Olsson v Goulburn Mulwaree Council & the Minister Administering The Crown... [2010] NSWLEC 169 | Case summary

(d) provision of water storage tanks and on-site waste water management facilities for each dwelling-house; and (e) clearing of native vegetation so as to accommodate the dwellings and works earlier described, including sufficient clearing to provide appropriate asset protection zones. 3 The Council refused their development application. It contends that the development proposed by them is prohibited by cl 20 of Mulwaree Local Environmental Plan 1995 (the LEP), the statutory instrument controlling development upon their land. The Council has also determined that, apart from legal constraints, there are a number of merit matters which justify its refusal. 4 Mr and Mrs Olsson have appealed to this Court from the Council's determination of their development application. Prior to embarking upon a hearing of the merits of that application, I ordered that the contention raised by the Council as to the effect of cl 20 upon the development application should be determined (Olsson v Goulburn Mulwaree Council & the Minister Administering The Crown Land Act 1989, Olsson v The Minister Administering The Crown Land Act 1989 [2010] NSWLEC 47. The question then framed for separate determination was as follows: "Whether, upon the proper construction of cl 20 of Mulwaree Local Environmental Plan 1995, a lawfully erected dwelling-house is required to be standing upon the land known as 1050 Crookwell Road, Middle Arm, being Lot 181 in DP 750002, before the Council or, on appeal, the Court is empowered to grant development consent to erection of one or more rural dwellings upon that land." 5 Having regard to the manner in which this question has now been argued before me, the issues raised for determination are - (i) whether the text of cl 20 requires the separate question to be answered "yes"; (ii) whether, in the context of the LEP, cl 20 should be interpreted as leading to a different response to the question posed; and (iii) whether, in the context of the "staged development" provisions of the Environmental Planning and Assessment Act 1979 ( the Act ), it is open to the Court, on a final hearing of the merits of the appeal, to grant development consent to some part or parts of the development sought in the development application. Land use zoning: permissibility of dwelling-houses 6 The land held by Mr and Mrs Olsson is zoned General Rural 1(a) under the LEP. Item 3 of the land use table for that zone identifies those purposes of development which are permissible with the consent of the Council. It does so by nominating "[a]ny purpose other than a purpose included in item 2 or 4." Development for the purpose of a dwelling-house does not fall within either of items 2 or 4 with the result, at least by reference to the land use table, it is a permissible form of development with the Council's consent. 7 The land use table is contained within cl 9 of the LEP. The opening words of cl 9(2) indicate that the land use tables for each zone operate "[e]xcept as otherwise provided by this plan". Thus, it is necessary to consider the other provisions of the LEP in order to determine whether any of them operate by way of exception to any particular table, as subclause (2) contemplates might be the case. 8 An exception contemplated by cl 9(2) may relevantly be one that excludes the erection of a dwelling-house altogether or qualifies the circumstances in which the consent for the erection of a dwelling-house may be given. Such a provision that is central to determination of the present question is cl 20. It provides as follows: " 20 Rural workers' dwelling-houses within Zone No 1(a), 1(b), 7(a) or 7(b) (1) The Council may consent to an application to erect one additional dwelling-house (being a rural worker's dwelling-house) for each 40 ha of land within Zone No 1(a) … which has an area of not less than 80 ha, but only if the Council is satisfied that: (a) no additional access to a main or arterial road is required from the land, and (b) any dwelling-house to be erected on that land will not interfere with the purpose for which the land is being used. (2) The Council shall not consent to the erection of a rural worker's dwelling house unless the additional dwelling house is to be located on land comprised within the same Crown Grant or Certificate of Title as the land on which the principal dwelling-house stands or if the Parish Portion or allotment upon which the additional dwelling-house is to be erected has an area of less than 40 ha." Clause 20: application of the text 9 The text of cl 20 makes its purpose tolerably clear. At a level of generality, it is permissive of an additional dwelling-house on land within the rural (1)(a) zone. At a level of particularity, it imposes constraints upon the power of a consent authority to consent to the erection of an additional dwelling-house on land in that zone. 10 The constraints imposed by subclause (1) of cl 20 are - (i) that the additional dwelling-house be properly categorised as "a rural worker's dwelling-house"; (ii) that the number of additional dwelling-houses be determined according to the area of the land upon which they are to be located; and (iii) that the criteria identified in paragraphs (a) and (b) of subclause (1) be satisfied. 11 Subclause (2) imposes an additional qualification on the power of a consent authority to consent to the erection of a rural worker's dwelling meeting the requirements of subclause (1). By use of the words "shall not consent", the subclause imposes a prohibition upon the granting of consent unless two criteria are met, namely - (i) the land upon which "the additional dwelling-house" is to be erected has an area of 40 ha or more, and (ii) that additional dwelling, being a rural worker's dwelling-house, is located on land having the same land title as the land up which "the principal dwelling-house stands". 12 Each of the qualifications that I have identified needs to be satisfied before consent can lawfully be given to the erection of a rural worker's dwelling- house on Lot 181. 13 Critical to the proper interpretation of cl 20 is the definition of "rural worker's dwelling". While the expression is not defined in the LEP itself, cl 6 adopts the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions) for the purpose of the LEP. By cl 4 of the Model Provisions, the term "rural worker's dwelling" is defined to mean - "a dwelling which is on land upon which there is already erected a dwelling and which is occupied by persons engaged in rural occupation on that land; … ". 14 The term "dwelling" is defined to mean "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile" while the term "dwelling-house" is defined to mean "a building containing 1 but not more than 1 dwelling".

15 When the definitions to which I have just referred are applied to the expression "rural worker's dwelling-house" in subclause (1) of cl 20, it seems that the language of subclause (1) involves tautology. Applied literally, it renders permissible, with consent, the erection of an "additional" dwelling-house restricted in a way that limits its erection to land upon which there must already be a dwelling-house, that is, it must, by definition, be "additional". Accepting that planning instruments are not always drafted with pellucid clarity or with a keen eye to taxonomy (Egan v Hawkesbury City Council (1993) 79 LGERA 321 per Meagher JA at 331), the intent of the subclause can nonetheless be discerned. Subject to the areal and performance constraints identified in that subclause, consent can only be given to a second or further dwelling-house if there is a primary dwelling-house already erected upon the land at the time of consent and the second or further dwelling otherwise meets the constraints of occupation identified in the definition of a rural worker's dwelling. 16 This same requirement for there to be an existing dwelling-house on land within the rural 1(a) zone before a rural worker's dwelling-house can be erected is repeated in subclause (2). That requirement is given emphasis not only because the expression "rural worker's dwelling-house" is used but also because that reference is followed by the phrase "the additional dwelling-house". Further emphasis is given by the common title constraint requiring location of the dwelling on land on which "the principal dwelling-house stands". The tense used in the last expression is confirmatory of the need for the principal dwelling to exist at the time of consent. 17 Mr and Mrs Olsson contend that their development proposed in all its aspects is presently permissible with consent. The commencing point of this submission is the land use table applicable to their land which renders development for the purpose of a dwelling-house of any kind to be a purpose which is permissible with consent. 18 That expressed permissibility of purpose is then contrasted with the language of cl 20. It is noted that both subclauses (1) and (2) of cl 20 direct the constraints contained within them to the erection of a dwelling-house. Accepting, as they do, the need to give effect to the restriction that the rural worker's dwelling be an "additional" dwelling, they submit that compliance with the section will be achieved by imposition of a condition which controls the sequence with which dwelling-houses are erected. In the context of their development application, they contend that their proposed development is permissible provided a condition of development consent is imposed requiring that the principal dwelling-house be completed before the erection of a second dwelling-house is commenced. 19 A further submission to the same effect is made by them but with focus upon the definition of a "rural worker's dwelling". They submit that as such a dwelling is, by definition, one "which is on land upon which there is already erected a dwelling and which is occupied … ", emphasis is to be given to the present tense used in that definition. In consequence, so it is argued, the time at which it is necessary to determine whether the additional dwelling-house falls within the definition is the time that the additional dwelling-house is to be erected rather than the time at which development consent is granted. 20 It is also submitted that no different approach is dictated by cl 20(2). The requirement in the subsection that the additional dwelling "is to be located" on land "on which the principal dwelling-house stands" involves no more than securing by appropriate conditions the correct sequence of dwelling-house erection. If the principal dwelling is first completed then, subject to the common land title limitation prescribed by the subclause, the erection of all dwelling-houses contemplated by the development application is a permissible form of development. 21 I do not accept the submission advanced on behalf of Mr and Mrs Olsson. It reflects neither the text nor purpose of cl 20. 22 As a statutory instrument, the LEP should be interpreted in accordance with general principles of statutory interpretation (Cranbrook School v Woollahra Council [2006] NSWCA 155; (2006) 146 LGERA 313 at [36]). Application of those principles requires that the text of the provision being interpreted, in this case cl 20, be the focus of consideration. As Gleeson CJ observed in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [6] - "Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling." 23 To similar effect is the judgment of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 where at [47] French CJ, Hayne, Heydon, Crennan and Kiefel JJ said - "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself … . The language which has actually been employed in the text of legislation is the surest guide to legislative intention." 24 Focus upon the text of cl 20 makes clear that the distinction sought to be drawn by Mr and Mrs Olsson between permissibility of development of land for the purpose of a dwelling-house and the permissible erection of an additional dwelling-house, is a distinction without any meaningful difference in the present context. Further, the argument of tense used in the definition of "rural worker's dwelling" does not advance their argument. 25 Both subclauses (1) and (2) of cl 20 are directed to the existence of a dwelling on land as a prerequisite to permissibility of an additional dwelling-house. The only form of additional dwelling-house that is authorised to be erected on land is a rural worker's dwelling-house. If, at the time of consent, there is no dwelling "already erected" on the land, then the additional dwelling in contemplation is not, by definition, a rural worker's dwelling. In other words, one of the essential statutory prerequisites to permissibility does not exist. The necessary categorisation of the additional dwelling as a rural worker's dwelling marks a "dividing line" between development that is permissible and that which is prohibited (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 per Priestley JA at 267). 26 The submission on behalf of Mr and Mrs Olsson that the legal prerequisite for consent, namely the existence of a dwelling-house on the land, can be addressed by imposition of a condition seems to me to involve an impermissible approach to the proper interpretation and application of the statutory instrument. Permissibility of all aspects of development in contemplation must be found at the time at which consent is granted. What is fundamentally a prohibited development cannot be transformed into permissible development by imposition of a condition anticipatory of what must occur to overcome the prohibition (cf City of Enfield v De Kuijer (1980) 43 LGRA 39 per Wells J at 42). Context does not compel a different result 27 Mr and Mrs Olsson rely upon the context to support the interpretation for which they contend, namely that there is power to grant conditional consent to all aspects of the development which they propose. In principle, the importance of context and purpose in the process of statutory interpretation must be accepted (CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at [408]; Project Blue Sky Inc v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]). However, identification of the context and purpose relevant to inform the interpretation of the statutory provision being considered may well be a matter about which reasonable minds may differ (cf Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 at [28] and [112] - [113]). 28 The context and purpose submission made on behalf of Mr and Mrs Olsson is addressed at both a general and a specific level. It is said that their interpretation is consistent with "the scope, object and purpose" of the Act. That broadly expressed submission is no doubt intended to identify at least one of the objects of the Act, which is to encourage "the promotion and co-ordination of the orderly and economic use and development of land": s 5(a)(ii). While the submission may be consistent with such a broadly expressed objective, so also is a more limited operation of cl 20 which confines permissibility of an additional dwelling on rural land to a particular set of pre-existing circumstances. So construed, cl 20 is equally recognisable as a measure to promote the orderly use and development of land. 29 It is also contended on behalf of Mr and Mrs Olsson that as the LEP renders the use of land zoned rural 1(a) for the purpose of a dwelling-house a permissible form of development, cl 20 should be interpreted in a way that favours the grant of development consent (BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117]). In my opinion such an approach is not open in the present context. The observations of McClellan J in BGP Properties as to the significance of the zoning of land, rendering particular forms of development permissible, were made in a context directed to discretionary considerations when determining whether a particular form of development is appropriate to the development site intended for it. They were not, and in my opinion, could not, be relevant to the proper interpretation of a provision of a planning instrument that seeks to confine or even prohibit, in particular circumstances, a form of development which, in other circumstances, may be permissible. Particularly is this the case when the land use table for a particular zone is expressed to operate subject to exceptions otherwise found in the planning instrument. 30 The specific provisions of the LEP upon which the submissions made on behalf of Mr and Mrs Olsson seek to rely are cl 2 together with the objectives of the rural 1(a) zone. Clause 2 includes objectives which, in my opinion are, at their highest, neutral in their impact upon the proper interpretation of cl 20. Clause 2(b)(iii) identifies, as a subsidiary objective of the LEP, the facilitation of "a range of residential and employment opportunities in accordance with demand", while paragraph (i) of the same subclause identifies as a relevant objective the minimisation of "the cost to the community of fragmented and isolated development of rural land". These objectives offer a counter to each other. As such, they provide no context from which the meaning of cl 20 can be discerned, at least not in the manner for which Mr and Mrs Olsson contend. 31 The objectives expressed for the rural 1(a) zone are also relied upon. The generality of these objectives provides no relevant context to support the operation of cl 20 in the manner for which Mr and Mrs Olsson contend. Paragraph (a)(i) identifies, as an objective, the promotion, enhancement and conservation of agricultural land "in a manner which sustains its efficient and effective agricultural production potential" while paragraph (b)(i) expresses the objective of minimising the cost to the community of "fragmented and isolated development of rural land". Paragraph (b)(ii) expresses the objective of minimising the cost of "providing, extending and maintaining public amenities and services". If anything, these objectives seem to me to favour a limitation upon rural worker's dwellings rather than an expansive meaning which would allow for the contemporaneous consent for both a principal dwelling and rural worker's dwellings on rural 1(a) land. 32 In my opinion, the most significant contextual provision of the LEP for present purposes is cl 19. It is the clause which restricts the erection of a dwelling-house in the rural 1(a) zone. It does this, in a manner common to many planning instruments, by providing a minimum area upon which a single dwelling-house can be erected. Constraints beyond allotment or holding area are also imposed by that clause. 33 Thus, it can be seen that cl 20 is intended to compliment the more general provisions of cl 19, limiting the erection of dwelling-houses in rural areas. By employing both an areal limitation and, importantly, the limitation of a second dwelling to that of a "rural worker's dwelling", it can be seen that a purpose served by cl 20 is the preservation or conservation of rural land for its inherent characteristics as potentially productive agricultural land. The proliferation of dwellings upon that land are potentially antithetical to the achievement of that purpose and so the controls that cl 20 imposes. 34 In short, none of the contextual markers upon which Mr and Mrs Olsson rely support an interpretation of cl 20 which would render it permissible for the Council or the Court to grant development consent for all of the dwelling-houses which they seek consent to erect. If anything, that context, particularly the provisions of cl 19, weigh against their submission. A staged development consent? 35 It was submitted on behalf of Mr and Mrs Olsson that if, contrary to their primary submission, I determined that a "principal dwelling" must exist on their land before any consent can be granted to erect a rural worker's dwelling, then a staged development consent could be granted to their application in accordance with the provisions of Div 2A of Pt 4 of the Act. Section 83B, which is within Div 2A, provides as follows - " 83B Staged development applications (1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. (2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application. (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. (4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3)." 36 Reliance upon the provisions of Division 2A was somewhat belated. When the trial of the separate question presently being determined was ordered, it was conceded on behalf of Mr and Mrs Olsson that if cl 20 required that there first be a dwelling-house erected on Lot 181 then, there being no such dwelling-house, their application must fail. The belated reliance upon Div 2A has meant that their development application has not, hitherto, been treated as a staged development application in accordance with the requirements of s 83B(2). However, that position can be cured should the provisions of the Division otherwise be available. 37 Even upon the assumption that the present development application is amended to conform with s 83B(2), in my opinion the provision does not avail Mr and Mrs Olsson. Division 2A of Pt 4 of the Act cannot be invoked unless the overall development proposed, even in a conceptual form, is permissible development. For reasons earlier explained, cl 20 is only engaged to authorise the erection of an additional dwelling on rural 1(a) land in the form of a rural worker's dwelling when there is already on the land an existing dwelling-house, referred to in subclause (2) as the principal dwelling. If the prerequisite dwelling does not exist, then that which is proposed is not a rural worker's dwelling, that being the only kind of additional dwelling to which the consent authority can give its consent. 38 I am reinforced in this conclusion by the provisions of s 83C, also in Div 2A. By that section, a staged development application can be entertained where an environmental planning instrument otherwise requires the preparation of a development control plan before any particular or kind of development can be carried out on that land. It can hardly be expected that an environmental planning instrument would require the preparation of a development control plan for development that was, by definition, prohibited development. The fact that a conditioned sequence of events may convert that which, at the time of consent, is prohibited development into permissible development, does not alter the position. Form over substance? 39 Mr and Mrs Olsson contend that to isolate the requirement for development consent of their principal dwelling from any subsequent consent for rural workers' dwellings would be a result favouring form over substance. While the concern about substance and form may be legitimate, a paradigm suggesting that substance should always triumph over form cannot trump the words of the statutory instrument. As was observed by Basten JA in Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 150 LGERA 130 at [79] - "A legitimate concern about substance and form should not be allowed to blur the distinction between result and means." 40 As his Honour also observed in Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; (2009) 171 LGERA 152 at [39] "… the promotion of logic and consistency provides no sound basis for a court to rewrite a planning instrument." 41 It seems to me that the provisions of cl 20 are intractable in their requirement for the existence of a principal dwelling on land before consideration can be given to the erection of a rural worker's dwelling or dwellings on that same land. While the planning logic of this requirement is questioned by Mr and Mrs Olsson, the absence of such logic provides no basis upon which to interpret the provisions of cl 20 in a manner that does not felicitously reflect the text. The observation of Tobias JA in Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104 is presently pertinent where his Honour said (at [25]) "any attempt to always find planning logic in planning instruments is generally a barren exercise." Conclusion 42 Clause 20(2) of the LEP contains a prohibition upon the erection of a rural worker's dwelling or dwellings on Lot 181 unless, among other matters, there is a principal dwelling-house already standing on that land. There is not presently any dwelling-house on that Lot. It follows that no development consent can be given for the dwelling-houses for which consent is presently sought as, in the absence of a principal dwelling upon the land, the additional dwellings cannot be categorised as rural workers' dwellings within the meaning of the LEP. This same circumstance also denies to the consent authority the power to impose a condition of consent which controls the sequence within which dwellings are erected in an attempt to address the prohibition created by cl 20. The separate question answered 43 Accordingly, I answer the question as follows: Q. Whether, upon the proper construction of cl 20 of Mulwaree Local Environmental Plan 1995, a lawfully erected dwelling-house is required to be standing upon the land known as 1050 Crookwell Road, Middle Arm, being Lot 181 in DP 750002, before the Council or, on appeal, the Court is empowered to grant development consent to erection of one or more rural dwellings upon that land. A. Yes Costs 44 The question of costs has not been argued and consequently I will formally reserve the question of costs. As these proceedings are Class 1 proceedings, costs do not necessarily follow the result: Pt 3 r 3.7 Land and Environment Court Rules 2007. The circumstance that permissibility of development is necessary to be considered in the context of Class 1 proceedings does not, of itself, dictate that the losing party should bear the costs of the successful party (Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125). However, these brief and general observations having been made, it should not be presumed that I have already determined the outcome of any argument directed to costs. Orders 45 The answer that I have given to the separate question may well determine the outcome of the proceedings as a whole. However, I am not formally seized of those proceedings as a whole. I am aware of the fact that proceedings first commenced in the Supreme Court have been transferred to this Court pursuant to s 149D(2) of the Civil Procedure Act 2005 and are part of the present proceedings. The Minister Administering the Crown Lands Act 1987 is a party to the transferred proceedings. It is therefore inappropriate that I now make any order which brings the proceedings as a whole to an end, the Minister having taken no part in the determination of the separate question. 46 I therefore make the following orders: 1. Stand over the proceedings to the Registrar's List on 22 September 2010 for the purpose of making orders and giving directions for the further conduct and disposal of the proceedings. 2. Costs of hearing of the separate question reserved. **********

Olsson v Goulburn Mulwaree Council & the Minister Administering The Crown Land Act 1989, Olsson v The Minister Administering The Crown Land Act 1989

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