Kinley v Wyong Shire Council [1999] NSWCA 213

New South Wales Court of Appeal CITATION : Kinley v Wyong Shire Council [1999] NSWCA 213 FILE NUMBER(S) : CA 40694/98 HEARING DATE(S) : 31 March 1999 JUDGMENT DATE : 23 July 1999

PARTIES : Bruce KINLEY v WYONG SHIRE COUNCIL JUDGMENT OF : Priestley JA at 1; Meagher JA at 8; Giles JA at 17

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 10786/97 LOWER COURT JUDICIAL OFFICER : Sheahan J

COUNSEL : Appellant: M. Macrossan Respondent: W. O'Rourke (sol) SOLICITORS : Appellant: Brennan Blair & Tipple Respondent: Deacons Graham & James CATCHWORDS : Appeal from Council's refusal to grant Development Application for Subdivision - land in more than one zone - interpretation of LEP clause - where clause held not to apply, it cannot be complied with for purposes of application to subsequent clause. DECISION : Leave to appeal granted; Appeal allowed.

- 26 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40694/98

PRIESTLEY JA MEAGHER JA GILES JA

Friday, 23 July 1999. Bruce KINLEY v WYONG SHIRE COUNCIL

JUDGMENT

1 PRIESTLEY JA: I have had the benefit of reading in draft Meagher JA's opinion in this proceeding in which he has set out the necessary materials. 2 Clause 13 of the LEP prohibits subdivision of land to which the LEP applies except with Council consent. Therefore, unless the LEP contains some prohibition preventing the Council from consenting to Mr Kinley's application, he can make the subdivision he wants, if Council consents. 3 The only prohibition the Council has pointed to is that in cl 14(2). 4 The answer by Sheahan J to question 4 of a number of questions he answered, was that cl 14(2) did not apply to the subdivision of land within more than one zone. 5 It seems to me to follow from the answer that there is no prohibition of the subdivision for which Mr Kinley is applying. Thus, if Sheahan J's answer to question 6 means, as both parties appear to have taken it to mean, that Mr Kinley's application must satisfy the conditions of cl 14(2), with respect, I disagree. Sheahan J's answer is only supportable if his answer to question 4 is given a meaning different from what seems to me to be its most obvious and likely meaning. 6 I therefore agree with the orders proposed by Meagher JA. 7 Since writing the above I have had the benefit of reading Giles JA's opinion in draft form. The reasoning is forceful but has not persuaded me to change my previous conclusion. This is primarily because Giles JA's reasons appear to me to reinforce my earlier view that the principal issue in this appeal is the construction, not of the planning instrument, but of Sheahan J's answer to question 4; and although Giles JA certainly shows that that question of construction is debatable, it is still my opinion that the meaning adopted by Meagher JA of Sheahan J's answer to question 4 is the one most readers would take as the obvious one. 8 MEAGHER JA: This is an appeal from a decision of Sheahan J in the Land and Environment Court who adjudicated upon an appeal by Mr Kinley against the Wyong Shire Council's refusal of an application to subdivide certain land. The appellant owns certain land which is already zoned partly within one zone and partly within another. He then lodged the development application to which I have referred proposing to subdivide a two-hectare block into two blocks, each of one hectare. Under his development application one of the two new proposed blocks, Lot 1131, would be all within zone 7(c) ("Scenic Protection:Small Holdings Zone"), the other Lot 1132 partly (ie 60%) within zone 7(c)(i) and partly (ie 40%) within zone 7(a)("Conservation"). 9 Clause 14 of the relevant LEP, insofar as it is relevant, is in the following terms: "(1) This clause applied 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) …, 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)….." 10 Clause 15, insofar as relevant, is in the following terms: "(1) Except as otherwise provided by this plan and subclauses (2) and (3), a person shall not subdivide land so as to create an allotment partly within one zone and partly within another zone. (2) A person may subdivide land so as to create an allotment partly within one zone and partly within another zone provided that the number of allotments so created does not exceed the number of allotments, constituting the same land, similarly affected prior to the subdivision." (3) The Council may, where the topography of the land to be subdivided makes it necessary, consent to a subdivision in which the boundaries of an allotment of land with Zone No 7(a) that borders on land within another zone do not correspond precisely with the relevant boundaries of the land within Zone No 7(a), as shown on the map, but which depart from those boundaries only to a minor extent". 11 The LEP is not distinguished for its brevity nor its clarity. It has led to procedural skirmishes of some complexity between the parties, and to bouts of litigation culminating in two cases before Sheahan J. His Honour has given two judgments, one on 19 February 1998 and another on 28 July 1998. In the former, the parties proposed that his Honour answer five questions, which he did. Of these, only the fourth matters for present purposes. That question and answer are in the following form: "Q:Does clause 14(2) of the Wyong Local Environment Plan 1991 apply to the subdivision of land which is within more than one zone." " A :No." 12 The Council is now content with his Honour's answers. There is no cross-appeal. The appellant, Mr Kinley, is also content with it, so far as his primary submissions to this Court are concerned. If it matters, I think his Honour was plainly right. The draftsman of cl. 14 was quite able to state which provisions of the clause apply to land partly within one zone and partly within another. He did so in cl. (14)(3). One must, therefore, assume cl. 14(2) does not apply to such land. 13 In the second litigation the parties submitted a new question to his Honour, question 6. It was as follows: "Assuming the terms of subclause 15(2) of the Wyong LEP are satisfied, must a subdivision of land partly within zone 7(a) and partly within zone 7(c) also satisfy the conditions of any other provision or provisions in the LEP before it is permissible with consent, and, if so, which provision/s?" 14 His Honour answered it thus: "Yes; a subdivision proposal which falls within cl 15(2) of Wyong LEP, but deals with land in zones to which cl 14 applies, must also satisfy the conditions of cl 14" 15 Mr McCrossan, learned counsel for Mr Kinley, concentrated his heavy armour on the answer to question 6. I do not blame him, because the answers to questions 4 and 6 seem contradictory. I might add that the parties seem to have agreed that clause 15(2) posed no problems to the subdivision. By stating that the applicant had to comply with "the conditions of clause 14", one can only assume his Honour was referring to cl.14(2), but this is the very sub-clause which his Honour, in answer to question 4, held did not apply. 16 I propose the following orders should be made: 1. Grant leave to appeal; 2. Allow the appeal; 3. Set aside the orders made below on 14 August; 4. In lieu thereof order that question 6 be answered "No". Order the respondent Council to pay the costs of Bruce Kinley in this Court and below, but the Council to have a certificate under the Suitor's Fund Act in respect of those costs in this Court which related to the hearing of the appeal. 17 GILES JA: It was said that the answers to two questions of law by the one judge in the one case were inconsistent - that if one answer was correct, the other was necessarily incorrect. Even Homer nods, and it could be so. But such an inconsistency is not to be expected, and the apparent inconsistency may on investigation prove to be not a real inconsistency. In my opinion, on a proper understanding of the questions and their answers in the circumstances in which the questions of law were posed, there is no inconsistency. The subdivision application 18 Mr Kinley owns a parcel of land off Wyong Road, Glenning Valley, including lot 113 in Deposited Plan 800594. Lot 113 has an area of 2 hectares, and is zoned partly 7(c) (scenic protection: small holdings) and partly 7(a) (conservation) under the Wyong Local Environmental Plan 1991 ("the LEP"). The part zoned 7(a) bisects the part zoned 7(c). The land is vacant rural land. 19 Clause 13(1) of the LEP provided that a person should not subdivide land to which the LEP applied except with the consent of the Council. In November 1996 Mr Kinley applied to Wyong Shire Council ("the Council") for consent to the subdivision of lot 113 into two lots, lot 1131 and lot 1132. According to the proposed subdivision, lot 1131 would have an area of 1 hectare and would comprise the land zoned 7(a) and part of the land zoned 7(c), and lot 1132 would also have an area of 1 hectare and would comprise the remainder of the land zoned 7(c). 20 In December 1996 the Council refused consent to the subdivision, for the stated reason that it considered that the subdivision was prohibited under the provisions of cl 14(7) of the LEP. The appeal to the Land and Environment Court 21 In November 1997 Mr Kinley appealed by way of Class 1 proceedings brought against the Council in the Land and Environment Court. The delay appears to have been because Mr Kinley applied for consent to a different subdivision involving lot 113 and part of an adjoining lot 111, that consent also being refused. (a) Stage 1 22 The proceedings were heard by Sheahan J on 19 February 1998. The Council abandoned reliance on cl 14(7) as the source of the prohibition on the subdivision, but contended that the subdivision was prohibited by what was described as "the provisions of cl 14 as a whole". 23 The parties agreed on questions to be answered by the Court, namely - "1. Whether subclause 14(3)(b) of the Wyong LEP only allows for subdivision of land exclusively within zone 7(c).