Land and Environment Court of New South Wales CITATION: Australian Agricultural Corporation Pty Ltd v Nymboida Shire Council [1999] NSWLEC 156 PARTIES APPLICANT Australian Agricultural Corporation Pty Ltd RESPONDENT Nymboida Shire Council NUMBER: 10832 of 1998 CORAM: COWDROY AJ Costs; Development; Environmental Planning Instruments :- Development:- landlocked - englobo holding of land - refusal of development application KEY ISSUES: Environmental Planning Instrument:- local environmental plan requiring land be serviced by a constructed public road - whether such requirement constitutes a prohibition or development standard Costs:- no award of costs - similar finding against differing factual background not justifying costs order LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4 DATES OF HEARING: 06/11/1999 EX TEMPORE JUDGMENT DATE: 06/11/1999 APPLICANT Mr P Tomasetti (Barrister) SOLICITORS Tzovaras & Co LEGAL REPRESENTATIVES: RESPONDENT Mr D Baird (Solicitor) SOLICITORS Dunhill Madden Butler JUDGMENT: Introduction 1. In this matter the court has been greatly assisted by the submissions in writing which were provided in advance of the hearing by both parties. Due to that assistance, the court has had an opportunity to consider the matter both before and during the hearing today and I am therefore in a position to give judgment forthwith. Background 2. The background of the matter may be stated simply as follows. The Australian Agricultural Corporation Proprietary Limited, ("the applicant"), has instituted class one proceedings against the Nymboida Shire Council, ("the council"), against the council's refusal of a development application (28/99). Such application related to the erection of a residential dwelling upon land known as Lot 3 deposited plan number 753524 which is otherwise known as the Hanging Rock Estate. Such lot is hereafter referred to as "the land". The relevant planning instrument which affects the land is the Nymboida Local Environmental Plan 1986, hereafter referred to as "the LEP". Pursuant to such plan the land is zoned 1(a) Special Rural. Clause 9 provides the zone objectives and incorporates a development control table. The objectives of the zone are described in the LEP as follows:- 2. This plan aims - a) to consolidate the provisions of Interim Development Order No. 1 - Shire of Nymboida and Nymboida Local Environmental Plans Nos 1,2,4,5,6,7 and 8 in a single local environmental plan; b) to provide a comprehensive plan for the development of lands within the Shire of Nymboida over a period of 10 years; c) to identify, conserve and enhance the environmental heritage of the Shire; and d) to recognise the need of, and to provide for, multiple occupancy on certain lands within the Shire. 3. The applicant made its application for development on 10 September 1998. By a letter dated 28 September 1998 the council expressed its concern that whilst access to the Hanging Rock station as an en globo holding was not at issue, the subdivision thereof by the creation of Lot 3 could result in the land being effectively landlocked. The applicant responded by a letter dated 30 October 1998 pointing out that no subdivision was currently being effected and that the requirements of the council's development control plan, pursuant to which council adopted a policy of prohibiting residential development unless access was available, had no application. It was submitted that access was in fact available to the site, but no details were provided in the applicant's reply to the council. 4. Correspondence thereafter passed between the parties culminating in the refusal of the application by the council's notice of determination dated 18 November 1998. The grounds of refusal are stated as follows:- 1. The subject land is not serviced by adequate constructed public road access and relies on the use of right-of-ways through an undetermined number of properties held in different private ownerships. Such means of legal and physical access does not comply with Clause 11(1A) of the Nymboida LEP 1986. 2. The development constitutes and contributes to dispersed rural settlement, which is discouraged by the Clarence Valley Settlement Strategy adopted by Council. Clause 11(1A) of the LEP provides:- Serviced by a constructed public road or arrangements have been made with Council to provide constructed public road access. 5. Against this factual background, the amended points of law relied upon by the council state:- 1. Clause 11(1A) of the Nymboida Local Environmental Plan ("LEP") applies to the proposed development the subject of these proceedings. 2. By reason of the application of the said clause to the proposed development, the proposed development is prohibited. 3. The meaning of the work "serviced" in the said clause is its ordinary and natural meaning, such that the land on which the proposed development is proposed to be undertaken ("the Land") is neither serviced by a constructed public road nor have arrangements been made with the Respondent to provide constructed public road access to the Land. Applicant's Submissions 6. The applicant submits that since the land was, on the date of the commencement of the operation of the LEP, namely 29 May 1986, part of a larger parcel of land to which access was provided by a road known as Hanging Rock Road which was a public road and into the en globo portion of Hanging Rock Estate, the requirements of cl 11(1) of the LEP were satisfied. Clause 11(1) provides that a person shall not erect a dwelling house on land within zone 1(a) unless no other dwelling-house exists on the land and the land:- (a) is an allotment created by subdivision having an area of not less than 100 hectares; (b) is an allotment created by subdivision in accordance with Clause 10(3); (c) is an allotment created by subdivision in accordance with Clause 10(5) and the dwelling-house is ancillary to the use of the land for a purpose other than agriculture or forestry; (d) is an allotment created after the appointed day, development consent for which was granted before the appointed day; (e) is an allotment created by subdivision after the 24th August, 1973, to which the Council's consent has been given; or (f) is part of a land parcel at the appointed day, the area of which is not less that[sic] 40 hectares, and the land is serviced by a constructed public road, or arrangements have been made with the Council to provide constructed public road access. 7. The applicant also relies upon the fact that there is a road, albeit not a public road, described as Hermitage Road that leads from a place within the Hanging Rock station directly to the subject land. Over that land there is an arrangement apparently in the nature of a right of way which enables Lot 3, that is the subject land, to have access to Hanging Rock Road. The applicant also submits that the word 'serviced', as contained in cl 11(1A) does not mean that the land must have a frontage to a public road. Alternatively, the applicant submits that if such access does not exist, it could be required as s condition of development consent. Lastly, it says that the requirement of a public road service to the land is a development standard, the provisions of which may be relaxed, pursuant to an application under SEPP 1. In this respect, it relies upon the decision of Talbot J in Chapman & Another v Nymboida Shire Council (unreported) 10736 of 1994, judgment delivered 28 March 1995. Council's Submissions 8. The council submits that cl 11(1A) is the governing provision. It acknowledges that at the time the LEP came into operation, there was access to the en globo land known as the Hanging Rock Estate. However, it points to the fact that cl 11(1A) is a special provision which applies and would directly affect the present development application. It submits that a public road must lead directly to the boundary of the land and that a provision of a right of way does not achieve this objective. It relies upon Meriton Apartments Proprietary Limited v Strathfield Municipal Council (1995) NSW LEC 105 27 June 1995 in which Stein J said:- A development which does not satisfy the criteria specified results in the Council being powerless to grant development consent. 9. The council submits that a literal interpretation of such clause is required and since the requirements of such clause have not been satisfied, there is an absence of power within the council to approve the application. Essentially, the critical question is the characterisation of the meaning of cl 11(1A). That is, is such clause to operate as a prohibition in the event that its requirements are not satisfied, or rather, is it a development standard? Alternatively is it merely a policy objective of council? Relevant Principles of Law 10. There have been numerous decisions of this Court which have guided courts in the interpretation of clauses which have been similarly framed. In John Hatch trading as JMH Living Design v Sutherland Shire Council (unreported) 10941 of 1998, judgment delivered on 16 April 1999, the court considered numerous authorities which have dealt with the critical question, such as Woollahra Municipal Council v Carr (1987) 62 LGRA 263, North Sydney Municipal Council v P D Mayoh Pty Ltd [2] (1990) 71 LGRA 222. In the latter case, Mahoney JA posed the question (at p 234): did the provision require that no development be carried out, or that development be carried out in particular way, or to a particular extent? That succinct test is the key to the resolution of the present dispute. It is consistent with the observations of Holland J in Kruf & Anor v Warringah Shire Council (unreported) NSW LEC 20027 of 1987, where His Honour observed of the instrument before him:- It is saying that there shall be no development, not that there maybe such development only if it complies with certain requirements or standards. 11. These authorities in effect summarise most of the cases which have sought to provide guidance upon the correct interpretation of clauses found in planning instruments such as the present. If the words are not clear the court is required to glean the intention of parliament. The court can adopt a purposive approach to the interpretation of a statute: see Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (CA). Applying such principle to the interpretation of the LEP, it is apparent that the requirements of cl 11(1) are mandatory in the sense that unless there is compliance therewith, the development is prohibited. The words at the outset of cl 11(1) provide:- A person shall not erect a dwelling house on land...unless... 12. The wording however, of cl 11(1A) is different. Such words provide that a dwelling house may with the consent of council be erected upon land referred to in cl 11(1)(a) provided certain things are done. The proviso requires that the land is to be serviced by a constructed public road, or that arrangements have been made with the council to provide constructed public road access. It is apparent that the latter does not suggest a prohibition, but rather that council has set a standard which is to be observed. I consider that the provision of a public road, or arrangements for public road access comprise a development standard as defined in s 4 of the Environmental Planning & Assessment Act 1979 ("the EP&A Act"). The EP&A Act defines a development standard as:- Provisions of an environmental planning instrument or regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect to any aspect of that development, including but not limiting. Here, the council pursuant to the LEP, is entitled as a condition of development, to ensure that the applicant for development is able to provide the roadways envisaged by cl 11(1A). The provisions of such clause constitutes " requirements [which] are specified " and clearly relates to the provision of a satisfactory access to the premises. In these circumstances, the provisions of cl 11(1A) constitute a development standard. 13. It was argued by the applicant that such requirement was merely a policy or objective. I do not agree. The wording of cl 11(1A) is quite explicit and the requirements have been clearly stated in the LEP. The council may be influenced to provide a consent with a condition. That development cannot take place until its requirements are satisfied as was ordered by the court in McCarthy v Mulwaree Shire Council (1992) 78 LGRA 158. However, it is not for this Court to speculate upon the arrangements that may or may not be made by council in relation to the satisfaction of the requirements of cl 11(1A) of the LEP. Findings 14. In these circumstances, the points of law which have been raised are to be answered as follows, and I use the same paragraph numbers as appear in the amended points of law as filed; 1. Clause 11(1A) applies to the proposed development. 2. The development is not prohibited, rather, the provisions of cl 11(1A) comprise a development standard. 3. The interpretation of cl 11(1A) is to be construed against the literal language of the section. 15. The section in its terms is quite clear. It requires that the land be serviced by a constructed public road, or that arrangements have been made with the council to provide constructed public road access. As framed, it means that a public road must lead to the property. Such standard can only be varied upon the making of an SEPP 1 objection. Costs 16. As this is a class one proceedings, there is no occasion for the court to consider any award of costs. However, an application has been made by the applicant for costs. The application is made upon the basis that there are exceptional circumstances because His Honour Talbot J in Chapman & Anor v Nymboida Shire Council dealt with a similar provision of the same LEP and effectively has come, albeit by a different reasoning process, to the same result. 17. That of itself does not to my mind constitute " exceptional circumstances ". " Exceptional circumstances " is always a question of degree. There has been numerous decisions of this Court in recent days concerning what constitutes exceptional circumstances. I do not regard the fact of the decision of Chapman , dealing with a similar provision, as amounting to exceptional circumstances. Accordingly, the court will make no order as to costs. The court orders that the exhibits be returned. 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