Matic v Mid-Western Regional Council

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 Calleja v Botany Bay City Council (2005) 142 LGERA 104 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 CASES CITED: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 Singh v The Commonwealth and Another (2004) 222 CLR 322 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 Wilson v Anderson and Others (2002) 213 CLR 401

APPLICANT Ms S Duggan SOLICITORS Spiegel & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr P Crennan, solicitor SOLICITORS McIntosh McPhillamy & Co.

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MID-WESTERN REGIONAL COUNCIL Respondent

JUDGMENT Jagot J: 1 A question of permissibility has arisen in this appeal against Mid-Western Regional Council's refusal of the applicant's development application for subdivision. After discussion with the parties the question for separate determination has been framed as follows: Is the subdivision, insofar as it proposes the creation of lots 1, 3, 5, 9 and 11, permissible pursuant to clause 13 of the Rylstone Local Environmental Plan 1996?

2 This question involves a compromise in recognition of the fact that the parties were represented before the Court on a date allocated for the hearing of a separate question and ready to deal with the application of cl 13 of the Rylstone Local Environmental Plan 1996 (the LEP) to the development proposed in the development application. However, a better question would have been whether the subdivision, insofar as it proposes the creation of lots 1, 3, 5, 9 and 11, is permissible with consent under s 76A of the Environmental Planning and Assessment Act 1979 (the EPA Act). As neither party had considered their position with respect to the potential application of State Environmental Planning Policy No 1 - Development Standards to cl 13 of the LEP, this question could not be dealt with on the allocated hearing date. As it turns out, this concern about potential inefficiency in determining the separate question as framed is moot because I have accepted the applicant's arguments.

3 Clause 13 of the LEP relates to the subdivision of land within Zone 1(a) (General Rural) and is as follows: (1) The Council may consent to the subdivision of land within Zone No 1(a) if the Council is satisfied that each of the allotments to be created by the subdivision is intended to be used for the purpose of a dwelling, but only if each allotment: (a) has an area of not less than 40 hectares, provided that one concessional allotment of less than 4 hectares but not less than 0.4 hectares may be created for a relative of the owner or for the owner, (b) is unlikely adversely to affect the existing and potential capability of the land and adjacent land to produce food or fibre or to be used for other agricultural purposes, and (c) does not comprise prime crop and pasture land. (2) Notwithstanding any other provision of this plan, the Council may consent to the subdivision of land within Zone No 1(a) resulting in the creation of one but not more than one allotment on which a dwelling stands from an existing holding if that dwelling was lawfully erected on that land on or before the appointed day. 4 The applicant proposes to subdivide land, being part lot 2 in deposited plan 730813 and part lot 102 in deposited plan 755450, into 11 lots, each for the purpose of a dwelling for a relative of the owner or the owner of the land. The land is within zone 1(a) and has an area of some 302 hectares. Five of the proposed lots have an area of 40 hectares each (lots 2, 4, 6, 8, and 10). One proposed lot has an area of 82 hectares (lot 7). Five proposed lots, being the lots in dispute, have an area of 4 hectares each (lots 1, 3, 5, 9, and 11).

5 The Council accepts that each of the lots to be created by the subdivision is intended to be used for the purpose of a dwelling and satisfies the requirements of cl 13(1)(b) and (c). The dispute relates to the proviso in cl 13(1)(a). Although the Council accepts that each of lots 1, 3, 5, 9, and 11 is intended to be for a relative of the owner or the owner of the land, the Council maintains that the proviso in cl 13(1)(a) is inapplicable and does not authorise the creation of those lots. The applicant submits to the contrary. The competing submissions of the parties disclosed three possible meanings of cl 13(1)(a) as follows: (1) The Council's first argument: - the Council said that as it had granted a development consent in 2006 for a subdivision of the land to which the present development application relates creating a concessional allotment of less than 4 hectares but not less than 0.4 hectares for a relative of the owner or for the owner within the meaning of the proviso in cl 13(1)(a), the proviso is exhausted and does not apply so as to permit the creation of any further such concessional allotments from the land.

(2) The Council's second argument: - the Council said that it could not grant development consent to five concessional allotments as proposed because the proviso in cl 13(1)(a) permits the creation of only one such allotment when granting consent to a subdivision of land.

(3) The applicant's argument: - the applicant said that the proviso in cl 13(1)(a) permits the creation of one concessional allotment as defined for each lot of not less than 40 hectares created by the grant of consent to a subdivision of land. As five lots of not less than 40 hectares would be created by the grant of consent to the present application, proposed lots 1, 3, 5, 9, and 11 satisfy the proviso in cl 13(1)(a).

6 I accept the applicant's argument for the following reasons.

7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] - [46] and [63]; s 33 of the Interpretation Act 1987). "Context" has a wide scope and may include the "mischief which…one may discern the statute was intended to remedy" so that, by this method, an alternative construction to the literal meaning may be preferred if it is "reasonably open and more closely conforms to the legislative intent" (CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).

8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested "by the use of language" in the document to be construed (Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly: …it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred ( Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]).

9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for "some preconceived general notion of what constitutes planning" (Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] "any attempt to always find planning logic in planning instruments is generally a barren exercise".

10 The Council's submissions did not recognise the primacy of the text of the LEP. Instead, the Council called in aid the objectives of the LEP and the zone, and a particular view about the historical function of concessional lots in a rural context, to support its position that the applicant's argument was inconsistent with the planning policy of the instrument. There are numerous difficulties with this approach.

11 First, the objectives of the LEP and the 1(a) zone do not disclose a coherent planning policy of the kind articulated by the Council. The objectives are broadly stated and involve contestable facts. They do not form a hierarchy so it is not possible to know if one objective takes precedence over another in the event of conflict. There is also substantial scope for conflict between the objectives.

12 Secondly, "concessional allotment" (as used in cl 13(1)(a) and, I note, cl 20(1)(a)) is not a defined term. Contrary to the Council's apparent assumption, it is not possible to vest that term with some meaning derived from general (and possibly or probably incomplete and inaccurate) suppositions about how environmental planning instruments have dealt with rural land in the past. A "concessional allotment", in the context of this LEP, is simply a lot that may be created in accordance with the proviso that creates the exception from the minimum area requirement of 40 hectares in cl 13(1)(a).

13 In other words, there is nothing in the LEP, objectively assessed, founding the imputation of any intention or planning policy that the Council's arguments better fulfil than those of the applicant. Accordingly, the competing constructions fall for resolution by reference to the language of cl 13(1)(a), construed in the context of the LEP as a whole.

14 Certain matters are immediately apparent on examination of the LEP. Clause 11(1) requires consent for subdivision. Clause 11(2) requires the Council to assess the primary purpose for which each proposed lot is to be used. This requirement founds the balance of the provisions of the LEP dealing with subdivision. For land within the 1(a) zone, the LEP creates three classes of subdivision (subdivision for the purposes of agriculture, subdivision for the purposes of dwellings, and subdivision for other purposes).

15 Clause 12 deals with subdivision for the purposes of agriculture. Land within the 1(a) zone may be subdivided for that purpose irrespective of the area of the proposed lots.

16 Clause 13 deals with subdivision for the purpose of dwellings. Leaving aside the disputed proviso, land may be subdivided for that purpose under cl 13(1) if the lots have an area of not less than 40 hectares and the other requirements of the clause are satisfied. Under cl 13(2), and notwithstanding any other provision of the LEP (such as cl 13(1)(a)), one lot on which a dwelling stands may be created from an existing holding (a defined term) if the dwelling was lawfully erected on that land before the appointed day (another defined term). Such a lot is not subject to any minimum area requirement. An existing holding is defined in cl 5(1) of the LEP as the area of a lot, portion or parcel of land at certain nominated dates (including any area of land held in the same ownership at those dates). The appointed day is defined by cl 5(a) to be the day the LEP took effect (1 March 1996).

17 Clause 14 deals with subdivision for purposes other than agriculture or a dwelling house. The Council may not consent to any such subdivision unless satisfied about nominated matters.

18 Clause 22 regulates dwelling houses within, relevantly, zone 1(a). It provides that a person may erect a dwelling house on land within that zone only in four nominated circumstances. Those circumstances include the land being an allotment created in accordance with the LEP if it is to be used for a purpose other than agriculture (cl 22(b)) and an allotment having an area of not less than 40 hectares (cl 22(d)). In other words, dwellings on lots created pursuant to the proviso in cl 13(1)(a) (and cl 13(2), if less than 40 hectares) are authorised by cl 22(b).

19 Although both cl 13(2) and the proviso in cl 13(1)(a) create an exception from the requirement that lots to be used for dwelling houses have a minimum area of 40 hectares, there is an obvious distinction between the two. Clause 13(2) authorises the creation of one but not more than one lot from an existing holding in the circumstances specified. The proviso in cl 13(1)(a) does not operate by reference to an existing holding. It operates by reference to the subdivision of any land within the 1(a) zone. Once this is recognised it is apparent that nothing in cl 13(1)(a), construed in context, supports the Council's first argument that the proviso in cl 13(1)(a) is available to either an owner or any particular parcel of land on one occasion only. The clause simply does not work in that way. The proviso in cl 13(1)(a) is available whenever the Council grants consent to the subdivision of land (meaning any land) within the 1(a) zone in accordance with the requirements of that clause. That is the consequence of cl 13(1)(a) operating by reference to the grant of consent to a subdivision of land rather than the creation of a lot from a permanently defined parcel of land such as an existing holding. The reference to "one concessional allotment" also cannot effect the result for which the Council contends in these circumstances. The natural and ordinary meaning of the proviso is to enable one concessional allotment to be created whenever the Council consents to the creation of another lot of at least 40 hectares in accordance with the clause.

20 The consequence is that the Council's first argument finds no support in the language of cl 13(1)(a) or the context of that clause. To the contrary, the Council's first argument is inconsistent with the natural and ordinary meaning of cl 13(1)(a) and fails to recognise the distinction between the operation of that clause and cl 13(2).

21 The Council's second argument also cannot withstand scrutiny. The second argument, when analysed, collapses into nothing more than a formalistic version of the applicant's argument. The applicant's submissions persuasively exposed this problem. In short, if one concessional allotment only may be created by reference to each grant of consent under cl 13(1)(a), then a person in the applicant's position can achieve precisely the same result as the present applicant by making five separate development applications either at the same time or sequentially. The same result as the present application could be achieved because (on the Council's second argument) the power to create one concessional allotment only would be available for each and every exercise of power to grant consent. Consistent with the applicant's submissions, this result suggests that a different reading of cl 13(1)(a) is required.

22 The applicant's approach to cl 13(1)(a) accords with the natural and ordinary meaning of the clause and avoids this problem of form defeating substance. It gives a sensible meaning to all of the words of the clause. It recognises that: - (i) the clause is concerned with the subdivision of any land within the 1(a) zone (and not a permanently defined parcel of land such as an existing holding), (ii) the clause enables any land (provided it is of sufficient area) to be subdivided into lots each of 40 hectares, and (iii) the proviso is located in and is an exception to the capacity for land to be subdivided into lots each of 40 hectares. In other words, the structure and language of cl 13(1)(a) supports the conclusion that for each 40 hectare lot created by a grant of consent there may be one concessional allotment also created provided that lot is less than 4 hectares and not less than 0.4 hectares and is for a relative of the owner of the land or the owner and otherwise satisfies the requirements of the clause.

23 Insofar as the issue was raised at all, the Council appeared to accept that "less than 4 hectares" in the proviso to cl 13(1)(a) should be construed as meaning "4 hectares or less". In any event, the proposed concessional allotments (lots 1, 3, 5, 9, and 11) can readily be reduced in area by some minor amount. The Council, as noted, otherwise accepted that all of the conditions in cl 13(1) were satisfied (including that the proposed concessional allotments were for a relative of the owner or the owner of the land). On this basis, and for the reasons given above, the separate question should be answered as follows: Q. Is the subdivision, insofar as it proposes the creation of lots 1, 3, 5, 9 and 11, permissible pursuant to clause 13 of the Rylstone Local Environmental Plan 1996? A. Yes.

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