> Reported Decision : 125 LGERA 170 Land and Environment Court of New South Wales CITATION : Unicomb Development Services Pty Limited v Shellharbour City Council [2003] NSWLEC 89 APPLICANT: Unicomb Development Services Pty Limited PARTIES : RESPONDENT: Shellharbour City Council FILE NUMBER(S) : (1)0457 of 2002 CORAM: Lloyd J KEY ISSUES: Question of Law :- statutory interpretation - development application - appeal - subdivision - zoning - where zones 1(a) 7(d) and 2(e) adjoin within subject land - which zone's rules apply - zone objectives Environmental Planning and Assessment Act 1979 s 25(3) LEGISLATION CITED: Interpretation Act 1987 s 35 Land and Environment Court Act 1979 s 36(5) Shellharbour Local Environmental Plan 2000 cl 2, cl 10, cl 11(2), cl 14, cl 23(2), cl 49(2), cl 54, cl 77 and cl 83 Corporate Affairs Commission v Yuill (1991) 172 CLR 319; Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41; CASES CITED: Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; R v Wallis; Ex parte Employers' Association of Wool-Selling Brokers & H V McKay Massey Harris Pty Ltd (1949) 78 CLR 529; Winn v Director General of National Parks and Wildlife & Ors [2001] NSWCA 17 DATES OF HEARING: 25/03/2003 DATE OF JUDGMENT: 04/23/2003 APPLICANT: Mr D P Wilson (barrister) SOLICITORS: Kearns & Garside LEGAL REPRESENTATIVES: RESPONDENT: Mr A M Pickles (barrister) SOLICITORS : Peedoms JUDGMENT: - 4 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (1)0457 of 2002 Lloyd J 23 April 2003 UNICOMB DEVELOPMENT SERVICES PTY LIMITED Applicant v SHELLHARBOUR CITY COUNCIL Respondent JUDGMENT Introduction 1 This is the separate determination of a question of law raised in proceedings before a commissioner and referred to the Chief Judge for determination by a judge (pursuant to s 36(5) of the Land and Environment Court Act 1979). 2 During the hearing of the proceedings before the commissioner a fundamental question of law arose: Whether on the true construction of clause 83 of Shellharbour LEP 2000 and the whole of that plan, consent may be granted to subdivision of the subject of the appeal in these proceedings: (a) notwithstanding non-compliance with clause 54 of that LEP as to minimum lot sizes; or (b) only if an objection pursuant to State Environmental Planning Policy No. 1 is upheld. The Facts 3 The applicant proposes to subdivide the subject site, located at lot 3805 in deposited plan 1009645 at Albion Park("the land"), into six residential lots and one residue lot. The land is situated in the respondent's local government area and the Shellharbour Local Environmental Plan 2000 ("the LEP") applies to the land. As I understand it, the proposed residential lots are zoned part 2(e) (the Mixed Use Residential E Zone), part 7(d) (the Environmental Protection (Scenic) Zone) and part 1(a) (the Rural A Zone). 4 Clause 10 of the LEP, entitled "Zone objectives and general controls for development", provides in part: (2) Except as otherwise provided by this plan, for each zone specified in a general controls for development clause, the development that: (a) may be carried out without development consent is indicated in that clause by the words "Allowed without development consent", or (b) may be carried out only with development consent is indicated in that clause by the words "Allowed only with development consent", or (c) is prohibited is indicated in that clause by the words "Prohibited in the zone". (3) The objectives of the zone are required to be taken into account by the consent authority before development consent is given to the carrying out of development within that zone. 5 The objective of Zone 2(e) is stated in cl 23(2) of the LEP, entitled "Objective of the zone", and provides as follows: To allow for mixed use residential neighbourhoods to be developed on "greenfields" sites providing for a range of household preferences and needs compatible with fully developed residential neighbourhoods. 6 In contrast, the objective of Zone 7(d), stated in cl 49(2) of the LEP entitled "Objective of the zone", provides as follows: To protect scenic areas which are generally undeveloped and which provide an important visual backdrop for the urban areas. 7 The objectives of Zone 1(a) are stated in cl 11(2) of the LEP and are as follows: (a) To protect the agricultural potential of rural land and to prevent the fragmentation of rural holdings. (b) To prevent premature and sporadic subdivisions and to ensure consolidation of urban areas, thus enhancing the prospect of the economic provision of public services. (c) To prevent, on the fringe of urban areas, the subdivision of land into small lots which would prejudice the proper layout of additional urban areas as a result of natural growth. 8 Dwelling houses are permissible with development consent in the 2(e), 7(d) and 1(a) Zones under the LEP. 9 Clause 77 of the LEP, entitled "Subdivision", provides in part: "[e]xcept as provided by subclause (2), development consent is required for the subdivision of land". 10 Sub-clause (2) of cl 77 of the LEP sets out a number of exceptions to the requirement for development consent for the subdivision of land. None of the exceptions specified in cl 77(2) of the LEP apply to the proposed development in the present case. 11 Further, cl 54 of the LEP, entitled "Controls for subdivision of land within Zones 7(a), 7(d) and 7(e)", provides in part: (1) The Council must not consent to a subdivision of land within Zone 7(a), 7(d) or 7(e) unless: (a) each allotment to be created will have an area of not less than 40 hectares or the Council is satisfied that any proposed smaller allotment is not intended to be used for the purpose of agriculture or a dwelling house, but is intended to be used for another lawful purpose, and … 12 Similarly, cl 14 of the LEP is headed "Controls for subdivision of land within Zone 1(a)" and it provides: (1) The Council must not consent to a subdivision of land within Zone 1(a) unless: ( a) each allotment to be created will have an area of not less than 40 hectares or the Council is satisfied that any proposed smaller allotment is not intended to be used for (b) the purpose of agriculture or a dwelling house, but is intended to be used for another lawful purpose, and… 13 The proposed development does not comply with the development standard of 40 hectares applying in Zone 7(d) and in Zone 1(a). The proposed residential lots would range in size from 972.3 square metres to 2,705 square metres. As I understand it, some of the proposed residential lots will be within either Zone 7(d) or within Zone 1(a). 14 Clause 83 of the LEP is headed "Flexible zone boundaries" and relevantly provides: (1) Development that may be carried out (whether with or without development consent) on land within a zone specified in Column I of the table of this clause may also, with development consent, be carried out on land that is within an adjoining zone and specified opposite it in Column II of the table, but only to the extent specified in Column III. Table Column I Column II Column III Land within zone Adjoining zone Part of the land in adjoining zone on which the development may be carried out 2(e) Any zone Land within 50 metres of the boundary of zone 2(e) …… (2) Before granting any such consent, the consent authority must consider whether or not the proposed development is desirable due to planning, design, servicing, details site survey or similar criteria relating to the most appropriate development of the land. The Parties' Submissions 15 Mr D P Wilson, appearing for the applicant, relies, inter alia, upon the following submissions. (a) There are no limitations on the application of cl 83 except as contained within the table. The clause is contained within Pt 12 of the LEP headed "Miscellaneous Provisions". Section 35 of the Interpretation Act 1987 provides that the heading is to be taken to be part of the instrument. Therefore, cl 83, being read in accordance with its ordinary English language construction, specifically applies to the areas identified in the table, that is, boundaries between the specified zones. (b) In contrast, cl 54 does not address land that borders another zone. Part 8 of the LEP, which contains cl 54, reflects the environmental constraints of the environmental protection zones, but also contains broad provisions which of themselves must be related to the facts of particular circumstances. In the absence of cl 83, these provisions apply in their terms ( Fairfield City Council v N & S Olivieri Pty Limited [2003] NSWCA 41 at [12]-[17]). However, cl 83 renders cl 54 irrelevant to the present case because the lots are intended to have dwelling houses constructed upon them. (c) A suggestion otherwise than that cl 83 has a separate independent function as a specific provision related to specific circumstances of the interface of two zones cannot stand as a proposition on the true construction of the instrument because it would elevate the specific above the general. Clause 83 is a self- contained clause that takes one to the provisions of Zone 2(e) to determine what development is permissible. The discretionary merit criteria in cl 83(2) aids in this cause. Further, cl 77 remains relevant to such a proposed development, there being no minimum area for the subdivision of land in that zone. (d) There is no room for a "purposive construction" of cl 83. The aim of the plan, stated in cl 2 of the LEP, does not suggest that clause 83 should be given other than its ordinary meaning according to its own words. Further, there can be no suggestion that it is inconsistent with the aim of the plan, nor are its words unclear, ambiguous or constrained otherwise than as identified in the table of the clause. In any event, however, a purposive approach is directed to the promotion of the purpose or object underlying the legislation, with which cl 83 is not inconsistent ( Winn v Director General of National Parks and Wildlife & Ors [2001] NSWCA 17; Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 423 per McHugh JA; Corporate Affairs Commission v Yuill (1991) 172 CLR 319 at 344). (e) There can be no suggestion that cl 83 applies otherwise than in situations in which development in the adjoining zone is prohibited or permitted according to different criteria, such as a larger minimum area for subdivision. It allows development in the zone in Column II that is permissible in the zone in Column I, otherwise Column III would have no function. Therefore, cl 83 must permit development otherwise prohibited or permitted according to different criteria in the Column II zone. 16 Mr A M Pickles, appearing for the respondent, relies upon the following relevant submissions. (a) Clause 83 does not state that the development standards or restrictions on development in the adjoining zone do not apply to development that straddles the zone boundary. In order to adopt the applicant's construction of cl 83, it is necessary that the clause include the words "despite any of the other provisions of the plan" , as used in cll 45 and 46 of the LEP, for example. The absence of this phrase shows that it was not the intention of the draftsperson to allow the granting of consent to permissible development in adjoining zones without regard to the development standards applying to development in that particular zone. It follows then that cll 14 and 54 continue to apply and cl 83 does not apply the controls relating to Zone 2(e) into all developments adjoining Zone 2(e). (b) Clause 54 is a specific provision in relation to Zone 7(d). Similarly, cl 14 is a specific control in relation to Zone 1(a). Clause 83 is a general clause. Therefore, in the absence of an express statement to the contrary, one must read both clauses as having concurrent operation necessitating that they be read together. (c) In the event of ambiguity, a purposive approach is to be adopted. However, the wording of cl 83 is unambiguous because it does not state that the controls that apply in the 2(e) Zone are adopted. Indeed, sub-cl (2) suggests the reverse: the consent authority must consider those things that are set out in sub-cl (2). It follows then that in the absence of a definitive purpose one way or the other, it must be concluded that the objective of the clause is to enable the relaxation of an absolute prohibition on the carrying out of development that would otherwise be prohibited within the adjoining zone. This is a clear and unambiguous application of the clause, which is not inconsistent with a purposive construction of such. (d) Given its plain interpretation, advocated by the applicant, in the case of development that is permissible in both of Zones 2(e) and 7(d), cl 83 does not achieve anything. It simply states that development that may be carried out in one zone may also be carried out in the adjoining zone with consent. Therefore the clause is only effective where there is an absolute prohibition on the grant of consent within the adjoining zone in Column II. The development standard contained in cll 14 and 54 does not affect an absolute prohibition on the carrying out of the subdivision within the 7(d) Zone, but rather imposes a limitation upon the power of the consent authority to grant consent. ( Healesville Holdings Pty Limited v Pittwater Council (1997) 97 LGERA 95 at 102). It follows that on a true construction of cl 83, a development that does not comply with the minimum lot sizes for the 7(d) Zone (or the 1(a) Zone) may only be approved if a State Environmental Planning Policy No. 1 – Development Standards objection is upheld in relation to that standard. Conclusions 17 Clause 83 of the LEP specifically addresses the situation in which one planning zone adjoins another. It is common sense to conclude, therefore, that the existence of such a provision aims to modify the application of the planning provisions relevant to the more frequent situation in which there is no such convergence of two zones. Further, the inclusion of a wide discretion granted to the consent authority in determining whether or not the proposed development is "desirable" shows that the draftsperson intended cl 83 to provide some flexibility in development constraints on land that straddles more than one zone. 18 Section 25(3) of the Environmental Planning and Assessment Act 1979 provides that, where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in the instrument shall be preferred. Thus, in order to determine the precise effect of cl 83 upon the restrictions for subdivision in Column II zones such as Zone 7(d), a consideration of the aims and objectives of the instrument and its relevant parts is necessary. 19 The relevant aims of the LEP, set out in cl 2, are as follows: The aim of this plan is to provide a framework for land use management, urban growth and change to achieve the following objectives: (a) to ensure that land uses in the local government area of Shellharbour City are compatible with each other and are suitably located, (b) to ensure that adequate provision is made to meet the needs of an increasing population, (c) to ensure that various areas of land within the local government area of Shellharbour City which are environmentally sensitive, and which enhance the visual amenity of the area, are protected and suitably manage, …. 20 The flexible approach would necessarily involve the consideration of the development controls of the zone in Column I in relation to development on land within the adjoining zone in Column II. This is consistent with the overall aims of the LEP. Aim (a) is fulfilled because this reading of cl 83 allows continuity and smooth transition between adjoining zones. Likewise, it aids in fulfilling aim (b) of the LEP by creating six residential lots, therefore partly meeting the needs of an increasing population. Aim (c) may also be satisfied by this approach: column III of the table in cl 83 specifies that the development may be carried out only on land in the adjoining zone within either 50 and 100 metres of the boundary of the Column I zone, depending on the applicable zone; and this affords protection and suitable management of land which enhances the visual amenity of the area. Finally, sub-cl (2) of cl 83 allows further consideration of the general aims of the LEP in the application of cl 83. 21 It follows that cl 83 should be given the full meaning which its words connote (Winn v Director General of National Parks and Wildlife & Ors [2002] NSWCA 17). In any event, however, a purposive approach to the provision would result in the same construction of cl 83. The flexible approach to cl 83 to which I have referred is not inconsistent with the general aims of the LEP. 22 The aim of the relevant Column I zone will naturally be satisfied by the flexible construction of cl 83. More importantly, however, the flexible construction of the clause is not inconsistent with the objective of Zone 7(d), or Zone 1(a), the relevant zones in Column II, which are not unlike the general aim (c) of the LEP. As previously noted, the relevant entry in Column III of the table in cl 83, in conjunction with the discretion afforded the decision maker in sub-cl (2), will protect predominantly undeveloped scenic areas so as to maintain the visual backdrop for the urban areas. 23 This interpretation is further strengthened by the headings of the relevant part and clause of the LEP. By section 35 of the Interpretation Act 1987 (entitled "Headings etc"), the headings to provisions of an instrument such as the LEP are taken to be part of the instrument. 24 Part 12 of the LEP is headed "Miscellaneous Provisions", and cl 83 is headed "Flexible zone boundaries". By virtue of the first heading, it is plain that cl 83 is meant to have full power as a provision in its own right, independent of all other provisions of the LEP. Further, in the same vein that cl 54 specifically applies to the "subdivision of land within Zone …7(d)", "Flexible zone boundaries" connotes a deviation from the normal planning provisions in the specific situation described in cl 83, that is, where two zones adjoin. Therefore, cl 83 must be given its full effect so as to avoid it being relegated to be read subject to cl 54 (or cl 14) for no proper justification. This approach avoids elevating the specific above the general. 25 Mr Wilson, appearing for the applicant, relies inter alia upon the following statement of principle: …an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. ( R v Wallis; Ex parte Employers' Association of Wool-Selling Brokers & H V McKay Massey Harris Pty Ltd (1949) 78 CLR 529 at 550 per Dixon J; Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 at [14]). 26 A flexible reading of cl 83 is consistent with this principle of statutory interpretation. In the absence of cl 83, cll 14 and 54 would apply to Zones 7(d) and 1(a) according to their tenor. However, the fact that cl 83 refers specifically to "land that is within an adjoining zone", means that cl 83 operates affirmatively and, simultaneously, negatively in rendering cll 14 and 54 and other inconsistent provisions inapplicable. 27 Moreover, the fact that Column III of the table specifies restrictions upon the operation of the kind of development permissible under Column I upon adjoining lands in Column II suggests that the provision necessarily allows development permissible in the zone in Column I unmodified except for the restriction in Column III. In this case, except as described in par [14] above, Column III does not limit the application of development permissible within Zone 2(e) to the subdivision in the adjoining Zone 7(d). The respondent's interpretation would render cl 83 useless in allowing the flexibility in the development of land that straddles more than one zone, being the clear and valid objective of the provision. That is, there would be little or no utility in allowing development permissible under the 2(e) Zone to be curtailed by provisions which do not apply to development within the 2(e) Zone. In particular, the objectives of the 2(e) Zone must be taken into account. 28 Therefore, it necessarily follows that on the true construction of cl 83 of the LEP and the whole of that plan, consent may be granted to the subdivision, the subject of the appeal in these proceedings, notwithstanding non-compliance with cl 54 (or cl 14) of that LEP as to minimum lot size. That is to say, the development application may be considered on its merits, particularly having regard to the considerations set out in sub-cl (2) of cl 83 notwithstanding non-compliance with cl 54 (or cl 14) of that LEP as to minimum lot sizes. 29 The question of law is answered as to par (a), in the affirmative; and as to par (b), in the negative. ********** I hereby certify that the preceding 29 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 23 April 2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.