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[1999] NSWCA 213
Court of Appeal (NSW)
1999-03-31
Priestley JA, Meagher JA, Giles JA, Sheahan J
Original judgment source is linked above.
New South Wales Court of Appeal CITATION : Kinley v Wyong Shire Council [1999] NSWCA 213 FILE NUMBER(S) : CA 40694/98 HEARING DATE(S) : 31 March 1999 JUDGMENT DATE : 23 July 1999
PARTIES : Bruce KINLEY v WYONG SHIRE COUNCIL JUDGMENT OF : Priestley JA at 1; Meagher JA at 8; Giles JA at 17
LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 10786/97 LOWER COURT JUDICIAL OFFICER : Sheahan J
COUNSEL : Appellant: M. Macrossan Respondent: W. O'Rourke (sol) SOLICITORS : Appellant: Brennan Blair & Tipple Respondent: Deacons Graham & James CATCHWORDS : Appeal from Council's refusal to grant Development Application for Subdivision - land in more than one zone - interpretation of LEP clause - where clause held not to apply, it cannot be complied with for purposes of application to subsequent clause. DECISION : Leave to appeal granted; Appeal allowed.
Friday, 23 July 1999. Bruce KINLEY v WYONG SHIRE COUNCIL
1 PRIESTLEY JA: I have had the benefit of reading in draft Meagher JA's opinion in this proceeding in which he has set out the necessary materials. 2 Clause 13 of the LEP prohibits subdivision of land to which the LEP applies except with Council consent. Therefore, unless the LEP contains some prohibition preventing the Council from consenting to Mr Kinley's application, he can make the subdivision he wants, if Council consents. 3 The only prohibition the Council has pointed to is that in cl 14(2). 4 The answer by Sheahan J to question 4 of a number of questions he answered, was that cl 14(2) did not apply to the subdivision of land within more than one zone. 5 It seems to me to follow from the answer that there is no prohibition of the subdivision for which Mr Kinley is applying. Thus, if Sheahan J's answer to question 6 means, as both parties appear to have taken it to mean, that Mr Kinley's application must satisfy the conditions of cl 14(2), with respect, I disagree. Sheahan J's answer is only supportable if his answer to question 4 is given a meaning different from what seems to me to be its most obvious and likely meaning. 6 I therefore agree with the orders proposed by Meagher JA. 7 Since writing the above I have had the benefit of reading Giles JA's opinion in draft form. The reasoning is forceful but has not persuaded me to change my previous conclusion. This is primarily because Giles JA's reasons appear to me to reinforce my earlier view that the principal issue in this appeal is the construction, not of the planning instrument, but of Sheahan J's answer to question 4; and although Giles JA certainly shows that that question of construction is debatable, it is still my opinion that the meaning adopted by Meagher JA of Sheahan J's answer to question 4 is the one most readers would take as the obvious one. 8 MEAGHER JA: This is an appeal from a decision of Sheahan J in the Land and Environment Court who adjudicated upon an appeal by Mr Kinley against the Wyong Shire Council's refusal of an application to subdivide certain land. The appellant owns certain land which is already zoned partly within one zone and partly within another. He then lodged the development application to which I have referred proposing to subdivide a two-hectare block into two blocks, each of one hectare. Under his development application one of the two new proposed blocks, Lot 1131, would be all within zone 7(c) ("Scenic Protection:Small Holdings Zone"), the other Lot 1132 partly (ie 60%) within zone 7(c)(i) and partly (ie 40%) within zone 7(a)("Conservation"). 9 Clause 14 of the relevant LEP, insofar as it is relevant, is in the following terms: "(1) This clause applied to land within Zone No 1(a),1(c),7(a),7(b),7(c),7(d),7(e) or 7(f). (2) Except as provided by subclauses (3) …, a person shall not subdivide land to which this clause applies so as to create an allotment having an area of less than - (a) in the case of land within Zone No.1(c),7(a),7(d),7(e) or 7(f) - 40 hectares; (b) in the case of land within Zone No.1(a) or 7(b) - 20 hectares; (c) in the case of land within Zone No.7(c) - 2 hectares. (3) A person may, with the consent of the Council - (a) subdivide land to which this clause applies where - (i) the land is partly within one zone and partly within another zone; (ii) the area of the land within one of the zones is not less than the area specified in subclause (2) in respect of that zone; (iii) the area of the land in the other zone is less than the area specified in subclause (2) in respect of that zone; and (iv)one of the allotments to be created by the subdivision comprises the whole of the land referred to in subparagraph (iii); or (b)….." 10 Clause 15, insofar as relevant, is in the following terms: "(1) Except as otherwise provided by this plan and subclauses (2) and (3), a person shall not subdivide land so as to create an allotment partly within one zone and partly within another zone. (2) A person may subdivide land so as to create an allotment partly within one zone and partly within another zone provided that the number of allotments so created does not exceed the number of allotments, constituting the same land, similarly affected prior to the subdivision." (3) The Council may, where the topography of the land to be subdivided makes it necessary, consent to a subdivision in which the boundaries of an allotment of land with Zone No 7(a) that borders on land within another zone do not correspond precisely with the relevant boundaries of the land within Zone No 7(a), as shown on the map, but which depart from those boundaries only to a minor extent". 11 The LEP is not distinguished for its brevity nor its clarity. It has led to procedural skirmishes of some complexity between the parties, and to bouts of litigation culminating in two cases before Sheahan J. His Honour has given two judgments, one on 19 February 1998 and another on 28 July 1998. In the former, the parties proposed that his Honour answer five questions, which he did. Of these, only the fourth matters for present purposes. That question and answer are in the following form: "Q:Does clause 14(2) of the Wyong Local Environment Plan 1991 apply to the subdivision of land which is within more than one zone." " A :No." 12 The Council is now content with his Honour's answers. There is no cross-appeal. The appellant, Mr Kinley, is also content with it, so far as his primary submissions to this Court are concerned. If it matters, I think his Honour was plainly right. The draftsman of cl. 14 was quite able to state which provisions of the clause apply to land partly within one zone and partly within another. He did so in cl. (14)(3). One must, therefore, assume cl. 14(2) does not apply to such land. 13 In the second litigation the parties submitted a new question to his Honour, question 6. It was as follows: "Assuming the terms of subclause 15(2) of the Wyong LEP are satisfied, must a subdivision of land partly within zone 7(a) and partly within zone 7(c) also satisfy the conditions of any other provision or provisions in the LEP before it is permissible with consent, and, if so, which provision/s?" 14 His Honour answered it thus: "Yes; a subdivision proposal which falls within cl 15(2) of Wyong LEP, but deals with land in zones to which cl 14 applies, must also satisfy the conditions of cl 14" 15 Mr McCrossan, learned counsel for Mr Kinley, concentrated his heavy armour on the answer to question 6. I do not blame him, because the answers to questions 4 and 6 seem contradictory. I might add that the parties seem to have agreed that clause 15(2) posed no problems to the subdivision. By stating that the applicant had to comply with "the conditions of clause 14", one can only assume his Honour was referring to cl.14(2), but this is the very sub-clause which his Honour, in answer to question 4, held did not apply. 16 I propose the following orders should be made:
(b) whether or not such allotments still form part of the land to be subdivided. 3. Whether subclause 14(7) of the Wyong LEP operates as a development standard within the meaning of section 4 of the Environmental Planning and Assessment Act 1979.
(2) Except as provided by subclauses (3) and (4), a person shall not subdivide land to which this clause applies so as to create an allotment having an area of less than - (a) in the case of land within Zone No 1(c), 7(a), 7(d), 7(e) or 7(f) - 40 hectares;
(b) in the case of land within Zone No 1(a) or 7(b) - 20 hectares;
(c) in the case of land within Zone No 7(c) - 2 hectares. (3) A person may, with the consent of the Council - (a) subdivide land to which this clause applies where - (i) the land is partly within one zone and partly within another zone;
(ii) the area of the land within one of the zones is not less than the area specified in subclause (2) in respect of that zone;
(iii) the area of the land in the other zone is less than the area specified in subclause (2) in respect of that zone; and
(iv) one of the allotments to be created by the subdivision comprises the whole of the land referred to in subparagraph (iii); or
(v) the person makes a contribution in accordance with subparagraph (ii) and land within Zone No 7(a) is included in common property in accordance with subparagraph (iii). (b) subdivide land within Zone No 7(c) so as to create one or more allotments of less than 2 hectares but not less than 1 hectare where the average of the areas of all the allotments in the subdivision is not more than 2 hectares and where -
(i) the person dedicates to the Council as a public reserve land within zone No 7(a) which is in the same ownership as the land within Zone No 7(c);
(ii) the person contributes to the Council an amount of money to be used by the Council for the purchase of land within Zone No 7(a) for use as a public reserve or for the improvement or embellishment of any public reserve owned by the Council which is within Zone No 7(a);
(iii) the plan of subdivision is a strata plan, within the meaning of the Strata Titles Act 1973, which includes as common property land within Zone No 7(a) which adjoins land within Zone No 7(c) and that part of the common property which is within Zone No 7(a) is accessible from each of the lots in the strata plan;
(iv) the person dedicates land within Zone No 7(a) in accordance with subparagraph (i) and makes a contribution in accordance with subparagraph (ii); or …
(7) Where land is subdivided in accordance with subclause (3)(b), the total number of allotments that may be created by one or more subdivisions made at any time before or after the appointed day shall not exceed the number of hectares of the land within Zone No 7(c) adjusted down to the nearest whole number." 6 His Honour answered the first three questions in the affirmative and the last two questions in the negative. For present purposes, the key question was question 4. As to that question his Honour's reasons were brief - "As cl 14(2) provides that subdivision shall not be allowed other than by the provision of minimum areas, unless allowed pursuant to (3) and (4), I believe that, cl 14(3)(a) providing specifically for land partly within one zone and partly within another, cl 14(2) applies to land wholly within the zones nominated within its sub paragraphs. Council submits that all the land must be within the one zone or cl 14(3) would have no work to do. Cl 15(2) also provides for subdivision of land partly within one zone and partly within another. I do not accept the submission by the applicant that the language of cl 14(1) requires that some specific exclusion would be necessary in the words of cl 14(2) for the answer to this question to be no. I believe the correct answer to the question, and the correct construction of cl 14(2), is that advocated by the Council and I answer the question in the negative." 7 It is necessary to understand the positions taken by the parties, which were summarised by his Honour as follows - "The applicant's contention is that the subdivision is permissible under cl 14(3)(b) and that cl 14(7) is a development standard and not a prohibition. In the event that the Court holds that the subdivision is not permissible under cl 14(3)(b), the applicant would rely on 14(2) and a SEPP 1 objection.
Council's contention is that 14(2) is amenable to SEPP 1 but that 14(2) applies only to land specified in it, and not to land which is in more than one zone, because such land is dealt with specifically in cl 14(3)(a)." The summary was not entirely accurate, and what follows is a reconstruction from the arguments presented with the assistance of statements from the Bar table. 8 Mr Kinley's position was that cl 14(2) applied to his land and, subject relevantly to cl 14(3), prohibited his subdivision; but that cl 14(3)(b) enabled subdivision with the Council's consent, or alternatively he could escape the prohibition in cl 14(2) by an objection pursuant to State Environmental Planning Policy No 1 ("SEPP 1"). Mr Kinley's interest was in establishing that he could take one or other of the cl 14(3)(b) route and the SEPP 1 route to escape the prohibition which he accepted existed. As his counsel said in this Court - "… the way we approached the first hearing before his Honour was that we hadn't presumed for a minute that question 4 would be an issue. We had assumed that effectively the opposite of what his Honour said originally in relation to question 4. We had presumed we were caught by 4 too, and that's why we were arguing exception. We were surprised when his Honour gave us the answer he gave us to question 4." 9 The Council's position, which was repeated in this Court, was that cl 14(2) applied to Mr Kinley's land, but did not apply to a subdivision of Mr Kinley's land because the land was within more than one zone. As I understand it, the Council meant by this that a subdivision of Mr Kinley's land could not satisfy any of the area requirements in paras (a), (b) and (c) of cl 14(2), and so cl 14(2) prohibited the subdivision. The Council then took issue with matters going to the availability of the cl 14(3)(b) and SEPP 1 routes to escape the prohibition. 10 The Council's position that cl 14(2) did not apply to a subdivision of Mr Kinley's land explains question 4 and its terms. The Council saw cl 14(2) as containing both a prohibition (no subdivision) and an escape from the prohibition (unless the area requirements were satisfied), the escape from the prohibition within cl 14(2) being separate from the escape via cl 14(3). The Council intended that the question resolve whether the escape route within cl 14(2) was available to Mr Kinley. 11 This is where the matter seems to have run off the rails. Mr Kinley agreed that, subject relevantly to cl 14(3), cl 14(2) prohibited his subdivision. Question 4 as raised was an unnecessary question, because Mr Kinley was not contending that he could satisfy any of the area requirements in paras (a), (b) and (c) of cl 14(2) - on any view, he could not, because lots 1131 and 1132 each had an area of only one hectare. It did not matter whether the escape route within cl 14(2) was precluded because Mr Kinley's subdivision was of land within more than one zone. 12 Why was the question asked? In this Court Mr Kinley argued, seeking to support the answer no to question 4, to the effect that cl 14(2) did not contain both a prohibition (no subdivision) and an escape from the prohibition (unless the area requirements were satisfied), but only a qualified prohibition part of which was that an area requirement in paras (a), (b) or (c) was not satisfied. If that part of the prohibition was not attracted to Mr Kinley's subdivision, there was no prohibition at all, and it was said that the answer to question 4 meant that that part of the prohibition was not attracted. There may have been involved in question 4 whether cl 14(2) operated as a prohibition plus an escape, on the one hand, or a qualified prohibition, on the other hand. But it is plain that Mr Kinley did not contend before Sheahan J that cl 14(2) operated only as a qualified prohibition, and did not preclude his subdivision because its ingredient of an area requirement was inapplicable where his land was within more than one zone. And what the Council meant by cl 14(2) not applying to a subdivision of Mr Kinley's land does not seem to have been made clear to, or appreciated by, Mr Kinley, who should have come to understand why the question was being asked. 13 His Honour's reasons for his answer to question 4, with respect, are far from clear. It is apparent that Mr Kinley submitted that the answer should be yes, but his Honour's summary of the submission suggests that Mr Kinley concentrated on the application of cl 14(2) to Mr Kinley's land rather than its application to a subdivision of Mr Kinley's land - cl 14(1) refers to its application to land within zones, gathered disjunctively, and the submission sought to distinguish cl 14(2). His Honour accepted the Council's submission that "all the land must be within the one zone or cl 14(3) would have no work to do" and held that "cl 14(2) applies to land wholly within the zones nominated within its sub paragraphs". Despite the language of application to land rather than to a subdivision of land, if his Honour accepted the Council's argument he can not have meant that there was only a qualified prohibition. He accepted the construction of cl 14(2) for which the Council had argued, and must have accepted that it contained a prohibition and an escape and that the escape route was not available where the land was within more than one zone. This is supported by his Honour's reasoning, it seems being that cl 14(3)(a) provided specifically for land partly within one zone and partly within another and so that the zonings in cl 14(2) were sole zonings. (b) Stage 2 14 Mr Kinley's surprise at the answer to question 4 must have been a pleasant surprise. He took the answer to mean that there was no prohibition on his subdivision pursuant to cl 14(2). In the absence of some other prohibition on the subdivision, and the agreed questions did not suggest some other prohibition, he thought he could subdivide lot 113 with the consent of the Council. 15 To Mr Kinley's puzzlement, the Council still maintained that the subdivision was prohibited. The failure in making clear, or appreciating, the Council's position continued. The parties agreed on a sixth question for the Court - "Assuming the terms of subclause 15(2) of the Wyong LEP are satisfied, must a subdivision of land partly within Zone 7(a) and partly within Zone 7(c) also satisfy the conditions of any other provision or provisions in the LEP before it is permissible with consent, and, if so, which provision/s?" 16 Clause 15 of the LEP provides so far as material - "15(1) Except as otherwise provided by this plan and subclauses (2) and (3), a person shall not subdivide land so as to create an allotment partly within one zone and partly within another zone. (2) A person may subdivide land so as to create an allotment partly within one zone and partly within another zone provided that the number of allotments so created does not exceed the number of allotments, constituting the same land, similarly affected prior to the subdivision. (3) … " 17 Again it is necessary to understand the positions taken by the parties. It was common ground that cl 15(2) was satisfied, hence the assumption at the beginning of question 6. Mr Kinley's position, in the belief that by virtue of the answer to question 4 then was no prohibition on his subdivision pursuant to cl 14(2), was that no other provision of the LEP imposed a prohibition. His interest was in establishing that position by a no answer to question 6, so that there could be subdivision with the Council's consent even without taking a cl 14(3)(b) or SEPP 1 route. The Council's position was that the conditions of cl 14 had to be satisfied, in that cl 14(2) prohibited the subdivision because it applied to Mr Kinley's land and one of the escape routes had to be available to Mr Kinley - all question 4 had decided was that the escape route within cl 14(2) was not available to him. The matter was still off the rails, because question 6 flowed from unknowingly different understandings of question 4 and its answer. 18 In reasons delivered on 14 August 1998 his Honour answered question 6 in the terms - "Yes; A subdivision proposal which falls within cl 15(2) of Wyong LEP, but deals with land in zones to which cl 14 applies, must also satisfy the conditions of cl 14." 19 His Honour's reasons set out the submissions of Mr Kinley and the Council. The submissions of Mr Kinley reflected his position as I have described it, and included that cl 14(3)(a) "is an exception to the prohibition in cl 14(2), but is irrelevant in this case" (no doubt on the basis that there was no prohibition by virtue of cl 14(2)); his Honour's summary also included, "He submits that what the Council is really asking me to do is to qualify my previous decision in respect of cl 14(2)". 20 His Honour's summary of the Council's submissions should be set out in more detail, because he accepted the Council's "construction". The submissions included - "The Council contends that cl 14(1) means that cl 14 must apply to this proposed subdivision. To succeed and get the subdivision through without complying with cl 14, Kinley must put a gloss on question 4 which will affect the interpretation of my answer to it. The applicant needs an interpretation that means cl 14(2) does not apply to land within two zones as distinct from not applying to a subdivision of land that is within two zones. Council submits that cl 14(2) clearly applies to this proposal because the Kinley land is within one (or more) of the zones specified in cl 14(1). The prohibition in cl 14(2), therefore, clearly remains and the applicant must find an exception to it, such as cl 14(3)(a). Without complying with cl 14(3)(a), the regime in cl 14 regime [sic] precludes the subdivision of this land, even if cl 15(2) is completely satisfied. … My finding in respect of cl 14(2), on Council's submission, is that it does not make Kinley's subdivision permissible, but it does apply to the land. It therefore continues to operate as a prohibition - even though the proposal of the applicant might satisfy cl 15(2), it cannot receive consent under cl 13 because it does not come within any of the exceptions in cl 14. Council acknowledges that this may be an unintended result of the drafting of the LEP but there is no other provision in the LEP to make cl 15 relevant to the zones in cl 14. There are clearly many zones within the Council area that are beyond cl 14, so cl 15 still has work to do." 21 His Honour's conclusions were expressed - "Clause 9 of the LEP establishes 30 zones. Clause 15 applies to subdivision of land which falls within any two zones. Kinley's land complies with cl 15(2) and falls within only two zones. Both of those zones are in the list of 8 heading cl 14. Clause 14(1) is absolutely clear on its face. If the land sought to be subdivided falls within one or more of the 8 zones that clause specifies, the provisions of cl 14 apply to the proposal. In those circumstances, cl 14 has an overriding effect, even though a proposal for subdivision complies with cl 15 in all other respects. The construction advanced on Council's behalf is correct, even though, as Mr O'Rourke conceded on its behalf, this may be an unintended consequence." 22 Again with respect, his Honour's reasons for his answer to question 6 are not comprehensive. But when read with the summaries of the submissions, they make it clear enough that two views of what question 4 and its answer meant were put to his Honour, and that his Honour thought that the question and its answer did not mean that Mr Kinley's subdivision was "permissible". The distinction between cl 14(2) applying to Mr Kinley's land and applying to a subdivision of Mr Kinley's land was made express, and his Honour must have considered that the distinction was a valid one, and had been taken up in the language of question 4. He must also have considered that the answer to question 4 did no more than exclude an "exception" to the prohibition in cl 14(2), so that it was necessary to find another exemption such as cl 14(3)(a). The appeal to this Court 23 Mr Kinley sought leave to appeal from his Honour's decisions so far as he had answered questions 4 and 6. The application for leave to appeal was heard as if an appeal, so that the appeal could be disposed of if leave to appeal were given. 24 Mr Kinley's preferred position was that the answer to question 4 was correct, and he submitted that the answer to question 6 could not stand with the answer to question 4 and was incorrect. He said that the only part of cl 14 which could operate to prohibit the subdivision of lot 113 was cl 14(2), and that the effect of the answer to question 4 was that it did not prohibit that subdivision. If the answer to question 4 was correct, the answer to question 6 had to be incorrect, and vice versa. 25 The Council's position also was that the answer to question 4 was correct, but it submitted that the two answers could stand together because question 4 was concerned with whether cl 14(2) applied to a subdivision of Mr Kinley's land as distinct from whether it applied to Mr Kinley's land. The distinction between the two applications in the manner I have described was brought out. Discussion 26 If question 4 be understood as asking whether cl 14(2) applies to Mr Kinley's land, that is, applies to lot 113 being land partly within one zone and partly within another zone, in my opinion the answer must be yes. Clause 14(2) states a prohibition, subject to various escape routes, on the subdivision of land to which cl 14 applies. There is nothing in cl 14(1) specifying the land to which cl 14 applies to exclude from the land to which it applies land within more than one zone, and the specification is disjunctive. Clause 14(3)(a) shows that the prohibition must apply to land within more than one zone, since it operates as an exception to the prohibition: the exception must be of something otherwise within the prohibition, 27 On a proper understanding of the question, revealed in the manner I have explained, that was not what his Honour was addressing. He was addressing whether the escape route of a minimum area within paras (a), (b) and (c) of cl 14(2) was available where the land was within more than one zone, and he gave the answer no. Nor was his Honour addressing whether cl 14(2) operated as what I have called a qualified prohibition - Mr Kinley had not argued for that. The issue his Honour was addressing was a false issue, because Mr Kinley could not and did not seek to take that escape route. The answer to the question, properly understood, left cl 14(2) operating as a prohibition on subdivision applying to Mr Kinley's land. 28 With the proper understanding of question 4, the answer to it is not inconsistent with the answer to question 6. Whether cl 14(2) operated as what I have called a qualified prohibition was still not part of the question. On that basis, the answer to question 6 was correct: cl 14(2) applies to land within more than one zone, it prohibits subdivision subject to escape routes, and its "conditions" must be satisfied in that the prohibition operates unless an escape route is available. 29 This is a sorry tale of confusion and misunderstanding. No doubt it seemed a good idea at the time, but what happened in the Land and Environment Court is a reminder that posing questions of law for separate decision will often impede the proper disposal of the dispute. With the benefit of hindsight, it would have been better for Mr Kinley's appeal to the Land and Environment Court to have been heard as a whole. The result 30 As can now be seen, question 4 was abysmally obscure. In the circumstances I have described, his Honour's answer did no more than determine, as between Mr Kinley and the Council, that Mr Kinley's subdivision could not satisfy an area requirement in para (a), (b) or (c) of cl 14(2) because his land was in more than one zone. The question and its answer will have no other precedential value. The determination does not matter as between Mr Kinley and the Council, because Mr Kinley's subdivision could not satisfy the area requirements quite apart from the zoning conclusion. 31 There is no inconsistency between his Honour's two answers. On a proper understanding of question 4 and its answer, there is in reality nothing to appeal about. In my opinion the application for leave to appeal should be refused with costs.
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Kinley
Wyong Shire Council