17 Ultimately she determined, as a matter of statutory construction, that the Council's interpretation of cl 18, when taken in the context of SEPP 5 as a whole, was correct and that it prohibited the Council as the consent authority or the Court on appeal from granting subdivision consent unless and until the development which had been the subject of a development consent under the Policy had been carried out in the sense of completed. As that had not occurred in the present case, she determined (in [43]), that the Court did not have power to consider and determine the development application for subdivision of the land which had been lodged by Mr Young in March 2006.
18 After her Honour had delivered her judgment on 1 September 2006, Mr Young filed a notice of motion on 11 September 2006 seeking an order under the provisions of cl 55 of the Environment Planning & Assessment Regulation 2000 and Pt 10 r 1 of Land and Environment Court Rules 1996 seeking leave to amend his development application in respect of the subdivision of the land by having it assessed as a deferred commencement development under the provisions of s 80(3) of the EP&A Act.
19 Her Honour acceded to the submission of the Council that there was no provision in either the Act, the Rules or the Regulations which enabled an application to be made for development consent which was the subject of a deferred commencement condition, although of course there was power in the Court to grant a development consent subject to such a condition. But that power, according to her Honour, was within the province of the consent authority or the Court as the case may be and there was no mechanism whereby a development application could be lodged for a deferred commencement consent.
20 As a consequence of her rejection of that application and in the light of her earlier findings in her first judgment that the Court had no jurisdiction to determine the development application of the subdivision of the land until the development in respect of which Mr Young had obtained consent had been completed, her Honour ordered that Mr Young's class 1 appeal should be dismissed. In the circumstances, she ordered that he pay the Council's costs of the preliminary point of law determined on 1 September 2006 and its costs of the Notice of Motion of 11 September 2006. That being a final order of the Land and Environment Court, Mr Young has a right of appeal to this Court under s 57(1) of the Land and Environment Court Act 1979 on a question of law.
21 Although ultimately it did not form part of the argument on the appeal, I should not be taken as necessarily agreeing with her Honour that it is not open to an applicant for development consent under the EP&A Act to make an application which seeks the grant of a consent which is the subject of a deferred commencement condition imposed pursuant to s 80(3). In my view, there is nothing which would prevent or prohibit the making of such an application and there is no reason why such a condition cannot be sought or suggested by an applicant in his or her development application or in the statement of environment effects that is required to accompany such an application.
22 However, it makes no difference in the present case because, for the reasons I will indicate, it would not have been open to her Honour to grant subdivision consent in response to Mr Young's application with a deferred commencement condition that required the development approved by Commissioner Nott to be completed before that consent for subdivision came into force.
23 I turn now to the essential grounds upon which Mr Young conducted the appeal. His primary ground, understandably, was that her Honour had misconstrued cl 18 of SEPP 5 in that she had wrongly determined that it was a condition precedent to the power of the consent authority and the Court on appeal to grant consent to the subdivision of land in respect of which development consent under SEPP 5 had been granted prior to the development the subject of that consent being completed. As I understand Mr Young's argument, her Honour erred in substituting for the words "carried out" the word "completed". In my opinion, that argument has no substance.
24 What is critical to the construction of cl 18 is not only the context in which it appears but also the past tense of the expression "carried out" which, in my view carries the meaning that the development to which the clause relates has been carried out in the sense of accomplished or completed. In this respect, it was accepted that the definition of the expression "carried out" in the Macquarie Dictionary was "accomplished or completed". Such a construction in its context makes appropriate sense. As Mr Young was at pains to emphasise, cl 5(2) of SEPP 5 provides that if the Policy is inconsistent with any other planning instrument made before or after SEPP 5, then the latter prevails to the extent of the inconsistency. This was of particular moment in relation to cl 38 of the 2001 LEP to which I have already referred which prohibited the erection of a dwelling house in any residential zone on an allotment of land which, if a battleaxe allotment, had an area of less than 670 square metres or, if not a battleaxe allotment, had an area of less than 550 square metres.
25 Accordingly, had Mr Young made an application to the Council to subdivide his land in the conventional way, it would have been prohibited by cl 38(1) or at least he would not have been able to erect a dwelling house on what are substandard sized allotments. The whole purpose of cl 5(2) of SEPP 5 in that context is that pursuant to cl 18, land may be subdivided without any minimum lot size requirement but only in respect of development which has been the subject of a consent under SEPP 5 with respect to that land, that is, development for housing for older people or people with disabilities which has been "carried out".
26 The aims of SEPP 5 are to encourage the provision of housing that will increase the supply and diversity of housing that meets the needs of older people or people with disabilities. Those aims are to be achieved, as cl 3(2) provides, by setting aside local planning controls that would prevent such development. One of the ways in which such development could be achieved which would otherwise be prevented by cl 38 of the 2001 LEP and where it was desired to give separate title to the occupiers of such housing, is to apply to subdivide the relevant land pursuant to cl 18. However, under that provision, that which triggers what is in effect an exception to the minimum lot sizes referred to in cl 38 of the 2001 LEP must first have been provided or carried out or completed.
27 That objective would not be achieved if the land could be subdivided into what were otherwise substandard sized allotments in circumstances where those lots could then be disposed of but the uncompleted development the subject of a consent under SEPP 5 is abandoned. Although the Court was not provided with a copy of the 2001 LEP, I would assume that in common with similar plans, a dwelling house may be erected without development consent in a Residential 2(a) zone but of course it can only be erected on an allotment of land that complies with cl 38.
28 Mr Young nevertheless submitted that the word "development" in cl 18 included the use of land or the erection of buildings in the sense of their future use or the erection as the case may be. The difficulty with that construction, as I see it, is that the word "development" where used in cl 18 refers to development under SEPP 5. In other words, it indicates that a subdivision under cl 18 can only be granted in respect of land the subject of a development that has been consented to in accordance with the provisions of SEPP 5. That is a particular form of development and, therefore, the general definition of the word "development" really has no part to play. The only question then is whether that particular development which is the subject of the grant of consent under the Policy "has been carried out".
29 The clear meaning and intent of cl 18, in my view, as it was in the opinion of the primary judge, was that the power to grant consent to a subdivision did not arise unless and until the development which was the subject of a consent granted pursuant to SEPP 5 had in fact been completed. It is only in those circumstances that, in my view, cl 5(2) would be engaged to render inconsistent and, therefore, to be ignored the provisions of cl 38 as to minimum lot sizes upon which dwelling houses may be erected.
30 Mr Young nevertheless submitted that Commissioner Nott had, as it were, granted de facto subdivision consent and had approved the lot sizes for which he was contending when he granted consent back in 2004. Reliance was placed upon [42] of Commissioner Nott's decision in which he said,
"In relation to the council's objection to a new dwelling in the rear yard of the subject land the provisions relating to subdivision and the heritage DCP are indirectly relevant insofar as subdivision there's usually one way of providing two dwellings on a parcel of land that originally had only one house. Of course, in the present case the application does not involve a formal subdivision but there is a de facto subdivision inasmuch as the cottage and the proposed new house will each be on its own curtilage with a fence separating them".