Kirkwood & Anor v Shoalhaven City Council

The background facts 3 The subject land comprises at present an elongated parcel of some 9.2 hectares. The proposed allotment 1321 would have an area of 2.9 hectares and the proposed allotment 1322 would have area of 6.3 hectares. There is an existing dwelling house on the land which would be within the proposed allotment 1322. 4 Two versions of the Shoalhaven Local Environmental Plan 1985 apply to the subject land. The first is the former Shoalhaven Local Environmental Plan 1985 as it was in force on 15 July 1999 (which I will call "the former LEP") which contains deferred zoning provisions and the second is the current Shoalhaven Local Environmental Plan 1985 with all amendments to date (which I will call "the current LEP"). The subject land comprising proposed allotment 1321 and part of proposed allotment 1322 is zoned 1(c2) - Rural "C2" Zone - under deferred zoning provisions of the former LEP and the rear part of the subject land comprising the residue of proposed allotment 1322 is zoned 1(d) - Rural "D" - under the current LEP. A small portion of proposed lot 1321 is also within zone 7(a) - Environment Protection "A" (Wetlands) - under the current LEP, but it is so insignificant that the parties agreed that it may be ignored. The existing dwelling house is within the 1(c2) zone to which the former LEP still applies. 5 In other words, the whole of proposed allotment 1321 comprising 2.9 hectares is within the 1(c2) zone under the former LEP, apart from a small and inconsequential part which is within the 7(a) zone under the current LEP. Of proposed allotment 1322 about 2.3 hectares (which includes the existing dwelling house) is within the 1(c2) zone under the former LEP and about 4 hectares is within the 1(d) zone under the current LEP. The position is best understood by reference to the diagram attached to this judgment. 6 The council's power to grant consent to an application for the subdivision of land within the 1(c2) zone under the former LEP is contained in cll 10 and 12 of that LEP. Clause 10 relevantly states that land to which that LEP applies shall not be subdivided except with the consent of the council. Clause 12 of the former LEP relevantly states: (1) The Council may consent to an application to subdivide land in Zone No. 1(c1), 1(c2) or 1(c3) if - (a) each separate allotment to be created thereby has an area of not less than - (i) in the case of land within Zone No. 1 (c1) - 1 hectare; (ii) in the case of land within Zone No. 1 (c2) - 2 hectares; (iii) in the case of land within Zone No. 1 (c3) - 10 hectares; (b) the ratio of depth to frontage of each allotment is satisfactory having regard to the purposes for which it is to be used; (c) a contour survey satisfactory to the Council has been carried out in respect of the whole of the land proposed to be subdivided; and (d) any allotment so created shall not have direct frontage access to a main road, provided that the Council may permit direct access to a main road if the land is landlocked and no alternative means of access is available. 7 The council's power to grant consent to an application for the subdivision of land within the 1(d) zone under the current LEP is contained in cll 10 and 11 of that LEP. Clause 10 relevantly states that land to which that LEP applies shall not be subdivided except with the consent of the council. Clause 11 of the current LEP relevantly states: (1) This clause applies to land within Zone 1(d) …

(2) The Council may consent to a subdivision of land to which this clause applies if each separate allotment of land that will be created by the subdivision: (a) will have an area of not less than 40 hectares,

(5) Despite any other provision of this clause, the Council may consent to a subdivision that will create a lot of less than 40 hectares of land to which this clause applies where the proposed lot: (a) has a lawfully erected dwelling-house situated on it, and (b) adjoins land within a zone to which this clause does not apply which is within the same ownership as the proposed lot immediately before the creation of the proposed lot. (6) The Council must not grant consent for a subdivision of land to which this clause applies so as to create an allotment other than an allotment referred to in subclause (2), … or (5). 8 Section 80(2) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") is also relevant. It states that: "the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of an environmental planning instrument, whether arising in relation to that or any other development".

The applicants' submissions 9 Mr P R Clay, appearing for the applicants, submits that the development application is effectively to sever some of the 1(c2) land from the balance of the applicants' land. A new allotment will be created which is solely 1(c2) land and the remainder or residue will be partly 1(c2) and partly 1(d). He submits that there can be no question of dual zoning. 10 Mr Clay submits that cl 12 of the former LEP is plainly a source of power to approve the subdivision as it relates to land within the 1(c2) zone. Because the former LEP continues to have operation in respect of 1(c2) land only, the provisions of the current LEP simply do not apply as that current LEP does not apply to the 1(c2) land. There is no application to subdivide the 1(d) land and the 1(d) land is unaffected by the applicants' proposal. 11 Moreover, Mr Clay submits that the provisions of cl 11(6) of the current LEP have no force because the sub-cl does not apply to the present proposal as there is no allotment created in respect of lands to which the clause applies, which must be the 1(d) land. 12 Mr Clay rejects the council's reliance on Sealark Pty Ltd v Shoalhaven City Council [2002] NSWCA 39 and its proposition that land with what it describes as dual zoning cannot be subdivided by the operation of both local environmental plans on the following grounds: (a) the council's construction fails to observe the independent operation of two environmental planning instruments and the consequences thereof; (b) Sealark must be read in the context of cl 11 as it was at the time of the determination in that case, and the interrelationship with the " existing holdings " provisions. It is clearly distinguishable from the present case; (c) the council's construction would lead to an absurd result. 13 Mr Clay further submits that subordinate legislation should not be construed in a strict or over-technical way but rather in a practical, reasonable and commonsense way: Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289 at 294, Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266 at 279. Local environmental plans should be construed with the flexible and practical approach to construction adopted by Lord Reid in the House of Lords in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180; [1963] 1 WLR 929. Furthermore, the contemporary approach to statutory interpretation requires the Court to taken into account context in the first instance and not merely after some form of ambiguity has been detected: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]).

The council's submissions 14 Mr J J Webster SC, appearing for the respondent council, submits that since part of the land affected by the proposal has a deferred zoning, consideration must be given to both versions of the LEP to understand the authority of the council to approve development. 15 Mr Webster points out that in the former LEP, which still applies to the 1(c2) land, development for the purpose of subdivision, not being identified as prohibited, is therefore a permissible development, but can be carried out with the consent of the council. In the current LEP, the same position applies to the 1(d) land. Clause 10 of the former LEP and cl 10 of the current LEP, which are to the same effect, are not a source of power to grant consent. The relevant provisions of power to grant consent are found in cl 12 of the former LEP and cl 11 of the current LEP. Mr Webster submits that there is no difference in the regime application by reference to either LEP as the proposed subdivision is bracketed by both. The creation of proposed allotment 1321 would require the application of cl 12 of the former LEP and the creation of proposed allotment 1322 would require the application of clause 11 of the current LEP. 16 Mr Webster contends, however, that neither cl 12 of the former LEP nor cl 11 of the current LEP provide a source of power to grant consent in the present situation. 17 Clause 12 of the former LEP and cl 11 of the current LEP allow for subdivision of certain land provided the area is not less than a specified number of hectares. Neither of the clauses applies in the situation where the subject land is zoned partly 1(c) and partly 1(d): Sealark Pty Ltd v Shoalhaven City Council [2002] NSWCA 39. 18 The reasoning in Sealark that cl 11 of the former LEP did not have application if the subject land to be subdivided was zoned partly 1(d) and partly 2(c), must similarly be applied when the subject land is zoned partly 1(d) and partly 1(c2). The reasoning in Sealark is apposite to the construction of cl 12 of the former LEP. 19 Even if the reasoning in Sealark was distinguished in the case of cl 12 of the former LEP, unless cll 11(2), (3), (4) or (5) of the current LEP are satisfied, the council cannot grant consent for a subdivision of land zoned 1(d). That is, cl 11(6) of the current LEP operates as a prohibition against the grant of consent because the application seeks to subdivide the 1(d) land and such land can only be subdivided pursuant to cll 11(2), (3), (4) and (5) of the current LEP. 20 In other words, Mr Webster submits that cl 11 and cl 12 are irrelevant to the determination of the present subdivision application. Accordingly, there is no composite power to approve the subdivision application pursuant to both clauses.

21 Mr Webster submits that even Sealark can be distinguished, and cll 11 and/or 12 are relevant to the determination of the present subdivision, the proper construction of those clauses would require that the subdivision must be refused as the proposed allotment 1322 is less than 40 hectares. Moreover, the creation of a lot of less than 40 hectares as proposed for allotment 1322 will not have a lawfully erected dwelling house on that land to which the clause applies, being the 1(d) land. Rather, the existing dwelling house is erected on the 1(c2) land, which is land to which cl 11 of the current LEP does not apply. Accordingly, the subdivision application does not fall within cl 11(5)(a) of the current LEP and therefore the council (and this Court) has no power to approve the subdivision. 22 The proposed allotment 1322 does not adjoin land in the same ownership immediately before the creation of the proposed allotment and therefore cl 11(5)(b) of the current LEP cannot be satisfied. The proposed allotment 1321 cannot "count" for the purpose of applying this clause as that lot will not exist until after the approval is granted and the subdivision is registered. Accordingly, the subdivision of the subject land also does not fall within cl 11(5)(b) of the current LEP.

23 The subdivision of land zoned 7(a) is prohibited under both versions of the LEP. 24 Mr Webster also relies upon Rutland v Shoalhaven City Council (1997) 94 LGERA 370 in support of the submission that section 80(2) of the EP&A Act requires a consent authority to refuse an application for development being the subdivision of land if it would result in the contravention of the Act or an local environmental planning instrument.

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).

I hereby certify that the preceding 32 paragraphs a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate Dated: 8 August 2007 **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.