Break O'Day Council v Resource Management and Planning Appeal Tribunal

[2009] TASSC 59

[2009] TASSC 59

COURT:SUPREME COURT OF TASMANIA

CITATION:Break O'Day Council v Resource Management and Planning Appeal Tribunal [2009] TASSC 59

PARTIES:  BREAK O'DAY COUNCIL
  v
  RESOURCE MANAGEMENT AND PLANNING

APPEAL TRIBUNAL
ENSTONE PARK PASTORAL CO PTY LTD

FILE NO/S:  816/2008
DECISION

APPEALED FROM  Enstone Park Pastoral Co Pty Ltd v Break O'Day Council [2008] TASRMPAT 216

DELIVERED ON:  4 August 2009
DELIVERED AT:  Hobart
HEARING DATE:  4 May 2009
JUDGMENT OF:  Porter J

CATCHWORDS:

Environment and Planning – Planning schemes and instruments – Development control – Subdivision applications – Allowable subdivision where boundary adjustment between adjoining lots where no additional lots are created – Meaning of "adjustment" – Meaning of "adjoining" – Whether definition of boundary adjustment as including "improved division of land" applicable.

Auckland Lai v Warringah Shire Council (1985) 58 LGERA 276, applied.
Ousley Pty Ltd v Warringah Shire Council (No 2) (1999) 104 LGERA 250, distinguished.
Aust Dig Environment and Planning [82]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             Second Respondent:  D R Armstrong
Solicitors:
             Appellant:  Shaun McElwaine
             Second Respondent:  Don Armstrong

Judgment Number:  [2009] TASSC 59
Number of paragraphs:  45

Serial No 59/2009
File No 816/2008

BREAK O'DAY COUNCIL v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL and ANOR

REASONS FOR JUDGMENT  PORTER J

4 August 2009

Introduction

1. Enstone Park Pastoral Co Pty Ltd ("the respondent") is the owner of a parcel of land which is made up of six lots on separate titles.  It unsuccessfully applied to the appellant Council for approval to re-configure the lots as a permitted subdivision, but succeeded on an appeal to the Resource Management and Planning Appeal Tribunal.  This appeal relates to the construction of the particular provisions of the planning scheme under which the application was dealt with.

1. The Break O'Day Planning Scheme 1996 ("the Scheme") creates five zones.  Clause 3.2 provides for "Planning Scheme Standards" which are applicable to use or development in each of the zones.  The standards are "Acceptable Solutions" and "Performance Criteria".  Acceptable solutions are:

"Those matters set out in the scheme standards which:

i)are objectively verifiable measures; or

ii)are, in the judgement of Council, based on the advice of a person professionally qualified in town planning, verifiable means of meeting the corresponding objective."

Performance Criteria are "those matters set out in the scheme standards which are subjectively verifiable criteria used to assess performance against the corresponding objective." 

1. Clause 3.3.1 of the Scheme provides that a use or development is permitted and subject to the Land Use Planning and Approvals Act 1993 ("LUPA"), s58[1], if it can demonstrate compliance with the acceptable solutions applicable to that use or development.  Council is bound to grant a permit for a permitted use or development but may impose conditions or restrictions on that permit consistent with the achievement of any relevant acceptable solutions.  Clause 3.3.2 provides that a use or development is discretionary if it relies wholly or partly on the use of the performance criteria applicable to that use or development. 

   [1]     "58  Application for other permits

1. Each zone is dealt with in a separate table.  This appeal relates to the Environment Protection Zone which is dealt with in Table 11.1.  In each table a number of "Issues" are identified as relating to each zone, and the two standards are set out under each "Issue" heading.  In section 1 of the table, acceptable solutions and performance criteria are dealt with under the following headings:

1.1 Allowable Subdivision

1.2 Lot Size

1.3 Boundary Adjustment and Use

1.4 Use of land.

1. The part of Table 11.1 relevant to this appeal provides as follows:

"table 11.1 planning scheme standards applicable to use or development in the environment protection zone

1 issue - subdivision
objective - To ensure subdivision is appropriate for the intended use or development.
acceptable solution	performance criteria

…

1.3 Boundary adjustment and Use

1.3 Boundary adjustment and Use

a) Adjustment of the title boundaries between adjoining lots to achieve a more efficient layout is allowed where;

i)    the number of lots created by the sub-division does not exceed the number of lots existing at the time of subdivision.

ii)   all lots are to be used for the same purposes as those existing prior to the subdivision or to contain land subject to a conservation covenant under the Nature Conservation Act 2002.

iii)  no lot created by boundary adjustment requires the provision of any additional road, sewerage, water or stormwater capacity.

a)    No performance criteria."

1. "Boundary Adjustment" is a "general definition" in Schedule 1 of the Scheme, and is defined as meaning "(in respect of subdivision) … altering a boundary of a lot or the creation of an improved division of land provided no additional lots are created".

1. The point to be decided in this appeal is the meaning of the expression "adjustment of the title boundaries between adjoining lots" in the opening words of cl 1.3 a) under "Acceptable Solution". (I will simply refer to this clause as cl 1.3.) There is an issue about the meaning of the word "adjoining", but more particularly the appeal relates to the concept of "adjustment of the title boundaries". The appellant contends that it has a particular limited meaning being confined to something which is not a "major or substantial change", whilst the respondent argues that the definition applies and that the term "altering a boundary" is to be given a broader more liberal interpretation. Moreover, the respondent argues that the definition applies to its full extent, and that boundary adjustment may occur by way of an "improved division of land". Due to way in which the appeal was conducted before it, the Tribunal did not consider that issue.

The facts

1. The respondent applied to the appellant for approval of a development in relation to land comprised in six titles. One lot was to be subdivided to create one separate lot, with the boundaries of the balance of that lot, and the other five lots to be adjusted, "… in order to achieve a more efficient layout". Leaving to one side the first part of the application, the Council took the view that the boundary adjustment was in reality a subdivision requiring compliance with the performance criteria applicable to an "Allowable Subdivision". Its reason was that the proposal was more than a mere boundary adjustment but one which would lead to an entirely different configuration, so that the location of the new lots bore no resemblance to the existing lots. Accordingly, Council said that the application in that respect was not valid, relying on LUPA, s51(1AC)[2]. Council adopted the alternative position that in the correspondence which had been exchanged, it had not received answers to its questions as to the use to which the lots were to be put, and on that basis could refuse to consider the application; see LUPA, s54. On appeal to the Tribunal, the respondent succeeded in that the Tribunal held that the application was for a boundary adjustment within the meaning of cl 1.3.

   [2]     "51(1AC)     For the purposes of subsection (1AB), a valid application is an application that contains all relevant information required by the planning scheme applying to the land that is the subject of the application."

1. The following outline, which I adopt for the purposes of these reasons, is taken from the Tribunal's reasons dated 2 September 2008:

"The proposal

4Approval was sought for a subdivision of one lot to create an airstrip, and the adjustment of the boundaries of six other lots to reconfigure them.

5The subject site is comprised of six titles.  They are:

1     C/T 149100/1 with an area of 946.6 ha.  It extends across two sides of the Tasman Highway.

2     C/T 152932/1 with an area of 870.8 ha, which also extends across the two sides of the Tasman Highway.

3     C/T 48498/1 with an area of 25.09 ha.

4     C/T 48498/2 with an area of 214.9 ha.

5     C/T 244369/1 with an area of 129.4 ha.

6     C/T 202916/1 with an area of 24.51 ha.

6The proposed subdivision comprises two parts.  The first seeks permission to create a new lot from C/T 139100/1.  It is known as Lot 200.  It will comprise 25.48 ha.  It is to be an airstrip.

7The second aspect varies the boundaries of the six titles to the north and south of the new lot containing the airstrip.  Lots 1, 2, 3 and 4 have frontage to the Tasman Highway.  These are created from C/T 149100/1, which title will then become Lot 6 and comprise 147.2 ha and adjoin a new Lot 5, comprising 576.1 ha.  These titles will be derived from amalgamations of existing titles C/T 244369/1, 202916/1, 48498/1, and 48498/2.

8Save for the creation of the new lot containing the airstrip no new lots are created by the development application.

Zoning

9The applicable scheme is the Break O'Day Planning Scheme 1996 (the 'Scheme')

10The subject site is located within the Environmental Protection Zone.

Issues on Appeal

11The Appellant submits that this is a Development Application which the Council is bound to approve under s58 of the Land Use Planning and Approvals Act 1993 (the 'Act').  That submission is put on this basis:

AThe application for the subdivision of the land which will be used as the airstrip, is an application for a use which is permitted under the Utilities Use Class.  The Utilities Use Class is an allowable use in the Environment Protection Zone.

BThat in respect of the creation of six new titles, it is proposing a boundary adjustment. As such, provided the criteria imposed by Clause 1.3 of the Acceptable Solution set out in Table 11.1 are met, the Council is bound to approve it. It submits that those criteria are met.

12The Council disagrees.  It contends that an airstrip does not fall within the Utilities Use Class and is thus outside the Acceptable Solution for this zone.

13It says the boundary adjustment is in fact more than that and is a subdivision.  Since it does not meet the Acceptable Solution for subdivision, it must satisfy the Performance Criteria set out in that part.  It says that the matters required to be addressed to satisfy the Performance Criteria are not disclosed in the Development Application and therefore Council cannot proceed to deal with it."

1. This appeal does not concern the first part of the development application, that relating to the airstrip.  I am only concerned with the issue of boundary adjustment.  In order to appreciate what it was that the respondent intended by the boundary adjustment, a plan showing the current layout of the lots is attachment "A" to these reasons, whilst the proposed layout is attachment "B".

The Tribunal's reasons

1. The reasons of the Tribunal in relation to the boundary adjustment issue were as follows:

"35The Tribunal has already noted that no additional lots are created through the adjustment which is proposed.  There is a boundary alteration.  Whether or not there is an improved division of land is not a matter for the Tribunal at this stage. [It is an interesting inclusion and probably best treated the way the Tribunal treats the concept of 'more efficient' in Clause 1.1 below].  But for now it cannot say, and need not.  It is enough under the first limb of the definition, that boundaries are altered by the proposal.

…

40It can be seen from the definition at Clause 1.3 of Issue 1, that the fact that the new lots are in different locations to the existing lots, that there is an alteration to road frontages and that more lots will be of a particular size or fewer lots will be of another size are not matters articulated as relevant matters or pre‑requisites for the characterisation of the application. They are matters which describe the extent of the adjustment to the boundaries but do not of themselves change the fundamental character of that which is proposed. On the evidence the relevant criteria for a boundary adjustment are met. Furthermore, no basis other than the very general argument, based upon the 'extent' of the changes is advanced for the view that this is a subdivision.

41The reference to a 'more efficient layout' referred in the opening words of Clause 1.3 (a) is a reference which prompts the question 'for whom?' That reference does not in the Tribunal's view create a separate obligation to demonstrate that a more efficient layout is created. That is ultimately a subjective issue anyway. If required to be articulated it would simply lead to self serving statements about why the change produced a more efficient use of the land. It is enough that the proposal creates a more efficient outcome for the applicant's purpose, [and that the purpose itself falls within the scope of the current purpose for which the land is used].

42The critical matter in distinguishing subdivision from mere boundary adjustment is that no new lots come into existence, that the reconfiguration creates no new infrastructure obligations, and that there is continuity of purpose in the use of the reconfigured lots.  This is established on the evidence."

1. As I have previously noted, the Tribunal concluded that the Council had before it a valid application.  However, there was an issue in relation to a requirement for further information as to the airstrip.  The Tribunal held that the request was valid and that the matter was remitted to the Council for further consideration in light of the Tribunal's ruling. 

This appeal

1. The appellant asserts that the Tribunal erred in law in three respects.  They are:

(a)it determined that the application for approval constituted an adjustment of title boundaries between adjoining lots and therefore complied with the acceptable solution set out in cl 1.3 of Table 11.1 of the Scheme.

(b)in the alternative, it failed to make any determination as to whether the application "instituted an adjustment to the title boundaries between adjoining lots within the meaning of clause 1.3 of Table 11.1".

(c)in the alternative, it erred in law in that it construed cl 1.3 of Table 11.1 as applicable to the application for approval.

The construction of cl 1.3

1. Section 83 of LUPA makes a planning scheme a public document of which a court or tribunal must take judicial notice, without formal proof of its contents. As a statutory instrument the ordinary rules of construction apply to the terms of the Scheme. In order to determine the meaning of cl 1.3 of Table 11.1, it needs to be examined in its context. Planning schemes are concerned with "physical use, environmental impact and amenity"; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 per Mason P at 504 [24]. Part A of the Scheme deals with its intent and objectives. Clause 1.2 states that the intent of the Scheme is to ensure that use or development in the planning area is in accordance with the strategic directions for the Municipality of Break O'Day, and with the objectives of the resource management and planning appeal system of Tasmania as set out in cls 1.2.2 and 1.2.3. One of the objectives of the resource management and planning system is "to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity". Clause 1.2.3 provides as follows:

"1.2.3In Clause 1.2.2 a), sustainable development means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well being and for their health and safety while:

a)sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

b)safeguarding the life supporting capacity of air, water, soil and ecosystems; and

c)avoiding, remedying or mitigating any adverse effects of activities on the environment."

1. Clause 11.2.1 sets out the objectives of the Environment Protection Zone.  They are to:

"a)Protect environmental, economic and community resources from inappropriate or premature development and to require high standards of resource management for use and development.

b)Ensure that wilderness and high value conservation areas are protected from inappropriate development and to allow planning controls to provide for their long term protection.

c)Ensure that coastal areas are protected whilst allowing for a range of appropriate uses and developments.

d)Ensure that natural processes, areas of high environmental quality or scenic amenity, unstable or fragile landforms, unreserved or unprotected native flora and fauna, geoheritage, and threatened species are maintained and/or protected."

1. It is with this intent and with these objectives in mind, that the approach to the interpretation of "adjustment of title boundaries between adjoining lots" is to be approached.  The meaning is to be fashioned, having regard, in particular, to the objectives relating to the zone itself and the obvious particular characteristics of, and sensitivities relating to, such a zone.  An interpretation of the words which promote those objectives would have to be preferred to one which does not.

The meaning of "adjoining"

1. Counsel for the appellant submitted that the proposal did not involve boundary adjustment between "adjoining lots" but did not pursue the argument with any real vigour, relying principally on the "adjustment" issue. This point does not call for any consideration of the definition of "boundary adjustment", as the requirement as to "adjoining lots" is set out in cl 1.3 a) itself.

1. In Auckland Lai v Warringah Shire Council (1985) 58 LGERA 276, Bignold J considered a clause which prevented a council from granting consent to a certain type of development, unless it was satisfied that the land was "within or adjoins land zoned for urban purposes". Having regard to considerations of statutory context, which included the aims or objectives of the planning policy, his Honour at 283 said that he was "firmly of the opinion … that the word 'adjoins' in the phrase … is intended to bear its loose sense of 'is near to' or 'is neighbouring on' rather than its exact meaning of 'is conterminous with' …". The same clause was considered by the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGERA 429. At 433, Kirby P said:

"The word 'adjoins' normally means to abut on, to be in contact with or to lie or be next to: see Macquarie Dictionary."

1. At 433, his Honour said that it was necessary to turn to the context in which the word appeared.  Having considered the policy underlying the clause and that the fact that the particular matter, his Honour continued at 434:

"But even if there were no strict abutment, because of the lack of physical contiguity, there is still a sufficient proximity to bring the proposed development within the word 'adjoins' … Whereas originally [adjoins] might well have connotated immediate physical contiguity, nowadays that idea tends to require the use of the adverb 'immediately', such as 'immediately adjoins'. That adverb would not be necessary if the word itself invariably connotated immediate physical proximity."

1. At 443 Glass JA agreed, saying that the word "adjoins" was currently used both in the strict sense of "abuts" or "conterminous with", as well as its loose sense of "is near to" or "is neighbouring on".  Noting that the word must take its colour from the context in which it appeared, Glass JA said that he did not find in the language "any persuasive indication that land which immediately adjoins should be exempt whereas land which adjoins in the lesser sense is not".

1. The "loose" meaning of the word has been applied in a similar context; Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443, DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187, and Pepperwood Ridge Pty Ltd v Newcastle City Council [2005] NSWLEC 257. (See also ACN 115 840 509 Pty Ltd v Kiama Municipal Council [2006] NSWLEC 151 for a detailed and comprehensive review of the considerations relating to the interpretation of the word, and the relevant authorities.)

1. The present context of the word "adjoining", is that of instances in which a subdivision is allowable and must be approved, as distinct from the situation where performance criteria have to be met and approval is discretionary. In Schedule 1 of the Scheme, "subdivide" and "subdivision" are given the same meaning which it has in the Local Government (Building and Miscellaneous Provisions) Act 1993, s80[3]. I think it would be an unacceptable limitation on the operation of the allowable solution contained in cl 1.3, to confine it to an adjustment of boundaries of lots which actually abut or are conterminous with each other. The meaning of "adjoins" ascribed to the word in the cases which I have referred to, should be applied to the word as it appears in cl 1.3.

   [3]     "'subdivide' means to divide the surface of a block of land by creating estates or interests giving separate rights of occupation otherwise than by —  

1. As can be seen from the current layout in Attachment "A", some of the lots adjoin one or more of the others but one lot only shares a common boundary with one other.  As is shown by the discussion in Hornsby Shire Council v Malcolm (above) and ACN 115 840 509 Pty Ltd v Kiama Municipal Council (above), lots can be said to adjoin, even though they are separated by such things as roads and railways.  In some cases there may be geographical or other physical features which would lead to the conclusions that lots do not adjoin in the broad sense, but such considerations do not apply in this case.  In my view all lots within the current boundary of the subdivision can be said to be adjoining in the relevant sense.

The meaning of "adjustment"

1. The appellant's arguments were based on two decisions of the New South Wales Land and Environment Court.  Ousley Pty Ltd v Warringah Shire Council (No 2) (1999) 104 LGERA 250 concerned an environmental planning policy which contained a clause which (relevantly) was in the following terms:

"Where, in the absence of this clause, a subdivision of land could be carried out, but only with development consent, for the purpose of --
…
     (b)    making an adjustment to a boundary between allotments, being an adjustment that does not involve the creation of any additional allotment;
…

the subdivision may be carried out without that consent."

1. In Ousley, the subject land was subdivided into three separate lots.  The development applications to change three into two, with one being significantly larger than the other, with commercial development intended for the larger of the two, the second smaller lot was to be used for the purpose of a sewerage storage tank.  At 251, Talbot J said:

[9]    The proposed configuration for the subdivision bears no similarity or relationship to the existing subdivision. The three allotments into which the land is now subdivided have no bearing on or connection with the proposed development.

…

[13]  Clause 3 of SEPP 4 states that the policy is designed to permit development for a purpose which is of minor environmental significance and other defined purposes, not currently relevant, without the necessity for development consent being obtained therefor where the carrying out of that development is not prohibited and it is carried out in accordance with any development standard applying.

…

[16]  Having regard to the aims of SEPP 4 stated in cl 3 and the other categories of subdivision in cl 6, the reference to 'an adjustment to a boundary' in cl 6(b) must be construed as being a re-arrangement of a boundary so that no significant changes are made to the configuration of any existing allotments.

[17]  Furthermore, the expressed intention is that the change is limited to alteration to an existing boundary between allotments.

[18]  The whole concept of SEPP 4 is that a requirement for development consent which would otherwise be necessary is dispensed with.

[19]  The adjustment permitted pursuant to cl 6(b) must therefore, necessarily, be regarded as a subdivision which truly adjusts existing boundaries between allotments. An adjustment in the context of SEPP 4 could for example accommodate a change for the purpose of bringing a cadastral boundary into line with an existing natural feature, such as a creek or ravine, or a man made feature, say an existing road or fence, where the new boundary effects no real physical change to existing conditions.

[20]  If the applicant's contention is correct, namely that there is no limit to the adjustments that can be made other than the limit imposed by cl 6(b) itself, which forbids the creation of any additional allotment, then foreseeably land already subdivided into 1,000 allotments could be re-subdivided into a totally different configuration without development consent provided that no more than 1,000 allotments were created. It is difficult to see how it was intended or justified that a change of that magnitude could be contemplated without the need for development consent.

…

[22]     What is proposed by the applicant in these proceedings involves a major and significant departure from the existing configuration of the lots in the present subdivision and accordingly cannot be regarded merely as an adjustment of an existing boundary." [My emphasis.]

1. Ousley's case was considered in McCabev Blue Mountains City Council [2006] NSWLEC 176. The zoning of the land in question was "Residential Bushland Conservation" although there were different "zone subscripts and protected areas" in that zone. The relevant clause provided that the council may only consent to a subdivision of land which fell within certain of the zone areas with a prescribed minimum area requirement if "it is for a boundary adjustment where no additional lots are created"; cl 34.4(c).

1. As in this case, the development proponent maintained that "adjustment" did not connote any concept of an adaptation that was "minor, fractional or marginal".  Jagot J at [52] examined various dictionary meanings of the word, and having noted the dangers of deriving statutory meanings from dictionaries, continued as follows:

"55      The general context in which the words '... for a boundary adjustment' appear is a provision of an environmental planning instrument regulating the division of land into parts obviously adapted for separate occupation, use or disposition (s 4B of the EPA Act). The immediate context is a provision of such an instrument that prescribes that the subdivision must be for a boundary adjustment, where no additional lots are created.

56       In this context, I do not accept that the 'ordinary and grammatical meaning' Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of The Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 305 of the phrase '... for a boundary adjustment' embraces any and all alterations of a boundary that make land suitable for an applicant’s requirements. I consider that the primary meaning conveyed by the clause, construed in its immediate and more general context, accords with the notion of an alteration of a boundary by correction or regularisation, whether that correction or regularisation is to reflect actual conditions (such as physical features of the land or its zoning) or to achieve some other requirement or objective (for example, to render the use of land feasible or more practical). Hence, consistent with the observation of Cripps J in Boast v Eurobodalla Shire Council, unreported, NSWLEC, 20110/91, 22 November 1991 at pp 2 – 3, questions of fact and degree are involved." [My emphasis]

1. Her Honour went on to note the decision in Ousley's case, and having observed that the provisions in the two cases were different because cl 34.4(c)(i) permitted development to be carried out only with development consent, rather than enabling development otherwise permissible to be carried out without development consent, said that Talbot J's formulation provided "useful guidance to a necessary (but not sufficient) requirement of a subdivision for a boundary adjustment, in the context of cl 34.4(c)(i)".  Her Honour continued:

"60      … I infer that the purpose of the provisions is to prohibit subdivision of such land other than in the limited circumstances identified so as not to enlarge, materially or significantly, the overall development potential of such land. Construing cl 34.4(c)(i) so as to permit subdivision by way of any and all alterations of a boundary (whether or not the resulting lots bear any resemblance to the existing lots) provided that no additional lots are created, does not accord well with that purpose. I consider that the construction that I adopt promotes the purpose of the provision."

1. As it assumes some significance in the respondent's argument, I should note that cl 1.3 provides of course, that to be allowable, the boundary adjustment must "achieve a more efficient layout". That term is not defined but, as the words must be given some meaning, it seems to be an additional qualifying feature for any proposal. No contrary argument was put. Thus, any intended adjustment must objectively be seen to bring about a more efficient layout of the lots of the total area involved. For the purposes of this appeal, it is unnecessary to resolve what the term means, or how it is established, but I imagine that what is conveyed by the expression at least includes something akin to what Jagot J referred to in McCabe's case at par[56] as "rendering the use of the land feasible or more practical". 

1. Moreover, "layout" is a word which appears in the Local Government (Building and Miscellaneous Provisions) Act, s85. That provides that a council may refuse to approve a plan of subdivision if it is of the opinion (inter alia):

"(c)   that the site or layout will make unduly expensive the arrangements for supply of water and electricity, connection to drains and sewers and the construction or maintenance of streets; or

(d)that the layout should be altered to include or omit —

(i)blind roads; or

(ii)alleys or rights of way to give access to the rear of lots; or

(iii)public open space; or

(iv)littoral or riparian reserves of up to 30 metres in from the shore of the sea or the bank of a river, rivulet or lake; or

(v)private roads, ways or open spaces; or

(vi)where the ground on one side is higher than on the other, wider roads in order to give reasonable access to both sides; or

(vii)licences to embank highways under the Highways Act 1951; or

(viii)provision for widening or deviating ways on or adjoining land comprised in the subdivision; or

(ix)provision for the preservation of trees and shrubs."

1. I think it is safe to conclude that what was intended by the expression "more efficient layout" would encompass the issues, or at least the types of issues, identified in those paragraphs of s85.

1. The respondent argues that the word "adjustment" in cl 1.3 has its broader meaning. In Malas Development Pty Ltd v Sutherland Shire Council (1999) 102 LGRA 303, it was held that the same clause as considered in Ousely's case did not connote any concept of something of a minor, fractional or marginal nature.  Malas Development Pty Ltd was not followed in Ousely's case, and I have set out relevant subsequent authorities on the point. However, the respondent argues that in this case, the authorities are of little assistance, and that the broader meaning is supported by the definition of "boundary adjustment" in Schedule 1. For the sake of convenience, I will repeat that definition. "Boundary Adjustment (in respect of subdivision) means altering a boundary of a lot or the creation of an improved division of land provided no additional lots are created".

1. The respondent puts three propositions:

·     "altering the boundary of a lot" should be read as "altering the boundaries of lots", which is the first form of adjustment provided for, and one which is subject to the proviso as to no additional lots;

·     "improved division of land" is an alternative form of boundary adjustment, separate from and additional to the concept of "altering boundaries" (and also subject to the proviso), and one which itself broadens the meaning of "adjustment";

· that as an alternative form of boundary adjustment, once it is shown that the proposal is an improved division of land with no additional lots being created, the subdivision should be allowed provided the requirements of cl 1.3 a) i) – iii) are met. That is, " a more efficient layout", and the matters in sub-cl i) – iii). (Of course, the requirement in cl 1.3 a) i) is that no additional lots be created, which is a duplication of the definitional requirement.)

1. As I understand it, the submission is that "boundary adjustment" in cl 1.3 is governed by the definition, so that it may be constituted simply by an improved division of land. Accordingly, it is said that where there is a proposal which amounts to an improved division of the land, and one which achieves a more efficient layout, it is allowed by virtue of the clause, provided the requirements of cl 1.3 a) i), ii) and iii), are met. Counsel acknowledged that this approach means an acceptance of the proposition that the notions of "more efficient layout" and "improved division of land", are not synonymous, and that the stated requirement in cl 1.3 a) i) that there be no additional lots, is an unnecessary repetition of the caveat imposed in the definition. The respondent submits that if cl 1.3 includes an adjustment by way of an improved division of land, then the matter should be remitted to the Tribunal to determine whether the proposal qualifies on that basis. As I have noted, that issue was not considered by the Tribunal.

1. The appellant argues that the definition is not to be applied to "adjustment of title boundaries" in cl 1.3. It is submitted that the terms of the definition are completely contrary to the apparent meaning of the provisions of cl 1.3. The appellant did not argue that if an adjustment under cl 1.3 could occur by way of an improved division of land, the proposal in this case was not at least capable of fitting that description. The essential issue is therefore whether the definition applies in the reading of cl 1.3. If it does not, I would be inclined to accept that appellant's submissions as to the scope of boundary adjustment. The respondent accepted that if the definition did not apply, its case would not be a strong one.

Does the definition apply to cl 1.3?

1. As McHugh J said in Kelly v R (2004) 218 CLR 216 at 253 [103],"There is, of course, always a question whether the definition is expressly or impliedly excluded." In this case, it is right, I think to treat the definition in Schedule 1 as being subject to the implied qualification "unless the contrary intention appears", and to see whether it is excluded. As to implied exclusion generally, see Pearce and Geddes, Statutory Interpretation in Australia, 6th ed at [6.62].  The proper approach is to assume that the expression is used as defined, and then determine whether it can be shown that a contrary intention appears.  Context or subject-matter may show a contrary intention; Nominal Defendant v Morgan Cars Pty Ltd (1974) 131 CLR 22 per Stephen J at 31. Such an intention may also be inferred from a particular provision if, were the definition to be applied, the provision would not work appropriately, or would operate in a way clearly not intended; Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 per Mahoney J at 108.

1. Schedule 1, in which the definition appears, is headed "General Definitions used in the Scheme". With the exception of the reference in cl 1.3 a) ii), to covenants under the Nature Conservation Act 2002, identically worded clauses to 1.3 appear as acceptable solutions in relation to the Urban, Commercial, Industrial, and Natural Resources Zones, but curiously enough the heading to the clause is different in each case. Those headings respectively are "Subdivision layout and design", "Subdivision", "Subdivision approval", and "Adjustment of Title boundaries". These are, of course, each different again to the heading "Boundary Adjustment and Use" as it appears for the Environmental Protection Zone, and it can thus be seen that it is only in relation to that zone that the expression "boundary adjustment" is used in the heading.

1. In relation to the Environmental Protection Zone, the actual use of the term "boundary adjustment" is restricted to the heading of cl 1.3 and to the wording of one sub-clause. The term does not appear in the opening words of cl 1.3 a), but "adjustment of the title boundaries" does, whilst in the whole of the text of cl 1.3, "boundary adjustment" only appears in cl 1.3 a) iii). To define a term and then to use it in that way in the text is an odd approach. The point arises as to whether "adjustment of the title boundaries", where it is used in cl 1.3 a), is intended to be read as "boundary adjustment". If it is not, then it would seem that "boundary adjustment" in cl 1.3 a) iii) would also have a different meaning from that provided for by the definition. The same problem, of course, exists in relation to the equivalents of cl 1.3 in relation to the other four zones. There may be grounds for distinguishing the Environment Protection Zone from the others, but if "adjustment of the title boundaries" in the equivalent clauses relating to the other zones, is not to be read in accordance with the definition, then the definition has no operation at all in the Scheme. This is because "boundary adjustment" does not appear anywhere other than in these clauses. I note that a literal reading of the definition into the text gives rise to some difficulties of syntax, and a repetition in cl 1.3 a) i) of the requirement that no additional lots be created.

1. In order to determine the issue, the definition itself needs some scrutiny.  The function of a definition is merely to indicate that when particular words or expressions, the subject of the definition, are found in the substantive part of the instrument, they are to be understood in the defined sense, or are to be taken to include certain things which, but for the definition, they would not include; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635. In Kelly v R (above) at 253 [103] McHugh J additionally said:

"… the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment.... [O]nce it is clear that the definition applies, the better — I think the only proper — course is to read the words of the definition into the substantive enactment and then construe the substantive enactment — in its extended or confined sense — in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment."

1. Regrettably, the definition in itself is a little ambiguous.  I bear in mind the dangers of construing the definition in isolation, but something needs to be said about its apparent meaning.  It seems to me that the definition has two limbs which refer to two separate concepts.  The first concept involves what might be described as "minor" boundary adjustments, or to use the words of Talbot J in Ousley Pty Ltd v Warringah Shire Council (above), something which "truly adjusts existing boundaries between allotments".  I think the concept involves the marginal regularisation or correction of boundaries, and does not extend to a major and significant departure from the existing configuration of lots.  On the other hand, the "creation of an improved division of land" expressed as an alternative, plainly suggests a separate concept.  This limb of the definition, rather than simply describing the mechanics of what is involved, also imposes a required qualitative outcome.  It suggests an adjustment on a larger scale than the first limb, but so that the reconfiguration of boundaries achieves the improvement of the division of a parcel of land. 

1. I bear in mind the context of cl 1.3 and have regard to the relevant objectives. However, I am unable to find anything in the context to enable me to conclude that the definition is excluded. I do not see that an "allowable solution" in the form of an improved division of the land, with no additional lots being created, with all other criteria being met, is at all inconsistent with those objectives. Whether or not a proposal amounted to an improved division of the land would involve an objective assessment, and would require account to be taken of the nature of the zone in which the re-configuration is to take place. For the same reasons, there is nothing in the subject matter of the clause itself which would give rise to the conclusion that the definition does not apply. I see nothing to suggest that the clause would operate inappropriately or in a way clearly not intended, were the definition to be applied. As I earlier noted, the application of the definition involves reading "adjustment of the title boundaries", as meaning "boundary adjustment" as defined, and some difficulties are created by a literal insertion of the definition. However, even where the words of a definition do not fit comfortably into a reading of the text it is not to say, assuming a definition applies, that it should be ignored in the exercise of construing the meaning of that text. The purpose of a definition is to aid the construction process. In my view, there is insufficient in any difficulties arising from a literal reading of the definition into the text, to warrant the conclusion that it is not intended to apply to cl 1.3.

1. On that basis, I turn to the respondent's submissions. First, I am unable to accept the respondent's contention that the second limb of the definition broadens the scope of the first. If more than what I have described as minor boundary adjustment is encompassed in the first limb, that would effectively negate the operation of the second limb with its stated objective of an improved division of land. But the application of the definition means an acceptance of the proposition that "adjustment of the title boundaries" in cl 1.3 includes an improved division of land. It follows that Ousley Pty Ltd v Warringah Shire Council (above) is distinguishable to that extent. In order to determine whether a particular proposal amounts to an improved division of land, close attention would have to be paid to the objectives of the Scheme and of the particular zone. The proposal would at least have to be consistent with those objectives, if not enhance them. The determination would involve considerations of (amongst other things) the characteristics of the land, its present or proposed ownership, and the purposes for which the land is used. Read into the text of cl 1.3, the improved division of land must also bring about a more efficient layout. The latter might be inherent in the former, but the former I think, raises far broader considerations.

1. I would make the point however, that arising from the alternative Scheme Standards of "Allowable Solutions" and "Performance Criteria", there is an inherent limitation in scope to what may be an improved division of land amounting to boundary adjustment.  By this, I mean that the nature and extent of the proposed re-configuration would be a relevant factor in determining whether an improved division of the land was created.  There would be questions of fact and degree in any particular case as to whether a proposal would create an improved division of the land having regard to the relevant objectives, and the characteristics of the land and associated issues, or amount to something so substantially different in character from that which existed, that it should be properly regarded as a new subdivision requiring compliance with the Performance Criteria relating to an "Allowable Subdivision". 

Resolution of the appeal

1. For those reasons I conclude that the Tribunal erred in law in determining that the proposal amounted to a boundary adjustment within the meaning of cl 1.3 on the basis which it did. As a major departure from the existing configuration, the proposal does not amount to a boundary adjustment within the meaning of the first limb of the definition. It can only amount to a boundary adjustment if it creates an improved division of land and meets all of the other criteria in cl 1.3 a) i) – iii).

1. It follows that the appeal should be allowed and the determination of the Tribunal that the proposal, the subject of the application, was a "boundary adjustment" within the meaning of cl 1.3 be set aside, but that the matter should be remitted to the Tribunal for further determination. I would not have thought it necessary that the matter be remitted to a differently constituted Tribunal, but I will take up that question with the parties.

Attachment "A"

Attachment "B"

(1)    …

(2)    If an application for a permit to which this section applies meets the requirements of the planning scheme to which the application relates, a planning authority must grant the application either unconditionally or subject to conditions or restrictions not later than the expiration of the period of 42 days from the day on which the authority received the application or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 42 day period."

(a)    a lease of a building or of the land belonging to and contiguous to a building between the occupiers of that building; or

(b)    a lease of air space around or above a building; or

(c)    a lease of a term not exceeding 10 years or for a term not capable of exceeding 10 years; or

(d)    the creation of a lot on a strata scheme or a staged development scheme under the Strata Titles Act 1998; or

(e)    an order adhering existing parcels of land;

'subdivision' means –

(a)          the act of subdividing; or
(b)          the block of land subject to an act of subdividing."