Land and Environment Court New South Wales Medium Neutral Citation: Kenoss Pty Ltd v Palerang Council (No 2) [2012] NSWLEC 208 Hearing dates: 4 September 2012 Decision date: 07 September 2012 Jurisdiction: Class 1 Before: Biscoe J Decision: Separate question answered (a) Yes, and (b) No. Catchwords: SEPARATE QUESTION - On the proper construction of cl 21(b) of the Yarrowlumla Local Environmental Plan 2002, in considering the condition precedent therein to the grant of consent for subdivision of land in Zone No 2(v) where the subdivision takes in floodplain land: (a) is the only question whether the consent authority is satisfied that the subdivision takes in floodplain land? or (b) is there a further question whether the consent authority is satisfied that that floodplain land is an unsuitable area? Legislation Cited: Environmental Planning and Assessment Act 1979 s 4 Yarrowlumla Local Environmental Plan 2002 cll 9, 10, 16, 21, 39, 40, Part 3 Divs 1 and 2, Part 4 Div 1 Cases Cited: Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26, 141 CLR 672 Preston v Commissioner for Fair Trading [2011] NSWCA 40 Texts Cited: The Australian Oxford Dictionary (1999) Oxford University Press Category: Separate question Parties: Kenoss Pty Limited (Applicant) Palerang Council (Respondent) Representation: COUNSEL: Ms S Duggan SC (Applicant) Mr I Hemmings (Respondent) SOLICITORS: Gadens Lawyers (Applicant) Bradley Allen Love (Respondent) File Number(s): 10586/12 Judgment 1These proceedings are a Class 1 appeal against the respondent Council's refusal of a development application for subdivision of land near Bungendore intended for future residential development. The application did not seek consent for residential development. The land is located in Zone No 2(v) (Village Zone) under the Yarrowlumla Local Environmental Plan 2002 (LEP). The land is "floodplain land" as defined in the LEP. 2The following preliminary and separate question is before the Court for determination: On the proper construction of cl 21(b) of the Yarrowlumla Local Environmental Plan 2002, in considering the condition precedent therein to the grant of consent for subdivision of land in Zone No 2(v) where the subdivision takes in floodplain land: (a) is the only question whether the consent authority is satisfied that the subdivision takes in floodplain land? or (b) is there a further question whether the consent authority is satisfied that that floodplain land is an unsuitable area? 3In my opinion, for the following reasons, the answers to the question are: (a)Yes; and (b)No The LEP 4The separate question is concerned with the construction of cl 21(b) of the LEP. Clause 21 is only concerned with consent to subdivision in the Village Zone and provides: 21 What must be considered before consent is granted to subdivision in the Village Zone? Consent must not be granted to a subdivision of land within Zone No 2 (v) unless the consent authority is satisfied: (a) that the subdivision is consistent with the character of the area in which it is proposed having regard to existing density, landscape and nearby development, and (b) that the subdivision does not take in unsuitable areas such as floodplain land, and (c) that the development achieves the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets, and (d) that, where connection of a proposed allotment to a sewer is not possible, the allotment will be suitable for on-site effluent disposal without adverse effect on ground or surface water quality. (emphasis added) 5The subject land is "floodplain land" within paragraph (a) of the definition of that expression in cl 39 of the LEP. Clause 39 defines certain references to flood levels as follows: 39 What are floodplain land and flood planning area? For the purposes of this plan: floodplain land means: (a) land that is susceptible to inundation by a probable maximum flood (PMF) event, being the largest flood that could conceivably occur at a location based on current knowledge, or (b) land considered by the Council to be subject to local stormwater flooding whether or not it is recorded as such on maps held by the Council. flood planning area means land below the flood planning level (FPL) mapped for the purposes of defining a flood standard that has been adopted by the Council and is identified on the map marked "Bungendore Flood Map". flood planning level means the annual exceedance probability (AEP) level of a 1% (1 in 100 year) flood. 6Clause 10(5) states the objectives of the Village Zone: (5) Zone No 2 (v) (Village Zone) The objectives of this zone are as follows: (a) to set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community, (b) to recognise the natural and physical features of each village and to prevent development in unsuitable areas, such as flood-prone land, (c) to control village development so as to achieve the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets. (emphasis added) 7The Village Zone is the only urban zone under the LEP. The other zones are rural, rural residential, state forest, rural small holdings, water catchments, recreation, environmental protection and national parks: cl 9. 8Clause 11 stipulates, by reference to a lengthy table of land uses, developments that may be carried out in the various zones without development consent or with development consent or which are prohibited. It does not refer to subdivision, however subdivision is a type of "development" defined in s 4 of the Environmental Planning and Assessment Act 1979. 9Part 3 Division 1 of the LEP comprises cl 16, which mandates matters that a consent authority must be satisfied about or consider before granting consent to development of land: 16 What must be considered before granting consent to development? (1) Before consenting to development of land, the consent authority must be satisfied that the carrying out of the development is consistent with the objectives of this plan and the objectives of the zone in which the land is situated. (2) Before consenting to development of land, the consent authority must also consider: (a) the present use of the land and the potential of the land as productive agriculture land, and (b) the vegetation cover, land capability (including soil resources and soil stability) and water resources (including the quality and stability of watercourses and ground water storage and riparian rights), and (c) the future recovery, from known or prospective areas, of valuable deposits of minerals, sand, gravel or other extractive materials, and (d) the protection of areas of significance for nature conservation or areas of high scenic or recreational value, and places and buildings of archaeological or heritage significance (including Aboriginal relics and places), and the conservation of native flora and fauna, and (e) the cost of providing, extending and maintaining public amenities and services to any buildings or works that will result from carrying out the development, and (f) future expansion of urban areas in the locality and the impact on any existing village, and (g) vulnerability and exposure to natural disasters such as bush fires and floods, and (h) in the case of subdivision, whether each allotment to be created has a practical building precinct. (3) This clause does not apply to development that is complying development under clause 14. 10Part 3 Division 2 comprises cll 17-23 and is entitled "Subdivision". Clause 17 mandates that consent must be obtained for all subdivisions (with two irrelevant exceptions). Clause 21 has been set out earlier. It is the focus of this judgment. 11Part 4 is concerned with special controls for localities. Part 4 Division 1 is entitled "Flood hazard" and comprises cll 39-41. Clause 39 defines certain references to flood levels including "floodplain land", and has been set out earlier. As I have said, the subject land is "floodplain land" as defined. Clause 40 mandates matters that a consent authority must consider before granting consent to development of floodplain land: 40 What special controls apply to development of floodplain land? (1) Before granting consent to development of floodplain land, the consent authority must consider the following: (a) the extent and nature of the flooding or inundation hazard affecting the land, (b) whether or not the proposed development would increase the risk or severity of flooding or inundation affecting other land or buildings, works or other land uses in the vicinity, (c) whether the risk of flooding or inundation affecting the proposed development could be reasonably mitigated and whether conditions should be imposed on any consent to further the objectives of this plan, (d) the social impact of flooding on occupants, including the ability of emergency and support services to access, rescue and support residents of flood prone areas, (e) the provision of any floodplain management plan, interim local flood policy or relevant development control plan adopted by the Council. (2) Despite any other provision of this plan, development which includes the erection of a building is prohibited on land within a floodway area identified on the map marked "Bungendore Flood Map". 12The "Bungendore Flood Map" referred to in cl 40(2) is at the back of the LEP. It shows "floodplain land (PMF)" and, within its perimeter, "floodway" and "flood planning level (AEP = 1 %)". Submissions 13The Council's construction of cl 21(b) of the LEP is that in the case of floodplain land in the Village Zone, consent to subdivision cannot be granted. Consequently, by operation of cl 21(b) the subject subdivision is not capable of being granted consent because it takes in floodplain land. The applicant's construction is that cl 21(b) requires a determination of whether the land, by reason of the fact that it is defined as floodplain land, is rendered unsuitable for the development proposed. The separate question is intended to expose the two contrary positions. 14The applicant refers to recognised principles of statutory construction that: the LEP is to be construed having regard to its purpose; a meaning which best advances that purpose is to be preferred to one that does not; in determining a construction, regard is to be had to the whole of the document in which the contested provision is contained; general words are to be given their ordinary and usual meaning; and all words are to be given meaning and effect. 15The applicant submits that when consideration is given to the purpose and context of the LEP as a whole, its construction is to be preferred over the Council's construction. More particularly, the applicant submits as follows: (a)It is intended that the specific provisions in relation to flooding contained in Part 4 Division 1 are the specific provisions for determining flood risk and land suitability. To the extent that any other provision relates to flooding, this division (as it is specific) prevails over a general provision. (b)There is no indication that the LEP considers floodplain land to be prima facie unsuitable for any form of development. This is made plain by the fact that the permissibility of uses in the zoning table are not qualified by being located in a floodplain. The LEP does however make such provision for other levels of flood affectation such as that contained in cl 40(2). Therefore, if the LEP intended that subdivision in the Village Zone was in effect prohibited (ie not to be carried out because of its classification as floodplain) it would be expected that a clear statement to that effect would be made. (c)The specific provisions relating to floodplain land go to assessing the relative risks associated with such land and whether that risk can be mitigated. Such an analysis is consistent with the use of the subjective term unsuitable land referred to in cl 21(b) relating to the floodplain land. What cl 21(b) is asking is if, after undertaking the assessment required by cl 40, the land remains unsuitable due to its location in the floodplain, then the development must be refused. (d)There is no purpose to be served by limiting subdivision in the Village Zone in the manner contended for by the Council. If the issue is one of suitability for uses nominated in the Village Zone, those uses can be carried out on the floodplain land provided that land is already subdivided. If it is the protection of residential property or other infrastructure, there is no similar restriction in the other zones which could have similar residences or infrastructure. The reconciliation of the provisions of the LEP as a whole demands an assessment of suitability. To find otherwise is to find that the clause serves no real identified purpose. (e)To construe cl 21(b) as a factual precondition is to render cl 40 in large part otiose as it applies to Village Zone land. The clause is clearly drafted to apply to all land so flood affected. It would be expected that if it was intended that subdivision in this zone was to be dealt with exclusively by cl 21(b), cl 40 would exclude its operation from such land. As it does not exclude the land, the inference must be that the consideration under cl 40 is to apply to all land and inform the consideration under cl 21(b). Consideration 16In my opinion, as submitted by the Council, the proper construction of cl 21(b) is that in the case of floodplain land in the Village Zone, consent to subdivision cannot be granted and no further question of assessment of unsuitability of the area arises. Consequently, under cl 21(b) the subject subdivision is not capable of being granted consent as it takes in floodplain land. 17First, whilst construction of a particular word or phrase requires the context and purpose to be taken into account, the process of coming to an understanding of the meaning of the disputed word or phrase must begin with a consideration of the text itself, and the meaning of the word or phrase itself is a convenient starting point: Preston v Commissioner for Fair Trading [2011] NSWCA 40 at [63] per Campbell JA (Tobias and Young JJA agreeing). Taking that approach, the words "such as" in cl 21(b) mean "for example": The Australian Oxford Dictionary (1999) Oxford University Press at 1340. That which follows those words is an example of that which precedes them. Thus, in cl 21(b) "floodplain land" is an example of "unsuitable areas". On this textual consideration, if an area is "floodplain land", then under cl 21(b) it is an unsuitable area and consent cannot be given to its subdivision. 18Secondly this meaning is also supported by the principle of statutory construction that provisions may be inserted "for more abundant caution to guard against the possibility that the general might be read as not including the particular": per Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26, 141 CLR 672 at 679. On this principle, the words "such as floodplain land" have been inserted for more abundant caution to guard against the possibility that the general - unsuitable areas - might be read as not including the particular - floodplain land. 19Thirdly, this meaning is also broadly consistent with the objective of the Village Zone "to prevent development in unsuitable areas, such as flood-prone land": cl 10(5)(b). Although there is no definition of "flood-prone land" in the LEP, that expression is comparable to the defined expression "floodplain land" in cl 39. It may be noted that in specifying what a consent authority must consider before granting consent to development of floodplain land, cl 40(1)(d) refers to "flood prone areas". 20Fourthly, there is nothing irrational or absurd about requiring the consent authority to be satisfied that a subdivision of land in the Village Zone does not take in, for example, floodplain land. Although a subdivision consent does not, of itself, permit residential development on the subdivision lots, in the Village Zone it is anticipated that that is what will occur. From the outset, cl 21(b) guards against the risk of loss of property or life during flood events on new lots in the Village Zone whilst permitting subdivision in areas of the Village Zone that are not subject to the risk of flooding. 21Finally, in my view, the applicant's contextual submissions set out above at [15] are sufficiently answered as follows, along the lines submitted by the Council: (a)The question of specific provisions of the LEP dealing with flooding prevailing over general provisions of the LEP only arises in the event of inconsistency between the provisions. There is no inconsistency between cl 21(b) (requiring the consent authority to be satisfied that a subdivision in the Village Zone does not take in unsuitable land such as floodplain land) and cl 39 (containing the definition of "floodplain land") and cl 40 (containing relevant matters to be considered before granting consent to development of floodplain land other than subdivision). (b)I agree that the LEP does not provide that floodplain land is unsuitable for "any" form of development. Clause 21(b) applies only to the subdivision of land and only in the Village Zone. Consent for any other type of development on floodplain land and for subdivision of floodplain land in other zones may be granted subject to the consent authority having considered the matters set out in cl 40. Clause 21(b) indicates that the LEP considers floodplain land in the Village Zone to be unsuitable for subdivision. (c)So far as concerns the Village Zone, the relationship between cl 21(b) and cl 40 is that cl 21(b) deals specifically with the subdivision of land and cl 40 sets out matters to be considered before granting consent to carry out any other type of development on floodplain land. There is no need for the consent authority to embark on the qualitative assessment required by cl 40 where the proposed development comprises the subdivision of floodplain land in the Village Zone as such floodplain land is already specified by cl 21(b) as being an unsuitable area for subdivision. (d)The purpose of cl 21(b) is to prevent the further subdivision of floodplain land within the Village Zone. This recognises that the subdivision of land is often the precursor to the carrying out of other development, such as residential development (as is the case here). Clause 40 permits the owners of existing lots located on floodplain land in the Village Zone to carry out other development on their land, subject to the considerations set out in cl 40. It is unsurprising that there is no similar restriction to that in cl 21(b) for floodplain land in other zones. Clause 21(b) applies in the Village Zone, the only urban zone under the LEP, as noted above at [7]. (e)Construing cl 21(b) in the manner that I propose does not "render clause 40 in large part otiose" as cl 21(b) applies only to the subdivision of land in the Village Zone. All other development on floodplain land in the Village Zone must be assessed having regard to the matters for consideration set out in cl 40. The two clauses operate harmoniously with each other. Conclusion 22In my opinion, for these reasons the preliminary question set out above at [2] should be answered: (a)Yes; and (b)No 23The exhibits may be returned. The matter will be listed before the Registrar on 12 September 2012. 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. Decision last updated: 11 September 2012