shall not be subdivided except with the consent of the Council.
(2) Nothing in this plan shall prevent the Council from granting consent to a subdivision for any of the following:
(a) widening or opening of a public road,
(b) making an adjustment to a boundary between allotments, being an adjustment that does not involve creating any additional allotment,
(c) rectifying an encroachment upon an allotment,
(d) creating a public reserve,
(e) consolidating allotments, or
(f) excising from an allotment land which is, or is untended to be, used for public purposes, including drainage purposes, bushfire brigade or other rescue service purposes or public conveniences.
Note. Clause 13 (4) prevents the erection of a dwelling house on an allotment of land in Zone 1 (a), (b) (c) or (d) created by a subdivision under subclause (2) (a), (b), (c), (d) or (f), except an allotment with a minimum area of 40 hectares created by a subdivision consolidating allotments."
13 There is one further provision of the LEP, that, for present purposes, needs to be noticed. It is cl 11. It identifies the minimum allotment sizes for rural land and requires that the minimum area which may be the subject of the grant of consent to subdivision of Zone 1(b) land is 40 hectares.
The parties' contentions
14 The respondent submits that the erection of a dwelling house on Lot 100 is prohibited. It refers to the prohibition upon development for a dwelling house as contained in the land use table to cl 10 of the LEP and says that the exception to that prohibition by reference to dwellings permitted by cl 13 is not engaged by the present development application.
15 Both parties accept that Lot 100 is not a separate parcel within the meaning of cl 13(1) and therefore the provisions of subclause (2)(b) of that clause do not apply.
16 The focus of the parties' submissions is upon subclauses (3) and (4) of cl 13 of the LEP. It will be remembered that subclause (3) potentially removes both the areal limitation and the temporal limitation as to the date on which the Lot or Lots needed to exist, both of which limitations are imposed by subclause (2). Both parties accept that the wording of subclause (3)(a) is infelicitous in its reference to "an allotment the subdivision of which was approved …". Both agree that those words should be understood as if they read "an allotment created by subdivision which was approved … ". Given that the provisions of subclause (4) expressly apply by way of exception to the provisions of subclause (3) and the former uses the verbal formula of referring to "an allotment created … by a subdivision", I agree with and approach the interpretation of the provisions of subclause (3) (a) on the basis jointly adopted by the parties.
17 The respondent concedes, consistently with the agreed statement of facts (Exhibit C), that Lot 100 was an allotment approved by the respondent after 7 December 1960, that approval having been given on 8 December 2004. If that is where the provision governing the power to erect a dwelling house on Lot 100 ended, it is conceded that such development would be permissible with consent. However, the respondent argues that the concessional provisions of subclause (3) do not apply by reason of the provisions of subclause (4). Indeed, it is the operation of the latter subclause upon which the respondent wholly founds its case for asserting that cl 13 is not engaged and thus the prohibition upon dwelling houses contained in the land use table prevails.
18 In essence, the submissions on behalf of the respondent as to why the concessional provisions of subclause (3) are overridden by subclause (4) are as follows:
(i) the plan of subdivision which came to be registered as Deposited Plan 1083305 by which Lots 100 and 101 were created, was a subdivision consolidating allotments within the meaning of subclause (4) and Lot 100 was below the minimum area of 40 hectares stipulated in that subclause;
(ii) when cl 13 was amended in October 2002 by the addition of subclause (4) and the insertion of the ' Note ' to cl 8(2), a reference to cl 8(2)(e) was mistakenly omitted from the subclause and in order to give the subclause work to do that provision should be read into that subclause. In so doing, the subclause would be interpreted as preventing the concessional provisions of subclause (3) applying to a subdivision 'consolidating allotments' within the meaning of cl 8(2)(e). Deposited Plan 1083305 was such a subdivision.
19 The applicant submits that Lot 100 satisfies the only relevant criteria stipulated in cl 13(3)(a) of the LEP for permissibility of a dwelling house, namely that the land upon which it is proposed to be erected is within Zone 1(b) and that it comprises an allotment created by a subdivision approved by the respondent after 7 December 1960. In response to the respondent's contentions, the applicant submits that the purpose of the subdivision to which the Respondent consented and which gave rise to the registration of Deposited Plan 1083305 was not a purpose identified in cl 8 (2)(a), (b), (c), (d) or (f) and thus cl 13(4) is not engaged. Further, the applicant says that the subdivision in question was not a subdivision 'consolidating allotments' within the meaning of subclause (4). The principles which would allow the 'mistakenly omitted' provisions of cl 8(2)(e) from cl 14 to be read into the latter clause are not satisfied in this case (Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 at 302).
Inferring an intention to include an omitted provision
20 It is convenient first to address the respondent's submission that cl 13(4) should be read as including a reference to a subdivision consolidating allotments within the meaning of cl 8(2)(e). In making that submission, it sought to refer to an internal report addressing the draft local environmental plan which led to the insertion of subclause (4) into the LEP. It also relied upon an exchange of correspondence between it and Planning NSW (as the Department of Planning was then known) relating to the provision. That evidence was admitted for the purpose of allowing the respondent's legal representative to make the submissions that he did without conceding its relevance to the proper interpretation of the provisions of the LEP. The reports and correspondence upon which reliance was sought to be placed indicated, so it was argued, that the amendment ultimately made in the form of cl 13 (4) did not reflect the purpose intended by the Respondent when it formulated and advertised its draft local environmental plan.
21 I reject the respondent's submissions in this regard. The local environmental plan is the instrument of the Minister, not that of the respondent. The respondent did not suggest that the amendment ultimately made to the LEP by the addition of subclause (4) to cl 13 was not the valid culmination of the statutory process ordained by Part 3 of the EPA Act for the making of a statutory instrument. Further, documents that reflect the aspirations of a council in formulating a local environmental plan and the exchange of correspondence with the Department of Planning in relation to the making of that plan would not ordinarily inform the process of interpretation.
22 The essence of the submission on behalf of the respondent in this regard is encaptured in its written submission as follows:
"It is apparent from this correspondence that the omission from the amended clause 13 (4) of Maitland LEP 1993 of a reference to clause 8 (2) (e) (and from the note to cl 8 (2)) occurred contrary to the resolution of the Council and for a reason which is not explicit or able to be inferred from the correspondence."