Findings
25 In Sealark, land which was the subject of an application for subdivision was zoned partly rural and partly residential. The applicant had sought to subdivide the rural land pursuant to cl 11 of the LEP which enabled it to do so. But the Court of Appeal held that cl 11, which applied only to the rural land, did not enable the council to grant consent to the applicant's proposed subdivision because the clause did not apply to the land zoned residential. Foster AJA (Ipp JA concurring) held that the primary judge was correct in holding that the clause could not apply where the land the subject of the subdivision application was partly rural and partly residential, and the provisions of the clause only apply to lands having the zoning referred to in the clause itself.
26 In my opinion, the question can be resolved by the simple application of statutory construction. I am able to find, consistent with the judgment in Sealark, that there is power to grant consent to the proposed subdivision for the following reasons.
27 The 1(c2) land is subject to the former LEP and, in particular, to cll 10 and 12 of that instrument, noted in par [6] above. In relation to that land each of the proposed allotments would have an area of not less than two hectares. The first allotment - allotment 1321 - would have an area of 2.9 hectares and is wholly within the 1(c2) zone under the former LEP and the second allotment - allotment 1322, which is partly within 1(c2) zone and partly within the 1(d) zone under the current LEP - would have an area of 6.3 hectares of which not less then two hectares is within the 1(c2) zone.
28 I accept, however, that since part of the land proposed to be subdivided is partly within the 1(d) zone under the current LEP, then the requirements of the provisions of that LEP as they apply to that zone must be complied with.
29 I reject the council's submission, noted in par [19] above, that the 1(d) land can only be subdivided pursuant to cll 11(2), (3), (4) and (5) of the current LEP. The opening words of cl 11(5) are: "Despite any other provision of this clause….". Clause 11(5) is thus an exception. It also follows that I reject the council's submission, noted in par [21] above, that the proper construction of cl 11 and/or cl 12 requires that the subdivision must be refused as the proposed allotment 1322 is less than 40 hectares.
30 The council relies upon cl 11(1) of the current LEP to say that the clause applies only to land which is specified in that clause and which does not include land within the 1(c2) zone under the deferred zoning provisions of earlier LEP. The council also relies upon cl 11(5) which, it says, again only applies to "land to which this clause applies". Clause 11(5), however, creates an exception allowing consent to be granted to the subdivision where "the proposed lot" has a lawfully erected dwelling house situated "on it" (sub-cl (5)(a)) - that is, on the lot to be created - and, importantly, where the proposed lot "adjoins land within a zone to which this clause does not apply…". It is these provisions which distinguish the present case from the provisions which were considered in Sealark.
31 In the present case the proposed subdivision clearly falls within the exception under sub-cl(5) of cl 11. It will create a lot of less than 40 hectares, the proposed allotment has a lawfully erected dwelling house situated on it and the proposed allotment adjoins land within a zone to which cl 11 does not apply and which is within the same ownership as the proposed allotment immediately before the creation of the proposed allotment. That is, the proposed subdivision satisfies cl 11(5) of the current LEP and is not prohibited by s 80(2) of the EP&A Act.
32 It is appropriate that the Court answer the separate question for determination as follows:
Whether there is power under clause 11(5)(a) of the Shoalhaven Local Environmental Plan 1985 , as amended 1999, to approve the creation of the proposed residue allotment 1322.
Answer: Yes - by the combined operation of cll 11(5)(a) and (b).