Land and Environment Court of New South Wales CITATION : BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998) [1998] NSWLEC 36 PARTIES : BRUCE KINLEY v WYONG SHIRE COUNCIL [1998] NSWLEC 65 (23 April 1998) FILE NUMBER(S) : 10786 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act 1979 Wyong Local Environmental Plan 1991 CASES CITED: North Sydney Municipal Council v P D Mayoh Pty Limited [No.2] (1990) 71 LGRA 222 ("Mayoh") DATES OF HEARING: 19 February 1998 DATE OF JUDGMENT: 04/23/1998 Mr M Macrossan, Barrister LEGAL REPRESENTATIVES: Mr W O'Rourke JUDGMENT: This judgment deals with Questions of Law raised in Class 1 proceedings which have been brought by Mr Kinley by way of appeal against a refusal by Wyong Shire Council ("the Council") of an application he made to subdivide some rural land into two lots. The relevant application is Development Application ("DA") 1038 of 1996 and the subject land is comprised in lots 111 and 113 in Deposited Plan 800594. The application was made on 15 November 1996 and refused on 16 December 1996, for the stated reason that it was considered by Council that the proposed subdivision is prohibited under the provisions of cl 14(7) of Wyong Local Environmental Plan 1991 ("the LEP"). Mr O'Rourke, Solicitor for the Council, at the beginning of the hearing on these Questions of Law, resiled from Council's reliance on cl 14(7) of the LEP, but contends that the subdivision is prohibited in any event by the provisions of cl 14 as a whole. Background In DA 607/96 the then applicant sought an adjustment of the boundaries between lot 111 and 113 under which the size of 111 was reduced from 5807 square metres to 5008 square metres and the area of 113 was increased from 1.92 ha to 2 ha. The Council consented to that boundary adjustment on 24 July 1996. The plan generated by that approval has not yet been registered by the Land Titles Office but is in evidence as Exhibit C2 . What was sought in DA 1038/96 was the subdivision of the 2 ha lot 113 into two 1 ha lots (to become lots 1131 and 1132). The appeal against the December 1996 refusal of DA 1038/96 was not lodged until 27 November 1997, after the Council had relevantly refused DA 531/97 dated 6 August 1997, on 10 November 1997. DA 531/97 was also for a 2 lot subdivision of lot 113 and part lot 111 and it was refused on the grounds that it was prohibited under clauses 14(3)(a) and 14(7) of Wyong Local Environmental Plan 1991 and other considerations under s 90 of the EnvironmentaL Planning & Assessment Act 1979 ("EPAA"). Under the proposed subdivision, lot 1131 will be located totally in land zoned 7(c)(1) with access gained by existing road and bridge through 7(a) zoned land. Zone 7(c) is entitled "Scenic Protection: Small Holdings Zone". Zone 7(a) is a Conservation Zone. The second 1 ha lot nominated as lot 1132 would remain approximately 60% in the 7(c)(1) zone and 40% in the 7(a) zone. The lands embraced in the various proposals are detailed in Exhibit C1 . The whole of lot 113 as supplemented by the additional land from lot 111 is vacant rural land. The Questions of Law After some dispute and discussion between the representatives of the parties after the hearing commenced, an agreed schedule of questions was posed for the Court to consider. "1. Whether subclause 14(3)(b) of the Wyong LEP only allows for subdivision of land exclusively within zone 7(c). 2. Whether subclause 14(7) of the Wyong LEP requires the relevant authority to take into account all allotments that have ever been created (by subdivision) from the original portion of land of which the land to be subdivided used to form part, regardless of: (a) when such subdivisions took place; and (b) whether or not such allotments still form part of the land to be subdivided. 3. Whether subclause 14(7) of the Wyong LEP operates as a development standard within the meaning of section 4 of the Environmental Planning and Assessment Act 1979. 4. Does clause 14(2) of the Wyong Local Environmental Plan 1991 apply to the subdivision of land which is within more than one zone. 5. Whether paragraphs (i) to (iv), both inclusive, of clause 14(3)(a) of the Wyong LEP operate as development standards within the meaning of section 4 of the Environmental Planning and Assessment Act 1979." The applicant's contention is that the subdivision is permissible under cl 14(3)(b) and that cl 14(7) is a development standard and not a prohibition. In the event that the Court holds that the subdivision is not permissible under cl 14(3)(b), the applicant would rely on 14(2) and a SEPP 1 objection. Council's contention is that 14(2) is amenable to SEPP 1 but that 14(2) applies only to land specified in it, and not to land which is in more than one zone, because such land is dealt with specifically in cl 14(3)(a). Clause 14 Clause 14 provides as follows: "(1) This clause applies to land within Zone No 1(a), 1(c), 7(a), 7(b), 7(c), 7(d), 7(e) or 7(f). (2) Except as provided by subclauses (3) and (4), a person shall not subdivide land to which this clause applies so as to create an allotment having an area of less than - (a) in the case of land within Zone No. 1(c), 7(a), 7(d), 7(e) or 7(f) - 40 hectares; (b) in the case of land within Zone No.1(a) or 7(b) - 20 hectares; (c) in the case of land within Zone No.7(c) - 2 hectares. (3) A person may, with the consent of the Council - (a) subdivide land to which this clause applies where - (i) the land is partly within one zone and partly within another zone; (ii) the area of the land within one of the zones is not less than the area specified in subclause (2) in respect of that zone; (iii) the area of the land in the other zone is less than the area specified in subclause (2) in respect of that zone; and (iv) one of the allotments to be created by the subdivision comprises the whole of the land referred to in subparagraph (iii); or (b) subdivide land within Zone No.7(c) so as to create one or more allotments of less than 2 hectares but not less than 1 hectare where the average of the areas of all the allotments in the subdivision is not more than 2 hectares and where - (i) the person dedicates to the Council as a public reserve land within Zone No.7(a) which is in the same ownership as the land within Zone No.7(c); (ii) the person contributes to the Council an amount of money to be used by the Council for the purchase of land within Zone No.7(a) for use as a public reserve or for the improvement or embellishment of any public reserve owned by the Council which is within Zone No.7(a); (iii) the plan of subdivision is a strata plan, within the meaning of the Strata Titles Act 1973, which includes as common property land within Zone No.7(a) which adjoins land within Zone No.7(c) and that part of the common property which is within Zone No.7(a) is accessible from each of the lots in the strata plan; (iv) the person dedicates land within Zone No.7(a) in accordance with subparagraph (i) and makes a contribution in accordance with subparagraph (ii); or (v) the person makes a contribution in accordance with subparagraph (ii) and land within Zone No.7(a) is included in common property in accordance with subparagraph (iii). (4) Where land within Zone No.7(a) is to be dedicated in accordance with subclause (3)(b)(i) or included in common property in accordance with subclause (3)(b)(iii), the area of land that, as the case may be, is to be so dedicated or so included shall be that number of hectares that is equal to the number obtained - (a) by subtracting from the number of allotments to be created (as referred to in subclause (3)(b)) the number obtained by dividing the total area of land within Zone No.7(c), expressed in hectares, by 2; and (b) by multiplying the number calculated pursuant to paragraph (a) by 5, adjusted to the first decimal place. (5) Where a contribution is to be made in accordance with subclause (3)(b)(ii), the amount of the contribution to be so made shall be that number of dollars that is equal to the number obtained - (a) by subtracting from the number of allotments to be created (as referred to in subclause (3)(b)) the number obtained by dividing the area of land within Zone No.7(c), expressed in hectares, by 2; and (b) by multiplying the number calculated pursuant to paragraph (a) by 5 times the value, expressed in dollars, of 1 hectare of land within Zone No.7(a), as determined from time to time by the Council, adjusted to the nearest whole number. (6) Where - (a) land within Zone No.7(a) is to be dedicated and a contribution is to be made in accordance with subclause (3)(b)(iv); or (b) land within Zone No.7(a) is included in common property and a contribution is to be made in accordance with subclause (3)(b)(v), the amount of the contribution to be so made shall be that number of dollars that is equal to the number calculated pursuant to subclause (5) less the number obtained by multiplying the area of land within Zone No.7(a) to be dedicated or included in common property by the value, expressed in dollars, of 1 hectare of land within that zone (as determined pursuant to subclause (5)), adjusted to the nearest whole number. (7) Where land is subdivided in accordance with subclause (3)(b), the total number of allotments that may be created by one or more subdivisions made at any time before or after the appointed day shall not exceed the number of hectares of the land within Zone No.7(c) adjusted down to the nearest whole number. (8) Land within Zone No.7(a) included in common property pursuant to subclause (3)(b)(iii) shall not be used for any purpose other than agriculture, parks or gardens and shall not be so used without the consent of the Council. (9) The Council shall upon receipt by it of a contribution made pursuant to this clause place that contribution in a trust account for use for the purpose specified in subclause (3)(b)(ii)." Question 1 - Clause 14(3)(b) Council contends that this clause applies only to land which is entirely within zone 7(c). The zone 7(a) land referred to in the subclauses does not need to be contiguous but must be in the same ownership. (In this case they are contiguous parcels of land). The applicant contends that the land envisaged by clause 14(3)(b) can include an area of land other than zone 7(c) and that nothing at law, or in the wording of the clause, requires it to be interpreted as saying "solely within zone 7(c)". The applicant argues that as cl 14(1) indicates that cl 14 as a whole applies to land within one or more of the zones enumerated therein, it must be possible to consider parcels of land of more than one zoning. The applicant further submits that subclauses 14(3)(b)(i)-(iv) and cl 14(8) would make no sense if 14(3)(b) were to be limited to land entirely within zone 7(c). The applicant further submits that if all 14(3)(b) did was apply to the 7(c) land it would not be necessary to include subclause 14(7). As cl 14(3)(a) specifically deals with land partly within one zone and partly within another, it seems to me to be entirely appropriate to construe 14(3)(b) as being intended solely to deal with special circumstances that might arise in respect of land zoned 7(c). Accordingly, I believe the answer to Question 1 is yes. Question 2 - Clause 14(7) The answer to Question 1 would indicate that cl 14(3)(b) does not apply to the subject Development Application and cl 14(7) specifically applies only to subdivisions in accordance with cl 14(3)(b). However, if cl 14(3)(b) had applied, Council submitted that it would be necessary, in applying cl 14(7), to go back to the original Crown Grant, count up the total number of allotments that have come out of that area of land, and make the calculation referred to in cl 14(7). I agree with this construction suggested by Council and as the applicant's representatives are in agreement that that is the correct process, the answer to Question 2 is yes. Question 3 - Is Clause 14(7) a Development Standard? Both parties are agreed that the leading case on this question is North Sydney Municipal Council v P D Mayoh Pty Limited [No.2] (1990) 71 LGRA 222 (" Mayoh "). However, the Council relies on Mayoh to indicate that the answer to this question is no, whereas the applicant suggests that Mayoh is authority for the answer being yes. Section 4 of the EPAA defines a development standard as follows: "… provisions of an environmental planning instrument in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development including, but without limiting the generality of the foregoing, requirements or standards in respect of..." The definition lists a number of specific aspects of a development to which a development standard may relate. Mahoney JA at p 234 of Mayoh said: "There is, in my opinion, a distinction in the provisions between a provision which in form provides: 'on land of characteristic X no development may be carried out' and a provision which in form provides: 'on such land development may be carried out in a particular way or to a particular extent'." Clarke JA at 236 said: "There is in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development". Clause 14(7) presupposes that land is subdivided in compliance with cl 3(b) and then stipulates the total number of allotments that may be created. Rather than "fixing requirements to be complied with" within the meaning of Clarke JA's comment, what cl 14(7) does in this case is specify that development "may be carried out … to a particular extent" as the test is expressed by Mahoney JA. As it presupposes a permissible subdivision, I have come to the conclusion that cl 14(7) does operate as a development standard within the meaning of section 4 of the EPAA rather than as a prohibition. Accordingly, I would answer Question 3 in the affirmative. Question 4 - Clause 14(2) As cl 14(2) provides that subdivision shall not be allowed other than by the provision of minimum areas, unless allowed pursuant to (3) and (4), I believe that, cl 14(3)(a) providing specifically for land partly within one zone and partly within another, cl 14(2) applies to land wholly within the zones nominated within its sub paragraphs. Council submits that all the land must be within the one zone or cl 14(3) would have no work to do. Cl 15(2) also provides for subdivision of land partly within one zone and partly within another. I do not accept the submission by the applicant that the language of cl 14(1) requires that some specific exclusion would be necessary in the words of cl 14(2) for the answer to this question to be no. I believe the correct answer to the question, and the correct construction of cl 14(2), is that advocated by the Council and I answer the question in the negative. Question 5 - Is Clause 14(3)(a) a development standard? Clause 14(3)(a) is the first of two clauses which make exceptions to the minimum area provisions of cl 14(2) ; cl 14(3) as a whole stipulates that a person may, with the consent of Council, subdivide land "to which the clause applies", namely land within zones 1(a), 1(c), 7(a), 7(b), 7(c), 7(d), 7(e) or 7(f) where four conditions are satisfied or, in the alternative, in the case of land within zone 7(c), where one of the five conditions in cl 14(3)(b) applies. It is clear on the face of the plan that the four subparagraphs of cl 14(3)(a) are conjunctive - all four of the "conditions" set out there must be satisfied in order for the Council to be empowered to give consent for subdivision on the basis of areas different from those stipulated in cl 14(2): · the land must be partly within one zone and partly within another; · the area within one of the zones must be not less than the area specified for that zone in cl 14(2); · the area in the other zone must be less than the area specified in respect of that zone in cl 14(2); and · one of the allotments to be created, must comprise the whole of the land referred to in the third condition. The Council contends that the first three are not development standards, but the fourth one may be. The applicant contends that if that is in fact so, and the fourth one is a development standard, because the four are conjunctive, the whole provision must become a development standard. As the clause on its face clearly presupposes that the land will be in two zones, and as the clause specifies certain pre-conditions that must be fulfilled, I think it operates much more as a prohibition than as a development standard, within the meaning of the distinction drawn by the majority Judges in Mayoh , when they were interpreting the definition of "development standard" in s 4. Clause 14(3)(a) specifies the circumstances in which subdivision may take place when, on the reading of cl 14(2), insufficient land is available. Therefore, I believe that the correct description of cl 14(3)(a) is that it does not specify how a subdivision might be carried out so much as when it might be permissible. I therefore conclude that cl 14(3)(a) is not a development standard, and I would answer the question "no". Conclusion The answers I have determined are as follows: Question 1: Whether subclause 14(3)(b) of the Wyong LEP only allows for subdivision of land exclusively within zone 7(c). Answer : Yes Question 2: Whether subclause 14(7) of the Wyong LEP requires the relevant authority to take into account all allotments that have ever been created (by subdivision) from the original portion of land of which the land to be subdivided used to form part, regardless of: (a) when such subdivisions took place; and (b) whether or not such allotments still form part of the land to be subdivided Answer : Yes Question 3: Whether subclause 14(7) of the Wyong LEP operates as a development standard within the meaning of section 4 of the Environmental Planning and Assessment Act 1979. Answer: Yes Question 4: Does clause 14(2) of the Wyong Local Environmental Plan 1991 apply to the subdivision of land which is within more than one zone. Answer: No Question 5: Whether paragraphs (i) to (iv), both inclusive, of clause 14(3)(a) of the Wyong LEP operate as development standards within the meaning of section 4 of the Environmental Planning and Assessment Act 1979. Answer: No There will, in accordance with the usual practice, be no order as to costs. Exhibits C1 and C2 may be returned. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 12 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN. Associate: 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.