Clause 9 of the SEPP provides flexibility for subdivision in rural zones by allowing subdivisions for the purpose of primary production to create a lot less than the minimum size however such a lot can not be created if an existing dwelling would be situated on the lot and a dwelling can not be erected on a lot created by such a subdivision. The SEPP also removes provisions for concessional lots in LEPs.
21 By way of background to this merits appeal a question of law was heard by her Honour Justice Jagot on the construction and interpretation of clause 13 of the LEP. The citation for the judgment is Matic v Mid-Western Regional Council [2008] NSWLEC 113. The question framed was:
Is the subdivision, insofar is it proposes the creation of Lots 1, 3, 5, 9 and 11 permissible pursuant to clause 13 of the Rylstone Local Environmental Plan 1996?
22 The following is an extract from her judgment:
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 fulfill 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.
...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.
23 The proposal is for the subdivision of 302 ha into five lots of 40 ha, and five lots of 4 ha and a larger lot of 82 ha that contains the existing dwelling church and cemetery on the land. The northern six lots proposed in the subdivision have frontage to White Rock Road and the remaining five lots are to be accessed by a road reserve yet to be constructed.