Ogg v Hawkesbury City Council

The site and its context

1. The application relates to land legally described as Lot 1 in Deposited Plan 1038977 known as No 128 Grose River Road, Grose Wold. It is an irregular shaped allotment with a 231.29 m frontage to Grose River Road and 121.81m to Grose Wold Road and area of 8.3 ha.
2. The site contains a dwelling house and garage adjoining Grose River Road and three dams and is within a locality characterised by a rural residential development on lots of varying sizes. The subject land contains areas mapped as 'environmental constraint area' under the Hawkesbury Local Environmental Plan 2012 (LEP) these areas generally correspond with the watercourses which traverse the property and associated native vegetation.

Background and the proposal

1. The site was created as a result of a two lot subdivision of Lot 5 Deposited Plan 703300 which was registered on 21 March 2002. Lot 2 in that subdivision is located at the intersection of the two roads with the site having a common boundary to the irregularly shaped internal boundary of Lot 2.
2. It is proposed to subdivide Lot 1 into two new lots, proposed Lots 11 and 12. Lot 11 would have an area of 4 ha and contain the existing dwelling house and dam with access from Grose River Road via an existing driveway.
3. Proposed Lot 12 would have an area of 4.35 ha and contain two existing dams with access from Grose Wold Road and a new driveway crossing to be constructed off that roadway.
4. It is noted that the combined area of two lots does not equate to the area of the existing lot, a difference of 0.01 ha
5. The plans lodged with the application (found in exhibit 2) indicate an area to be provided within Lot 12 as a building envelope for a dwelling to be constructed on the land and the necessary asset protection zones required to protect any dwelling on the land. The plan also delineates the extent of the environmental constraint area.

Planning controls

1. The land is zoned RU4 - Primary Production Small Lots under the provisions of the LEP.
2. Clause 2.3(2) of the LEP requires a consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
3. The objectives of the RU4 zone are: • To enable sustainable primary industry and other compatible land uses. • To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways.
4. Clause 4.1 permits subdivision of the land provided that the new lots created are not less than the minimum subdivision lot size shown on the Lot Size Map. A minimum area of 4ha applies to the site.
5. Clause 4.1B applies to the site with subclause (2) in the following form: (2) Development consent must not be granted to a subdivision of land to which this clause applies unless: (a) the pattern of lots created by the subdivision and the location of any buildings on those lots is not likely to have a significant impact on any threatened species, populations or endangered ecological community or regionally significant wetland, waterways, groundwater or agricultural activities in the locality, and (b) the consent authority is satisfied that each lot to be created contains a suitable area for a dwelling house, an appropriate asset protection zone relating to bush fire hazard and an adequate sewage management system if sewerage is not available, and(c) if sewerage is not available - the consent authority has considered a geotechnical assessment that demonstrates the land is adequate for the on-site disposal of effluent, and (d) the consent authority is satisfied that there is a satisfactory ratio between the depth of each lot and the frontage of each lot, having regard to the purpose for which the lot is to be used.
6. Clause 4.1E applies to land in the area known as "Grose Wold", being the land identified as "Area B" and edged heavy yellow on the Lot Size Map. The site is within that area and the lot size map identifies the land as having a minimum subdivision size of 4ha. The clause is in the following form: (1) The objective of this clause is to provide an alternative method to clause 4.1 for the subdivision of land to which this clause applies in a way that ensures the protection of the Cumberland Plain Woodland. (2) This clause applies to land in the area known as "Grose Wold", being the land identified as "Area B" and edged heavy yellow on the Lot Size Map. (3) Development consent may be granted for the subdivision of land to which this clauses (sic) applies only if: (a) the consent authority is satisfied that the pattern of lots to be created by the subdivision and the location of any buildings on those lots will minimise the impact on any Cumberland Plain Woodland, any land in an environmental constraint area and waterways and groundwater, and (b) the consent authority has considered a geotechnical assessment demonstrating the land is adequate for the on-site disposal of effluent in accordance with best practice, and (c) the Cumberland Plain Woodland and any land in an environmental constraint area is retained in one lot as much as possible, and (d) the consent authority is satisfied there will be no significant adverse impacts on Cumberland Plain Woodland or land in any environmental constraint area located downstream or surrounding the development. (4) Despite clauses 4.1, 4.1AA, 4.1A and 4.1C, if land to which this clause applies contains an environmental constraint area, development consent must not be granted for the subdivision of that lot unless: (a) the number of lots to be created for a dwelling house by the subdivision will not exceed the area of the original lot for the land to be subdivided, in hectares, divided by 4, and (b) any lot created for a dwelling house will contain at least one hectare of land that is not in an environmental constraint area. (5) When considering a development application to which this clause relates, the consent authority must have regard to the effect the development is likely to have on the following: (a) the water quality and water quantity in the Grose River and its tributaries, (b) the scenic quality of the area, (c) existing riparian vegetation, the rehabilitation of local native riparian vegetation located along the Grose River and along drainage lines and creeks. (6) In this clause: Cumberland Plain Woodland means the critically endangered ecological community with that name referred to in Part 2 of Schedule 1A to the Threatened Species Conservation Act 1995. environmental constraint area means land identified as "Environmental Constraint Area" on the Environmental Constraints Area Map. original lot for land being subdivided means a lot that existed immediately before 2 June 2000 that included the land.
7. Clauses 6.4 - Terrestrial biodiversity and 6.7 - Essential services are also relevant to the determination of the application.
8. Hawkesbury Development Control Plan (DCP) applies to the site with Part D Chapter 3 - Subdivision and Part E Chapter 3 - Grose Wold particularly relevant.
9. Part 5A of the Environmental Planning and Assessment Act 1979 (EP&AAct), State Environmental Planning Policy No 44 - Koala Habitat (SEPP44) and Part 2 of Sydney Regional Environmental Plan No 20 Hawkesbury-Nepean River (No 2 - 1997) (SREP1997) are other relevant planning instruments.

The issues

1. Following a conciliation conference presided over by another commissioner of the Court, all of the contentions listed in the Council Statement of Facts and Contentions, other than the issue of permissibility, were resolved through the submission of additional information. The council has assessed that information and found it to be acceptable.
2. The council did not press contentions 2, 3, 4, 5 and 6. Ms C Haron, the council's town planner with carriage of the application, advised the Court that she had undertaken the necessary referrals and assessment of the application as required under s79C of the EP& AAct and, other than the issue of permissibility, there were no reasons the Court should refuse consent. She was satisfied that the development met all of the relevant matters under that section.
3. The issues before the Court are whether the provisions of clause 4.1E of the LEP permit the proposed subdivision. If it does not, whether provisions of that clause are development standards and, if they are, whether an objection pursuant to clause 4.6 the LEP could be used to allow exceptions to that development standard.

Agreed Facts

1. The parties agree that the original lot is Lot 5 in DP 703300. They also agree that the provisions of clauses 4.1B and 4.1E of the LEP apply to the application; that the areas of the proposed lots would satisfy the minimum lot size provisions of clause 4.1 and, on the basis of Ms Haron's evidence, the matters in clause 4.1B(2) are met. Applying the calculation in clause 4.1E(4)(a), the original lot could be subdivided into 2 lots under the provisions of that clause.

Applicant's Submissions

1. Mr Pickles, for the applicant, submits that the heading to clause 4.1 E does not form part of that instrument consistent with the provisions of Section 35 (2) of the Interpretation Act 1987. Despite the heading, sub clause (1) provides that the clause is intended to be an alternative method of determining lot size to clause 4.1. The word alternative is not defined, but it can mean "in place of another" or it can mean "liberty to choose between two possibilities" (Australian Concise Oxford Dictionary 1987). The difficulty with the use of the term in this context is that the two different meanings would have two very different results. The first means that clause 4.1E replaces clause 4.1, on the second meaning it would be open to choose between method of determining lot size.
2. Another layer of complexity is added by subclause 4.1E(3) which is said to operate despite clauses 4.1 and 4.1A and development consent must not be granted for the subdivision of that lot unless. This suggests that rather than being at liberty to choose, or in place of clause 4.1, clause 4.1E applies in addition to clause 4.1 where the land contains an environmental constraint area.
3. Despite the ambiguity in the word alternative in the objective of clause 4.1(1), the words of clause 4.1E(4) probably operate as an additional constraint on the grant of consent to the lot size provision in clause 4.1, rather than in place of it. The lot size map supports this interpretation by showing the land the subject of the development application has coloured "4ha" overlaid by "Area B" and a reference to clause 4.1E.
4. An issue then arises as to how the provision in clause 4.1E(4) is to be interpreted. The process of statutory construction must always begin firstly by examining the text itself (Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]). This will usually correspond with the grammatical meaning of the provision. (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 394 [78]). It is wrong to approach the question of statutory construction by confining attention to the legislative purpose and disregarding the text (Valuer General v Fivex Pty Ltd [2015] NSWCA 15 at [26]).
5. Analysis of the words of the provision reveals that it is necessary to identify: 1. The original lot for the land to be subdivided; 2. the area of the original lot for the land to be subdivided in hectares; 3. the area of that lot divided by 4; 4. the area of at least 1 ha not being within an environmental constraint area.
6. It is also a cardinal principle of statutory construction that meaning should be given to every word in the provision (Project Blue Sky at [71]). Clause 4.1E requires a calculation to be undertaken on the original lot for the land to be subdivided. Original lot for the land to be subdivided as defined in subclause (6), contemplates that the land to be subdivided might not be the whole of the original lot because of the additional words that included the land.
7. Immediately before to June 2000, Lot 1 formed part of Lot 5. The original lot for the land to be subdivided was Lot 5, having an area of 9.66ha. Undertaking the calculation required by clause 4.1E(4)(a) results in a limitation that the number of lots to be created from a subdivision be not more than 2.415. Rounded down, this means the maximum number of lots that can be created by the subdivision is 2. The proposed development complies with this requirement. It also complies with the requirement that the lots have more than 1 ha of land not in an environmental constraint area.
8. The council's contention, that all previous subdivisions have to be included in the calculation, ignores the words of the clause and the definition, which contemplates that the land to be subdivided may not be the original lot. If the council interpretation were correct, the words by the subdivision in the clause and that included that land in the definition would be unnecessary.
9. A distinction may be drawn between the lot size provisions of clauses 4.1 and 4.1A and the provisions governing the number of lots to be created in clause 4.1E. Clauses 4.1 and 4.1A govern the number of lots to be created by a subdivision. Terminology used in 4.1(3) and 4.1A(3) is the size of lots resulting from a subdivision. In contrast, clause 4.1E is not concerned with the number of lots resulting from the original lot, but rather, the number of lots created….. by the subdivision. The difference in language is designed to achieve a different result. If it had been intended to limit the number of lots resulting from a subdivision of the original lot, the clause would have said so. Instead, it is concerned with imposing an additional limit on the number of lots created by a subdivision in addition to the lot size requirement. In other words, clause 4.1 is designed to achieve a minimum lot size and clause 4.1E is designed to restrict the number of lots that may be created by a subdivision by reference to the size of the original lot.
10. Clause 4.1 operates as a restraint on the further subdivision of lots created under clause 4.1E to prevent further subdivision of land less than 4 ha.
11. An additional constraint is contained in clause 4.1E(4)(b) which requires that any lot created for a dwelling house will contain at least 1 ha of land that is not in an environmental constraint area. This additional constraint is aimed at facilitating the objects of the clause in 4.1E(1) ,i.e. ensures the protection of the Cumberland Plain Woodland.

Respondent's submissions.

1. Mr Griffiths, for the council submits the original lot is Lot 5 in DP703300. The reference to an original lot; the use of the term included and the setting of a specific date clearly envisages that there may be subdivisions thereafter (such as DP 1038977). It is not a requirement of the definition that it be limited to the area, dimensions or location of an existing current lot. Indeed, such an interpretation would render the definition and to be subclause ineffective.
2. The control requires that the number of lots to be created from the original lot not exceed the area of the original lot for the land to be subdivided, in hectares, divided by 4. Lot 5 is shown in its DP as having an area of 10 ha. When divided by four the quotient is 2.5 and hence the permissible lot yield is 2. Lot 5 has since been subdivided by DP 1038977 to create allotments being lots 1 and 2 in that plan. These two permissible allotments have already been created by lots 1 and 2 in DP 1038977. It follows that the subclause prohibits any further subdivision.
3. The applicant's argument that further subdivision of Lot 1 in DP 1038977 is permissible as long as each subdivision does not exceed two lots must be rejected on the basis that: 1. the subclause doesn't refer to the division of the area of the current lot, rather, the area of the original lot; 2. the logical outcome of the applicant's argument would be that there could be repeated subdivisions of the land hereafter so long as each subdivision was limited to producing only two lots; 3. the applicant's interpretation would lead to an outcome which was the preferred or inconsistent with the remainder of the instrument; 4. regard should also be had to the observation of Cripps J in Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323 where he said: I adopt, with respect, the observation of Lord Reid in Gill v Donald Humberstone & Co. Ltd [1963] 1 WLR 929 at 933, 934 that when interpreting delegated legislation, the Court ought be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing section of an Act of Parliament and that if that language is capable of more than one interpretation, a Court ought discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practical result.

Conclusion and findings

1. Clause 4.1E applies to the application because the site is within the area identified as "Area B" and edged heavy yellow on the Lot Size Map to the LEP. That map requires a minimum lot size of 4ha. The development meets that requirement.
2. The clause requires assessment of a range of matters as listed in subclause (3). According to the evidence, the application complies with those requirements.
3. Because the site contains an environmental constrain area, the provisions of clause 4.1E(4) also apply.
4. I agree with Mr Pickle's submission that the wording of clause 4.1E(4)(a) must be analysed as detailed at [26]. There is nothing that requires me to take into account any subdivision of the original lot that has taken place since 2 June 2000. There is no dispute that the land to which the application relates contains an environmental constraint area. Applying the calculation in the clause, a maximum of 2 lots can be created by the subdivision. This number does not exceed the area of the original lot (10ha) divided by 4.
5. Both proposed lots 1 and 2 contain at least one hectare of land that is not within an environmental constraint area.
6. The council has also assessed those matters listed in clause 4.1E(5) of the LEP and I am satisfied, based on the evidence, that the development will not have any detrimental effect on those matters.
7. For these reasons, I agree with the applicant's submissions that the development complies with the provisions of clause 4.1E of the LEP. I also agree that the provisions of clause 4.1 require all lots to be created by the subdivision to have an area of 4ha. Both clauses apply to the application and this ensures that there is no opportunity for continued subdivision. The application complies with those requirements.
8. Finally, having regard to the evidence, I am also satisfied that the provisions of clause 4.1B are met and there are no reasons why consent should not be granted. The council accepts that if I find the development is permissible under the LEP, there are no reasons why consent should not be granted.
9. Having found that the development is permissible, there is no need for me to make any findings in relation to the second issue of whether the provisions of clause 4.1E(4)(a) are a development standard.
10. The applicant originally objected to two of the draft conditions of consent proposed by the council (Exhibit 3). The first is condition 4. That condition is one that was included in the bush fire safety authority issued in accordance with the provisions of the Rural Fires Act 1997 (Exhibit 4). That authority had not been provided to the applicant prior to the hearing and for that reason, the condition is no longer opposed.
11. The second is condition 43 which is in the following form: The Environmental Constraint Areas on Lots 11 and 12 shall be fenced prior to the issue of the subdivision certificate.
12. In addition to that condition, condition 49 requires the ongoing maintenance of the Environmental Constraint Areas in accordance with an approved Vegetation and Weed Management Plan (49(i)) with the fencing to be maintained in perpetuity to prevent stock from entering these areas (49(ii)).
13. The condition is opposed on the basis that it does not relate to the application. I disagree. As can be seen from the provisions of Clause 4.1E of the LEP, the protection of the Environmental Constraint Area is an important consideration in determining whether consent should be granted. Accordingly, the fencing of that area is not unreasonable as it would define the areas that need to be maintained and also prevent large animals entering the area.
14. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application No. DA 716/14 4A for a two lot subdivision of Lot 1 in Deposited Plan 1038977, known as No 128 Grose River Road, Grose Wold, is approved subject to the conditions in Annexure A. 3. The exhibits are returned.

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Sue Morris Commissioner of the Court 10381 of 2015 Morris (C) (187 KB, pdf)

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