Costelloe v Wollondilly Shire Council

Al-Khateb v Godwin (2004) 219 CLR 562; Port Stephens Council v Chan Industrial Pty Limited (2005) 141 LGERA 226 ; Gibb v FCT (1966) 118 CLR 628; CASES CITED: Hecar Investments No. 6 Pty. Limited v Lake Macquarie Municipal Council (1984) 53 LGRA 322; Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 ; Precise Planning v Wollondilly Shire Council & Anor [2005] NSWLEC 339; Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548; Vanmeld Pty Ltd v Fairfield City Council (2000) 106 LGERA 454

APPLICANT Mr G Newport SOLICITOR LEGAL REPRESENTATIVES: Mulally Mylott RESPONDENT Mr J Maston SOLICITOR Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40429 of 2007 Costelloe v Wollondilly Shire Council

EX TEMPORE JUDGMENT 1 Her Honour: In these Class 4 proceedings the Applicant is seeking a declaration that lot 105 DP 852416, 355 Rapleys Loop Road, Werombi does not constitute all or part of an original holding as defined in cl 13B(3) of the Wollondilly Local Environmental Plan 1991 (WLEP). 2 The subject land is and was at all material times zoned 7(c) (Environmental Protection "C" Rural Living) under WLEP. The objects of that zone are set out in the WLEP and are as follows: (a) to provide for rural living opportunities, and (b) to encourage the preservation of the rural landscape character by ensuring that development is compatible with that character, and (c) to ensure that land degradation does not occur and that the water quality of receiving streams is protected, and (d) to maintain existing significant stands of indigenous vegetation. 3 Clause 13B was inserted by Amendment No. 11 to the WLEP which was published in the Government Gazette and commenced on 20 September 1996 (the relevant date). Clause 13B states: Subdivision and Erection of Dwelling-houses within Zone No. 7(c) (1) the Council may consent to a subdivision of all or part of an original holding consisting of land within zone No. 7(c), or of land partly within that zone and a residue of which is within zone no. 1(b), only if: (a) the total number of lots into which the original holding will be divided after the subdivision will not exceed the number obtained by dividing, by 4, the area (in hectares) of the original holding that is within zone no. 7(c), the dividend being rounded down to the nearest whole number; and (b) none of the allotments to be created by the subdivision will have an area of less than 2 hectares. (2) The council may consent to the erection of a dwelling-house on land within Zone No 7(c) only if: (a) it is on an allotment created in accordance with subclause (1); or (b) it is on an allotment with an area greater than 2 hectares; (3) In this clause, original holding means a lot in a current plan (within the meaning of section 327AA(1) of the Local Government Act 1919) as at the date of publication in the Gazette of Wollondilly Local Environmental Plan 1991 (Amendment No. 11)." 4 Lot 101 was a lot in a current plan within the meaning of s 327AA(1) of the Local Government Act 1919 (the LG Act 1919). That subsection, now repealed, relevantly provided:- In this section -

'Current Plan', in relation to any land, means - A plan of subdivision registered … in the office of the Registrar General…but does not include so much of that plan as relates to land included in a plan of subdivision … registered or recorded in that office after the plan of subdivision first-mentioned in this paragraph was so registered or recorded.

Chronology 5 The chronology relevant to the present proceedings is as follows:- 27/9/1995 Deposited Plan 852416, which created lot 101 in that DP pursuant to development consent no. 20/95, is registered.

20/9/1996 Clause 13B inserted into WLEP 1991, by virtue of Amendment No. 11.

20/12/1997 Development consent for subdivision which became DP867964, is granted.

6/5/1997 Deposited Plan 867964, being a subdivision of lot 101 DP852416 into four lots numbered 102, 103, 104 and 105, is registered. (pursuant to cl 13B)

18/1/2005 Respondent Council receives a development application numbered ID 44/05 lodged by Ron Lewis Planning on behalf of the applicants seeking development consent for the subdivision of lot 105 DP867964 into four lots.

5/6/2006 Respondent Council determines development application ID44/05 by way of refusal.

5/7/2006 Right of appeal lapsed. No Class 1 appeal filed.

27/8/2007 Development application for three lot subdivision of Lot 105 lodged with the Council 6 Lot 101 DP852416 comprised 16.22 hectares. Lot 101 existed on 20 September 1996, which is the date on which Amendment No 11 of the WLEP was published in the Government Gazette and the date on which the determination is to be made as to whether land is the whole or part of an original holding for the purposes of cl 13B WLEP. The definition of "original holding" in cl 13B(3) includes the land in lot 101 in DP852416.

7 Because the land comprised in lot 101 DP 852416 was an "original holding" as at 20 September 1996 when Amendment No 11 was made, it was capable of subdivision under the clause. Development consent was granted on 20 December 1996 to the subdivision which became DP 867964. Registration of DP 867964 took place on 6 May 1997. By that subdivision lot 101 DP 852416 was divided into four separate allotments each over two hectares in area. Rounding down as required by the clause, this enabled four lots to be created, namely lots 102, 103, 104 and 105 in DP 867964. 8 If a further subdivision application for lot 105 such as that recently lodged with the Council in August 2007 for three lots were to be approved, this would result in the area of land within the original holding (lot 101) which existed on 20 September 1996 being subdivided into six lots. 9 Clause 13B identifies development standards which could be varied if a SEPP 1 objection were lodged and approved. No such application was made for the subdivision application which was refused in 2005. No SEPP 1 objection has been lodged with the subdivision application for lot 105 lodged by the Applicant in August 2007.

Applicant's submissions 10 The Applicant argued that as lot 105 was not a lot in a "current plan" on 20 September 1996 (when the WLEP amendment referred to in cl 13B(3) came into effect) it cannot be an original holding or part of an original holding and is not therefore subject to the limits identified in cl 13B(1)(a) in relation to the number of lots to be created. "Means" in cl 13B(3) limits the meaning to that set out in the definition in that clause, see Vanmeld Pty Ltd v Fairfield City Council (2000) 106 LGERA 454 at 24, 25. That is the literal and grammatical interpretation of cl 13B and, as it can be given effect, should be considered as the appropriate meaning and application of cl 13B. Accordingly lot 105 is not subject to the limits in cl 13B(1)(a) in relation to the number of lots able to be created in an original holding.

11 Section 25(3) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) states: Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred. 12 Further, s 33 of the Interpretation Act 1987 states that the construction that promotes the purpose or object underlying the statutory rule whether express or implied is to be preferred to one that does not. Application of these principles suggests the Applicant's approach should be preferred. 13 If a purposive approach to statutory construction is required the WLEP can be given its purposive effect by the grammatical application of the language. This approach does not result in the purposes of the zone identified above in par 2 not being achieved in terms of the area of lots to be created, because cl 13B(2)(b) does not allow the approval of a subdivision lot for a dwelling house which is less than two hectares. 14 The Applicant accepted there was an anomaly if its interpretation was adopted in that there would be no limit on the number of lots able to be created in the 7(c) zone provided these were a minimum of two hectares in size. This did not prevent the objects of the zone being achieved however. My finding of the underlying purpose of the 7(c) zone in Precise Planning v Wollondilly Shire Council & Anor [2005] NSWLEC 339 that: The underlying purpose of the development standard at cl 13B(1)(a) of Wollondilly Local Environmental Plan 1991 (LEP 1991) is to allow the subdivision of land to occur with Zone No. 7(c) at a level of density which retains the overall integrity of the landscape and scenic attributes of the area whilst promoting the objectives of the 7(c) zone that are relevant to such subdivision.

was less relevant as that addressed a SEPP 1 objection which required the underlying purpose of this zone to be identified. Here the objects of the zone are what should be considered in determining the purpose of the clause. 15 The Court is not permitted to rewrite the legislation/instrument if it considers the purpose of the legislation is not achieved. This would occur if I do not adopt the construction for which the Applicant contends. 16 The Applicant's counsel in written submissions provided a detailed analysis of the provisions of the WLEP in relation to minimum lot size and area for different zones. This appeared to demonstrate that there are detailed provisions setting requirements for minimum lot sizes and numbers of lots able to be created in the other environmental protection zones, 7(d) zone (in cl 12AA) and 7(e) zone (in cl 13D). 17 Clause 13B(2)(a), being entirely consistent with sub-clause (1) permits a dwelling house upon an allotment created from the subdivision of an original holding. The term "or" between sub-clause (2)(a) and (b) is telling. If the allotment referred to in sub-clause 2(a) is only that derived from the subdivision of an original holding, it would have no work to do. It must not be read down but given the necessary "work to do".

18 It is clear that the provisions of cl 13B relating to an original holding were premised upon historical subdivision. In the first instance there is a recognition of a need to limit the development opportunities because of the unsuitable size and nature of such historical allotments. That purpose is achieved. In the second instance there is a need to afford some credit to permit the creation of a limited number of allotments none of which will have an area of two hectares. 19 However the terms of cl 13B are unambiguously clear in that where they refer to an original holding, the first question to be answered is whether lot 105 constitutes an original holding. The term "all or part of original holding" does not require an historical derivation from an existing holding but is a reference to the contemporary position at least as at 20 September 1996. Contemporary reference rather than an historical reference serves the purpose. Council's submissions 20 The proper approach to construction in the present case is in accordance with the following principles: (a) Full effect should be given to the reference in cl 13B(1) to the proposition that the Council may consent to a subdivision of "all or part of an original holding";

(b) The defined phrase "original holding" imports all of the content of that definition in cl 13B(3) and it is erroneous to merely substitute for the phrase "original holding" in cl 13B(1) - lot 105. The function of a definition clause is merely to indicate that when particular words or expressions the subject of the definition are found in the substantive part of the instrument, they are to be understood in the defined sense. They are aids to the construction of the substantive part of the instrument. In this case cl 13B(1) is concerned with the "subdivision of all or part of" a particular area of land and the definition of "original holding" serves the construction of the clause: Gibb v FCT (1966) 118 CLR 628 at 635.

(c) The proper approach to construction of the clause must have regard not only to the literal meaning of the words and any defined term or expression, but also to the evident object and purpose of the provision: see eg. Chan Industrial Pty Limited v Port Stephens Council (2005) 141 LGERA 226 at [12] and following, citing, inter alia, Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at [423-4]; see also s 33 Interpretation Act; s 25(3) EP&A Act.

(d) A practical approach must be taken to the construction of a planning instrument: Hecar Investments No 6 Pty Limited v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323.

(e) Context of the provision must be considered in the first instance and not merely when ambiguity might be thought to arise: Repatriation Commission v Vietnam Veterans' Association of Australia (NSW Branch) (2000) 48 NSWLR 548 at [107] - [109].

(f) This involves the objective of limiting subdivision of 7(c) zoned land by reference to the stock of such land at a single date in order to control subsequent subdivisional activity.

(g) Clause 13B is dealing with the control of development being the subdivision of "land": see s 4(1) and s 4B EP&A Act.

(h) The temporal aspects of cl 13B are critical. Existing holdings are identified at 20 September 1996 and cl 13B operates prospectively after that date. 21 Applying these principles the following propositions can be made: (i) The whole and every part of the land comprised in the original lot 101 DP 852416 was an original holding as at 20 September 1996 when Amendment No. 11 was made. Similarly the land comprised in lot 105 was part of an original holding which existed on 20 September 1996.

(ii) It could hardly be the purpose of cl 13B that its operation was to be limited only to the very date on which Amendment No 11 was introduced. Rather, the effect of the clause was intended to be ambulatory so that original holdings (whose existence is determined as at 20 September 1996) could, with development consent, be thereafter subdivided but only within the parameters of cl 13B. Also, it could hardly be the purpose of cl 13B to operate only on the first subdivision after 20 September 1996 as the control on the maximum number of separate lots would be evaded by a subdivision of one of the lots so created, by the very implementation of the control.

(iii) The principal purpose of the definition of "original holding" was to enable the identification of the total stock of original holdings in the 7(c) zone under the WLEP. All of those holdings could thereafter be the subject of a development application for subdivision under cl 13B.

(iv) It would be expected that most, if not all, the land in the 7(c) zone as at 20 September 1996 comprised lots in current plans of subdivisions as at that date.

(v) Once it is accepted that original holdings have continuing existence after 20 September 1996 the question whether there can be multiple development applications for subdivision of original holdings in 7(c) zone after 20 September 1996 becomes clear.

(vi) They may be the subject of subdivision applications at any time after 20 September 1996, unless the provision is repealed or amended to prevent it, subject to compliance with the requirements of subclauses 13B(1)(a) and (b).

(vii) the consequence is that the land comprised in the original holding in lot 101 DP 852416 which existed at the relevant date, 20 September 1996, remains the whole of an original holding and the land in lot 105 was and remains part of the land comprised in that existing holding.

(viii) As lot 105 consists of land which is part of an existing holding, the Council may consent to the subdivision of lot 105 only if the proposal complies with subclauses 13B(1)(a) and (b). One identifies the part of the original holding which is the subject of the present application and asks whether "the total number of lots into which the original holding (that is, the land comprised in the whole of the original holding viz lot 101 DP 8524126) will exceed four".

Finding 22 Lot 105 could never be in a current plan as at September 1996 because it did not exist until December 1997. It does not follow, as the Applicant argued, that lot 105 is therefore not part of an original holding under the only grammatical interpretation available of cl 13B(1) and (3). The Applicant's interpretation is not the only grammatical meaning open on the language of the opening words of cl 13B together with subclause (1). The Council's argument, that cl 13B(1) requires consideration of firstly, land in a subdivision application, and secondly, whether that land is in an original holding as defined in cl 13B(3) which has a clear temporal aspect being defined at September 1996, so that lot 105 does meet that description, is also open. 23 The parties essentially agreed on the relevant principles applying to statutory construction when a purposive approach is required. To the extent that a purposive approach to statutory construction is necessary to give effect to the purpose of the WLEP, see Al-Khateb v Godwin (2004) 219 CLR 562 at 622 per Kirby J. In Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Spigelman CJ held: The Australian law of statutory interpretation requires a court to consider context in the first instance, not merely after "ambiguity" is identified I essentially agree with and adopt the Council's arguments particularly those identified in par 20 (c), (d) and (e) in relation to the approach that should be taken to purposive construction. 24 Applying a purposive construction to cl 13B in the WLEP, I agree with the Council's interpretation in par 20(a), (b), (f), (g) and (h) as to the matters to consider when determining the purposes of the wording in cl 13B. I also agree with the Council's submissions in cl 21. It follows that I agree with the Council that the Applicant's subdivision rights in relation to lot 101 were exhausted when the development consent was granted in December 1997 for a four lot subdivision of lot 101. 25 In determining the purpose of the 7(c) zone in the WLEP it is relevant to refer both to the objects of the 7(c) zone and the underlying purpose as I found it in Precise Planning. A limit on the number of lots is clearly directed to the density of subdivision considered desirable in this environmental protection zone and is relevant to the maintenance of rural character (one of the zone objectives). A limitation on the size of lots of two hectares in cl 13B(2)(b) which are intended to have dwelling houses does not on its own achieve that objective. A construction of the clause which is inconsistent with the achievement of that purpose is not open or appropriate. 26 The Applicant's counsel's analysis of the WLEP (par 16) demonstrates that it has detailed provisions for subdivisions in the environment zone, which aim to limit the size of lots and the number of lots created. This supports the Council's argument that it is very unlikely that it should operate in the manner contended for by the Applicant which would leave no controls on the number of lots able to be created in the 7(c) zone for lots not in a current plan in September 1996, that is, not in existence at that date, as is the case with lot 105. The Applicant's counsel's argument (par 18, 19) that the intention was to limit subdivision of land at a single point in time is inherently unlikely in relation to the operation of a clause such as cl 13B in the WLEP. 27 I do not agree that my acceptance of the Council's construction of cl 13B involves a rewriting of the provision. The construction I have accepted is equally open on the wording of the section and is supported by a purposive approach to the objects of the zone to which the section is directed. 28 I consider the Applicant's Class 4 application should be dismissed. As the Applicant has been unsuccessful and costs generally follow the event the Council should have its costs of these proceedings. It is the successful party and there is no disentitling conduct suggesting it should not get its costs. Orders 29 The Court makes the following orders:

1. The Class 4 application is dismissed.
2. The Applicant must pay the Respondent's costs of the proceedings as agreed or assessed. 3. Exhibits may be returned.

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