Atkins v Maitland City Council [2010] NSWLEC 36

Land and Environment Court of New South Wales

CITATION : Atkins v Maitland City Council [2010] NSWLEC 36 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT PARTIES : Lester Barry Atkins RESPONDENT Maitland City Council

FILE NUMBER(S) : 10910 of 2009

CORAM: Craig J

KEY ISSUES: QUESTION OF LAW :- determination of separate question pursuant to Part 28 rule 2 of the Uniform Civil Procedure Rules 2005 - whether development permissible – interpretation of planning instrument - subdivision control – minimum allotment size – concessional allotment – context – development permissible

Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Interpretation Act 1987 Maitland Local Environmental Plan 1993 Uniform Civil Procedure Rules 2005

Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 Calleja v Botany Bay City Council [2005] NSWCA 337; 142 LGERA 104 CIC Insurance Limited v Bankstown Football Club Limited [1977] HCA 2; 187 CLR 384 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 CASES CITED: Harrison v Melhem [2008] NSWCA 67; 71 NSWLR 380 Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Matic v Mid-Western Regional Council [2008] NSW LEC 113 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; 48 NSWLR 548 Wentworth Securities Ltd v Jones [1980] AC 74

DATES OF HEARING: 4 March 2010

DATE OF JUDGMENT: 18 March 2010

APPLICANT Mr J A Ayling SC (Barrister) with Ms H P Irish (Barrister) AGENT LEGAL REPRESENTATIVES: Richard Bennett of Hill Top Planners Pty Ltd RESPONDENT G W Williams (Solicitor) SOLICITORS Thompson Norrie Solicitors

JUDGMENT:

1 HIS HONOUR: The applicant is the owner of land at Oakhampton in the Hunter Valley of New South Wales, being Lot 100 in Deposited Plan 1083305 (Lot 100). The Deposited Plan reflected a subdivision to which development consent was granted by the respondent on 8 December 2004. The plan of subdivision was registered in the office of the Registrar General on 11 July 2005. That plan, as registered, bears the following notation in its right hand margin: "PLAN OF SUBDIVISION OF LOTS 1, 2, 3, AND 4 D.P. 217178 AND PART OF THE LAND IN CONV 950 BK 3692". 2 Lot 100 has an area of 9.73 hectares. While there is a farm shed presently standing on the Lot, there is no dwelling erected upon it. 3 The applicant sought development consent from the respondent to erect a single storey dwelling on Lot 100. That application was refused by the respondent on 12 November 2009. In consequence of that refusal, the applicant has appealed to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act). 4 By its Statement of Facts and Contentions dated 14 January 2010, the respondent has contended that the erection of a dwelling house on Lot 100 is prohibited development. On the basis of that contention, the parties agreed that the question of permissibility should be determined by a judge of the Court, separately from the two merit issues which the respondent's Statement of Facts and Contentions also identifies. 5 It is unnecessary for present purposes to identify the process by which the separate question came to be listed before me for determination. Suffice to record that at the commencement of the hearing and with the consent of the parties I made an order pursuant to Part 28 rule 2 of the Uniform Civil Procedure Rules 2005 for the separate determination of an issue in the following terms: "Whether, upon the proper interpretation of Maitland Local Environmental Plan 1993, the erection of a dwelling house on land at Oakhampton, being Lot 100 in Deposited Plan 1083305 is prohibited development." It is to that question that this judgment is directed. Planning Controls 6 The planning controls relevant to be considered for present purposes are those found in Maitland Local Environmental Plan 1993 (the LEP). By operation of the LEP, Lot 100 is said to be zoned in Part 1(a) Prime Rural Land and in Part 1 (b) Secondary Rural Land (the 1(b) Zone). The dwelling house for which development consent has been sought by the applicant is to be located wholly within the I (b) Zone. 7 Part 2 of the LEP contains those provisions of the instrument which generally relate to and control development upon the four rural zones which it identifies. The land use tables for each of those four zones are to be found in cl 10, within Part 2. 8 In the third paragraph of cl 10, immediately preceding the commencement of the four land use tables, the consent authority is enjoined from granting development consent "… if the proposed development does not satisfy the objectives of the zone in which it is intended to be carried out". Paragraph (1) of the land use table for the I (b) Zone is in the following terms: "(1) Objectives of the zone (a) To provide for agricultural uses and animal establishments. (b) To permit appropriate agriculture-related land uses and certain non-agriculture related land uses which will not adversely affect agricultural productivity. (c) To control development that could: (i) have an adverse impact on rural character, (ii) create unreasonable or uneconomic demands for the provision or extension of public amenities and services, or (iii) be subjected to physical limitations such as erosion hazard, bushfire risk and flooding. (d) To prevent the establishment of traffic generating development along classified roads." 9 Paragraph (2) of the same land use table describes the zone as one that "contains all rural land which is either not of prime agricultural value or has not been set aside for rural residential development." 10 It is paragraph (5) of the table which is of particular significance. It is that paragraph which identifies development within the 1(b) Zone which is prohibited. Relevantly, it includes as prohibited development the following: "Dwelling House (other than dwellings for which consent is permitted by Clause 13); …" 11 Clause 13 of the LEP (also within Part 2) relevantly provides as follows: " 13 What are the requirements with respect to the erection of dwellings in rural zones? (1) In this clause: Separate parcel means and allotment of land in existence on 3 September 1993 or the aggregation of two or more joining or adjacent allotments of land if they were in common ownership on 3 September 1993. … (2) The Council may consent to the erection of a dwelling house on: … (b) a separate parcel in Zone 1(b) where the separate parcel has a minimum area of 4000 m². (3) Notwithstanding subclause (2), Council may consent to the erection of a dwelling house on land in Zone 1(a), 1(b), 1(c) or 1(d) if: (a) the land comprises an allotment the subdivision of which was approved by Council after 7 December 1960, or … (4) Subclause (3)(a) does not apply to an allotment created before or after the commencement of this subclause by a subdivision consented to by the Council for a purpose set out in clause 8 (2) (a), (b), (c), (d) or (f), except an allotment with a minimum area of 40 hectares created by a subdivision consolidating allotments." 12 The incorporation within cl 13(4) of reference to cl 8 of the LEP necessitates the recitation of the latter clause. It provides as follows: " 8 What subdivision controls apply? (1) Land to which this plan applies shall not be subdivided except with the consent of the Council. (2) Nothing in this plan shall prevent the Council from granting consent to a subdivision for any of the following: (a) widening or opening of a public road, (b) making an adjustment to a boundary between allotments, being an adjustment that does not involve creating 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 untended to be, used for public purposes, including drainage purposes, bushfire brigade or other rescue service purposes or public conveniences. Note. Clause 13 (4) prevents the erection of a dwelling house on an allotment of land in Zone 1 (a), (b) (c) or (d) created by a subdivision under subclause (2) (a), (b), (c), (d) or (f), except an allotment with a minimum area of 40 hectares created by a subdivision consolidating allotments." 13 There is one further provision of the LEP, that, for present purposes, needs to be noticed. It is cl 11. It identifies the minimum allotment sizes for rural land and requires that the minimum area which may be the subject of the grant of consent to subdivision of Zone 1(b) land is 40 hectares. The parties' contentions 14 The respondent submits that the erection of a dwelling house on Lot 100 is prohibited. It refers to the prohibition upon development for a dwelling house as contained in the land use table to cl 10 of the LEP and says that the exception to that prohibition by reference to dwellings permitted by cl 13 is not engaged by the present development application. 15 Both parties accept that Lot 100 is not a separate parcel within the meaning of cl 13(1) and therefore the provisions of subclause (2)(b) of that clause do not apply. 16 The focus of the parties' submissions is upon subclauses (3) and (4) of cl 13 of the LEP. It will be remembered that subclause (3) potentially removes both the areal limitation and the temporal limitation as to the date on which the Lot or Lots needed to exist, both of which limitations are imposed by subclause (2). Both parties accept that the wording of subclause (3)(a) is infelicitous in its reference to "an allotment the subdivision of which was approved …". Both agree that those words should be understood as if they read "an allotment created by subdivision which was approved … ". Given that the provisions of subclause (4) expressly apply by way of exception to the provisions of subclause (3) and the former uses the verbal formula of referring to "an allotment created … by a subdivision", I agree with and approach the interpretation of the provisions of subclause (3) (a) on the basis jointly adopted by the parties. 17 The respondent concedes, consistently with the agreed statement of facts (Exhibit C), that Lot 100 was an allotment approved by the respondent after 7 December 1960, that approval having been given on 8 December 2004. If that is where the provision governing the power to erect a dwelling house on Lot 100 ended, it is conceded that such development would be permissible with consent. However, the respondent argues that the concessional provisions of subclause (3) do not apply by reason of the provisions of subclause (4). Indeed, it is the operation of the latter subclause upon which the respondent wholly founds its case for asserting that cl 13 is not engaged and thus the prohibition upon dwelling houses contained in the land use table prevails. 18 In essence, the submissions on behalf of the respondent as to why the concessional provisions of subclause (3) are overridden by subclause (4) are as follows: (i) the plan of subdivision which came to be registered as Deposited Plan 1083305 by which Lots 100 and 101 were created, was a subdivision consolidating allotments within the meaning of subclause (4) and Lot 100 was below the minimum area of 40 hectares stipulated in that subclause; (ii) when cl 13 was amended in October 2002 by the addition of subclause (4) and the insertion of the ' Note ' to cl 8(2), a reference to cl 8(2)(e) was mistakenly omitted from the subclause and in order to give the subclause work to do that provision should be read into that subclause. In so doing, the subclause would be interpreted as preventing the concessional provisions of subclause (3) applying to a subdivision 'consolidating allotments' within the meaning of cl 8(2)(e). Deposited Plan 1083305 was such a subdivision. 19 The applicant submits that Lot 100 satisfies the only relevant criteria stipulated in cl 13(3)(a) of the LEP for permissibility of a dwelling house, namely that the land upon which it is proposed to be erected is within Zone 1(b) and that it comprises an allotment created by a subdivision approved by the respondent after 7 December 1960. In response to the respondent's contentions, the applicant submits that the purpose of the subdivision to which the Respondent consented and which gave rise to the registration of Deposited Plan 1083305 was not a purpose identified in cl 8 (2)(a), (b), (c), (d) or (f) and thus cl 13(4) is not engaged. Further, the applicant says that the subdivision in question was not a subdivision 'consolidating allotments' within the meaning of subclause (4). The principles which would allow the 'mistakenly omitted' provisions of cl 8(2)(e) from cl 14 to be read into the latter clause are not satisfied in this case (Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 at 302). Inferring an intention to include an omitted provision 20 It is convenient first to address the respondent's submission that cl 13(4) should be read as including a reference to a subdivision consolidating allotments within the meaning of cl 8(2)(e). In making that submission, it sought to refer to an internal report addressing the draft local environmental plan which led to the insertion of subclause (4) into the LEP. It also relied upon an exchange of correspondence between it and Planning NSW (as the Department of Planning was then known) relating to the provision. That evidence was admitted for the purpose of allowing the respondent's legal representative to make the submissions that he did without conceding its relevance to the proper interpretation of the provisions of the LEP. The reports and correspondence upon which reliance was sought to be placed indicated, so it was argued, that the amendment ultimately made in the form of cl 13 (4) did not reflect the purpose intended by the Respondent when it formulated and advertised its draft local environmental plan. 21 I reject the respondent's submissions in this regard. The local environmental plan is the instrument of the Minister, not that of the respondent. The respondent did not suggest that the amendment ultimately made to the LEP by the addition of subclause (4) to cl 13 was not the valid culmination of the statutory process ordained by Part 3 of the EPA Act for the making of a statutory instrument. Further, documents that reflect the aspirations of a council in formulating a local environmental plan and the exchange of correspondence with the Department of Planning in relation to the making of that plan would not ordinarily inform the process of interpretation. 22 The essence of the submission on behalf of the respondent in this regard is encaptured in its written submission as follows: "It is apparent from this correspondence that the omission from the amended clause 13 (4) of Maitland LEP 1993 of a reference to clause 8 (2) (e) (and from the note to cl 8 (2)) occurred contrary to the resolution of the Council and for a reason which is not explicit or able to be inferred from the correspondence."

How this 'omission' should be understood, as such, and then applied when interpreting the LEP was not explained in a principled way. 23 Ordinarily, the process of interpretation would require that the primacy of the text be recognised (Matic v Mid-Western Regional Council [2008] NSW LEC 113 at [10]). 24 The principles that should govern the interpretation of a planning instrument were not in contest. Emphasis was placed by the respondent on the need to give the LEP and the particular provisions under consideration a purposive interpretation. These principles are well elucidated in authorities such as Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 and Matic v Mid-Western Regional Council (supra). Application of these principles do not detract from my rejection of the Respondent's submissions. As I have earlier indicated, focus must be upon the text of the instrument itself and, subject to what follows, not upon some extraneous material which is unnecessary to give meaning to the language of the LEP itself, even considering its context (Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380). 25 The submission made on behalf of the respondent to the effect that reference to cl 8(2)(e) should be read into subclause (4) of cl 13 could only be sustained if the principles concerning the circumstances in which words may be read into legislative provisions in order to give effect to the purpose of those provisions were satisfied. Those principles were addressed and summarised by McHugh JA (as his Honour then was) in Bermingham v Corrective Services Commission of NSW (supra). Citing Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74, McHugh JA summarised the principles thus (at 302): "First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect."

In Wentworth Securities Lord Diplock had added the following observations in relation to the third requirement (at 106): "Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts." 26 The respondent seeks to support the reading of cl 13(4) as including reference to paragraph (e) of cl 8(2) on the premise that so to do is the only means by which cl 13(4) can be given work to do. I do not agree. As the applicant submitted, one can readily conceive of circumstances in which a subdivision is effected for the purpose of making a boundary adjustment (cl 8(2)(b)) or a subdivision for the purpose of creating a public reserve (cl 8(2)(d)) which involve consolidation of allotments. In such a case an allotment so created will not attract the dispensatory provisions of cl 13(3)(a) for the erection of a dwelling house unless the allotment so created has a minimum area of 40 hectares. 27 Lest it be thought that there is no apparent logic in the requirement for a minimum area of 40 hectares in some cases but not in others is no basis upon which to found the inference that words should be read into subclause (4). As explained by Tobias JA in Calleja v Botany Bay City Council [2005] NSWCA 337; 142 LGERA 104 at [25], "to seek planning logic in planning instruments is generally a barren exercise". In similar vein, Basten JA in Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400 observed (at [39]) that "the promotion of logic and consistency provides no basis for a court to rewrite a planning instrument." A subdivision consolidating allotments? 28 As has already been noticed, it is fundamental to the submission made on behalf of the respondent that the subdivision created upon registration of Deposited Plan 1083305 was 'a subdivision consolidating allotments'. That is said because the land thereby subdivided is a parcel of land comprised of 4 lots in a nominated deposited plan together with a further area in an Old System conveyance. The detail of the parcel comprising the subdivided land as noted on DP 1083305, is noted at [1]. The apparent purpose of that subdivision was to divide the identified parcel into 2 lots. 29 It is contended by the respondent that the purpose for which the subdivision was created was the purpose of consolidation of allotments. I do not agree. For the reasons identified in the preceding paragraph, the purpose of the subdivision, objectively judged, was the creation of 2 allotments from a parcel of land, the components of which were in common ownership. Reference to a purpose in cl 13(4) must be a reference to the ultimate object sought to be achieved by the subdivision and not to the intermediate consequence of an amalgamation of areas within a parcel of land which is the subject of intended division. This distinction, so it seems to me, is supported by the terms of cl 8(2) which identifies a number of specific objectives of subdivision which are an end in themselves, as distinct from reflecting steps along the path to reaching a single overriding purpose. 30 In support of its submissions that the subdivision approved by the respondent on 8 December 2004 and registered as Deposited Plan 1083305 was not a subdivision consolidating allotments, the applicant refers to the provisions of s 4B of the EPA Act. That section relevantly provides as follows: " 4B Subdivision of land (1) For the purposes of this Act, subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. (2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of: (a) a plan of subdivision within the meaning of s 195 of the Conveyancing Act 1919 … (3) However, subdivision of land does not include: … (e) the procuring of the registration in the office of the Registrar-General of: (i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of s 195 of the Conveyancing Act 1919 …" 31 The two definitions from s 195 of the Conveyancing Act 1919 referred to in s 4B of the EPA Act are relevantly as follows: " plan of consolidation means a plan that shows the consolidation of two or more existing lots into a single lot, where there is no simultaneous redivision of them into two or more lots … plan of subdivision means a plan that shows: … (b) the consolidation of two or more existing lots and their simultaneous redivision, along new boundaries, into two or more new lots, … … but does not include a plan of consolidation or a plan for identification." 32 These provisions identify a synergy between s 4B of the EPA Act and s 195 of the Conveyancing Act which requires, in the process of interpretation, that such synergy be recognised. This synergy, so it seems to me, has the effect, when applied to the provisions of the LEP (cf. s 11 of the Interpretion Act 1987) that a distinction must be drawn between a 'subdivision' that consolidates allotments only and a 'subdivision' that effects a subdivision into two or more lots, albeit that the process involved in the latter requires the grouping together of a number of lots so as to constitute a single parcel of land which is then simultaneously divided into 2 lots. 33 So to approach the interpretation of the instrument is consistent with the principle of interpretation that context be considered at the outset of the process of interpretation and not merely to address any perceived ambiguity (CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384 at 408; Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; 48 NSWLR 548 at 575 [107]). The particular context which informs my conclusion is the distinction which appears to be drawn in cl 8 between subdivisions generally and those particular forms of subdivision identified in subclause (2) of that clause. 34 In summary, I have concluded that cl 13(4) is not engaged by the present development application. The subdivision which resulted in the creation of Lot 100 does not fall within any of the specific purposes of subdivision identified by reference to cl 8(2) in subsection (4) nor is it an allotment created by "a subdivision consolidating allotments". It is a subdivision that created 2 allotments from a parcel of land which was the aggregation of 5 existing allotments. 35 As I have earlier noticed, it is accepted by the respondent that Lot 100 is a lot which was approved after 7 December 1960 and therefore cl 13(3) is engaged so as to make permissible, with consent, the erection of a dwelling house on that Lot. 36 For these reasons the separate question should be answered as follows: Q Whether upon the proper interpretion of Maitland Local Environmental Plan 1993 the erection of a dwelling house on land at Oakhampton, being Lot 100 in Deposited Plan 1083305, is prohibited development. A No **********

22/03/2010 - Date change from 8 Dec 2005 to 8 Dec 2004 - Paragraph(s) 1 26/03/2010 - First sentence should read "Lest it be thought that there is no apparent logic in the requirement for a minimum area of 40 hectares in some cases but not in others is no basis upon which to found the inference that words should be read into subclause (4)". - Paragraph(s) 27 26/03/2010 - Paragraph 27 - "that apparent lack of logic" was removed and replaced with "others" to read as above. - Paragraph(s) Paragraph 27

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