Anthony Harvey v Richmond River Shire Council

[1999] NSWLEC 91

Land and Environment Court

of New South Wales

CITATION:

Anthony Harvey -V- Richmond River Shire Council [1999] NSWLEC 91

PARTIES

APPLICANT
Anthony Harvey

RESPONDENT
Richmond River Shire Council

NUMBER:

40067 of 1999

CORAM:

Bignold J

KEY ISSUES:

:- Proper construction of clause of Local Environmental Plan enabling rural/residential subdivisions of certain lands.

LEGISLATION CITED:

Proper construction of clause of Local Environmental Plan enabling rural/residential subdivisions of certain lands.

DATES OF HEARING:

04/01/1999

DATE OF JUDGMENT DELIVERY:

04/13/1999

LEGAL REPRESENTATIVES:

APPLICANT
N/A

SOLICITORS
Taylor Kelso

RESPONDENT
N/A

SOLICITORS
Henningham and Ellis-Jones

JUDGMENT:

IN THE LAND AND Matter No. 40067 of 1999
ENVIRONMENT COURT OF Coram: Bignold J.
NEW SOUTH WALES 13 April 1999

ANTHONY HARVEY

Applicant

v.

RICHMOND RIVER SHIRE COUNCIL

First Respondent

JUDGMENT



Bignold J:

1. The Applicant seeks a declaration concerning the true meaning of a provision contained in Richmond River Shire Local Environmental Plan 1992 (the LEP).

2. By consent the competing cases have been presented in the form of written submissions.

3. The matter in contention between the parties concerns cl13 of the LEP which, including its heading relevantly provides as follows:

Rural-Residential Subdivision in Zones Nos. 1(a), 1(b1) and 1(b2)

13. (1) Notwithstanding the provisions contained in clause 11, the Council may consent to the subdivision of land within Zone No. 1(a), 1(b1) or 1(b2) (other than prime crop or pasture land or land that, in the opinion of the Council is flood prone) so as to create allotments of any size if the land is located within:

(a) 17km of Casino or north of the Bruxner Highway;
(b) 5km of Evans Head;
(c) 5km of Woodburn;
(d) 2km of Broadwater; or
(e) 8km of Rappville.

(2) The number of allotments created by such a subdivision is to be restricted to one allotment per parcel, on which a dwelling may be erected under clause 14 (not being a parcel referred to in clause 14(1)(i) or (j)), or to one allotment per 10 ha of the parcel proposed to be subdivided, with a maximum of three lots to be created by such a subdivision and provided that vehicular access between the subject parcel and the service centre specified in subclause (1) is substantially by way of a Class B Road.

(3) The number of allotments created by such a subdivision may exceed that specified in subclause (2) where vehicular access between the subject land and the nearest service centre specified in subclause (1) is by way of a Class A Road.

(5)The area of each allotment created by a subdivision to which this clause applies shall be no smaller than 4000 square metres and no larger than 1 hectare.

(5A) Notwithstanding subclause (5), the Council may consent to the creation of an allotment of land that is larger than 1 hectare, provided that that allotment comprises the remainder of the parcel described in subclause (2) after a subdivision carried out in accordance with this clause has been effected.

(7) The Council shall take into consideration the matters listed in Schedule 2 in its determination of an application for consent to a subdivision referred to in this clause.

(8) This clause is repealed on the 10th anniversary of the appointed day.

4. The matters listed in Schedule 2 that are required by cl.13(7) to be taken into consideration are as follows:


SCHEDULE 2 - Considerations for Rural Residential Subdivision

1. Whether the subject land is suitable for the disposal of sewage on site.
2. Whether the access road from the subject land to the nearest town is suitable having regard to the present and likely future traffic volumes.
3. Whether the proposal will contribute adversely to ribbon development or be adverse to traffic safety.
4. Whether the proposal will have an adverse impact on the rural amenity of the locality.
5. Whether the land is likely to be adversely affected by flooding, soil erosion or landslip.
6. Whether the proposal will have an adverse impact on significant native vegetation or natural habitat in the locality.
7. Whether the proposal will have a significant adverse impact on the long term agricultural production of land in the locality.
8. Whether the proposal will have an adverse impact on areas of potentially significant geological resources.
9. Whether the proposal is in a high risk bush fire area.
10. Whether the proposal includes a legally binding buffer zone of not less than 150 metres between proposed rural residential lots and adjoining properties that are not part of the proposed development for the purpose of reducing conflict with existing agricultural practices.

5. It is to be noted that cl13 operates “Notwithstanding the provisions contained in cl11”. Relevantly cl11(2) forbids the subdivision of land within Zone No. 1(b1) “unless each allotment to be created has an area of not less than 100 ha”. (Clause 11 imposes conventional subdivision controls on lands within the Rural and Environmental Protection Zones.)

6. The parties are in dispute as to how cl13 applies to a case where only part of the land to be subdivided is “prime crop or pasture land or land that is flood prone”.

7. “Prime crop or pasture land” is defined by cl5 of the LEP to mean “land identified as class 1, 2 or 3 or special purposes land on maps prepared by the Department of Agriculture and held by the Council, but does not include land notified by the Director-General of the Department of Agriculture to the Council as not being prime crop or pasture land”.

8. The Council’s contention is that in such a case (ie where part of the land to be subdivided comprises prime crop or pasture and or flood prone land) cl13 does not authorise the subdivision of the land. The Applicant’s competing contention is that cl13 does authorise the subdivision of that land provided that so much of the land that is prime crop or pasture land or flood prone land remains intact, and is not itself subdivided.

9. The competing contentions themselves derive from the competing interpretations adopted by the parties of the bracketed words in cl13(1) of the LEP. Those words describe or delineate land that is excepted from the ambit of cl13 which itself operates as an exception to the relevant proscriptions on subdivision of land provided by cl11 by authorising “rural residential” subdivisions, a familiar concept connoting residential type lots in a rural setting. However, as will be shown, the land so described or delineated, will almost invariably, because of the nature of things, form part only of a defined land unit (eg a lot). Herein lies both the source of the interpretive difficulty, and the clue to its resolution.

10. The Council’s interpretation is that any land that either (i) comprises or (ii) includes prime crop or pasture land or flood prone land is excepted from the ambit of cl13 whereas the Applicant’s interpretation is that the exception is confined to land that comprises prime crop or pasture land or flood prone land, with the result that where land includes both prime crop or pasture land or flood prone land (the affected part) and other land not so affected, the exception only applies to the affected part.

11. The interpretive difficulty posed by cl13 lies in the fact that there is no coincidence in a case such as the present between (i) the cadastral and zoning qualities of the land proposed to be subdivided and (ii) the relevant physical qualities of that land (ie being prime crop or prime land or flood prone land). Where there is such coincidence, no interpretive difficulty is posed by cl13 which clearly would not authorise the rural-residential subdivision of such land.

12. What is the legal effect of this lack of coincidence in the interpretation of a clause that authorises the grant of consent to a rural-residential subdivision of land “other than prime crop or pasture land or flood prone land”? Is it (as the Council contends) that the whole of land to be subdivided is excepted from the ambit of cl13 because part of the land is relevantly affected (being prime crop or pasture land etc) or is it (as the Applicant contends) that all that is excepted from the ambit of cl13 is the relevantly affected land?

13. It will be at once appreciated that the Council’s contention gives to the statutory exception a wider application than that naturally yielded by the words of exception (“other than prime crop or pasture land etc”) The only justification for such a result lies in the immediate statutory context and the fact that the concept of “subdivision of land” requires the existence of a legally recognised piece or parcel of land (eg a lot) and where, as in the present case that piece or parcel of land includes relevantly “affected land”, a subdivision of that land necessarily involves the affected land, even if that affected land is not itself divided into two or more parts.

14. The Applicant’s competing interpretation confines the statutory prohibition to its plain and natural meaning ie the relevantly affected land may not itself be subdivided, but this prohibition does not extend to the unaffected part of the land to be subdivided. However, this interpretation is criticised by the Council as having the appearance of postulating the possibility of the subdivision of part only of a piece or parcel of land (ie the unaffected land) which is not a “legal possibility”.

15. There is, in my opinion, uncertainty as the effect of cl13 of the LEP in respect of an application for consent to a rural residential subdivision of relevantly zoned land where part of that land is relevantly affected (ie being prime crop or pasture land or flood prone land). However, that uncertainty, in my opinion, is to be resolved by the process of interpretation, since it is inconceivable that the legislative draftsman would not have recognised the possibility of relevantly zoned lands including relevantly affected parts. Indeed, the “possibility” is almost a “certainty” in the case of “flood prone” land and is a high probability in the case of “prime crop or pasture land” since these are terms which are based upon physical qualities of lands unrelated to cadastral and zoning features.

16. In these circumstances s25(3) of the Environmental Planning and Assessment Act 1979 has obvious application in quest of the true meaning of cl13 of the LEP. It provides as follows:

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 that instrument shall be preferred.

17. In this context, the question may be asked whether in construing cl13(1) of the LEP is it to be presumed that the legislative intention was to except from the ambit of the enabling clause all pieces or parcels of land that include within their boundaries some part of prime crop or pasture land or flood prone land.

18. To so presume would yield a very curious result since it is almost a matter of definition that Zone No.1(a) is “Prime Agricultural land”, Zone No 1(b1) is “Secondary Agricultural Land” and Zone No 1(b2) is “Marginal and Isolated Agricultural Land”—vide cl8 of the LEP.

19. In these circumstances a construction of cl13 which would except from its ambit lands which included within their boundaries some parts which qualify as “prime crop or pasture land” would almost certainly frustrate the clear object of the clause, namely to provide for rural-residential subdivisions of lands within rural zones.

20. Accordingly, the interpretation advanced by the Council is not to be preferred if there is available a sound alternative interpretation.

21. This brings me to a consideration of the interpretation advanced by the Applicant.

22. On one view, that interpretation encounters the difficulty I have earlier mentioned, inasmuch as the notion of “the subdivision of land” requires there to be in existence a finite piece or parcel of land (eg a lot) which it is proposed to divide into two or more parts and where that lot includes prime crop or pasture land or flood prone land, the subdivision must involve the whole of the land. The difficulty thus exposed by the Applicant’s interpretation is that it is not possible to subdivide part only of a finite piece or parcel of land where that part lacks legal recognition eg as an “existing lot” within the meaning of s7 of the Conveyancing Act 1919.

23. The Applicant’s answer to this apparent difficulty is to say that cl13 in authorising a rural/residential subdivision of land situate within Zone No 1(a), 1(b1) and 1(b2) only excepts the division into two or more parts of that part of the land that comprises prime crop or pasture land or flood prone land. Accordingly, so the argument runs, a rural/residential subdivision of the land does not infringe the statutory prohibition provided that the part of the land, that relevantly comprises prime crop or pasture land or flood prone land, is not itself divided into two or more parts.

24. It is submitted by the Applicant that this interpretation is consistent with one of the stated aims of the LEP, namely:

to promote the conservation of productive and potentially productive agricultural land : cl2(d) .

and with two of the stated objectives of Zone No. 1(b1) namely:
(b) to enable other forms of development to be carried out in rural areas;
(c) to protect secondary agricultural land from fragmentation and to ensure its long term agricultural viability.

25. In my opinion, the interpretation advanced by the Applicant does present a sound alternative to that advanced by the Council and is to be preferred “as better meeting” the stated objectives of the LEP for Zone No. 1(b1), insofar as it authorises as a form of development (other than agriculture) a rural residential subdivision of relevantly zoned lands without involving any fragmentation of prime crop or pasture land: vide s25(3) of the EP&A Act.

26. This preferred construction of cl13 gains some further support from the existence of subclause (5A), earlier recited, which was inserted into the LEP on 2 May 1997, being a date subsequent to the respective dates of the competing written legal submissions relied upon in the present proceedings. Subclause (5A) enables the Council in consenting to a rural residential subdivision to consent to the creation of an allotment having a larger area than 1ha as “the remainder of the land” following the creation of the rural residential allotment(s). That remainder lot could obviously accommodate, in a case such as the present, that part of the land being subdivided that comprises the prime crop or pasture land or flood prone land.

27. In view of these conclusions, I would adopt as the appropriate form of declaration, a slightly different version of that claimed in the proceedings.

28. Accordingly, for all the foregoing reasons, I make the following orders:
1. Declare that consent to a rural-residential subdivision of land may be granted conformably to cl13 of the Richmond River Shire Local Environmental Plan 1992 (the LEP), where part of that land, (the affected part) is prime crop or pasture land or flood prone land provided that the affected part is included in the remainder of the parcel in accordance with cl13(5A) of the LEP.
2. Reserve question of costs.
3. Exhibits to be retained on Court file.