Kringas v Cooma-Monaro Shire Council

(2) Consent may be granted to a subdivision of land within Zone No 1 (a) or 7 (d) only if: (a) where the subdivision will create an allotment that the consent authority is satisfied will be used primarily for purposes other than agriculture or a dwelling, the area of the allotment will be appropriate having regard to the purposes for which it is intended to be used, and (b) where the consent authority is satisfied that the subdivision is for the purpose of agriculture or a dwelling-house: (i) each allotment proposed to be created by the subdivision will have an area of not less than 5 hectares, and (ii) the average area of the allotments proposed to be created by the subdivision of a 1997 holding will not be less than 80 hectares, and (iii) the land has not previously been subdivided in accordance with this clause, unless it is the land nominated as the residue lot in the last subdivision which involved the land, and (iv) the consent authority has had regard to the matters indicated in Schedule 2 to the extent that they are relevant, and (c) the consent authority has considered the objectives of clause 21.

The term 'a 1997 holding' is defined in the Dictionary to the LEP as follows:- 1997 holding means: (a) except as provided by paragraph (b), an allotment, portion or parcel of land in existence at 3 March 1997 as a separate allotment, portion or parcel and having direct vehicular access to a public road vested in the Council or to a classified road, or (b) not relevant

Lot 50 has not been previously subdivided in a manner referred to in cl 14 of the LEP. The stated purpose of the proposed subdivision is to enable a dwelling house to be erected upon each lot. Lot 50 was a separate allotment, portion or parcel as at 3 March 1997. It is common ground that such lot does not have access to a public road vested in the council, nor does it have access to a 'classified road'. The LEP adopts the definition of such term as defined in the Roads Act 1993, which provides:- classified road means any of the following: (a) a main road, (b) a State highway, (c) a freeway, (d) a controlled access road, (e) a secondary road, (f) a tourist road, (g) a tollway, (h) a transitway, (i) a State work.

Such definition does not include a Crown road reserve which is the only access between lot 50 and Kennedy Road.

If the meaning of a provision is ambiguous it is the function of the Court to apply a purposive approach to the interpretation of such provision: see Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (CA) at 408, 407, and 423 and Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 390. The grammatical meaning of a provision constitutes the starting point for a purposive interpretation, since in most cases the grammatical meaning of a provision gives effect to the purpose of the instrument: see Kingston v Keprose Pty Ltd at 423.

In addition to these common law principles, s 25(3) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") requires the Court to adopt the interpretation which best reflects the objectives of an environmental planning instrument when construing an ambiguous provision of such instrument. Pursuant to s 4 of the EP&A Act a local environmental plan is defined as an environmental planning instrument.

The definition of '1997 holding' in the dictionary of the LEP requires two conditions to be satisfied. Firstly, was there a separate parcel for subdivision as at the 3 March 1997?; secondly, does the land have the required access? The first inquiry is to be considered as at 3 March 1997. The second inquiry is to be considered at the present date. No retrospective consideration arises. Although it is argued by the applicant that the word 'having' might be construed as requiring the subject land to possess the requisite access as at 3 March 1997, I do not consider that is the appropriate construction. In context of cl 14(2)(b)(ii) the word 'having' is to be interpreted in accordance with the interpretation given to such word in Butler and Baker's Case 3 Rep 25a at 30b; 76 ER 684 at 695 - 696, namely ''having' imports two things, ownership, and time of ownership '. The word 'having' has been treated as synonymous with 'possession' (see R v Thierault (1951) 28 MPR 412 at 417).

This approach to construction was impliedly adopted by the Full Bench of the Federal Court of Australia in AGFA-Gevaert Ltd v Collector of Customs and Anor (1994) 124 ALR 645 at 646, 653, 663. In that case their Honours were concerned (inter alia) with the interpretation of the phase ' having the image dyes incorporated in the emulsion layers. ' Their Honours treated ' having' as denoting the image dyes were possessed with the required characteristics. Their Honours did not import any retrospective connotations to the phrase.

Accordingly in determining whether land constitutes a '1997 holding' in respect of vehicular access the question to be asked is one of fact: is there access as specified? The inquiry is to be made on the occasion that it becomes relevant, that is at the moment the definition is applied. If the answer is negative a requirement of the definition of '1997 holding' has not been met and therefore Lot 50 is not a '1997 holding'.

The council submits that each of the requirements contained in the various subclauses of cl 14(2)(b) are cumulative. The word 'and' is used at the end of each subclause in cl 14(2)(b). Whilst 'and' may suggest that the clause has a cumulative effect, such usage is not determinative: see Re The Licensing Ordinance (1968) 13 FLR 143 at 147 and Anisminic Ltd v Foreign Corp [1969] 2 WLR 163 at 209. Clause 14(2)(b)(ii) makes it clear that the subclause is referable solely to the subdivision of a 1997 holding, requiring any subdivision thereof to be not less than 80 hectares. It does not, by the terminology employed, relate to land generally. In comparison subclause 14(2)(b)(i) applies to land generally without distinction as to its classification.

If the submissions of the council are correct, namely that subparagraph 14(2)(b) is cumulative, the LEP would contain no provisions relating to subdivision of land for the purposes of erecting a dwelling house in Zone No 1(a) unless such land constituted a '1997 holding'. If the council intended cl 14(2)(b)(ii) to apply to all land within the zone, or for cl 14(2)(b) to apply only to 1997 holdings, it would have been a simple matter for such intention to be stated. The conclusion that cl 14(2)(b)(ii) is only applicable to a 1997 holding is supported by the maxim e xpressio unius est exclusio alterius . Such maxim provides that if an instrument incorporates provisions relating to similar matters in different terms, an intention to deal with such matters differently can be inferred: see Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 at 343, Eastman v Commissioner for Superannuation (1987) 74 ALR 221 at 230.

In Glover v Yarrowlumla Shire Council (NSWLEC, 10 November 1998, unreported) Bignold J was concerned with the effect of a provision that for all relevant purposes was identical to cl 14 (2)(b)(ii) of the LEP. His Honour held that upon a proper construction the term in question (namely a '1995 holding' pursuant to the Yarrowlumla Local Environmental Plan 1993) applied only ' in respect of the subdivision of land that comprises a 1995 holding' (see para [15]). His Honour observed that land within the zone which could be subdivided might or might not comprise a 1995 holding.

I concur with His Honour's interpretation and conclusion. Clause 14(2)(b)(ii) is a requirement for subdivision that, by its very terms is confined in application to a 1997 holding. This is confirmed by reference to cl 14(3) of the LEP. Such clause states inter alia that; ' Despite subclause 2(b), consent may be granted to a subdivision of land within Zone No 1 (a) or 7 (d) that will create an allotment of any size that the consent authority is satisfied will be used for a horticultural use'. Clause 14(3) refers to 'land' in the relevant zone, irrespective of whether such land is a '1997 holding'.

Accordingly the Court determines that cl 14(2)(b) does apply to Lot 50.

The third question of law does not arise since the determination of the second question of law was in the affirmative.

The questions asked of the Court are to be answered as follows:-

1. For the purpose of the definition of '1997 holding' the land is required to have direct vehicular access to a public road vested in the council or to a classified road as at the date of application of the definition, namely the date of determination of consent. If, as a matter of fact, such access is not in existence at that date, this requirement of the definition is not satisfied. The definition does not encompass land which will have the requisite vehicular access at a future date.
2. Yes, except for the provisions of cl 14(2)(b)(ii).
3. Does not arise.

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10. In addition to these common law principles, s 25(3) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") requires the Court to adopt the interpretation which best reflects the objectives of an environmental planning instrument when construing an ambiguous provision of such instrument. Pursuant to s 4 of the EP&A Act a local environmental plan is defined as an environmental planning instrument.

11. The definition of `1997 holding' in the dictionary of the LEP requires two conditions to be satisfied. Firstly, was there a separate parcel for subdivision as at the 3 March 1997?; secondly, does the land have the required access? The first inquiry is to be considered as at 3 March 1997. The second inquiry is to be considered at the present date. No retrospective consideration arises. Although it is argued by the applicant that the word `having' might be construed as requiring the subject land to possess the requisite access as at 3 March 1997, I do not consider that is the appropriate construction. In context of cl 14(2)(b)(ii) the word `having' is to be interpreted in accordance with the interpretation given to such word in Butler and Baker's Case 3 Rep 25a at 30b; [1591] EngR 2; 76 ER 684 at 695 - 696, namely ``having' imports two things, ownership, and time of ownership'. The word `having' has been treated as synonymous with `possession' (see R v Thierault (1951) 28 MPR 412 at 417).

12. This approach to construction was impliedly adopted by the Full Bench of the Federal Court of Australia in AGFA-Gevaert Ltd v Collector of Customs and Anor [1994] FCA 1336; (1994) 124 ALR 645 at 646, 653, 663. In that case their Honours were concerned (inter alia) with the interpretation of the phase `having the image dyes incorporated in the emulsion layers.' Their Honours treated `having' as denoting the image dyes were possessed with the required characteristics. Their Honours did not import any retrospective connotations to the phrase.

13. Accordingly in determining whether land constitutes a `1997 holding' in respect of vehicular access the question to be asked is one of fact: is there access as specified? The inquiry is to be made on the occasion that it becomes relevant, that is at the moment the definition is applied. If the answer is negative a requirement of the definition of `1997 holding' has not been met and therefore Lot 50 is not a `1997 holding'.

14. The council submits that each of the requirements contained in the various subclauses of cl 14(2)(b) are cumulative. The word `and' is used at the end of each subclause in cl 14(2)(b). Whilst `and' may suggest that the clause has a cumulative effect, such usage is not determinative: see Re The Licensing Ordinance (1968) 13 FLR 143 at 147 and Anisminic Ltd v Foreign Corp [1968] UKHL 6; [1969] 2 WLR 163 at 209. Clause 14(2)(b)(ii) makes it clear that the subclause is referable solely to the subdivision of a 1997 holding, requiring any subdivision thereof to be not less than 80 hectares. It does not, by the terminology employed, relate to land generally. In comparison subclause 14(2)(b)(i) applies to land generally without distinction as to its classification.

15. If the submissions of the council are correct, namely that subparagraph 14(2)(b) is cumulative, the LEP would contain no provisions relating to subdivision of land for the purposes of erecting a dwelling house in Zone No 1(a) unless such land constituted a `1997 holding'. If the council intended cl 14(2)(b)(ii) to apply to all land within the zone, or for cl 14(2)(b) to apply only to 1997 holdings, it would have been a simple matter for such intention to be stated. The conclusion that cl 14(2)(b)(ii) is only applicable to a 1997 holding is supported by the maxim e_xpressio unius est exclusio alterius_. Such maxim provides that if an instrument incorporates provisions relating to similar matters in different terms, an intention to deal with such matters differently can be inferred: see Tasmania v Commonwealth and Victoria [1904] HCA 11; (1904) 1 CLR 329 at 343, Eastman v Commissioner for Superannuation (1987) 74 ALR 221 at 230.

16. In Glover v Yarrowlumla Shire Council (NSWLEC, 10 November 1998, unreported) Bignold J was concerned with the effect of a provision that for all relevant purposes was identical to cl 14 (2)(b)(ii) of the LEP. His Honour held that upon a proper construction the term in question (namely a `1995 holding' pursuant to the Yarrowlumla Local Environmental Plan 1993) applied only `in respect of the subdivision of land that comprises a 1995 holding' (see para [15]). His Honour observed that land within the zone which could be subdivided might or might not comprise a 1995 holding.

17. I concur with His Honour's interpretation and conclusion. Clause 14(2)(b)(ii) is a requirement for subdivision that, by its very terms is confined in application to a 1997 holding. This is confirmed by reference to cl 14(3) of the LEP. Such clause states inter alia that; `Despite subclause 2(b), consent may be granted to a subdivision of land within Zone No 1 (a) or 7 (d) that will create an allotment of any size that the consent authority is satisfied will be used for a horticultural use'. Clause 14(3) refers to `land' in the relevant zone, irrespective of whether such land is a `1997 holding'.

18. Accordingly the Court determines that cl 14(2)(b) does apply to Lot 50.

19. The third question of law does not arise since the determination of the second question of law was in the affirmative.

20. The questions asked of the Court are to be answered as follows:-

1. For the purpose of the definition of `1997 holding' the land is required to have direct vehicular access to a public road vested in the council or to a classified road as at the date of application of the definition, namely the date of determination of consent. If, as a matter of fact, such access is not in existence at that date, this requirement of the definition is not satisfied. The definition does not encompass land which will have the requisite vehicular access at a future date.

2. Yes, except for the provisions of cl 14(2)(b)(ii).