McCabe & Others v Blue Mountains City Council

Land and Environment Court (NSW)|1991-11-22|Before: Cripps J, Jagot J

CITATION : McCabe & Others v Blue Mountains City Council [2006] NSWLEC 176

APPLICANTS William McCabe and Maria McCabe PARTIES : RESPONDENT Blue Mountains City Council

KEY ISSUES: Development Standards - Question of Law :- Whether proposed development is a subdivision for a boundary adjustment; If not, whether provision of the environmental planning instrument is a development standard

Boast v Eurobodalla Shire Council, Cripps J, NSWLEC, 22 November 1991, unreported; Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of The Commonwealth of Australia (1981) 147 CLR 297; Gibb v The Commissioner of Taxation of The Commonwealth of Australia (1966) 118 CLR 628; Greg Young v Parramatta City Council [2006] NSWLEC 116; House of Peace Pty Ltd and Another v Bankstown City Council (2000) 48 NSWLR 498; Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74; Lowy v The Land and Environment Court of NSW and Others (2002) 123 LGERA 179; Lyne v Moree Plains Shire Council (1999) 110 LGERA 120; CASES CITED: Malas Development Pty Ltd v Sutherland Shire Council (1999) 102 LGERA 303; Maunsell v Olins and Another [1975] AC 373; Ousley Pty Ltd v Warringah Shire Council (No 2) (1999) 104 LGERA 250; Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O'Keefe and Another (1964) 110 CLR 529; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; The Commonwealth v Baume (1905) 2 CLR 405; Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138; Woollahra Municipal Council v Carr (1985) 62 LGRA 263; Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707

APPLICANTS M Carpenter SOLICITORS LEGAL REPRESENTATIVES: G J Harris & Co RESPONDENT J Robson SC SOLICITORS McPhee Kelshaw

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

WILLIAM McCABE & MARIA McCABE Applicant

BLUE MOUNTAINS CITY COUNCIL Respondent

JUDGMENT Jagot J: Introduction 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the "EPA Act") against the respondent's refusal of development application S/32/2004. The development application relates to land known as 178 - 186 Falls Road, Wentworth Falls, being the land in lot 1 in DP 724112 and lot 7 in DP 911040. The proposed development is described on the development application as "2 into 2 lot subdivision (boundary adjustment)".

2 The parties seek the separate determination of the following issues in these proceedings: 1A Whether cl 34.4(c)(i) [of the Blue Mountains Local Environmental Plan 1991] has any application to this development; 1. Whether the proposal constitutes a boundary adjustment as referred to in cl 34.4(c)(i) of the City of Blue Mountains LEP 1991 ("the LEP"); 2. If not, whether the proposal is prohibited by cl 34.4(c) of the LEP; 3. Whether cl 34.4(c) is a development standard in respect of which an objection under State Environmental Planning Policy No 1 ("SEPP 1") may be lodged; 4. Whether the proposal constitutes a boundary adjustment as referred to in cl 34.11 of the City of Blue Mountains LEP 1991 ("the LEP"); 5. If not, whether the proposal is prohibited by cl 34.11 of the LEP; and 6. Whether cl 34.11 is a development standard in respect of which an objection under State Environmental Planning Policy No 1 ("SEPP 1") may be lodged.

3 To enable the separate determination of these issues, the parties agreed the following facts: 1 Mr and Mrs McCabe (the "applicants") are the registered proprietors of 178-186 Falls Road, Wentworth Falls (the "land") being Lot 1 in DP 724112 ("Lot 1") and Lot 7 in DP 91104 [sic] ("Lot 7"). 2 Lot 1 has an area of 1.444ha and a frontage of 110.44m to the eastern side of Wilson Street and total frontage of 147.15m to the (largely unformed) northern side of Falls Road at Wentworth Falls. 3 Lot 7 has an area of 1239m2 and a total frontage of 27.85m to the unformed northern side of Falls Road at Wentworth Falls. 4 The City of Blue Mountains Local Environmental Plan 1991 ("the LEP") applies to the land. 5 LEP 1991 was gazetted on 27 December 1991. 6 The respondent is the consent authority for the purposes of the LEP and the determination of the development application. 7 Lot 1 is part zoned Residential Bushland Conservation (No Subdivision) and part zoned Environmental Protection. 8 Lot 7 is zoned Regional Open Space. 9 Lots 1 and 7 are in a Protected Area - Escarpment Area, under LEP 1991. 10 Lot 1 and Lot 7 are located within the catchment of Jamison Creek, which flows over Wentworth Falls. 11 On 8 June 2004, the applicants made a development application ("the application") to Blue Mountains City Council ("the respondent") for a two into two lot subdivision - boundary adjustment. 12 The application was refused by the respondent. The notice of determination issued on 7 January 2005. 13 The building on the land, known as "Whispering Pines", together with its surrounding gardens, is heritage listed as WF 38 in the LEP. 14 Whispering Pines is a residential dwelling and DA approved Bed and Breakfast establishment.

4 The plan accompanying the development application (styled "plan of proposed subdivision (boundary adjustment)") shows that the proposed development involves consolidating lot 7 (the far smaller lot adjoining part of the eastern boundary of lot 1) with lot 1, and dividing lot 1 into two lots - proposed lot 11 (the northern part of former lot 1, with an area of some 4529m2) and proposed lot 12 (the southern part of former lot 1, incorporating the former lot 7, with an area of some 1.125 hectares). In the applicant's case, this is described as adjusting the boundary running north-south between lots 1 and 7 so that, instead, it is a boundary running east-west between proposed lots 11 and 12.

5 The hearing proceeded on the basis that: - (i) the separate issues, if determined against the applicant, would be determinative of the whole of the proceedings (in that the proposed development would be prohibited), and (ii) the facts agreed between the parties, together with the documents otherwise in evidence before me, is all material relevant to the determination of the separate issues. Accordingly, I am satisfied that the separate determination of these issues will contribute to the "just, quick and cheap resolution of the real issues" in these proceedings.1

6 Section 76A(1) of the EPA Act provides that: If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.

7 Section 76B provides that: If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land.

8 In Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707 at [23] - [24] Spigelman CJ observed that: [23] . Part 4 of the Act is concerned with Development Assessment. Division 1 of that Part is entitled "Carrying out of development - the threefold classification". This threefold classification is a reference to what had, by then, become a conventional tripartite division in zoning under the Local Government Act 1919. The three parts were: first, identifying development that does not need consent, secondly, identifying development that is permissible with consent and, thirdly, identifying development that is prohibited. By amendment in 1997 the Act made provision for two additional kinds of classification: "exempt development" and "complying development", but the Division is still headed "the threefold classification". The concept of "exempt development" is a particular category of development that does not need consent and "complying development" is a particular category of development that needs consent. Further, special provision was made for a new category of "State significant development", but nothing turns on these classifications for present purposes. [24] . Nothing in the Act requires the adoption of particular kind of zones, even at the highest level of generality such as business, residential, industrial. Nor is there anything that requires each of the three classifications - permissible without consent, permissible with consent, prohibited - to be adopted. There are environmental planning instruments that have no use that is identified as prohibited in particular zones and a council may approve any development which it regards as consistent with the objectives of the zone. (See, e.g. Manly Council v Hortis (2001) 113 LGERA 321.)

9 A person who carries out development on land where the instrument provides that development is prohibited, or may not be carried out on the land with or without development consent, contravenes the EPA Act (ss 122 and 125 of the EPA Act).

10 An instrument may regulate development by a variety of means. Section 26(1) of the EPA Act provides that: Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: (a) …, (b) controlling (whether by the imposing of development standards or otherwise) development, ….

11 Section 31 states that: Without limiting the generality of section 26 (1) (b), an environmental planning instrument may provide that development specified therein is prohibited.

12 Section 4(1) of the EPA Act defines "control" in the following terms: control , in relation to development or any other act, matter or thing, means: (a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or (b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions.

13 "Development" is defined in the same section as follows: development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

14 "Development standard" is defined as follows: development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) …

15 Section 4B of the EPA Act contains a definition of "subdivision of land". (1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected: (a) by conveyance, transfer or partition, or (b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition . (2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of: (a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or (b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

Note. The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 1989.

(3) However, subdivision of land does not include: (a) a lease (of any duration) of a building or part of a building, or (b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or (c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or (d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or (e) the procuring of the registration in the office of the Registrar-General of: (i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or (ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

16 Section 11 of the Interpretation Act 1987 provides that: Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made.

17 The relevant provisions of the Blue Mountains Local Environmental Plan 1991 (the "LEP") are as follows.

18 Clause 3 sets out the principal objectives for development within the City of Blue Mountains.

19 The majority of lot 1 is in the Residential Bushland Conservation zone. Clause 6.3 specifies the objectives for that zone.

20 The balance of lot 1 is in the Environmental Protection zone. Clause 6.8 specifies the objectives for that zone.

21 Lot 7 is in the Regional Open Space zone. Clause 6.11 specifies the objectives for that zone.

22 Clause 8, insofar as relevant, provides that: The following zones, zone subscripts and protected areas are used in this plan. They are shown on the Map in a distinctive manner and by the following annotations: … (a) Zones Residential Bushland Conservation RES-BC … Environmental Protection EP … Regional Open Space R …

(b) Zone Subscripts … No Subdivision to create additional lots (NS)

24 The general controls on development are contained in cl 9 of the LEP. That clause adopts two aspects of the threefold classification of development referred to in Pallas Newco (that is, development permissible only with development consent and prohibited development). Clause 9 (as relevant) provides that: 9.1 With the consent of the Council, development for the purposes of any activity, building, place or work specified in the Table may be carried out on land within a zone where "C" is shown in the Table. 9.2 Except as permitted by clause 9.1 or by some other specific provision of this plan, the carrying out of development is prohibited.

25 The Table referred to in cl 9.1 shows that: - (i) dwelling houses are permissible with consent in the Residential Bushland Conservation zone, but are prohibited in the Environmental Protection and Regional Open Space zones, and (ii) subdivision is permissible with consent in each of the Residential Bushland Conservation, Environmental Protection and Regional Open Space zones.

26 Under cl 32.5, the owner of land in the Regional Open Space zone may, by notice in writing, require the corporation (constituted under s 8 of the EPA Act) to acquire that land.

28 Clause 34.1 specifies the general provisions for subdivision. Because the land is not subject to a "Density Control Provision" and the subdivision is not for the purpose of "cluster housing development", the only potentially relevant part of cl 34.1 is sub-cl (c), stating that: The Council may consent to subdivision of any land that is zoned Bushland Conservation or Residential Bushland Conservation only if each new lot proposed to be created, (other than lots for a public purpose, and other than lots created as part of a cluster housing development), and intended to be the site of a dwelling house, includes land with a minimum area of 750 m2, no part of which is development excluded land, and which is so configured as to be capable of being the site of a dwelling house and accommodating development ordinarily incidental and ancillary to a dwelling house.

29 Clause 34.4 is headed "Residential Bushland Conservation Zone - Special Provisions". It provides that: (a) Where a Density Control Provision is shown on the Map, subdivision of the land, in accordance with clause 34.1, to a density exceeding that shown is prohibited. (b) For the purposes only of clause 34.1, the notional development area of that part of a lot zoned RES-BC and subject to a Density Control Provision of (8/ha) shown on the Map shall not include any land which is steeper than 20%. (c) The Council may only consent to subdivision of land shown RES-BC (NS), RES-BC (CONS) or RES-BC with a Minimum Area Requirement on the Map if: (i) it is for a boundary adjustment where no additional lots are created, or (ii) it is for the purpose of providing land for public purposes.

30 Clause 34.4(a) is inapplicable because no "Density Control Provision" is shown on the "Map" applying to any part of the land.

31 Clause 34.4(b) is irrelevant for the same reason.

32 Clause 34.4(c)(i) (potentially) applies because the land (in part) is shown as "RES - BC (NS)" on the "Map". Clause 34.4(c)(ii) is inapplicable because the proposed subdivision is not for the purpose of providing land for public purposes.

33 Clause 34.9 provides that: The Council shall not consent to subdivision where any lot created consists entirely of land within the Environmental Protection zone unless the only purpose of the subdivision is to provide land for public purposes.

34 Like, cl 34.4(c)(ii), cl 34.9 does not apply because the purpose of the proposed subdivision is not to provide land for public purposes.

35 Clause 34.11 provides that: The Council shall not consent to the subdivision of land within the Regional Open Space zone unless the subdivision is for the purpose of boundary adjustment.

36 The Council submits that cl 34.4(c)(i) does not apply to the proposed development. There are two steps in this argument. First, cl 34.4(c)(i) refers (relevantly) to land shown "RES-BC (NS)" on the "Map". Secondly, the land to which the development application relates is shown on the "Map" as part "RES-BC (NS)", part "EP" and part "R". Hence, the Council says, cl 34.4(c)(i), on its own terms, does not apply to the subdivision of the land to which the development application relates.

37 To understand why the Council advances this argument, it is necessary to consider the role of cl 8 in the LEP. Leaving aside cl 8, the argument runs against the Council's primary proposition (that the proposed development is prohibited). This is because cl 9.1 provides that subdivision is permissible with consent on land zoned Residential Bushland Conservation. Clause 34.4(c)(i) qualifies cl 9.1, insofar as land zoned Residential Bushland Conservation is also shown as subject to the "(NS)" zone subscript on the Map. If cl 34.4(c)(i) did not apply, the proposed development would be permissible with consent under cl 9.1. The Council contends, however, that cl 8 leads to a different result. It submits that cl 8 has substantive effect and operates to prohibit the subdivision of land shown on the Map with the "(NS)" subscript. Hence, on this approach, cl 34.4(c)(i) is not a limit on the power to consent to subdivision in cl 9.1, but a source (in fact, the only source) of power to consent to subdivision of land shown "RES-BC (NS)" on the Map. Clause 34.4(c)(i) is thus to be construed as providing an exemption from a prohibition on subdivision imposed by cl 8; if the clause does not apply then, the Council says, the development is prohibited by cl 8.

38 I do not accept the Council's approach to cl 8 of the LEP. There are numerous indicators that cl 8 has no substantive operation, but is a definitions clause. First, the preamble to the clause expressly identifies its purposes - to specify: - (i) the zones, zone subscripts and protected areas "used in" the LEP, and (ii) the annotations "shown on" the Map, correlating to those zones, zone subscripts and protected areas. Those functions are wholly descriptive. Secondly, there are no words in the clause capable of having any substantive operation. Thirdly, the words used in the clause disclose that the clause is incapable of substantive operation. For example, the zone subscript relating to density control provides an example of what might appear on the Map. Absent some substantive provision in the LEP and the Map, the annotation is meaningless. The same observation can be made about the two minimum area annotations and all of the protected area designations. Fourthly, and unsurprisingly, the zones, zone subscripts and protected areas identified in cl 8 correspond to various substantive provisions in the LEP.

39 In Gibb v The Commissioner of Taxation of The Commonwealth of Australia (1966) 118 CLR 628 at 635, Barwick CJ, McTiernan and Taylor JJ said: The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2nd ed, Vol 2, p 687), "Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves".

41 The applicant acknowledges (correctly, in my view) that cl 34.4(c)(i) applies to the proposed development. (1) Once the (limited) role of cl 8 in the LEP is recognised, it is apparent that cl 34.4(c)(i) qualifies the power to consent to subdivision otherwise available under cl 9(1).

(2) It would be inconsistent with the purpose of cl 34.4(c)(i) to construe the clause as applying only in circumstances where the whole of the land to which the application relates is shown "RES-BC (NS)" on the Map.

(3) Nothing in the language of cl 34.4(c)(i) suggests that it applies only if the land to be subdivided is exclusively shown "RES-BC (NS)" on the Map. The clause applies to "subdivision of land shown RES-BC (NS) on the Map". It applies when subdivision of any such land is proposed, whether or not the subdivision relates also to land not so shown.

(4) As the applicant submits, the language of cl 34.4(c)(i) may be contrasted with that of cl 34.3(b)(i) which specifically requires land of at least 5,000m2 zoned Bushland Conservation to be available. The clause may also be contrasted with cll 34.9 and 34.13 (neither of which apply in this case, as no lot created consists entirely of land in the Environmental Protection zone and the land is in the Escarpment Area). Both clauses expressly regulate circumstances where land is wholly or partly in a zone.

43 Clause 34.4(c)(i) permits consent to be granted to subdivision of the relevant land if "it is for a boundary adjustment where no additional lots are created". Both parties submit that I have before me all material necessary to answer this question.

44 The applicant submits that the proposed development is "for a boundary adjustment where no additional lots are created" for the following reasons. (1) The statutory description is satisfied provided that no additional lots are created.

(2) Alternatively, "adjustment" does not connote any concept of an adaptation that is "minor, fractional or marginal". 2

(3) Alternatively (and in contrast to the facts presented in Ousley Pty Ltd v Warringah Shire Council (No 2) (1999) 104 LGERA 250), the proposed subdivision is a "minor" adaptation as: - (i) two lots exist and, after the subdivision, two lots will exist, (ii) the land within the two lots is presently subject to three zones and, after the subdivision, the land within the two new lots will be subject to three zones, and (iii) as a "boundary" is an imaginary line that confines the legal limits of a parcel of land, 3 the adjustment of that imaginary line is necessarily "minor".

(4) In any event, the decision in Ousley (and, I note, Malas ) concerned State Environmental Planning Policy No 4 - Development Without Consent ("SEPP 4"), not cl 34.4(c)(i) and is distinguishable for that reason. SEPP 4 (cl 3) was aimed at enabling development of minor environmental significance to be carried out without development consent, if otherwise permissible with consent. No such limitation is found in the LEP.

45 The Council submits that, if cl 34.4(c)(i) applies, the proposed development is outside the scope of the clause. (1) The proposed development involves a significant reconfiguration of the lots.

(2) The proposed development takes one lot zoned Regional Open Space and one lot zoned part Residential Bushland Conservation and part Environmental Protection, and creates one lot zoned part Residential Bushland Conservation, part Regional Open Space and part Environmental Protection, and another lot zoned part Residential Bushland Conservation and part Environmental Protection.

(3) The proposed development eliminates the boundary between lot 1 and lot 7 (so that lot 7 becomes a part of a large amalgamated lot, being proposed lot 12) and creates a new boundary between proposed lots 11 and 12, being a boundary that bears no resemblance to the boundaries of the existing lots.

(4) It is not necessary to read into cl 34.4(c)(i) any notion that the adjustment to the boundary must be minor to reach the conclusion on the facts for which the Council contends. The proposed development does not involve adjustment to the boundaries of the lots, but the creation of new (albeit not additional) lots. 46 Section 33 of the Interpretation Act 1987 applies to environmental planning instruments (s 5(6)). Section 33 provides that: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

47 I consider that the words of cl 34.4(c)(i) take their ordinary meaning. The development permitted by the clause is subdivision that: (i) is "for a boundary adjustment", and (ii) does not create any additional lots.

48 Accordingly, and contrary to the applicant's first submission, I do not consider the phrase "where no additional lots are created" exhausts the meaning of the phrase "… for a boundary adjustment". It is difficult to envisage a subdivision for a boundary adjustment that creates additional lots (although cl 34.4(c)(i) may be contrasted with cl 34.11 in this respect). If the intended meaning of the provision is to permit subdivision where no additional lots are created, then the words "for a boundary adjustment" are superfluous. To comply with the "known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent",4 I must give meaning to the words "…for a boundary adjustment". Accordingly, I consider that the clause contemplates that a subdivision may not create any additional lots, and yet may not be "for a boundary adjustment".

49 I have rejected the Council's submission that the clause is to be construed as applying only to land the whole of which is shown "RES-BC (NS)" on the Map. It follows that I do not accept the (related) submission that this subdivision creates an additional lot in part shown "RES-BC (NS)" on the Map (that is, that presently only one lot contains any land shown RES-BC (NS) on the Map, whereas after the subdivision two lots will contain land so shown). This construction would exclude, for example, the realignment of part of a boundary to accord with a natural feature (such as a creek line), where the natural feature deviates from a zoning boundary into the land shown RES-BC (NS) on the Map. Nothing in the clause supports this construction.

50 I am satisfied that the natural and ordinary meaning of the relevant part of the clause relates to the absolute number of lots, irrespective of their zoning. Accordingly, the proposed development satisfies that part of the statutory prescript that the subdivision must be one where no additional lots are created.

51 Is the proposed subdivision "…for a boundary adjustment…"? In House of Peace Pty Ltd and Another v Bankstown City Council (2000) 48 NSWLR 498 at [25] to [30], Mason P (with whom Stein and Giles JJA agreed) identified the limits on the use of dictionaries in the search for meaning. At [22], [24] and [30], Mason P emphasised that the context of the search in that matter (as here) was planning law, and that environmental planning instruments and consents are concerned with "physical use, environmental impact and amenity".

52 Dictionaries show that the word "adjustment" takes various meanings: (1) Macquarie Dictionary, Revised 3rd ed.: The act of adjusting; act of adapting to a given purpose. Adjusting: 1. To fit, as one thing to another, make correspondent or conformable; adapt; accommodate, 2. To put in working order; regulate; bring to a proper state of position…; Adapt: 1. To make suitable to requirements; adjust or modify fittingly.

(2) Shorter Oxford English Dictionary, 3rd ed.: 1. The process of adjusting; 2.the state of being adjusted. Adjust: 1. To arrange, compose, harmonise;… 3. To arrange suitably (to, by, with) something else; 4. To arrange suitably in relation to its parts; to regulate, systematize.

(3) Oxford English Dictionary Online: 1. The process of adjusting; setting right, regulating, arranging, settling, harmonizing, or properly disposing; freq. in contexts of emotional adaptation; 2. The state or condition of being adjusted, or put in proper order; arrangement, settlement.

(4) Merriam Webster Online Dictionary: 1: The act or process of adjusting; 2: A settlement of a claim or debt in a case in which the amount involved is uncertain or full payment is not made; 3: The state of being adjusted; 4: A means (as a mechanism) by which things are adjusted one to another; 5: A correction or modification to reflect actual conditions. 53 Mason P, in House of Peace at [32], warned against the dangers of both "undiscriminating selection" and "undiscerning aggregation" from the body of material available to assist in giving meaning to a word or phrase.

54 "Statutory language, like all language, is capable of an almost infinite gradation of 'register'".5 The context of the provision is thus critical to enable the discharge of the "duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register."6

55 The general context in which the words "…for a boundary adjustment" appear is a provision of an environmental planning instrument regulating the division of land into parts obviously adapted for separate occupation, use or disposition (s 4B of the EPA Act). The immediate context is a provision of such an instrument that prescribes that the subdivision must be for a boundary adjustment, where no additional lots are created.

56 In this context, I do not accept that the "ordinary and grammatical meaning"7of the phrase "…for a boundary adjustment" embraces any and all alterations of a boundary that make land suitable for an applicant's requirements. I consider that the primary meaning conveyed by the clause, construed in its immediate and more general context, accords with the notion of an alteration of a boundary by correction or regularisation, whether that correction or regularisation is to reflect actual conditions (such as physical features of the land or its zoning) or to achieve some other requirement or objective (for example, to render the use of land feasible or more practical). Hence, consistent with the observation of Cripps J in Boast v Eurobodalla Shire Council, unreported, NSWLEC, 20110/91, 22 November 1991 at pp 2 - 3, questions of fact and degree are involved.

57 Talbot J, in Ousley (at [21]), described the result of a "boundary adjustment", in the context of SEPP 4, to be one where the "resulting parcels of land bear some resemblance to the lots which existed before the subdivision". SEPP 4 is a different instrument from the LEP. It has different aims and objectives. Its provisions enable development otherwise permissible to be carried out without development consent, whereas cl 34.4(c)(i) permits certain development to be carried out only with development consent. Nevertheless, I consider that Talbot J's formulation provides useful guidance to a necessary (but not sufficient) requirement of a subdivision for a boundary adjustment, in the context of cl 34.4(c)(i).

58 Exhibit 2 is a copy of the plan of the proposed subdivision marked so as to show the existing lots. That plan shows that the overall configuration of the proposed lots bears no resemblance to that of the existing lots. The new boundary between proposed lots 11 and 12 has no relationship to the existing boundary between lots 1 and 7.

59 Having regard to the matters set out above, I consider that the proposed development is not the subdivision of land "…for a boundary adjustment where no additional lots are created". I consider that the proposed development may accurately be described as the consolidation of lot 7 into lot 1, and the subsequent subdivision of the (enlarged) lot 1 into two lots, rather than as a subdivision "…for a boundary adjustment where no additional lots are created".

60 This result is consistent with what I infer to be the purpose of the provisions of the LEP relating to the land shown "RES-BC (NS)" on the Map. I infer that the purpose of the provisions is to prohibit subdivision of such land other than in the limited circumstances identified so as not to enlarge, materially or significantly, the overall development potential of such land. Construing cl 34.4(c)(i) so as to permit subdivision by way of any and all alterations of a boundary (whether or not the resulting lots bear any resemblance to the existing lots) provided that no additional lots are created, does not accord well with that purpose. I consider that the construction that I adopt promotes the purpose of the provision.

61 Accordingly, I find that the proposed development is not the subdivision of land "…for a boundary adjustment where no additional lots are created". It follows that I answer question 1 "No".

62 The applicant submits that, if the proposed development is not a subdivision permissible with consent by operation of cl 34.4(c)(i), then the clause is a development standard amenable to cll 6 and 7 of State Environmental Planning Policy No 1 - Development Standards ("SEPP 1"). Clauses 6 and 7 provide that: 6 Making of applications Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.

7 Consent may be granted Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.

63 In Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 at [26] to [31], I identified the principles which I derive from the decisions in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319, Lowy v The Land and Environment Court of NSW and Others (2002) 123 LGERA 179, and Woollahra Municipal Council v Carr (1985) 62 LGRA 263 relating to development standards. I said that: [26] . The principles that I derive from the authorities may be summarised as follows:

(1) The provision in question must be "seen as part of the environmental planning instrument as a whole" ( Poynting at 342 [94]). The "wider context" of the provision, as part of the instrument overall, should be considered in construing the provision ( Lowy v The Land and Environment Court of NSW and Others (2002) 123 LGERA 179 at 182 - 183 [2] per Mason P). (2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of "development standard", that fact alone does not mean that the provision is thereby a development standard. The provision must be "in relation to the carrying out of development" and must fix requirements or standards in respect of an aspect of the development ( Poynting at 333 -334 [58]). (3) Although we must distinguish between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between "regulation" and "prohibition" cannot replace the definition in the EPA Act. As this conceptual division "will bring finely divided decisions", "care must be taken lest form govern rather than substance" ( Poynting at 342 [93]). (4) A provision that prohibits the development under any circumstances controls development, but is not a development standard ( Poynting at 343 [96] and [98]). (5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then "in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development". Hence: Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard. (Poynting at 343 [98]).

(6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development ( Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269-270 per McHugh JA and Poynting at 343 [97]). (7) An essential condition of the definition of "development standard" is that the "requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development" ( Carr at 269 -270 per McHugh JA). (8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of "development standard" shows that "a broad view of what is an aspect of a development should be taken" ( Poynting at 343 [99]).

[27] . The reasoning ultimately adopted in Poynting discloses the significance of adopting a "broad view" of the aspects of the development. Clause 41(2) provided that "a single dwelling … must not be erected on an allotment of land … which has an area of land less than 560 square metres". At 344 [103], Giles JA said that: Does cl 41(2) specify a requirement or fix a standard in respect of an aspect of the development? In my opinion it does. On one view the area of the land on which the building is to be erected is not an aspect of the development. The size, height, distance from boundaries and so on of the building are aspects of the development, but it matters not to the development whether the building is to be erected on a small or large parcel of land. On a wider view, the aspects of the development include the size of the parcel on which the building is to be erected, and both independently and because para (a) of the definition of "development standards" includes area and dimensions of land I consider that to be correct.

[28] . In Lowy , Giles JA (with whom Mason P agreed) confirmed the approach articulated in Poynting - namely, asking: - (1) is the development prohibited under any circumstances (I interpolate, prohibited by the provision construed in the context of the instrument as a whole); and (2) if the development is not so prohibited, does the provision specify a requirement or fix a standard in respect of any aspect of the permitted development?

[29] . The Court in Lowy also rejected a submission that, in the first step, the relevant land is "confined to that the subject of the provision the categorisation of which is in question" (in that matter, the land on the foreshore side of the foreshore building line). The Court reasoned that the local environmental plan, a planning instrument, addresses land in zones and the "development is by reference to the land in the zone" (at 205-206 [123]).

[30] . In Georgakis v North Sydney Council (2004) 140 LGERA 379 McClellan J observed that the "broad" or "wider" view of the aspects of a development adopted in Poynting may have consequences for the continued application of the reasoning in North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222. McClellan J said at 389 [38] - [39]: [38]. Notwithstanding that the relevant clause in Poynting defined, albeit by reference to specified dimensions of the allotment, whether the particular development is permissible on the land, the court, taking "the wider view", held that it was a development standard. In Mayoh , permissibility was defined by reference to the attributes of adjoining land. In Poynting , permissibility was defined by attributes of the land itself. It would seem that the difference is significant when determining whether the provision contains a development standard. [39]. It was submitted by the council in the present case that the reasoning in Mayoh remains the guiding principle when resolving whether a particular provision contains a development standard. Of this proposition Giles JA said in his detailed reasons in Lowy that "it may not be entirely correct." If his Honour had in mind the "wider view" adopted in Poynting , with respect, I doubt that the approach in Mayoh now completely reflects the law.

[31]. At 390 [44], his Honour continued: But for the decision of the Court of Appeal in Poynting and the approach taken by Giles JA and Mason P in Lowy there may have been force in the submission that, rather than being an aspect of permissible development, cl 12 defines a characteristic of the land without which the development is prohibited on that land. However, I consider that conclusion to be excluded by the necessity to take the "wider view" identified by Giles JA in Poynting and endorsed by Mason P in Lowy. 64 In order to explain the conclusion I have reached in this matter (that is, that cl 34.4(c)(i) does not contain a relevant development standard), it is necessary that I consider in more detail the decision in Carr and how that decision was reconciled by Giles JA with the reasoning in Poynting.

65 In Carr, the ordinance defined "professional consulting rooms" as "…a number of rooms forming part of … a dwelling house and used or intended for use by not more than three dentists who in partnership practice dentistry therein, and who employ not more than three employees in connection with such practice". The development application sought consent for "professional dental consulting rooms forming part of a dwelling house used by not more than three dentists who in partnership practice dentistry therein, and who employ not more than seven employees in connection with such practice". The application was accompanied by an objection under SEPP 1 to the number of permitted employees.

66 Priestley JA, at 265, explained that the purpose "professional consulting rooms" as defined was a column IV use (permissible only with consent), and that the effect of column V (prohibited development) was that "there are no purposes for which buildings may be used other than those covered by columns II and IV". Column II uses were permissible without consent. At 267, Priestley JA identified the words in the definition as having two potential functions. First, to function as a development standard if the definition is within the meaning of that term as defined in s 4 of the EPA Act. Secondly, to "form a dividing line between those professional consulting rooms which are intended to be within column IV, cl 23 of the ordinance and those which are not". He concluded that, even if the definition incorporated a development standard, the provisions of the ordinance nevertheless prohibited the proposed development (in that the use proposed was not within column IV or II and thus, necessarily, was within column V).

67 McHugh JA, at 269, made a similar observation at 269, saying that the ordinance did not make provision for use of a building as a dental surgery; but for use of a building as "professional consulting rooms". The result was that the development was prohibited because "…there is no other relevant category in the Woollahra ordinance which permits a dental surgery with more than three employees in this residential zone". Hence, the "respondent's submission requires the rewriting not of a "development standard" but of the definition of a permitted use - "professional consulting rooms"".

68 McHugh JA was unenthusiastic about the result reached as it placed a "premium on form and penalise(d) the substance of the matter" (at 269). McHugh JA continued at 269 - 270: This analysis, however, overlooks the essential condition that the requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development. A provision is not a specified requirement or fixed standard "in respect of" an aspect of a development until the development and its aspects are defined. For example, the two stories of a duplex building are not in any relevant sense requirements specified or standards fixed in respect of any aspect of the use of a duplex.

69 In Poynting at [36] to [37], Giles JA observed that: [36] McHugh JA meant, it seems to me, that the limitation to three employees was not an aspect of the development, the development being use of the land for professional consulting rooms, susceptible of a requirement or standard. His Honour considered it an aspect of the development, and hence he said (at 269) that the conclusion required in the case was arbitrary because the limitation would have been a development standard if contained in the body of the instrument rather than the definition. But by virtue of the definition of professional consulting rooms it was an essential element of the permitted use, and not an aspect of the development in relation to which the definition stated a requirement or standard: so also, the two storeys of the duplex building (by which I understand his Honour to have meant a two-storied building) were not relevantly aspects of the development of erection of a duplex building.

[37] The facts in Woollahra Municipal Council v Carr were rather special, and the decision may be justified on the ground that definition of permitted developments is fundamental to proper planning, even if the result can sometimes appear to elevate form over substance. 70 Adopting the reasoning in Poynting, it is first necessary to identify the development (and its aspects). Having identified the development, it is necessary to ask whether that development, carried out on land in the Residential Bushland Conservation, Environmental Protection and Regional Open Space zones, being the land to which the development application relates, is prohibited under any circumstances.

71 Clause 9.1 of the LEP provides that in each of the relevant zones, subdivision is permissible with development consent. However, in this matter, I do not consider that fact to answer the first question to be posed on the reasoning in Poynting. Clause 9.1 identifies the purposes for which development may be carried out with consent. Clause 9.2 provides that, except as permitted by cl 9.1 or some other provision of the LEP, the carrying out of development is prohibited. Clause 34.4(c)(i) (as the applicant acknowledges, correctly in my view) qualifies cl 9.1. It identifies that consent may only be granted to subdivision of certain land if it is for a boundary adjustment where no additional lots are created.

72 I am mindful that substance, rather than form, is required to govern. The proposed development that engages the operation of the LEP (by reason of s 76A of the EPA Act) is the division of lot 1 into two lots. The consolidation of lot 7 into lot 1 is not the "subdivision of land" (s 4B(3)(e)(i) of the EPA Act). The division of lot 1 (consolidated with lot 7) into proposed lots 11 and 12 is the subdivision of land. Is that development prohibited under any circumstance? In one sense, the answer to this question is "no" - subdivision is not prohibited under any circumstance if that subdivision is for a boundary adjustment where no additional lots are created is permissible.

73 This answer, however, assumes that one part only of the LEP exclusively identifies permissible categories of development (that is, cl 9.1). Reference (for example) to cll 9.2, 9.4, 13.1, 17.1, 20, 33 and Schedule 1 of the LEP demonstrates the contrary. Clause 34.4(c)(i) must be construed in the context of the LEP as a whole.

74 Construed in context, cl 34.4(c)(i) identifies that consent may not be granted to subdivision of certain land unless such subdivision is within the meaning of subdivision "…for a boundary adjustment…". While the word "for" in this provision may not be felicitous, it conveys that the subdivision must itself be a boundary adjustment in order to fall within cl 34.4(c)(i). The phrase "for a boundary adjustment" thus defines the class or type of subdivision permissible with consent on land shown "RES-BS (NS)" on the Map. This is not to rewrite the Table to cl 9.1 but, rather, to construe cl 34.4(c)(i) in the wider context of the LEP.

75 The consequence of this construction is that the development permissible with consent on land "RES-BC (NS)" on the Map is subdivision "… for a boundary adjustment …", not subdivision per se. Subdivision of such land per se is not permissible with or without consent and is thus prohibited (cl 9.2 of the LEP and s 76B of the EPA Act). By analogy to Carr, cl 34.4(c)(i), read with cll 8, 9.1 and 9.2, operates (for land shown "RES-BC (NS)" on the Map) to form a dividing line between subdivisions of land intended to be within cl 9.1 of the LEP and those which are not. By analogy to Pallas Newco at [23], under the threefold classification of development, no development is permissible without development consent, subdivision for a boundary adjustment is permissible with development consent and subdivision otherwise is prohibited.

76 Unlike Carr, I do not see this result as elevating form over substance. The maximum number of employees of a use "professional consulting rooms" readily fits within the notion of a standard or requirement with respect to an aspect of that use. Hence, incorporating the number of employees in the defined permissible use, as in Carr, appears contrived. In this case, the LEP identifies zones and zone subscripts (cl 8). The LEP also identifies classes or types of subdivision - relevantly, subdivision per se (the broadest category taking its meaning from s 4B of the EPA Act) and subdivision for a boundary adjustment (a narrower class of subdivision to be given meaning in the context of the LEP). The LEP specifies subdivision generally as permissible on land in the zone, and specifies subdivision for a boundary adjustment as the only permissible class or type of subdivision on land in the zone subject to the "(NS)" subscript. The effect is to prohibit subdivision generally on land in the zone subject to the "(NS)" subscript.

77 The first question to be posed on the reasoning in Poynting (that is, is subdivision on land shown "RES-BC (NS)" on the Map prohibited under any circumstance), on this basis, is to be answered "Yes".

78 It will be apparent from the discussion above, that I do not necessarily hold the same view about the words "…where no additional lots are created". In this matter, no additional lots are created, so the point is moot. Nevertheless, attempting to articulate the distinction between the two parts of cl 34.4(c)(i) may clarify the reasons in support of my conclusion that the first question in Poynting should be answered "Yes" with respect to the relevant part of the clause (subdivision for a boundary adjustment). The distinguishing features I have in mind are as follows: (1) The phrase "subdivision of land…for a boundary adjustment" describes the character or essence of the subdivision itself.

(2) The phrase "…where no additional lots are created" describes an outcome of the subdivision.

(3) The phrase "subdivision of land…for a boundary adjustment" specifies the development permissible with development consent.

(4) The phrase "…where no additional lots are created" specifies a standard or requirement with which the permissible development (subdivision for a boundary adjustment) must comply. 79 If I am incorrect in my approach to construction summarised above, then I must address the second question raised in Poynting - namely, is cl 34.4(c)(i) a provision by or under which requirements are specified or standards are fixed in respect of any aspect of the proposed development? Again, it is crucial, in this second step, to identify the development and its aspects (for the reasons given by McHugh JA in Carr). As required by the reasoning in Poynting, "a broad view of what is an aspect of a development should be taken" (at 343 [99]). Presumably, this is one reason why provisions that do not absolutely prohibit development, "in most instances", will fall within the definition of a development standard (Poynting at 343 [98]). The taking of this broad view, nevertheless, recognises that "requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development" (Carr at 269 - 270).

80 If (as I consider) "subdivision…for a boundary adjustment" is the applicable description of the development permissible with consent on the relevant land then, even on the broad view of the aspects of development I am required to apply, I am unable to characterise cl 34.4(c)(i) as specifying a requirement or fixing a standard in respect of (otherwise) permissible development (or any aspect thereof). Just as "the two stories of a duplex building are not in any relevant sense requirements specified or standards fixed in respect of any aspect of the use of a duplex" (Carr at 269 - 270), the location of a boundary is not a requirement specified or standard fixed in respect of any aspect of a subdivision for a boundary adjustment; it is (itself) the permissible development.

81 To reach a different conclusion, I would need to be able to: - (i) characterise the development permissible with consent on the land as "subdivision", and (ii) treat the words "…for a boundary adjustment" as specifying a requirement or fixing a standard in respect of an aspect of that permissible development. Attempting to achieve either of these outcomes seems to me to expose the difficulty in the applicant's position. First, construing the provisions of the LEP as a whole, subdivision per se is not permissible development on the land in question. Secondly, whatever formulae of words used to describe the development (for example, "subdivision…which results in a boundary adjustment", "subdivision…for the purpose of a boundary adjustment" or, as here, "subdivision…for a boundary adjustment"), the words seem to me to be intractable. Because the category of the permissible subdivision is (in shorthand) "boundary adjustment", that quality or condition cannot be external to the development and its aspects. In substance, the result is the same - that control on development is not a "development standard" as defined.

82 The second question to be posed on the reasoning in Poynting (that is, is cl 34.4(c)(i) a provision by or under which requirements are specified or standards are fixed in respect of any aspect of the proposed development), on this basis, is to be answered "No".

83 Again, I do not necessarily hold the same view about the words "…where no additional lots are created". On the broad view required to be taken by Poynting, a provision that stipulates that no additional lots are to be created may well specify a requirement or fix a standard in respect of an aspect of the permissible development "subdivision for a boundary adjustment" - namely, the resulting number of lots.

84 The applicant acknowledges that cl 34.4(c)(i) applies and did not identify any other provision of the LEP that would enable the land shown "RES-BC (NS)" on the Map to be subdivided. For these reasons, I answer question 2 "Yes" (although, strictly speaking, the prohibition arises by operation of all of cll 9.1, 9.2 and 34.4(c)(1), and s 76B of the EPA Act), and question 3 "No". It follows that, leaving aside questions 4 to 6, I consider the proposed development is prohibited from being carried out on the land, the consequence of which is that the appeal should be dismissed. I nevertheless address questions 4 to 6.

85 I observed in [57] above, that I considered that the proposal ought to be described as the consolidation of lot 7 into lot 1, and the subsequent subdivision of the (enlarged) lot 1 into two lots.

86 Consolidation of land is not within the meaning of the "subdivision of land" (s 4B of the EPA Act). Although cl 34.11 uses the words "for the purpose of" (in distinction from cl 34.4(c)(i)), in the context of cl 34.11, I consider those words are intended to describe the nature or essence of the permissible subdivision, rather than, for example, conveying any sense of a use for a purpose.8

87 For the same reasons as set out above, insofar as the application relates to land zoned Regional Open space, I do not consider the subdivision to be for the purpose of a boundary adjustment.

89 For the same reasons as set out above, I consider that cl 34.11 is not a development standard as defined in s 4 of the EPA Act.

90 Accordingly, I answer question 5 "Yes" (subject to the same qualification to my answer to question 2), and question 6 "No".

Conclusion 91 In summary, I answer the separate questions as follows: Q. 1A : Yes. Q. 1 : No. Q. 2 : Yes. Q. 3 : No. Q. 4 : No. Q. 5 : Yes. Q. 6 : No.

92 It follows from the matters set out above that the proposed development is not permissible with or without consent, and is thus prohibited development. As such, and subject to any submission to the contrary, I consider that orders ought to be made finally disposing of the matter by dismissing the appeal.

  1 Pt 1 r 5A of the Land and Environment Court Rules 1996. See also the summary relating to the making of orders for the hearing of separate issues in Greg Young v Parramatta City Council [2006] NSWLEC 116 at [6] to [12].

2 Malas Development Pty Ltd v Sutherland Shire Council (1999) 102 LGERA 303 at 308. 3 Halsbury's Laws of England 4th ed. Vol 4(1) at [901] and Halsbury's Laws of Australia, Vol 22 at [355 - 13900].

4 The Commonwealth v Baume (1905) 2 CLR 405 at 414 cited in Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

5 Maunsell v Olins and Another [1975] AC 373 at 391 cited in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 398.

7 Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of The Commonwealth of Australia (1981) 147 CLR 297 at 305.

8 See, for example, Shire of Perth v O'Keefe and Another (1964) 110 CLR 529 at 535; Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138 at 145; and Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 - 311. See also, with respect to subdivision, Lyne v Moree Plains Shire Council (1999) 110 LGERA 120 at [34] and [35].

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