Barnes v Dungog Shire Council

Land and Environment Court (NSW)|2012-02-08

Judgment 1This is an appeal against the deemed refusal by Dungog Shire Council (council) of a development application (20/2011) under the Environmental Planning and Assessment Act 1979 (EPA Act). The development application relates to Lot 182 DP 1156558 and Lot 4 DP1033689 located at 1507 Chichester Dam Road and 75 Wangat Trig Road, Brandon Grove (the site). 2The original development application sought approval for a 'boundary adjustment' which would result in two lots being:

Proposed Lot 40 with a total area of 2.8 ha
Proposed Lot 41 with a total area of 154.5ha. 3A Plan showing the proposed lots is Attachment 'A'. 4The application was subsequently amended so that consent was also sought for a 'change of use' of 'two lawfully approved dwellings' located on Lot 4 DP1033689 (proposed Lot 41) to 'rural workers dwellings'. The applicant proposes to construct a dwelling at a future stage on proposed Lot 40.

The site and its locality 5Lot 182 DP 1156558 has an area of 68.46 ha and Lot 4 DP1033689 has an area of 88.90ha. Both lots have frontages to the Chichester River. A dwelling and dairy are located on Lot 182 DP 1156558. The following three 'dwellings' and outbuildings are located on Lot 4 DP1033689:

One derelict building which is unoccupied;
A demountable structure which is occupied. The parties disagree on whether the structure or its use as a dwelling is approved; and

Planning framework 9The site is zoned 1(a) Rural under Dungog Local Environmental Plan 2006 (DLEP) . The objectives of the Rural 1(a) zone are: The objectives of Zone 1 (a) are to: (a) reinforce the agricultural character and landscape attributes of the area of Dungog, and (b) promote agriculture, protect high productivity land and prevent the fragmentation of farm holdings, and (c) ensure development is compatible with agricultural operations and does not adversely affect the environment or amenity of the locality, and (d) prevent development which could compromise the efficient extraction of valuable deposits of minerals or extractive materials, and (e) maintain and enhance environmentally sensitive land, particularly wetlands, riparian ecosystems, forests, woodlands and linkages between them, and (f) allow for the natural flooding of rivers and for the temporary storage of floodwaters, and (g) maintain and enhance local biodiversity, and (h) provide for recreational and tourist activities that are compatible with the agricultural, environmental and conservation value of the land. 10Clause 28(1) requires consent for subdivision. The application is made under cl 28(6) of DLEP which provides: Nothing in this plan prohibits subdivision for the purpose of a boundary adjustment where that subdivision will create no additional lots and no additional dwelling entitlements. 11Clause 27(5) of DLEP provides: Consent must not be granted to the erection of a dwelling-house or a dual occupancy on land in Zone 1(a), 7(a) or 9(a), unless it is erected on: (a) a lot created in accordance with clause 28(4)(b), or (b) a vacant holding identified in Schedule 1, or (c) land comprising an established holding on which there is no dwelling-house, or (d) land comprising part of an established holding, providing it will not result in there being more than one dwelling or dual occupancy for each 60 hectares of the holding. 12Clause 37 of DLEP applies to rural workers dwellings. It provides: (1) The objectives of this clause are as follows: (a) to ensure that a rural worker's dwelling is erected on land in the Rural 1 (a) Zone only if there is a genuine long-term need for the dwelling, (b) to ensure that the erection of a rural worker's dwelling is relevant to the nature of the land uses occurring on the land. (2) Development consent must not be granted for the purpose of erecting a rural worker's dwelling on land in Rural 1 (a) Zone unless the consent authority is satisfied of the following: (a) that the existing or approved uses of the land are of a nature and scale that will require the ongoing employment of additional rural workers on a permanent or seasonal basis, (b) that the nature of the existing or approved uses of the land is such that, if workers would be required to live off-site, there would be a significant adverse impact on the relevant rural use of the land, (c) that the proposed rural worker's dwelling is compatible with the nature and scale of existing or approved uses of the land, (d) that the proposed rural worker's dwelling will be located on the same lot as the dwelling-house on the same landholding. Note. The consent authority must also take into account the matters listed in clause 10 (3) of the State Environmental Planning Policy (Rural Lands) 2008 when determining whether to grant development consent for a rural worker's dwelling. 13State Environmental Planning Policy (Rural Lands) 2008 (Rural Lands SEPP) also applies the site but was not raised by the parties.

Contentions 14Council contends that the proposal is not permissible under cl 28(6) of the DLEP. Council also contends that the proposal does not satisfy the requirements of cl 37 of DLEP and is contrary to the objectives of the Rural 1(a) zone. The parties agree that the issue of permissibility under cl 28(6) should be determined as a preliminary issue based on written submissions. If the Court determines that the proposal is permissible, a hearing on the merit issues would then be undertaken.

The applicant's submissions 15Mr R Bennet, the agent for the applicant, does not accept council's contention that cl 28(6) is limited to a subdivision of land that involves an alteration to an existing boundary between allotments. Nor does he accept that the proposal is 'not a mere adjustment of boundaries but rather involves the consolidation of Lot 182 DP 1156558 and Lot 4 DP1033689 and then a subdivision of that new lot into two lots'. 16Mr Bennett submits that there is nothing in the wording of DLEP to suggest that cl 28(6) only applies to proposals to alter the boundary between two allotments: involving minor of insignificant departure from the existing lot configuration; and where there is no 'real physical change to conditions'. 17Mr Bennett refers to other approvals granted by council for 'boundary adjustments' under cl 28(6) where the new lot configuration bears no resemblance to the existing lot configuration, or which gave rise to real physical change in conditions or involved significant departures from the existing lot configuration. 18Mr Bennett cites Regulation 2.75 of Part 2 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying SEPP) which identifies 'a minor realignment of boundaries' as exempt development. He submits that: A boundary adjustment, proposed on land located within the Dungog LGA, can be undertaken as either 'exempt development' pursuant to the SEPP, if it is a 'minor boundary adjustment', or, if not a minor boundary adjustment, then, pursuant to Clause 28(6) of the LEP. The Act provides planning provisions for the Dungog LGA with a two tier approach to boundary adjustments, ie. 'minor' or, 'boundary adjustments which do not fall within what is defined as minor boundary adjustments in the SEPP'. The subject application lies within the second tier, and is subject to the provisions of the LEP. 19The conclusion to be drawn from Mr Bennett's submission is that any subdivision which does not create additional lots or dwelling entitlements would be a 'non minor' boundary adjustment and be permissible under cl 28(6) of DLEP. Mr Bennett submits that the proposal satisfies these requirements. 20Mr Bennett supports his assertion that the proposal will create no additional dwelling entitlements on the basis of the number of existing dwellings and rural workers dwellings on the 'established holding'. He states that: Based upon the provisions of the LEP, the number of dwelling entitlements for the holding, being one dwelling per 60 hectares, is 4.51. 21However, Mr Bennett submits that there is no definition of 'dwelling entitlement' in DLEP and that the wording in cl 28(6) of 'nothing in this plan...' means that cl 27(5) is not engaged'. This submission implies that a minimum lot size of 60ha is not required for a dwelling on land comprising part of an established holding (cl 27(5)(d)) and consequently a future dwelling could be erected on proposed Lot 40 even though it has an area of 2.8ha. 22Mr Bennett explains that all the existing dwellings on the property are used by people who work in the dairy enterprise. He states that: The proposed adjustment of boundaries will ensure all the dwellings associated with the dairy enterprise and all the prime agricultural land (Class 2 & 3 land), will be on the one lot. The whole of the area of proposed Lot 40 comprises Class 4 land and is of negligible value to agricultural production associated with the dairy enterprise. Such an outcome is consistent with the land use planning policies advocated by NSW Agriculture. Nothing in the wording of the LEP supports the view that the number of rural workers dwellings on a property shall be limited to one. The criteria as to what number of rural workers dwellings are permissible is provided by the provisions of Clause 37(1) and (2). The proposal satisfies these conditions. In order for the existing building be approved as a rural workers dwelling, it is necessary for the boundary adjustment to occur as clause 37(2)(d) 'that the proposed rural worker's dwelling will be located on the same lot as the dwelling-house on the same allotment'. The existing dwelling house (occupied by Mr Barnes), is located on Lot 182, not Lot 4. 23Consistent with Mr Bennett's submission, proposed Lot 41 would contain the owner's residence, 2 rural workers dwellings and the derelict dwelling. Proposed Lot 40 would have the potential to accommodate a dwelling. 24In response to Council's submissions, Mr Bennett seeks to distinguish the current proposal from the decisions of Talbot J in Ousley Pty Ltd v Warringah Shire Council [1999] NSWLEC 143 and Jagot J in McCabe & Ors v Blue Mountains City Council [2006] NSWLEC 176. 25Mr Bennett submits that Ousley is of no assistance in interpreting clause 28(6) as it dealt with cl 6 of SEPP 4 which applied to 'an adjustment to a boundary between allotments'. Clause 28(6) of the DLEP is not so constrained and is not restricted to an adjustment of a boundary that is between allotments. 26Similarly, Mr Bennett distinguishes the decision of McCabe on the basis that 'it concerned an entirely different provision in a different environmental planning instrument' and he draws a different conclusion about the natural and ordinary meaning of 'boundary adjustment' to those of Jagot J in McCabe . 27Mr Bennett states that 'boundary adjustment' is not defined in either the DLEP or the Blue Mountains Local Environmental Plan 1991 (BMLEP) with which Jagot J was concerned. He does not take issue with the three stage framework analysis undertaken by Jagot J as being appropriate to determine the natural and ordinary meaning of 'boundary adjustment'. Mr Bennett's examination of each of these stages and their application to interpreting the meaning of 'boundary adjustment' for the purposes of cl 28(6) of DLEP is summarised as follows: 28Firstly, Jagot J considered the dictionary definitions of 'adjustment' [at 52]. Mr Bennett submits that none of the definitions: confine the notion of adjustment to one that is minor, or one that requires a certain degree of sameness before and after the adjustment. To the extent there is commonality in the definitions, the essence of adjustment is to effect a change, for a given purpose. 14.Secondly, Her Honour ascertained the meaning of the phrase from both its general and immediate statutory context [at 55]. Mr Bennett submits that the general context of BMLEP and DLEP is the same, being the EPA Act, but the immediate statutory context is very different. He examined the objectives of the different conservation zones in BMLEP and concludes that: both the purpose and the structure of the BMLEP relevantly was to restrict the availability of additional development potential by subdivision in the context of zones in which there was a primary focus on environmental conservation. 29By reference to the objectives and clauses in DLEP and the Dungog Shire Rural Strategy (Strategy), Mr Bennett concludes that the purpose of the Strategy, DLEP and the Rural 1(a) zone is to promote agriculture and agricultural operations. He notes that 'agriculture' is permissible without consent in the 1(a) zone in the Table to cl 23 of DLEP. 30Clause 28(4) of DLEP provides for subdivision of land in the Rural 1(a) zone. Mr Bennet submits that: Clause 28(4)(a) is not relevant to the present circumstances. Subclause 28(4)(b) can be seen as an implementation of the objective to prevent fragmentation of rural holdings in imposing a 60 hectare minimum allotment size. However, it is available only in the case of an established holding. The limited class to which subclause 28(4) applies means that subdivision in the rural 1(a) zone (aside from clause 28(6)) is prohibited by virtue of clause 23(2), because subdivision is not otherwise mentioned in the Table to clause 23. Clause 28(6) thus appears in the context of an environmental planning instrument which promotes agricultural opportunities, especially in the Rural 1(a) zone, but only provides a narrow opportunity to subdivide rural 1(a) land that is an established holding. Unlike the BMLEP clause in McCabe, clause 28(6) is not restrictive in its effect, but permissive. It expressly permits boundary adjustment by overriding any other prohibition, including the prohibition created by clause 23(2). 31Mr Bennett concludes that the immediate statutory context of DLEP is therefore significantly different to that of BMLEP. 32The third step in Her Honour's analysis was to adopt Talbot J's identification in Ousley of a before-and-after resemblance of lots to be a necessary requirement for a boundary adjustment under the BMLEP. Her Honour said [at 57]: Talbot J, in Ousley (at [21]), described the result of a "boundary adjustment", in the context of SEPP 4, to be one where the "resulting parcels of land bear some resemblance to the lots which existed before the subdivision". SEPP 4 is a different instrument from the LEP. It has different aims and objectives. Its provisions enable development otherwise permissible to be carried out without development consent, whereas cl 34.4(c)(1) permits certain development to be carried out only with development consent. Nevertheless, I consider that Talbot J's formulation provides useful guidance to a necessary (but not sufficient) requirement of a subdivision for a boundary adjustment, in the context of cl 34.4(c)(i). 33Mr Bennett submits that: Nothing in this passage, or elsewhere in her Honour's judgment identifies, with respect, the reason why a requirement of a SEPP 4 boundary adjustment could be translated to a boundary adjustment under the BMLEP, given the different statutory contexts in each planning instrument. Further, her Honour did not refer to the immediately preceding words in paragraph [21] in Ousley, that a boundary adjustment under SEPP 4 must "fit the prescription of an adjustment to a boundary between allotments". It is not at all apparent that a boundary adjustment, that is not expressly limited in the way it was in SEPP 4, must necessarily be subject to a requirement of before- and-after resemblance or sameness, or that there be no physical change to existing conditions. The applicant says that her Honour's adoption of Ousley was, with respect, wrong. 34Mr Bennett submits that a broad construction of 'boundary adjustment' should be preferred as this 'promotes the underlying purpose of a statutory rule' (s33 of the Interpretations Act) . He states: In the present context, a boundary adjustment is no more and no less, than an act of adjusting or adapting a boundary to a given purpose. The purpose is one which promotes the orderly and economic use and development of land (consistently with the general statutory context of the EPA Act), as contemplated by the local environmental plan (the immediate statutory context). In the case of the LEP, the primary objective for the Rural 1(a) zone is the promotion of agricultural operations. A broad interpretation of clause 28(6) ameliorates the narrow availability of clause 28(4) by relieving the prohibition upon subdivision for boundary adjustment, provided the two additional criteria are met. This is consistent with the objectives of the zone and the LEP. ......... A narrow interpretation of clause 28(6) would therefore have the consequence that subdivision in a zone which promotes and permits agriculture (without consent) is absolutely prohibited except in the case of an established holding. That cannot be consistent with the express objective of promoting agriculture. A broad construction of clause 28(6) better gives effect to Dungog Council's vision of providing for productive agriculture, whether it takes the form of an established holding or not. There is no principled reason (or any reason at all disclosed in the LEP) that would support a promotion of agriculture only where it occurs in the form of an established holding. 35Mr Bennett submits that the development application supports the broad interpretation of cl 28(6) and better achieves its underlying purpose by reducing the fragmentation of productive agricultural land through:

Increasing the size of the allotment used for dairy farming;
Consolidating land of higher productive value (Class 2 and Class 3) into one larger allotment (proposed Lot 41) to be used for agriculture. The smaller lot (proposed lot 40) is Class 4, which is of no real agricultural value. 36Mr Bennett reiterates his submission that the proposal meets the criteria in cl 28(6). Although he provides no additional justification for this submission other than that 'it would appear......that council concedes that no new dwelling entitlements will be created'.

The council's submissions 37Ms D Grant, the solicitor for the council, submits that in order to be permissible under cl 28(6) of DLEP, the development application must be for the 'purpose of a boundary adjustment', must 'create no additional lots' and further, there must be 'no additional dwelling entitlements' created. 38Ms Grant submits that the applicant's interpretation of cl 28(6) ignores both the purpose of the clause and the proper meaning to be given to the words 'boundary adjustment'. She accepts that there is no definition of 'boundary adjustment' in DLEP but relies on the decisions in Ousley and McCabe . She submits that both these decisions support council's position that the proposed development is not for the purposes of a boundary adjustment as required by clause 28(6) of the LEP and is therefore not permissible. 39As stated in McCabe, Ms Grant submits that the purpose of cl 28(6) is to permit subdivisions for the purposes of a boundary adjustment in limited circumstances, so as to not enlarge the development potential of land. The Applicant's construction of cl 28(6) is too wide and would effectively permit subdivision by way of any and all alteration to the boundary, provided that no additional lots or dwelling entitlements were created. This is not consistent with the purpose of the clause or the decisions in Ousley and McCabe. 40Ms Grant submits that the development application does not comply with the requirements of cl 28(6) for the following reasons: (a) As in McCabe , the DA involves the consolidation of Lot 182 and Lot 4 into one lot, and the subsequent subdivision of the enlarged lot into 2 new lots (albeit no additional allotments as such); (b) The configuration of the proposed Lots 40 and 41 will bear no similarity or relationship to the existing lot configuration; (c) The new boundary between the proposed Lots 40 and 41 has no relationship to the existing boundary between Lot 4 and Lot 182; (d) The DA will give rise to a real physical change in conditions on the subject site. In this regard, the proposed Lot 41 will have sole frontage to Chichester River, thereby extinguishing the riparian right currently afforded to existing Lot 4 DP 1033689; and (e) Rather than for the purposes of a boundary adjustment, the real purpose of the DA appears to the Respondent to be to create a small concessional type allotment so as to enable the erection of an additional dwelling on proposed Lot 40 in the future. 41Ms Grant also submits that the site is part of an 'established holding' with an area of 271ha. Having regard to cl 27(5)(d) the 'established holding' has four dwelling entitlements. These entitlements have already been utilized by the established holding by: The Applicant's residence on proposed Lot 40 (currently located on Lot 182 DP 1156558); The dwelling entitlement which applies to Lot 181 DP 1156558 (refer to Commissioner Brown's judgment in Calver de Witt & Taylor Pty Ltd v Dungog Shire Council [2004] NSWLEC 491); and The two rural workers dwellings on proposed Lot 41 (noting that according to the Dictionary definition of "rural workers dwelling" in the LEP, a rural workers dwelling is to be regarded as a type of "dwelling"). 42Ms Grant dismisses the Applicant's reliance on the Exempt and Complying SEPP. Under the SEPP, development for the purpose of a 'minor realignment of boundaries' is exempt development provided the criteria in clause 2.75 (and clause 1.16 and 1.19) are satisfied. She does not accept Mr Bennett's distinction between a 'minor' boundary adjustment under the SEPP and 'non minor' boundary adjustments under cl 28(6) of DLEP. Ms Grant submits that this submission 'does not address the proper meaning to be given to the words 'boundary adjustment' in the context of clause 28(6) of the LEP.' 43Ms Grant also does not accept Mr Bennett's submission that the council 'has a history of utilising the provisions of clause 28(6) so as to give effect to lot reconfiguration' and has 'interpreted Clause 28(6) widely'. She submits that the development consents referred to by Mr Bennett are 'either distinguishable on their facts or are irrelevant to the assessment of the DA and the proper construction to be given to clause 28(6) of the LEP'. 44Ms Grant submits that the Court has no power to grant development consent to the DA because it is not for the purposes of a boundary adjustment, and does not satisfy the requirements of cl 28(6). 45Further, Ms Grant submits that s 80(2) of the EPA Act also relevantly provides that a consent authority 'must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development'.

Findings 46'Development' is defined under s 4(1) of the EPA Act as follows: development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. 47Section 4B of the EPA Act contains the following definition of 'subdivision of land': (1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected: (a) by conveyance, transfer or partition, or (b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition. (2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of: (a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919 , or (b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 . Note. The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 1989. (3) However, subdivision of land does not include: (a) a lease (of any duration) of a building or part of a building, or (b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or (c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or (d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919 , or (e) the procuring of the registration in the office of the Registrar-General of: (i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919 , or (ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 . 48Clause 23 of DLEP provides general zoning controls. The Table to this clause describes for each zone: development that may be carried out 'without consent', 'with consent' or that is 'prohibited'. Development for the purpose of 'subdivision' is not included in the Table. Clause 23(2) provides: Any kind of development that is not included in the Table to this clause is prohibited on land to which this [plan applies, unless it is exempt development identified by clause 6 or allowed, with or without consent, by Part 4. 49Part 4 of DLEP includes cl 28 which is headed 'Subdivision'. Clause 28(1) provides: Land to which this Plan applies may be subdivided, but only with development consent. 50The clause includes circumstances where consent must not be granted. For the 1(a) zone cl 28(4) provides: (4) Consent must not be granted for a subdivision to create a lot of land in Zone 1(a) or 9(a), unless: (a) the lot is for use for intensive agriculture, a utility installation or a community facility, without the need for an additional dwelling, and the consent authority is of the opinion that creation of the lot is justified for this purpose, or (b) the land to be subdivided is an established holding with an area in excess of 120 hectares, and: (i) where the established holding comprises more than one lot, the land is first consolidated into one lot, and each of the lots to be created by the subdivision contains 60 hectares or more, and (ii) no lot to be created will, immediately after the subdivision, have on it more than one dwelling- house or more than one dual occupancy, and (iii) each lot to be created which is vacant is suitable for the erection of a dwelling. 51DLEP defines 'established holding' to mean: established holding means land in Zone 1(a), 7(a) or 9(a) that: (a) comprises one or more lots with a total area of 60 hectares or more, and (b) is all contiguous, or separated only by a road or railway, and (c) was the total area of all adjoining or adjacent land held in one ownership on 1 July 2003, whether or not some other contiguous land in the same ownership has been transferred to another party since that date. 52Lot is defined under DLEP as: lot means an existing lot as defined by the Co n ve y ancing Act 1919 , and includes a proposed lot intended to be such a lot when created. 53Under the Conveyancing Act 1919, 'existing lot' is defined as: Existing lot means: (a) a lot whose boundaries are shown in a current plan, or (b) in relation to land that is not included in a current plan, any distinct lot or portion of land whose current boundaries are identified in the document or documents that evidence current legal interests in the land, whether comprising the whole of a parcel, or 2 or more parts of a parcel separated by land reserved or acquired for a road, railway or other like purpose. 54The land is an 'established holding' with an area in excess of 120ha that comprises more than one lot, however, each of the lots to be created does not contain 60 ha or more. The proposal would therefore not meet the requirement of cl 28(4)(b)(i) and the application is not made under this clause. Rather, the application is seeking consent for a 'boundary adjustment' and is made pursuant to cl 28(6). 55The parties disagree on whether the proposal is a boundary adjustment and is therefore 'allowed' under cl 28(6). To be permissible under this clause, subdivision must be 'for the purpose of a boundary adjustment', must create 'no additional lots' and 'no additional dwelling entitlements' 56The council relies on the previous judicial consideration in Ousley and McCabe to determine the proper meaning to be given to the term 'boundary adjustment' within the context of cl 28(6). Whereas, the applicant seeks to distinguish the context of cl 28(6) from these previous decisions. I do not accept Mr Bennett's submissions in this regard. 57In McCabe , Jagot J was concerned with cl 34.4(c)(i) of BMLEP which provided that the Council may only consent to subdivision of land if: ...it is for a boundary adjustment where no additional lots are created. 58The wording of the clause in cl 34.4(c)(i) of BMLEP is not dissimilar to that in cl 28(6) of DLEP. 59There is also a degree of similarity between the development application in McCabe and the development application that is now before the Court. In McCabe, the development application sought to subdivide 2 existing lots into 2 new lots by a boundary adjustment. The resultant lots were different in size and configuration and bore little resemblance to the lots which existed before the subdivision. 60Given that the term 'boundary adjustment ' was not defined in BMLEP, Jagot J had regard to its ordinary meaning and held: ....I do not accept that the 'ordinary and grammatical meaning' of the phrase 'for a boundary adjustment' embraces any and all alterations of a boundary that may make land suitable for the applicant's requirements. I consider that the primary meaning conveyed by the clause, construed in its immediate and more general context, accords with the notion of an alteration of a boundary by correction or regularisation, whether that correction or regularisation is to reflect actual conditions (such as physical features of the land or its zoning) or to achieve some other requirement or objective (for example, to render the use of land feasible or more practical. 61I do not accept Mr Bennett's submission that the immediate statutory context of BMLEP is significantly different to that of DLEP such that the conclusions drawn by Jagot J in McCabe would not be applicable. Mr Bennett submits that the context of BMLEP required a narrow and restrictive interpretation of cl 34.4(c)(i) to achieve the objectives of the clause, the zoning and the plan. Whereas, he submits that the context of DLEP requires a broad and permissive interpretation to cl 28(6) to achieve its objectives. 62The purpose of the Strategy, DLEP and the Rural 1(a) zone in DLEP may be to promote agriculture and agricultural operations, however, this statutory context does not warrant a different interpretation to the meaning of 'boundary adjustment' adopted by Jagot J in McCabe . The Table to cl 23 and the application of cl 28(4)(b) of DLEP may effectively prohibit subdivision in the 1(a) zone other than for existing holdings, however, I do not accept Mr Bennett's submission that cl 28(6) is therefore necessary to overcome this prohibition in order to promote agricultural activities. Nor do I accept his submission that cl 28(6) is permissive and overrides 'any other prohibition' in order to facilitate agricultural purposes. 63On the contrary, the regime established by the Table to cl 23 and by cl 28 of DLEP is restrictive. Subdivision in the Rural 1(a) zone is not identified as a permissible use and it gains its permissibility through cl 28 which does not allow consent to be granted for subdivision in specific circumstances. The restrictions in cl 28(4), which limit lot sizes and the potential for dwellings promotes agriculture purposes in the 1(a) zone by restricting the development potential and fragmentation of agricultural land. Clause 28(4) may provide a 'narrow opportunity' to subdivide land but there is nothing to suggest that it is not what is sought by the plan. 64I also do not accept Mr Bennett's reliance on the term 'nothing in this plan prohibits subdivision' as being 'permissive' and necessary to override the limitations of cl 28(4) to facilitate the objective of promoting agriculture. As Ms Grant submits, cl 28(6) is to enable 'subdivision for the purpose of a boundary adjustment' and not to override the requirements of cl 28(4). The key question before the Court is whether the proposed subdivision is for this purpose of a 'boundary adjustment'. 65Mr Bennett submits that the application is a 'boundary adjustment ' as it achieves the objective of promoting agriculture by enabling the productive agricultural land to be within one lot (proposed lot 41 with a proposed area 154.5ha with one dwelling and two rural workers dwellings) and the non productive agricultural land to be within the other lot (proposed lot 40 with an area of 2.8ha with potential for a future dwelling). 66In Mr Bennett's submission, the boundary adjustment is also necessary as it enables 'rural workers dwellings' to be provided on the same lot as the dwelling house. This submission relies on an interpretation of cl 37 that more than one rural workers dwelling can be located on the same lot as a dwelling house. This is in dispute and the parties also do not agree on whether there is a valid approval for the demountable dwelling on Lot 4 DP1033689. These are not matters on which I am required to adjudicate. However, given that the site is in one ownership it is difficult to understand how the use of the productive agricultural land and the provision of rural workers accommodation sought by the applicant cannot be achieved under the existing subdivision. Rather, than facilitating agricultural purposes the 'boundary adjustment' appears to facilitate the creation of a separate title with a dwelling entitlement. 67Consistent with the decision of Jagot J, I do not accept that the ordinary and grammatical meaning of the phrase 'for a boundary adjustment' includes any and all alterations of a boundary that may make land suitable for the applicant's requirements o r that the correction or regularisation of the boundary would 'render the use of the land feasible or more practical. 68Mr Bennett also seeks to distinguish the meaning of 'boundary adjustment' for the purpose of cl 28(6) from the decision in McCabe on the basis that Jagot J's was guided by the decision in Ousley. Her Honour noted Talbot J's description that the result of a ' boundary adjustment', in the context of SEPP 4, was one where the: ...resulting parcels of land bear some resemblance to the lots which existed before the subdivision. 69Jagot J accepted that this formulation by Talbot J, even though it relates to SEPP 4 which has different aims and objectives to the BMLEP, provided: ..useful guidance to a necessary (but not sufficient) requirement of a subdivision for a boundary adjustment, in the context of cl 34.4(c)(i). 70Mr Bennett states that Her Honour has not explained: the reason why a requirement of a SEPP 4 boundary adjustment could be translated to a boundary adjustment under the BMLEP, given the different statutory contexts in each planning instrument... 71Mr Bennett appears to dismiss Ousley as SEPP 4 used the term 'adjustment to a boundary between allotments'. Whereas cl 34.4(c)(i) of BMLEP and cl 28 (6) of DLEP are not so constrained and refer to a 'boundary adjustment'. A boundary adjustment would normally be between allotments (lots) as is the case in this appeal and in McCabe. I do not accept that the difference in wording negates the conclusion that there should be some resemblance between the lots before and after a boundary adjustment. 72In examining the facts of the application in McCabe, Jagot J found that the proposed subdivision: shows that the overall configuration of the proposed lots bears no resemblance to that of the existing lots. The new boundary between proposed lots 11 and 12 has no relationship to the existing boundary between lots 1 and 7. Having regard to the matters set out above, I consider that the proposed development is not the subdivision of land 'for a boundary adjustment where no additional lots are created'. I consider that the proposed development may accurately be described as the consolidation of lot 7 into lot 1, and the subsequent subdivision of the (enlarged) lot 1 into 2 lots, rather than as a subdivision 'for a boundary adjustment where no additional lots are created'. 73In examining the facts of the application in this case, I draw the same conclusion. The overall configuration of the proposed Lots 40 and 41 bears no resemblance to the existing lots. The new boundary between the proposed Lots 40 and 41 has no relationship to the existing boundary between Lot 4 and Lot 182. There will be a real physical change in conditions as the proposed Lot 41 will have sole frontage to Chichester River, thereby extinguishing the riparian right currently afforded to existing Lot 4 DP 1033689. 74The subdivision is not for the purpose of a 'boundary adjustment' but the proposed development may accurately be described as the consolidation of Lot 182 DP 1156558 and Lot 4 DP 1033689 , and the subsequent subdivision of the consolidated lot into 2 lots. The purpose of the subdivision appears to be to create a small concessional type allotment so as to enable the erection of an additional dwelling on proposed Lot 40 in the future. 75Under cl 28(6) subdivision for the purpose of a boundary adjustment must create no additional lots and no additional dwelling entitlements. The parties agree that no additional lots will be created but their submissions are unclear in respect of whether additional dwelling entitlements would be created. The term 'dwelling entitlement' is not defined in DLEP. The parties agree that the 'established holding' is 271ha. The council submits that having regard to cl 27(5)(d) of DLEP the 'established holding' has four dwelling entitlements (based on one dwelling per 60 ha). The applicant appears to agree that the dwelling entitlements 'based on the provisions of the LEP' is one dwelling per 60 ha and would be 4.5 dwellings. However, Mr Bennett submits that the wording of cl 28(6) that 'nothing in this plan' overrides cl 27(5)(d). It is therefore unclear upon what Mr Bennett bases his estimate of dwelling entitlements. 76Further, the parties disagree on the number of entitlements that have already been utilized by the 'existing holding'. Their disagreement centres on the number of approved dwelling on the holding and whether a rural workers dwelling is a dwelling. While it is clear that the creation of Lot 40 is for the purpose of a future dwelling it is unclear from the submissions whether this would create 'no additional dwelling entitlements'. 77The proposed development does not satisfy the requirements of clause 28(6) of DLEP because the subdivision is not for the purpose of a 'boundary adjustment' and it is unclear whether the subdivision will create no additional dwelling entitlements. The application is therefore not permissible under cl 28(6) of DLEP and it must be refused and the appeal dismissed. 78Mr Bennett's other submissions in respect to the Exempt and Complying SEPP and to the other decisions of council also do not justify why a different interpretation should be applied to 'boundary adjustment' or to the applicability of the decision of Jagot J.

Orders 79The orders of the Court are: (1)1. The appeal is dismissed. (2)2. The development application for Lot 182 DP 1156558 and Lot 4 DP1033689 located at 1507 Chichester Dam Road and 75 Wangat Trig Road Brandon Grove, is refused. Annelise Tuor Commissioner of the Court Attachment A Attachment B

Amendments 08 February 2012 - Amendments to linked attachments Amended paragraphs: None 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: 09 February 2012

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (3)

Cited By (1)