(c) where the area of the existing holding is not
less than 30 hectares - 3.
(6A) ……….
(7) ……….
(8) ……….
(9) The Council shall not grant consent in respect of an application to subdivide land to which this clause applies so as to create an allotment other than an allotment referred to in subclause…(4)…
(10) …….."
21 It seems clear that these provisions were promulgated in order to ameliorate, to some extent, the rigour of restrictions imposed upon the subdivision of rural land through town planning controls implemented by Interim Development Order No. 1 - Shire of Shoalhaven, which came into force on 28 February 1964. As counsel submitted, these provisions were analogous to "existing use" provisions in other parts of this and similar Instruments. The word "concessional" conveys this concept.
22 The appellant made its Development Application No. SF8633 on 6 October 1998. It was refused on 25 June 1999. The application proposed the excision of "five concessional allotments out of the two 1964 holdings..consisting of "an area of 36.16 ha held by Wandandian Pty Limited being Lots E and G in DP17698 and an area of 22.73 ha held by I. A. Neale being Lot F in DP17698". The objectives of the proposal were stated to be:
"(a) to excise the three concessional allotments ranging in size from 1.2 ha to 1.9 ha (lots 1, 2 and 3 on the attached sketch fronting The Wool Lane) out of the 1964 holding, held by Wandandian Pty Limited, from what is the residue of Lot G, DP17698, with the residue of this part of the 1964 holding being the remainder of the original Lot E, in DP 17698 (Lot 4 on the attached sketch); and
(b) to create the two concessional allotments, both of about 1.4 hectares in area (lots 5 and 6) from the original 1964 holding, held by I.A. Neale, with a residue Lot 7 being the remainder of original lot F, DP 17698.
(c) to create a residue lot containing all of the land presently zoned Residential 2(c) in accordance with S/F 6415.
(d) to site the proposed concessional allotments so that they will all have legal and practical access to defined public roads, so as not to frustrate the future use of the land for potential development.
23 The subdivisional proposal, so described, related, as already indicated to Lot 8 in DP 880060. At the time of the proposal that lot consisted of a northern portion containing land zoned 1(d) and a southern portion containing land zoned 2(c). This southern land had previously been the subject of Development Consent S/F 6415 to which I shall make reference later. The 1964 holdings have been referred to in the appeal as the Wandandian and Neale Holdings respectively. It is agreed that they constitute existing holdings within the meaning of the provision set out above. It is convenient that I now set out the history of Lot 8 DP 880060 and its constitution, as I understand it to be, from his Honour's judgment, the appeal papers and information provided by counsel in argument.
24 As at 28 February 1964 the Wandandian land consisted of approximately 78 hectares and was in the shape of a large "U" with the base of the "U" to the south. It consequently formed an existing holding within the meaning of the 1964 IDO, which corresponded with the same concept in the 1985 Plan. The Neale land fitted in to the open area of the "U" and consisted of approximately 22 hectares. This combined landholding, which, apparently, at some later stage, came into the ownership of the applicant, forms the basis of Sealark's present claim to an entitlement to its proposed subdivision.
25 The evidence does not appear to indicate what the zoning of these areas was before the 28 February 1964 IDO. It seems clear, however, that, when the 1985 Plan came into effect the present zoning was introduced and resulted in the present rural land zoned 1(d), now sought to be subdivided into seven lots, with the remaining land of the previous existing holdings, to the south of the zoning line, being zoned as Residential 2(c).
26 Since the inception of that zoning, Sealark has sought and obtained approval for various subdivisions of the Wandandian and Neale existing holdings, the last being S/F 6415, in respect of which the council gave development consent on 31 March 1989.
27 The earlier subdivision approvals, granted prior to 31 March 1989, had been acted upon by Sealark. It had undertaken what has been referred to as "Staged Development". From time to time, pursuant to the relevant council consents, it had effected registration of plans of portions of the approved subdivisions. This was effected, as appears from information provided by counsel, by the production to the Council of registerable plans for the relevant parts of the approved subdivision, their stamping by the Council to signify approval, and their registration by the Land Titles Office. Upon such registration, the residential lots comprehended in the plan could be sold and title given to the purchasers.
28 Pursuant to this process of staged development, Sealark had effected, in this way, registration of parts of the subdivision S/F 6415 which, as indicated, had been approved by the Council on 31 March 1989. The effect of the excision of these approved portions from the S/F 6415 subdivision, was to leave an area of land south of the zoning line in respect of which an approved subdivision existed but which had not been implemented by the registering of appropriate Plans. The area to the north of the zoning land, which was rural 1(d), had not been the subject of any subdivision application. Its northern boundary corresponded with the northern boundaries of the Wandandian and Neale land. This northern boundary formed a frontage to a road that travelled roughly east to west called Wool Road.
29 On 16 September 1998, Sealark caused to be registered Lot 8 in DP 880060. This registration, according to counsel's information to the Court, resulted in the issue of a separate Certificate of Title. Lot 8, as so registered, consisted of the rural 1(d) land to the north of the 1985 zoning land and that part of the zoned 2(c) residential land to the south of the line, which had not been excised from the land the subject of Development Consent S/F 6415. This land was, therefore, the subject of that residential development approval on 31 March 1989, although not yet implemented by registration.
30 Shortly after the registration of Lot 8, Sealark lodged the subject application. The application, as already seen, seeks the subdivision of the rural 1(d) land into seven lots consisting of five concessional allotments and two residue lots together with an eighth lot which consists of the residential 2(c) land south of the zoning line, being the remainder of the land in the S/F 6415 approval, which had not been the subject of staged development.
31 Sealark asserted entitlement to approval of this subdivision, on the basis that, pursuant to clause 11 of the Plan, the areas of the Wandandian and Neale existing holdings entitled it to excise three concessional allotments and one residue allotment from those parts of the Wandandian land falling within the Zone 1(d) to the north of the zoning line and to excise two concessional allotments from the Neale land together with one residue from the land lying to the north of the zoning line. The area of each allotment has been referred to earlier in these reasons. It is clear that the areas of proposed allotments and residue lots in the northern section can comply with the requirements of clause 11.4(d) and 11.5.
32 As already indicated the council refused consent to this subdivision proposal on the basis that it had no power to do so.
33 The appellant contends that the council did not relevantly lack power. It relies on an argument which, so far as I can see, was not advanced before his Honour. It is to the effect that the council could take power to deal with the proposed subdivision by a combination of its powers under clause 10 and clause 11 of the Plan.
34 As I understand this argument, it asserts that the council should, in effect, regard Lot 8 DP 880060 as being totally unaffected by the previous approved subdivision S/F 6415. That subdivision had created residential allotments in the whole of the residential 2(c) land south of the zone line which had not been taken up in previous approved subdivisions. The northern boundary of the northernmost of these allotments, all of which came from the Wandandian and Neale existing holdings, was, in fact, the zone line itself. The area to the north up to the Wool Road, being the balance of the land of the existing holding and being, of course, zoned 1(d), was described in the Plan accompanying S/F 6415 as "Future Residential Area".
35 The subject application seeks to subdivide the northern area into the allotments and residues already described. It makes no attempt to subdivide the southern area into allotments. It merely shows the allotments provided for in S/F 6415 and describes the whole of that area as Lot 8 of the proposed subdivision. The subdivision, then, proposes that Lot 8 of DP 880060 be subdivided into eight allotments, seven in the rural land, which include two residue allotments of the type contemplated by clause 11 of the Plan and a further allotment, described as Lot 8, being the whole of the subdivided land covered by approval S/F 6415, not yet the subject of final registration.
36 It may be noted that it would, apparently, be open to Sealark to complete the staged development of the S/F 6415 subdivision by registering an appropriate plan or plans. As I understand what has been put in argument, this would have the result that the southern land would be taken out of Lot 8 DP 880060, with the result that a fresh lot would come into existence which would comprise the whole of the zoned 1(d) land north of the zoning line. Subject to what I say below this land could then be made the subject of a subdivision application which would not have the difficulty involved in the current application which seeks to subdivide lands of different zonings. The Court has been informed, however, that recent changes to the Plan prevent this course being taken. The result is that Sealark can subdivide the northern land in the way it wishes only if its present application is capable of being approved and achieves approval.
37 As I have said, it does not appear that the present argument, namely that the council has a sort of composite power to approve, based upon clauses 10 and 11 of the Plan, was, in fact, put to the trial judge. However, his Honour appears, inferentially, to have dealt with it by his primary holding that clause 11 could not apply in circumstances where the land, the subject of the subdivision application was partly rural and partly residential.
38 I find myself in agreement with his Honour. The present application appears to be totally artificial. The previous approved subdivision S/F 6415 established the zoning line as being the northern boundary of its northernmost lots. The present application, as I understand the appellant's argument, seeks to re-establish the boundary line by calling afresh upon the power provided to the Council by clause 10. It seeks to do so as a preliminary step to the subdivision of the northern part of Lot 8 in purported reliance upon clause 11. I am satisfied that the clauses were not intended to have this operation. Furthermore, the present application is quite inconsistent with the previous approval of S/F 6415. While S/F 6415 stands, the present application is, in my view, a nonsense.
39 Moreover, in my view, the provisions of clause 11 apply only to lands having the zonings referred to in the clause itself. I am also satisfied that the concept of "existing holdings" is confined to land contemplated by clause 11, being land in respect of which concessional holdings may be granted. This being so, the Wandandian and Neale holdings which appear, at all relevant times, to have consisted predominantly of land zoned 'residential', could not relevantly, be regarded as existing holdings within the meaning of clause 11 of the Plan. I acknowledge, however, that in the present case, having regard to the parties' agreement that the Wandandian and Neale lands were "existing holdings", this cannot form the basis of decision.
40 However, even if the Wandandian and Neale holdings could be regarded as "existing holdings", the proposed subdivision, having regard to the areas of those holdings, could be productive of only two residue lots, conformable with clause 11(5) of the Plan. This subdivision provides for three residue lots, in so far as it creates Lot 8, being the whole of the land south of the zone line.
41 I am satisfied that the council was correct in deciding that it had no power to approve the subdivision and that the trial judge did not err in upholding that decision.
42 In my opinion this appeal should be dismissed with costs.
43 IPP AJA: I agree with Foster AJA