Jessica Estates v Lennard

Conveyancing Act 1919 (NSW) s 88B LEGISLATION CITED : Environmental Planning & Assessment Act 1979 (NSW) ss 4, 4B, 25, 28, 30, 31, 76, 76A, 76B Singleton Local Environmental Plan, cl 2, 3, 6, 11, 16 Uniform Civil Procedure Rules, rule 28.2

Al-Kateb v Goodwin (2004) 219 CLR 562 Application of Thompson (McLelland CJ in Eq, unreported, Supreme Court of New South Wales, 25 October 1993) Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 Coshott v Ludwig (1997) 8 BPR 15,519 Cracknell and Lonergan Pty Ltd v Council of the City of Sydney [2007] NSWLEC 392 Doe v Cogente Pty Ltd (1997) 94 LGERA 305 Ex parte Cottman; re McKinnon (1934) 35 SR (NSW) 7 Foley v Padley (1984) 154 CLR 349 Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources [2005] NSWLEC 664 CASES CITED : Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472 Lodhi v Regina (2006) 199 FLR 303 Ludwig v Coshott (1994) 83 LGERA 22 Lyne v Moree Plains Shire Council (1999) 110 LGERA 120 Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works (1974) 48 ALJR 448 Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777 O'Connell v Nixon [2007] VSCA 131 Owens v Longhurst [1998] NSWSC 387 Shanahan v Scott (1957) 96 CLR 245 Swan Hill Corporation v Bradbury (1937) 56 CLR 746 Young v Gosford City Council (2001) 120 LGERA 243

PARTIES : Jessica Estates Pty Ltd (P) Tony Lennard and Laura Lennard (D)

COUNSEL : J E Lazarus (P) G A Sirtes (D)

SOLICITORS : Colin Biggers & Paisley (P) Curtis Delaney Gray (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

4500/07 JESSICA ESTATES PTY LTD V TONY LENNARD AND LAURA LENNARD JUDGMENT 1 HIS HONOUR: By a summons filed on 12 September 2007, the plaintiff claims a declaration that the defendants, in breach of para (k) of item 5 of Part 2 of the restriction on the use of land noted on DP 1061723, have commenced the construction of a duplex dwelling on Lot 122, DP 061723 known as 122 Casey Drive, Singleton ("the Land") without first obtaining the plaintiff's written consent. The plaintiff also seeks orders that the defendants be restrained from carrying out any further development work on the Land without first obtaining the plaintiff's written consent, and that they forthwith take all necessary steps to remove the dwelling constructed on the Land. The summons was filed pursuant to the plaintiff's application for abridgement of service and the proceedings were made returnable before the Duty Judge. The plaintiff did not press a claim for interlocutory relief because the parties agreed to a short timetable for determination of the issues between them on a final basis. 2 The plaintiff is the developer of the land in DP 1061723, which comprises 121 lots at Singleton known as "the Hunterview Estate". The defendants were the purchasers of a lot in the development, the Land. They purchased the Land from Carmelo Romano, who had purchased it from the plaintiff in 2003. The lots in the subdivision are affected by an instrument lodged with the deposited plan under s 88B of the Conveyancing Act 1919 (NSW). Registration of the plan created various easements in the terms of the instrument, and also some provisions in item 5 of Part 2 of the instrument, described there as a "restriction on the use of land", including provisions in para (k)(i), (ii) and (v) to the effect that the registered proprietor of a lot in the subdivision must not, without the consent of the plaintiff, construct more than one dwelling on the lot, or construct a semi-detached duplex, or subdivide the lot. 3 The plaintiff alleges that on 15 March and 20 June 2007, the defendants sought and ultimately obtained development consents from Singleton Council relating to a two-lot strata subdivision and to erect two three-bedroom units on their lot. The plaintiff alleges that it was not notified of the development application and had no means of lodging any objection. There appears to be no dispute between the parties that what has been constructed on Lot 122 is in breach of paras (k)(i), (ii) and (v), though it is unnecessary for me to make any finding about that for the purposes of the present determination, and I shall not do so. However, the defendants contend that those provisions have no effect because of clause 6 of the Singleton Local Environmental Plan ("LEP") and s 28 of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act"). Separate determination of questions 4 When the matter came before me for directions as Duty Judge on 25 September 2007, it occurred to me that the principal issue between the parties was a question amenable to separate determination under UCPR 28.2. My suggestion was taken up by the parties, with the result that on that day I made an order by consent as follows: "Pursuant to rule 28.2 of the Uniform Civil Procedure Rules, the Court determine the following questions separate from, and prior to, the determination any other issue in the proceedings: (a) whether any of the provisions of paragraph (k)(i), (ii) or (v) of the restriction on the use of land, noted on DP 1061723, prohibit land use allowed by the Singleton Local Environmental Plan ('the LEP') and accordingly do not apply to that land use; and (b) if the answer to (a) is 'yes', which of the provisions of paragraph (k)(i), (ii) and (v) prohibits a land use allowed by the LEP and accordingly does not apply to that land use ('the Separate Questions ')." 5 When the hearing of the questions for separate determination commenced on 2 October 2007, counsel for the plaintiff informed the court that his client would reserve its position as to whether the relevant part of the LEP, clause 6, is ultra vires the EPA Act, and might put that question in issue if it were unsuccessful with respect to the Separate Questions. I expressed concern that this would undermine the foundation of the order for separate determination. After taking instructions, counsel for the plaintiff informed the court that his client undertook not to pursue the question of validity of clause 6, and so the hearing continued. 6 The written submissions of counsel for the plaintiffs state in a footnote (footnote 4 on page 4) that there is "real doubt" as to the validity of clause 6, for reasons then stated. The written submissions were provided to the court before the events to which I have just referred, and I therefore proceed on the basis that footnote 4 is not part of the submissions to be considered by the court for the purpose of answering the Separate Questions. Item 5 of Part 2 of the s 88B instrument 7 Section 88B(2) makes provision for a plan to indicate what easements, profits a prendre, restrictions on the use of land or positive covenants (if any) are intended to be created benefiting or burdening land comprised in the plan. The s 88B instrument in the present case made provision for various easements and, in item 5 of Part 1, a "restriction on the use of land", which was expressed to burden each lot in the subdivision for the benefit of every other lot. Upon registration of the plan as DP 1061723, the easements and restrictions took effect under s 88B(3). 8 Part 2 of the s 88B instrument stated the terms of the easements and restrictions. Under the heading "Terms of Restriction on the use of land fifthly referred to in the plan", there were provisions concerning various matters regarding the use and amenity of the subdivision lots, including provisions about the building materials that could be used for a building erected on a lot, the nature of roofing for such a building, the construction of a garage or outbuilding, permissible motor vehicles, fencing materials and construction of fences, the removal and lopping of trees, and restrictions on advertising hoardings and signs. 9 Paragraph (k) of Part 2 was as follows: "(k) Unless the Registered Proprietor obtains the prior written consent of Jessica [the plaintiff] the Registered Proprietor shall not: (i) construct more than one dwelling on the Lot Burdened, (ii) construct any building of the nature known as semi-detached duplex on the Lot Burdened, (iii) use or permit to be used the Lot Burdened for any purpose other than as a private dwelling, (iv) alter a building on the Lot Burdened in such a way as to create a further dwelling on the Lot Burdened, (v) subdivide the Lot Burdened, and (vi) operate or permit to be operated upon or about the Lot Burdened a child-care centre, kindergarten or other similar activity." 10 Part 2 of the s 88B instrument also stated: "In addition to the lots benefited by these restrictions on the use of land, for a period of five (5) years from the date of registration of the Plan Jessica shall be entitled to the benefit of these restrictions and may bring proceedings to enforce these restrictions notwithstanding that at the time of commencement of any such proceedings it may not itself be the proprietor of any lot benefited by these restrictions." 11 The plan was registered on 13 January 2004, and consequently this clause purported to permit the plaintiff to bring such proceedings as the present proceedings, which were commenced in September 2007. No issue was raised at the hearing with respect to the plaintiff's standing to bring the proceedings. The EPA Act 12 Section 28 of the EPA Act provides as follows: " 28 Suspension of laws etc by environmental planning instruments (1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made. (2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument. (3) A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision. (4) Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister. (5) A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of the Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence." 13 Section 28 "is designed to facilitate development and to overcome impediments placed on development so as to avoid sterilisation of land and it recognizes that the ultimate regulatory provisions in relation to the carrying out of development lie in the [EPA] Act" (Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 at 348 per Pearlman J). In Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777 at [62] Palmer J noted that the statutory language is expressed in general terms and he rejected an argument that a limitation should be implied. The Local Environmental Plan of Singleton Council 14 The LEP was made by the Minister for Urban Affairs and Planning pursuant to s 70 of the EPA Act on 2 July 1996. It is divided into 10 parts, including Part 1 - Preliminary, Part 2 - General Restrictions on Development of Land, and Part 4 - Urban Residential Development. Part 1 includes provisions about the aims and objectives of the plan, implementation of those aims and objectives, and the effect of the plan on other environmental planning instruments and covenants, and it also contains definitions for the LEP as a whole. 15 Amongst the aims and objectives of the plan, stated in clause 2, are: "(a) to provide a framework for controlling and coordinating development within the Singleton local government area; (b) to ensure the most appropriate and efficient use or management of land and natural resources; … ". 16 I note that according to s 25(3) of the EPA Act, where a provision of an environmental planning instrument is genuinely capable of different interpretations, an interpretation which best meets the aims, objectives, policies and strategies stated that instrument shall be preferred. 17 Those aims and objectives are implemented in the LEP in a number of ways, according to clause 3, including: "(c) specifying the development which may be carried out, without consent or only with the consent, on land within each zone; (d) specifying the development which is prohibited within each zone; … (g) suspending certain regulatory instruments where the operation of such instruments would prevent the carrying out of development in accordance with this plan; … ". 18 In my opinion the expression "regulatory instruments" in subpara (g) has the meeting given to that expression in s 28(1) of the EPA Act, given that the LEP is made under that Act and s 28 specifically authorises the suspension of a regulatory instrument. 19 Clause 6 is in the following terms: " 6. How does this plan affect covenants etc? 1) If any agreement, covenant or similar instrument prohibits a land use allowed by this plan, then it shall not apply to that land use (to the extent necessary to allow that land use). 2) In accordance with section 28 of the Environmental Planning and Assessment Act 1979, the Governor approved of subclause 1) before this plan was made." There are no definitions in the LEP applicable to words used in clause 6. Construction of clause 6 and para (k) 20 In my opinion item 5 in the s 88B instrument falls within the wording, in clause 6, "any agreement, covenant or similar instrument". In Coshott v Ludwig (1997) 8 BPR 15,519 at 15,521, the Court of Appeal of New South Wales held that a similarly expressed local environmental plan extended to private covenants. I see no reason to distinguish between private covenants and restrictions taking effect under s 88B. Whether or not the provisions of a s 88B instrument can strictly be described as amounting to an "agreement" or "covenant", the instrument is plainly a "similar instrument", because it operates similarly to a restrictive covenant upon land, so as to burden identified land for the benefit of other identified land. 21 That conclusion is reinforced by s 28(1) of the EPA Act, which includes, within the concept of "regulatory instrument" for the purposes of the section, "an agreement, covenant or instrument by or under whatever authority made". Item 5 in the s 88B instrument is, or is part of, a "regulatory instrument" for the purposes of s 28. It seems to me probable that the drafter of clause 6, purportedly made under the authority of s 28, had that concept in mind. I was referred to the definition of "instrument" in the Interpretation Act 1987 (NSW), s 3(1), which reflects a narrower concept (see also s 45(2)). I regard that definition, made only for the purposes of the Interpretation Act and not for the interpretation of other Acts or subordinate legislation, as irrelevant for present purposes. 22 Clause 6(1) only applies where the agreement, covenant or similar instrument "prohibits a land use", and then only if that land use is "allowed" by the LEP. This leads to three questions: (a) Do any of para (k)(i), (ii) and (v) "prohibit" activity? (b) If so, does the provision prohibit "a land use"? (c) If so, is that land use "allowed" by the LEP? 23 I shall consider each of these questions in turn. Counsel for the plaintiff submitted that the correct general approach to be taken to these questions, to the extent that they raise issues of construction of the EPA Act and clause 6 of the LEP, was described by McLelland CJ in Eq in Application of Thompson (unreported, Supreme Court of New South Wales, 25 October 1993, page 4), where his Honour said that if a provision "… is to derogate from vested proprietary interests (of which the benefit of a restrictive covenant is one form) it should not be construed in such a manner as to extend its operation in that regard further than its words clearly require, in accordance with well established principles relating to the construction of legislation and legislative instruments." 24 The principle underlying his Honour's observations is an important principle of construction. As Preston CJ pointed out in Cracknell and Lonergan Pty Ltd v Council of the City of Sydney [2007] NSWLEC 392 at [24] (citing Al-Kateb v Goodwin (2004) 219 CLR 562 per Gleeson CJ at [19], Lodhi v Regina (2006) 199 FLR 303 at [32]ff per Spigelman CJ, and JJ Spigelman, "Principle of Legality and the Clear Statement Principle" (2005) 79 ALJ 769), the presumption against interference with vested property rights has now been subsumed under the rubric of the principle of legality, underlying its fundamental importance. But care must be taken not to carry the principle too far. It was, with respect, properly applied in the case before McLelland CJ in Eq, where the environmental plan was expressed to prevail over agreements, covenants and instruments imposing restrictions as to the erection or use of more than one dwelling, and the question was whether a restrictive covenant that required any main building to face a specified street imposed such a restriction. But the principle does not prevent the court from concluding that environmental legislation expressed in clear terms overrides the right of a landowner who has the benefit of a restrictive covenant, and it is now established that s 28 of the EPA Act authorises the making of an environmental planning instrument that does so (Ludwig v Coshott (1994) 83 LGERA 22 at 35, 37 (Bryson J); affd (1997) 8 BPR 15,519; Owens v Longhurst [1998] NSWSC 387 at page 3 (Young J)). As Bryson J observed in Ludwig (at 35), "derogation from private rights in favour of controls imposed in the perceived public interest is the essential subject of town planning legislation, and there is no room for surprise when the application of the legislation in detail causes such derogations".

(a) Do any of para (k)(i), (ii) and (v) "prohibit" activity? 25 At first blush, the answer to this question seems to be simple. Para (k) states that the registered proprietor "shall not" do any of a number of things, including constructing more than one dwelling, constructing a semi-detached duplex and subdividing. That, it seems to me, it is a prohibition of those activities in accordance with the ordinary meaning of that concept. The prohibition is a qualified one, because it does not apply if the registered proprietor obtains the prior written consent of the plaintiff, but a qualified prohibition is nonetheless a prohibition (Foley v Padley (1984) 154 CLR 349, 358-9 per Gibbs CJ), even if the qualification has the effect of authorising some person or persons to remove the prohibition at will (Ex parte Cottman; re McKinnon (1934) 35 SR (NSW) 7, 11 per Jordan CJ). 26 In his submissions, counsel for the defendants distinguished between regulatory and prohibitory provisions, and called in aid case law (including the cases just cited) in which courts have considered, for other purposes, whether provisions similar to para (k) should be construed as prohibitory rather than regulatory. Having considered the cases to which counsel referred, my view is that they provide assistance only to the very limited extent of confirming that the concept of prohibition is capable of extending to a provision such as para (k). The cases provide no greater assistance because they are all cases about whether a rule cast in more or less prohibitory language was authorised by a power to "regulate". In that context it is likely that a broad concept of regulation, and a correspondingly narrow view of the circumstances in which the impugned rule is so prohibitory in operation as to go beyond the authority to regulate, will be adopted so as to validate the rule concerned. 27 Thus, in Ex parte Cottman; re McKinnon the question was whether a by-law made by the trustees of a public park, which said that "no person shall [engage in certain conduct] unless authorised in writing by the Commissioner of Police" was authorised by legislation which permitted the trustees to make by-laws regulating the use and enjoyment of the land vested in them. Notwithstanding the prohibitory language, Jordan CJ held that the by-law was authorised by the power to regulate. He emphasised that no universal test could be laid down to determine the validity of such a by-law, the question being whether the purported by-law "is really only regulative or is substantially prohibitive". The case is not, when properly understood, an authority on the meaning of "prohibition" per se. 28 In Swan Hill Corporation v Bradbury (1937) 56 CLR 746 the High Court held that a by-law which prohibited the erection of any building within the municipality unless with the approval of the Council was not within a statutory power to make by-laws "regulating and restraining the erection and construction of buildings". For Dixon J (at 763) the problem was that the by-law amounted to "an entire but conditional prohibition" upon the erection of all buildings, and therefore went beyond the power to "regulate and restrain the erection of buildings" (see also at 753 per Latham CJ and 755 per Rich J). The case was one where the scope of the prohibition, extending over the whole field for which regulation was authorised, prevented the by-law from being classified as regulatory. It was not a case about the concept of prohibition. The same can be said about Shanahan v Scott (1957) 96 CLR 245, esp at 253 per Dixon CJ, Williams, Webb and Fullagar JJ). 29 The issue in Foley v Padley was whether a statute authorising a City Council to make by-laws "regulating, controlling or prohibiting" certain activity authorised a by-law that said no person shall distribute anything in specified public places without the permission of the Council. By majority (Gibbs CJ, Wilson and Dawson JJ, Murphy and Brennan JJ dissenting) the High Court held that the by-law had been validly made. The principal issues considered by the High Court were whether the by-law had been made by proper exercise of the Council's discretion to make by-laws, and whether the granting of an unfettered discretion to the Council amounted to an impermissible delegation by the Council to itself of the by-law making power. Those matters are quite remote from the issue in the present case. 30 In O'Connell v Nixon [2007] VSCA 131 the statutory right of a member of the police force to appeal against a transfer decision was expressed to be "subject to the regulations". There was a broad statutory regulation-making power. The validity of a regulation which excluded a member of the force from appealing if he or she had not applied for transfer was challenged on the ground that the regulation was repugnant to the statute. The Court of Appeal of the Supreme Court of Victoria (Nettle JA, with whom Chernov and Redlich JJA agreed) held that the regulation was valid. Nettle JA (at [40]-[44]) rejected a submission that the regulation-making power could not be construed as authorising regulations prohibiting appeals altogether subject to a discretion to consent. But the reasoning does not shed light on the nature of the concept of prohibition, except by reiterating that in the context under consideration in that case, a power to regulate does not include a power totally to prohibit, and prohibition subject to a discretionary licence or consent is regarded as prohibition nonetheless. 31 In the result, the principal written submissions by counsel for the defendants, thoughtful though they were, did not carry me much beyond the point I had reached by reflecting on the natural meaning of the language of clause 6 and para (k) themselves. 32 Counsel for the plaintiff did not invoke the distinction between regulatory and prohibitory rules. Instead he drew a distinction, specifically in the environmental planning context, between instruments that "prohibit" a particular form of development and those that merely impose restrictions with respect to development. His contention was that para (k) imposes a potential restriction on development because its effect is to permit particular types of development only with the plaintiff's prior written consent, but that it does not, in the planning law sense, prohibit development. He submitted that there is a clear distinction in planning law between development that requires consent, development that does not require consent, and development that is prohibited. He said that an instrument that permits particular development with consent (whether of the relevant consent authority or otherwise) does not prohibit. 33 The heading of item 5 of Part 2 characterises those provisions as a restriction on the use of land. In my opinion, that does not help the court to decide whether para (k) of item 5 imposes a prohibition or merely a potential or actual restriction. The concept of a restriction on the use of land, for the purposes of s 88B of the Conveyancing Act, encompasses a restriction having the effect of an absolute prohibition, as well as a qualified restriction. 34 Counsel for the plaintiff sought to support his submission by relying on certain provisions of the EPA Act, in particular ss 30, 31, 76, 76A and 76B and the definition of "prohibited development" in s 4. In my opinion those sections do not support the central claim that the plaintiff needs to establish, namely that in planning law a rule that declares that certain conduct must not occur unless consent is obtained is not a rule that prohibits that conduct. 35 Section 26(1) of the EPA Act says that an environmental planning instrument may make provision with respect to controlling development. In order to make it clear that an environmental planning instrument may cover all three kinds of provision, ss 30 and 31 distinguish between: · an environmental planning instrument that provides that specified developments may be carried out without the necessity for consent; · one that provides that specified developments may not be carried out except with consent; and · one that provides that specified developments are prohibited. These provisions are reinforced by ss 76, 76A and 76B, which set out what can and cannot be done if an environmental planning instrument permits development without the need for development consent (s 76), or provides that development cannot be carried out except with consent (s 76A), or provides that development is prohibited (s 76B). 36 However, none of these sections denies, expressly or by implication, the proposition emerging from the analogous case law that I have identified, namely that an instrument of the second kind is, conceptually, a qualified prohibition. Indeed, ss 76A and 76B give indirect support to that conclusion. This is because those sections use substantially the same language to describe what cannot be done where an environmental planning instrument is issued that is of the second kind, or of the third kind. Where the instrument is of the third kind, and the word "prohibited" is regarded as appropriate to describe it, "a person must not carry out the development of the land". Where the instrument is of the second kind, although the legislation does not use the word "prohibited", nevertheless "a person must not carry out the development" unless consent is obtained. Where an instrument has the effect, absolutely or conditionally, that a person must not carry out a development, in my view it makes a prohibition. The definition of "prohibited development" in s 4, which confines that expression to instruments of the third kind, is not inconsistent with the idea that instruments of the second kind are a form of qualified prohibition. 37 Counsel for the plaintiff also referred to clause 16(2) and the zoning table in the LEP. Clause 16(2) is in the following terms: "16(2) Except as otherwise provided by this plan, in relation to land within a zone specified, the development which (a) may be carried out without development consent; (b) may be carried out only with development consent; and (c) is prohibited; is specified in the relevant Zoning Table under the headings 'Without development consent', 'Only with development consent' and 'Prohibited', respectively, appearing in the matter relating to the zone." 38 Clause 16 (2) and the zoning table reflect the distinctions in the EPA Act. Therefore, just as the provisions of the EPA Act should not be taken to imply that only an absolute prohibition is properly to be described as prohibiting land use for the purposes of the LEP, so also the provisions of the LEP itself should not be taken as implying such a restricted use of the concept of prohibition. Of course, if "prohibit" had been expressly defined in a narrow fashion for all purposes in the LEP, or if the proper inference to be drawn from reading the LEP as a whole was that the word "prohibit" and its cognate forms were to be construed as meaning "absolutely prohibit" or "prohibit without the possibility of consent", the outcome would be different. But in my view clause 16(2) and the zoning table, being found in a different part of the LEP, obviously drawing on the concepts in the EPA Act, and not reflecting a recurring usage of words in the LEP, cannot be taken as implying a restrictive construction of a provision found elsewhere in the LEP and bearing a wider ordinary meaning. 39 Counsel for the plaintiff also referred to clause 11 of the LEP, which deals with subdivision controls. He noted that under clause 11, land may be subdivided with the consent of the Council, and he asked how, in those circumstances, it could be said for the purposes of clause 6 that para (k)(v) prohibits subdivision. Assuming for present purposes that subdivision is "land use" for the purposes of clause 6 (a matter addressed below), the simple answer to counsel's question is that the concept of prohibition extends to a qualified prohibition, and consequently clause 11 itself is capable of being regarded as a prohibition, qualified by the exception for Council consent. 40 I have not been able to derive assistance, in the construction of the LEP and the s 88B instrument, from earlier decided cases dealing with whether an LEP clause made under s 28 has overridden a restrictive instrument. This is partly because, as counsel for the plaintiff pointed out, the wording of clause 6 of the LEP is unusual. It is more common, indeed universal in the cases cited by counsel or consulted by me, for the provision of a local environmental plan made under s 28 of the EPA Act to refer to an instrument that "imposes restrictions" on development or the erection and use of buildings, rather than one that "prohibits a land use": Application of Thompson at page 2; Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning at 343-4; Ludwig v Coshott at 26; Doe v Cogente Pty Ltd (1997) 94 LGERA 305 at 315; affd (1998) NSW Conv R 55-845; Natva Developments Pty Ltd v McDonald Bros Pty Ltd at [42]; Cracknell and Lonergan Pty Ltd v Council of the City of Sydney at [16]. 41 Additionally, para (k) is unusual in that it is a provision declaring that the registered proprietor shall not do certain things unless he or she obtains prior written consent of the developer. Only one of the cases to which I have just referred contained a restriction that could be overcome by obtaining consent, namely the Coles Supermarkets case. In that case the restriction was in a lease of a shop in a mall, which provided that the lessor had the right to improve the mall (other than the demised premises) as long as the alterations did not reduce the car parking facilities without the lessee's prior written consent. The subject matter of the lessee's consent was quite limited and there are no observations in the judgment in that case, or any of the other cases, that provide assistance on the question whether a provision to the effect that a registered proprietor shall not do certain things unless the developer's prior written consent is obtained is, for the purposes of the language of an LEP clause, a provision that "prohibits" land use. 42 When one considers the purpose of s 28 as explained by Pearlman J in the passage from her judgment in the Coles Supermarkets case that I have cited, and the variety of restrictions that might be taken to interfere with the implementation of planning objectives, the oddity of the plaintiff's position becomes manifest. On the plaintiff's construction, any restriction on use contained in a restrictive covenant or s 88B instrument that is made subject to a consent procedure, or indeed any other qualification, would survive the LEP and the granting of development approval, with the result that in the case of Singleton Council, the purposes of the legislation and the objectives of the plan would be undermined to a considerable degree. I cannot conceive of any rational basis for the Council to set out to achieve that result. If the drafter of clause 6 had intended the clause to have the narrow scope contended for by the plaintiff, and to leave in place as a constraint on approved development all manner of qualified restrictions, one would expect him or her to spell that intention out. 43 My conclusions, having reviewed the arguments, are that: · para (k) contains a series of provisions that prohibit specified conduct unless the plaintiff's prior written consent is obtained; · those provisions are qualified prohibitions, the qualification being that the prohibition does not apply if consent has been obtained; · it is in accordance with the ordinary meaning of the word "prohibit" and its cognate forms to describe qualified provisions such as the provisions of para (k) as "prohibiting" the activities to which the provisions are directed; · the EPA Act, the LEP, and planning law generally, provide no basis for adopting a more restricted concept of prohibition in clause 6 of the LEP than the ordinary meaning of that term; · consequently each provision of para (k), including each of para (k)(i), (ii) and (v), "prohibits" the activity that it designates, for the purposes of clause 6. 44 In my opinion this construction of clause 6 conforms to s 25(3) of the EPA Act, to the extent that it can be said that the contrary construction is "genuinely" available.

(b) If so, does the provision prohibit "a land use"? 45 These conclusions do not mean, however, that clause 6 of the LEP applies to the provisions of para (k)(i), (ii) and (v). In my view it does not apply, because the provisions of para (k)(i), (ii) and (v) do not prohibit "land use" for the purposes of clause 6. 46 Section 28(2) of the EPA Act is the provision that authorises the making of clause 6 of the LEP. It applies "for the purpose of enabling development to be carried out" and permits the environmental planning instrument to provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in the environmental planning instrument "shall not apply to any such development". Clearly one of the key concepts in subsection (2) is the concept of development. There are several definitional provisions relevant to this concept, as follows: " 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … 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 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. … (2) A reference in this Act to: (a) the use of land includes a reference to a change of building use, and … (f) the carrying out of development includes a reference to the use of land or a building, the subdivision of land, the erection of a building, the carrying out of work, the demolition of a building or work or the doing of any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument." " 4B 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. …." 47 Both the definition of "development" and s 4(2)(f) convey the idea that for the purposes of the EPA Act, the concept of development encompasses a number of things including the use of land, the subdivision of land, and the erection of a building. Conversely, each of those things is a subset of "development". 48 Moreover, those provisions treat the use of land as being conceptually distinct from the subdivision of land and the erection of a building on land. The separation of the concepts of use and subdivision is confirmed by s 4B(1), which shows that use comes after subdivision. That view was confirmed by McHugh ACJ, Hayne and Heydon JJ in Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472. Referring to the concept of development in the EPA Act, their Honours observed (at [42]) that where the subdivision of land is the relevant development, "the subsequent purchaser of a subdivided lot does not 'carry that development out' by occupying, and thus using, one of lots in the subdivision". 49 Other cases have drawn a distinction between subdivision and use of land, in various statutory contexts including the EPA Act. In Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works (1974) 48 ALJR 448, Victorian legislation provided that nothing in any interim development order prevented "the continuance of the use of land for the purposes for which it was being lawfully used" immediately before the order. The High Court (Menzies, Gibbs and Mason JJ) held that the word "use" did not include development of land, and accordingly an interim development order prohibiting use and development of land operated to prevent a developer from continuing with land development. The court noted that the Victorian legislation separately defined development and use of land, and on some occasions used the two words together; consequently the omission of the word "development" from the statutory provision protecting existing use was treated as significant. 50 That decision was applied to the definitional provisions of the EPA Act by Pearlman J in Lyne v Moree Plains Shire Council (1999) 110 LGERA 120 at [31]-[36]. Pearlman J's reasoning was applied by Cowdroy J in Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources [2005] NSWLEC 664 at [59]. In Young v Gosford City Council (2001) 120 LGERA 243, which also related to the definitional provisions of the EPA Act, McEwen J (at [30]) referred to the Nancy Shetland and Lyne cases and summarised the position by saying: "It has been accepted that subdivision per se is not a 'use', but the rearrangement of boundaries or allotments which does not approve any particular use …". 51 Clause 6 of the LEP was authorised, if at all, by s 28(2), the scope of which depended on the defined concept of development. The section permitted the environmental planning instrument to override regulatory instruments affecting all or any of the activities falling within the concept of development. In my opinion, by using the words "land use", rather than by using the defined term "development" or listing the ingredients of that definition, the drafter of clause 6 selected only part of what was encompassed by the concept of development, namely the use of land. 52 As a matter of ordinary meaning, there is a difference between "land use", on the one hand, and on the other hand subdividing land or erecting a building on land. By the words chosen, the drafter caused clause 6 to be limited so as not to apply to subdivision and erection of buildings. 53 While, for reasons I have given, it would have been irrational for the drafter of clause 6 to limit its scope to absolute as opposed to qualified prohibitions, it was not rational for the drafter to limit the clause to only one kind of development, namely the use of land. It would be rational to take the view that a regulatory instrument should be allowed to prevail insofar as it prohibits subdivision and the erection of buildings, where the interests of owners of lots in the subdivision (and perhaps the interests of the developer) would be directly and immediately affected by the prohibited activity, while also taking the view that a regulatory instrument purporting to prohibit certain uses of the land on an ongoing basis after subdivision or building should yield to the public environmental planning process for the benefit of the community in the longer term. 54 In terms of para (k), it would not be irrational for the view to be taken that the prohibitions in subparagraphs (i), (ii), (iv) and (v) should remain notwithstanding any inconsistent environmental planning instrument, whereas the prohibitions in subparagraphs (iii) and (vi), matters relating to use of the land on an ongoing basis, should yield to public environmental planning. 55 Clause 6 uses the expression "land use" whereas the EPA Act speaks of "the use of land", but in my opinion the concepts are the same and the fact that the drafter chose to use the words in reverse order does not itself signify an intention to depart from the concepts used in the statutory authorisation. 56 I have considered whether a different outcome would be authorised by s 25(3) of the EPA Act. In my opinion, the wording of clause 6, specifically the expression "land use", is so clear, when considered in the context of the language of the EPA Act which authorises the clause, that it is not "genuinely capable of different interpretations", and accordingly s 25(3) is inapplicable. Counsel for the defendants submitted that the expression "land use" should be given a broad construction, indeed so broad that the whole of the LEP is about land use, in his submission. I disagree. The submission does not grapple with the fact that the EPA Act draws a distinction between the use of land and other subcategories of development including subdivision and erection of buildings. 57 In my view subparagraphs (i), (ii) and (v) of para (k) do not relate to "land use" for the purposes of clause 6, and therefore those subparagraphs are not affected by clause 6 or by the development consent issued to the defendants by Singleton Council. The activity described in subparagraph (i) is construction of more than one dwelling, an activity to be contrasted with the use of the land after that construction by occupation of the dwelling (the dwelling being, as counsel for the defendants stressed, part of the "land" as defined in s 4(1) of the EPA Act). The subparagraph deals with density of development, not land use. The activity in subparagraph (ii) is the construction of a semi-detached duplex, a different activity from the use of the land by occupation of the duplex once it is constructed. The subparagraph deals with building design, not land use. The activity described in subparagraph (v) is subdivision of the Land, an activity which (as s 4B and the cases confirm) is anterior to the use of the subdivided land.

(c) If so, is that land use "allowed" by the LEP? 58 Since clause 6 does not apply to para (k) (i), (ii) and (v) because they do not relate to land use, the question whether any of those activities is allowed by the LEP does not arise. Conclusions 59 The answers to the questions for separate determination are as follows: (a) none of the provisions of paragraph (k)(i), (ii) or (v) of the restriction on the use of land noted on DP 1061723 prohibits land use allowed by the Singleton Local Environmental Plan; (b) question (b) does not arise. 60 I shall direct the plaintiff to bring in draft short minutes of orders and hear argument as to costs. I shall also give directions to prepare the balance of the case for trial. **********

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