Ousley Pty Ltd v Warringah Shire Council

Land and Environment Court (NSW)|1999-06-16|Before: Talbot J, Mr P, Sheahan J

The applicant advised the Court that it proposed to proceed with the re-subdivision of the land in accordance with State Environmental Planning Policy No. 4 (SEPP 4). The council disputed that the provisions of SEPP 4 could be applied in the present circumstances.

The applicant relies upon the decision by Sheahan J in Malas Development Pty Ltd v Sutherland Shire Council [1999] NSWLEC 74 for the proposition that an adjustment to a boundary contemplated by cl 6(b) of SEPP 4 is not confined to an adaption which is minor, fractional or marginal.

His Honour's decision appears to be based upon a preferred dictionary meaning of "adjustment" distilled from the Pocket Macquarie Dictionary (2nd Edition) without any reference to any of the other provisions in SEPP 4. Presumably his Honour was only asked to determine the ambit of cl 6(b) by reference only to the words used in that clause.

Clause 3 of SEPP 4 states that the policy is designed to permit development for a purpose which is of minor environmental significance and other defined purposes, not currently relevant, without the necessity for development consent being obtained therefor where the carrying out of that development is not prohibited and it is carried out in accordance with any development standard applying.

There is a provision in cl 2 which stipulates that nothing in the policy shall be read or construed as affecting any requirement to comply with a development standard.

Where, in the absence of this clause, a subdivision of land could be carried out, but only with development consent, for the purpose of - (a) widening a public road; (b) making an adjustment to a boundary between allotments, being an adjustment that does not involve the creation of any additional allotment; (c) rectifying an encroachment upon an allotment; (d) creating a public reserve; (e) consolidating allotments; or (f) excising from an allotment land which is, or is intended to be, used for public purposes, including drainage purposes, rural fire brigade or other rescue service purposes or public conveniences,

the subdivision may be carried out without that consent. 16. Having regard to the aims of SEPP 4 stated in cl 3 and the other categories of subdivision in cl 6, the reference to "an adjustment to a boundary" in cl 6(b) must be construed as being a re-arrangement of a boundary so that no significant changes are made to the configuration of any existing allotments.

Furthermore, the expressed intention is that the change is limited to alteration to an existing boundary between allotments.

The whole concept of SEPP 4 is that a requirement for development consent which would otherwise be necessary is dispensed with.

The adjustment permitted pursuant to cl 6(b) must therefore, necessarily, be regarded as a subdivision which truly adjusts existing boundaries between allotments. An adjustment in the context of SEPP 4 could for example accommodate a change for the purpose of bringing a cadastral boundary into line with an existing natural feature, such as a creek or ravine, or a man made feature, say an existing road or fence, where the new boundary effects no real physical change to existing conditions.

If the applicant's contention is correct, namely that there is no limit to the adjustments that can be made other than the limit imposed by cl 6(b) itself, which forbids the creation of any additional allotment, then foreseeably land already subdivided into 1000 allotments could be re-subdivided into a totally different configuration without development consent provided that no more than 1000 allotments were created. It is difficult to see how it was intended or justified that a change of that magnitude could be contemplated without the need for development consent.

The Court is satisfied that there is a real element of degree involved in the application of cl 6(b). The extent of any changes must pay respect to the existing subdivision design and fit the prescription of an adjustment to a boundary between allotments so that the resulting parcels of land bear some resemblance to the lots which existed before the subdivision.

What is proposed by the applicant in these proceedings involves a major and significant departure from the existing configuration of the lots in the present subdivision and accordingly cannot be regarded merely as an adjustment of an existing boundary.

For the above reasons the question has been answered in the negative.

The question can be put beyond doubt however by reference to cl 53AD of the LEP which provides:-

Subdivision of land within Zones Nos. 1(d) and 1(e)

53AD. (1) This clause applies to land situated in the area of Warringah within Zone No. 1(d) or 1(e).

(2) A person must not subdivide land to which this clause applies, being land within a zone specified in Column 1 of the Table to this clause, unless the area of each allotment to be created by the subdivision will be not less than the area specified opposite that zone in Column 2 of that Table.

TABLE Column 1 Column 2 Zone Minimum area

1(d) 2 hectares 1(e) 2 hectares 25. In the present case it does not matter for the purposes of SEPP 4 whether cl 53AD is to be categorised as a prohibition or a development standard. Either the subdivision is development that is prohibited contrary to cl 2(4)(b) of SEPP 4 or it fails to satisfy the requirement to comply with a development standard contrary to cl 2(4)(a).

SEPP 1 cannot be brought in aid because no development application supported by a written objection has been made as contemplated by cl 6 of SEPP 1. The applicant has expressly precluded any intention of lodging such a development application by its reliance on SEPP 4.

The question of whether cl 53AD is a development standard was the subject of argument before me. Although it is not strictly necessary at this stage to decide one way or the other as a consequence of the answer given to the remaining question referred to me by the Senior Commissioner and the abandonment of the other issues, it is appropriate to respond to the submissions, particularly in the light of the debate in regard to the decision by Lloyd J in Dixson v Wingecarribee Shire Council [1999] NSWLEC 105.

Lloyd J relied heavily on the judgment of Mahoney JA in North Sydney Municipal Council v PD Mayoh Pty Ltd [No. 2] (1990) 71 LGRA 232. Mahoney JA made three points at s 232-233 which, with respect, I summarise as follows:-

a) The definition of a development standard applies only to provisions which are provisions in relation to carrying out development, not to whether development can be carried out at all. b) The phrase "requirements are specified or standards are fixed" provides some support for the view that that with which the definition deals is the details of a development which is to be carried out and not whether the development may be carried out all. c) The matters detailed in subparagraphs (a) to (n) of the definition provide further support for this view. 29. Clarke JA, who came to the same conclusion as Mahoney JA, adopted the distinction between a prohibition and a development standard made by Holland J in Kruf and Anor v Warringah Shire Council (unreported 20027 of 1987 and 10344 of 1988 15 December 1998 Holland J) as follows:-

Flexible though the definition of 'development standard' in s 4(1) of the Environmental Planning and Assessment Act 1979 may be, it is not possible sensibly to say that an absolute prohibition on a form of development in a specified locality ( or under specified conditions ) is setting a standard for that form of development. It is saying that there shall be no such development, not that there may be such development only if it complies with certain requirements or standards. In terms of definition, there cannot be 'requirements specified or standards fixed in respect of any aspect of that development' when there may not be any such development. (parentheses added) 30. Clarke JA had some reservation about the use of the words I have placed in parentheses.

Notwithstanding the decision in Dixson I am satisfied that the two hectare area requirement in cl 53AD is a development standard. It is clearly a development standard as it contemplates the carrying out of development by way of subdivision which is otherwise permissible subject to the standard which is to be observed in respect of the area of each lot. To find otherwise would necessitate overturning a long line of authority which establishes that development standards can be recognised as provisions specifying requirements or fixing standards in respect of an aspect of a development as distinct from a clause which prohibits the carrying out of specific development on identified land.

In my view the decision in Dixson can be distinguished for present purposes on the fact of the different wording of the provision which Lloyd J had to consider. If, however, his Honour's reasons are seen to be in conflict with my conclusion, then that argument will need to be resolved on another occasion.

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Land and Environment Court of New South Wales CITATION: Ousley Pty Ltd v Warringah Shire Council [1999] NSWLEC 143

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