Land and Environment Court New South Wales Medium Neutral Citation: Morton v Shoalhaven City Council [2016] NSWLEC 67 Hearing dates: 18 April 2016 Applicant's written submissions; 9 May 2016 Council's written submissions; 16 May 2016 Applicant's reply written submissions Date of orders: 09 June 2016 Decision date: 09 June 2016 Jurisdiction: Class 1 Before: Pain J Decision: The question of law is answered in the negative. The Applicant is to pay the Council's costs of the Applicant's Notice of Motion dated 29 March 2016 Catchwords: QUESTION OF LAW – separate question of law on application of environmental planning instrument provisions regulating subdivision of rural zoned land – proposed subdivision in certain locality not permissible under the environment planning instrument Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) , s 5(a)(ii) Land and Environment Court Rules 2007, r 3.7 Shoalhaven Local Environmental Plan 2014, cll 4.1, 4.2B Cases Cited: Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Valuer General v Fivex Pty Ltd [2015] NSWCA 53; (2015) 206 LGERA 450 Category: Procedural and other rulings Parties: Gregory Norman Morton (Applicant) Shoalhaven City Council (Respondent) Representation: COUNSEL: M E McMahon, solicitor (Applicant) I Hemmings (Respondent) SOLICITORS: M E McMahon & Associates (Applicant) Shoalhaven City Council (Respondent) File Number(s): 16/158132 Judgment 1. By Notice of Motion dated 29 March 2016 the Applicant posed a question of law for determination in these Class 1 proceedings. Following the Court's request that the question be simplified the following question will be addressed: Does clause 4.2B(3)(f) of the Shoalhaven Local Environmental Plan permit the Applicant to subdivide a 10 hectare lot in Locality 6? 1. The land the subject of the Applicant's development application is zoned RU2 Rural Landscape under the Shoalhaven Local Environmental Plan 2014 ("SLEP"). By operation of cl 4.1 the minimum subdivision lot size is 40 ha. The Applicant's land has an area of 10.2 ha. The proposed subdivision would create two lots of 6.17 and 3.952 ha respectively. 2. The Applicant relied on an affidavit of Mr Gregory Morton sworn 27 March 2016 which annexed an extract of the SLEP inter alia. Shoalhaven Local Environmental Plan 2014 1. The SLEP applies to the land. The objectives of the RU2 Zone are outlined in the Land Use Table as follows: Zone RU2 Rural Landscape 1 Objectives of zone To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. To maintain the rural landscape character of the land. To provide for a range of compatible land uses, including extensive agriculture. 1. Clauses 4.1 and 4.2B provide: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to ensure that subdivision is compatible with, and reinforces the predominant or historic subdivision pattern and character of, an area, (b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties, (c) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. (4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme. 4.2B Subdivision of certain land in Zone RU1, Zone RU2, Zone RU4, Zone R5 and Zone E4 … (3) Despite clause 4.1: (a) land identified as "Locality 1" on the Lot Size Map (in the vicinity of Bundewallah Road, Berry) may be subdivided into lots with a minimum lot size of 1 hectare and a maximum of 4 lots per 10 hectares, and (b) land identified as "Locality 2" on the Lot Size Map (in the vicinity of Little Forest Road, Little Forest) may be subdivided into: (i) north of Little Forest Road—lots with a minimum lot size of 1 hectare and a maximum of one lot per 10 hectares, or (ii) south of Little Forest Road—lots with a minimum lot size of 1 hectare and a maximum of 3 lots per 10 hectares, and (c) land identified as "Locality 3" on the Lot Size Map (in the vicinity of Wandean Road, Wandandian) may be subdivided into lots with a minimum lot size of 2 hectares and a maximum of one lot per 10 hectares, or in the case of a lot with an area of between 4 and 19 hectares, into no more than 2 lots, and (d) land identified as "Locality 4" on the Lot Size Map (in the vicinity of Illaroo Road, Tapitallee) may be subdivided into: (i) north of Illaroo Road—lots with a minimum lot size of 1 hectare and a maximum of one lot per 10 hectares, or (ii) south of Illaroo Road—lots with a minimum lot size of 1 hectare and a maximum of 4 lots per 10 hectares, or (iii) in the case of a lot located south of Illaroo Road with an area of between 3 and 5 hectares—into no more than 2 lots, and (e) land identified as "Locality 5" on the Lot Size Map (in the vicinity of Yatte Yattah) may be subdivided into lots with a minimum lot size of 1 hectare and a maximum of one lot per 10 hectares, and (f) land identified as "Locality 6" on the Lot Size Map (in the vicinity of Termeil) may be subdivided into lots with an overall maximum density of one lot per 10 hectares if the vehicular access to each lot is from a road other than the Princes Highway, and (g) land identified as "Locality 7" on the Lot Size Map (in the vicinity of Conjola Park) may be subdivided into a maximum of 14 lots with a minimum lot size of 1 hectare, and (h) land identified as "Locality 8" on the Lot Size Map (at Windward Way, Milton, being Lot 1, DP 780801) may be subdivided into a maximum of 3 lots with a minimum lot size of 2 hectares. … 1. The 40 ha minimum in the Lot Size Map in cl 4.1 is subject to the provisions of cl 4.2B(3). Clause 4.2B(3)(f) applies to land identified as "Locality 6" where the Applicant's land is located. Applicant's submissions 1. The question should be answered in the affirmative. The actual words of cl 4.2B(3)(f) should be given their plain meaning with the result that the overall maximum density threshold applies not to a specific lot size under a subdivision application for a particular parcel of land within Locality 6 but to the overall density of the whole of Locality 6. All the other subclauses of cl 4.2B(3) which refer to seven other localities provide a minimum lot size except subclause (f). The draftsperson could have included those words specifying a minimum lot size of 10 ha if that had been intended. 2. The Council's construction that the maximum density of each subdivided area is one lot per 10 hectares does not give effect to the words "overall maximum density", contrary to the principle that a court must strive to give effect to every word of the provision per Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 ("Project Blue Sky") at [71]. Rather they are superfluous. The words do have effect if they apply to the density of the entirety of Locality 6. It is wrong to approach the question of statutory construction by confining attention to the legislative purpose and disregarding the text, per Valuer General v Fivex Pty Ltd [2015] NSWCA 53; (2015) 206 LGERA 450 at [26]. 3. Clause 4.1 does not apply to land in Locality 6 because the Lot Size Map referred to in cl 4.1(3) does not apply to Locality 6 as there is no minimum lot size specified in cl 4.2B or elsewhere in the SLEP. Council's submissions 1. The question should be answered in the negative. The proposed subdivision is not permissible. Clause 4.2B(3)(f) of SLEP requires a maximum density of one lot per 10 hectares for the land to which the development application relates, not the entirety of Locality 6. Subdivision cannot be achieved unless the land the subject of the application is at least 20 ha. The Applicant's land has an area of less than 20 ha and therefore cannot be subdivided. Clause 4.2B(3)(f) does not set any minimum lot size. Provided that a site is at least 20 ha, one (or more, for a larger site) of the lots created could be less than 10 ha in size if the other lot was larger than 10 ha. The overall maximum density for the site the subject of the development application would in that case not exceed one lot per 10 hectares. Lot size would still be subject to merit considerations despite the lack of a fixed minimum lot size for the locality. 2. Read in context, it is evident that the interpretation which promotes the objects of both the RU2 Zone and the subdivision provisions of the SLEP is an interpretation which maintains a rural landscape and character by providing for a consistent density of development across the locality. The Applicant's approach would permit one very dense portion of the locality (indeed urban in form), while leaving other parts of the locality unable in any circumstances to achieve a density of, or approaching, one lot per 10 hectares. That patently does not promote the objects or apparent purpose of the provisions. 3. As a result, and applying orthodox principles of statutory interpretation, the Council submits that the correct approach is one where the relaxation of the limitation applies to each development application (and so the land to which the development application relates) and not the locality as a whole. 4. Locality 5 has a minimum lot size (1 ha) and a maximum density (one lot per 10 hectares). By comparison, Locality 6 has no minimum lot size, but does have a maximum density, being one lot per 10 hectares. In this context, "overall maximum density" flags a density control, indicating that the density applies to a development site overall, although without a limitation on minimum lot size. Finding 1. The parties made similar submissions on the relevant well known principles of statutory construction but placed different emphasis on the principles to support their respective interpretations of the SLEP in cl 4.2B(3). 2. As I stated in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191; (2015) 213 LGERA 103 at [43] and the Applicant copied, Section 33 of the Interpretation Act 1987 (NSW) requires a construction that promotes the purpose or object of an Act or statutory rule over one which does not. While I note that the Interpretation Act appears to distinguish between a statutory rule and an environmental planning instrument in the definition of "instrument" in s 3 and in the separate definitions of commonly used works and expressions in s 21, a purposive approach to construction is to be preferred to the extent such an approach can assist. 1. A local environmental plan is delegated legislation. The parties agreed that as a statutory instrument, cl 4.2B(3)(f) of the SLEP should be interpreted in accordance with general principles of statutory interpretation per McColl JA in Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379; at [36]. In addition to the principles of statutory construction applying, the instrument should also be read in a practical manner as identified in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 by Leeming JA at [54] citing Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183. 2. The text of the provisions being interpreted (here cl 4.2B(3)(f)) is the focus of consideration per Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [6]. The context and purpose of the provision in the instrument as a whole must be considered. The Council emphasised that the manifest intention of a statute must not be defeated by too literal an adherence to its precise language per Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 at [20]. The Applicant emphasised that each word in the clause must be given work to do per Project Blue Sky at [71]. 3. I consider the Council's approach to the clause is correct. The construction of the clause so that overall maximum density applies to the land the subject of a particular application for subdivision not the whole of Locality 6 makes sense grammatically. I do not agree that that approach fails to give weight to the words "overall maximum density" in cl 4.2B(3)(f). That term applies to the land the subject of an application to subdivide and there is no absurdity in that construction. The words "overall maximum density" have just as much work to do when applied to the land the subject of the development application as they do if applied to the whole of Locality 6. 4. The absence of reference to a minimum lot size for Locality 6 is a neutral factor in my view. It does not support the Applicant's construction of cl 4.2B(3)(f). The clause remains as providing a density control in relation to subdivision applications in Locality 6. The Council does not in any case interpret cl 4.2B(3)(f) as imposing a minimum lot size. On the Council's construction, an individual lot may be any size provided that the overall maximum density of the land the subject of the subdivision application does not exceed one lot per 10 hectares. 5. The context and purpose of the clause clearly supports such an approach for the reasons given by the Council identified in par 11 above. In particular the foreseeable scenario arises on the Applicant's construction of "first in best dressed" whereby early applicants for subdivision exhaust the overall maximum density control for Locality 6 excluding later applications in time. This result is unfair to later applicants and does not accord with the objective in s 5(a)(ii) of the Environmental Planning and Assessment Act 1979 (NSW) of promoting and co-ordinating the orderly and economic use and development of land. 6. As the Applicant's land the subject of the subdivision application is less than 20 ha, it cannot be permissibly subdivided, as the overall maximum density of the land will be more than one lot per 10 hectares. 7. The question of law is answered in the negative. Costs 1. In Class 1 of the Court's jurisdiction an order for costs is not to be made unless the Court considers that to do so is fair and reasonable in the circumstances per r 3.7 of the Land and Environment Court Rules 2007 (NSW). Pursuant to r 3.7(3)(a), an example of such a circumstance includes proceedings involving a preliminary question of law that was or was potentially determinative of the proceedings. These proceedings fall within that example. 2. The circumstance raised by the Applicant that the Council has separately acknowledged outside this litigation in a planning proposal for an amendment to the LEP that the wording of cl 4.2B(3)(f) is confusing to some people is not relevant to these proceedings. It is not a basis for making no order as to costs. Accordingly costs should follow the event so that the successful party here the Council should have its costs paid. Orders 1. The orders of the Court are as follows: 1. The Applicant is to pay the Council's costs of the Applicant's Notice of Motion dated 29 March 2016 ********** 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: 15 June 2016