Moss v Kiama Municipal Council

Moss v Kiama Municipal Council - [2003] NSWLEC 165 - NSWLEC 1987 case summary — Zoe

[21]

My reasons for so concluding are expressed in the following passages at 374: Condition 4 of the development consent is an obvious attempt to implement the decisions of the Council and of the Director of the Department of Planning to uphold the objection pursuant to the State Policy by granting consent to the two lot subdivision subject to the condition or stipulation that the larger lot (comprising the subject land) be not further subdivided. It is obvious that that stipulation was intended to operate as a condition of development consent within the meaning of s.91(1)(a) and (3) and s.79(1)(a) of the EP&A Act. It is equally clear that the object and content of the condition was to forbid any further subdivision of the subject land. The condition also prescribed the means of achieving that object, namely by way of a restriction on user created by Instrument registered pursuant to s.88B of the Conveyancing Act 1919. However, it is a matter of vital legal significance that the stipulation emanates from the exercise of statutory power conferred by the EP&A Act (in the present case the relevant powers are those conferred by s.79(1)(a) and s.91(1)(a)) and not for example, as may have been the case, the statutory power conferred upon the Council by s.88E of the Conveyancing Act 1919. Although it is also apparent that the registered s.88B Instrument in the present case purports to implement this condition, it is doubtful whether it implements it fully or satisfactorily. Certainly the content of the restriction on user does not fulfil the terms of the condition because instead of proscribing further subdivision absolutely, it proscribes it conditionally or provisionally by stipulating that "there shall be no subdivision without the consent of the Shoalhaven City Council". Moreover, the efficacy of the restriction on user must be doubtful in the present case because it purports to create a restriction in gross (i.e. without benefiting any land) without purporting to be created pursuant to s.88E of the Conveyancing Act which authorises, inter, the creation of restrictions on user in gross. However that may be, it is in my judgment, perfectly clear that condition 4 was deliberately imposed to forbid the further subdivision of the subject land which would otherwise be a permissible development conformably to the provisions of cl.11 of the LEP which do not restrict the number of lots that may be created by the subdivision of land within zone No.1(a) where those lots have an area of not less than the 40ha minimum prescribed by cl.11(3) of the LEP. That, in my view, is the substantive effect of the condition and the operation and effect of that condition do not merge in the s.88B Instrument creating the restriction on the user (which though, the prescribed means of implementing the condition does not supplant or negate the effectiveness of the condition operating as a condition of development consent under the EP&A Act).

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