Bruce Kinley v Wyong Shire Council [1998] Nswlec 184 (14 August 1998)

[1998] NSWLEC 184

Land and Environment Court

of New South Wales

CITATION:	BRUCE KINLEY v. WYONG SHIRE COUNCIL [1998] NSWLEC 184 (14 August 1998) [1998] NSWLEC 37
PARTIES:	BRUCE KINLEY v. WYONG SHIRE COUNCIL [1998] NSWLEC 184 (14 August 1998)
FILE NUMBER(S):	10786 of 1997
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Wyong Local Environmental Plan 1991
CASES CITED:
DATES OF HEARING:	28 July 1998
DATE OF JUDGMENT:	08/14/1998
LEGAL REPRESENTATIVES:	Mr M Macrossan, Barrister Mr W O'Rourke

JUDGMENT:

On 19 February 1998 the parties submitted five questions of law to be answered before the determination of Mr Kinley’s appeal against a refusal by the Council of an application he made to subdivide some rural lands into two lots.

In a judgment brought down on 23 April 1998, I set out the relevant history and details of Mr Kinley’s subdivision proposal, and answered the five questions.

In short, the applicant wants to create, out of a redefined 2 hectare lot, two blocks, each of 1 hectare. Proposed lot 1132 will be all within zone 7(c) and proposed lot 1131 partially within 7(a) (40%), and 7(c) (60%) under Wyong Local Environmental Plan 1991, as amended (“LEP”).

The parties have now submitted a sixth question in the following terms, as agreed and filed on the morning of the hearing on 28 July, 1998:

“Assuming the terms of subclause 15(2) of the Wyong LEP are satisfied, must a subdivision of land partly within zone 7(a) and partly within zone 7(c) also satisfy the conditions of any other provision or provisions in the LEP before it is permissible with consent, and, if so, which provision/s?”

2. THE LEP

It is common ground that the only provisions of the LEP that would be concerned with subdivision of the Kinley land are clauses 13, 14 and 15.

Clause 13 provides as follows:

“ Subdivision of land - generally

13. (1) A person shall not subdivide land to which this plan applies except with the consent of the Council.

(2) A reference in this plan to the subdivision of land includes a reference to any severance of land by the opening of a public road.”

Clause 15 provides as follows:

“ Subdivision of land within 2 zones

15. (1) Except as otherwise provided by this plan and subclauses (2) and (3), a person shall not subdivide land so as to create an allotment partly within one zone and partly within another zone.

(2) A person may subdivide land so as to create an allotment partly within one zone and partly within another zone provided that the number of allotments so created does not exceed the number of allotments, constituting the same land, similarly affected prior to the subdivision.

(3) The Council may, where the topography of the land to be subdivided makes it necessary, consent to a subdivision in which the boundaries of an allotment of land with Zone No 7(a) that borders on land within another zone do not correspond precisely with the relevant boundaries of the land within Zone No 7(a), as shown on the map, but which depart from those boundaries only to a minor extent”.

It is common ground that clause 15(3) does not apply in this case, but that the applicant’s proposal falls within clause 15(2) - there is now one lot partly within two zones and if the Kinley subdivision is approved there will still be only one lot which will be within the two zones.

Clause 14 generated the five questions dealt with in my earlier judgment. It is a long and complex clause which was set out in full in my earlier judgment and appears to be afflicted by an error/misprint or two.

For the purposes of this judgment I need set out only the following provisions of clause 14:

“ Subdivision of land within Zone No.1(a), 1(c), 7(a), 7(b), 7(c), 7(d),

7(e) or 7(f)

14. (1) This clause applies to land within Zone No 1(a), 1(c), 7(a), 7(b), 7(c), 7(d), 7(e) or 7(f).

(2) Except as provided by subclauses (3) …, a person shall not subdivide land to which this clause applies so as to create an allotment having an area of less than -

(a) in the case of land within Zone No. 1(c), 7(a), 7(d), 7(e) or 7(f) - 40 hectares;

(b) in the case of land within Zone No.1(a) or 7(b) - 20 hectares;

(c) in the case of land within Zone No.7(c) - 2 hectares.

(3) A person may, with the consent of the Council -

(a) subdivide land to which this clause applies where -

(i) the land is partly within one zone and partly within another zone;

(ii) the area of the land within one of the zones is not less than the area specified in subclause (2) in respect of that zone;

(iii) the area of the land in the other zone is less than the area specified in subclause (2) in respect of that zone; and

(iv) one of the allotments to be created by the subdivision comprises the whole of the land referred to in subparagraph (iii); or

(b) …..”

3. THE EARLIER QUESTIONS AND ANSWERS

For convenience I set out the five questions and answers which were the subject of my earlier judgment:

Question 1:

Whether subclause 14(3)(b) of the Wyong LEP only allows for subdivision of land exclusively within zone 7(c).

Answer : Yes

Question 2:

Whether subclause 14(7) of the Wyong LEP requires the relevant authority to take into account all allotments that have ever been created (by subdivision) from the original portion of land of which the land to be subdivided used to form part, regardless of:

(a) when such subdivisions took place; and

(b) whether or not such allotments still form part of the land to be subdivided

Answer : Yes

Question 3:

Whether subclause 14(7) of the Wyong LEP operates as a development standard within the meaning of section 4 of the Environmental Planning and Assessment Act 1979.

Answer: Yes

Question 4:

Does clause 14(2) of the Wyong Local Environmental Plan 1991 apply to the subdivision of land which is within more than one zone.

Answer: No

Question 5:

Whether paragraphs (i) to (iv), both inclusive, of clause 14(3)(a) of the Wyong LEP operate as development standards within the meaning of section 4 of the Environmental Planning and Assessment Act 1979.

Answer: No

4. QUESTION 4

For convenience I set out the full text of the section of my earlier judgment which dealt with Question 4 - Does clause 14(2) of the Wyong Local Environmental Plan 1991 apply to the subdivision of land which is within more than one zone?

“As cl 14(2) provides that subdivision shall not be allowed other than by the provision of minimum areas, unless allowed pursuant to (3) and (4), I believe that, cl 14(3)(a) providing specifically for land partly within one zone and partly within another, cl 14(2) applies to land wholly within the zones nominated within its sub paragraphs.

Council submits that all the land must be within the one zone or cl 14(3) would have no work to do. Cl 15(2) also provides for subdivision of land partly within one zone and partly within another.

I do not accept the submission by the applicant that the language of cl 14(1) requires that some specific exclusion would be necessary in the words of cl 14(2) for the answer to this question to be no.

I believe the correct answer to the question, and the correct construction of cl 14(2), is that advocated by the Council and I answer the question in the negative.”

5. THE APPLICANT’S SUBMISSIONS ON QUESTION 6

Mr Macrossan’s submission on behalf of the applicant is that under the permissive provisions of cl 15(2) it is possible to subdivide land in Wyong Shire which falls simultaneously in two zones under the LEP.

He contends that once a subdivision proposal comes within cl 15(2) there is nothing to override it. Compliance with cl 15(2) enables consent under cl 13.

As in the circumstances of this case there is no argument that cl 15(2) is satisfied, he asserts that Kinley’s proposal is permissible as:

· there is no prohibitive clause elsewhere in the LEP to prevent a subdivision which satisfies cl 15(2); and

· there is no need or requirement for the proposal to comply simultaneously with any other permissive clause elsewhere in the LEP.

Clause 14(2) deals only with subdivision of land and is effectively a prohibitive clause, whereas clauses 13 and 15(2) are permissive clauses.

Clause 14(3)(a) is an exception to the prohibition in cl 14(2), but is irrelevant in this case, and no other clauses of the LEP are relevant if 15(2) is complied with.

He submits that what the Council is really asking me to do is to qualify my previous decision in respect of cl 14(2).

The applicant does not concede that clauses 15(2) and 14(3)(a) are mutually exclusive. Some subdivisions may fall within only one, and some may comply

with both. It should not be a requirement, and there is none in the LEP, that a proposal has to comply with clauses 14 and 15. Compliance with one is enough.

No impractical or unjust results flow from my earlier answers and there is no ambiguity in the juxtaposed operation of clauses 13, 14 and 15.

6. THE COUNCIL’S SUBMISSIONS

The Council contends that the consequence of my earlier judgment was that the applicant’s subdivision could not be approved under any of the provisions of

cl 14.

The only relevantly effective exceptions to the prohibition in clause 14(2) are in clauses 14(3)(a) and (b) and I determined on the last occasion that:

· cl 14(3)(a) is not a development standard, and

· cl 14(3)(b) applies only to the land exclusively within the 7(c) zone.

Council submits, however, that the LEP must be read as a whole and that one cannot do so without establishing and examining the relationship between clauses 14 and 15. Council contends that my earlier answers do not exclude the application of cl 14 to the land involved here.

The Council contends that cl 14(1) means that cl 14 must apply to this proposed subdivision.

To succeed and get the subdivision through without complying with cl 14, Kinley must put a gloss on question 4 which will affect the interpretation of my

answer to it. The applicant needs an interpretation that means cl 14(2) does not apply to land within two zones as distinct from not applying to a subdivision of land that is within two zones.

Council submits that cl 14(2) clearly applies to this proposal because the Kinley land is within one (or more) of the zones specified in cl 14(1).

The prohibition in cl 14(2), therefore, clearly remains and the applicant must find an exception to it, such as cl 14(3)(a). Without complying with cl 14(3)(a), the regime in cl 14 regime precludes the subdivision of this land, even if

cl 15(2) is completely satisfied.

The purpose of cl 15(2) is to permit subdivision of mixed zone land but limit the number of split zone lots of land that remain. Clause 14(3)(a) requires all zone 7(c) land to go into the one lot, so it is impossible to simultaneously satisfy clauses 15(2) and 14(3)(a), as cl 14(3)(a) precludes a subdivision which throws up any mixed zone lot.

The two provisions aim at subdivisions which produce entirely different results and the two provisions operate on a mutually exclusive basis.

My finding in respect of cl 14(2), on Council’s submission, is that it does not make Kinley’s subdivision permissible, but it does apply to the land. It therefore continues to operate as a prohibition - even though the proposal of the applicant might satisfy cl 15(2), it cannot receive consent under cl 13 because it does not come within any of the exceptions in cl 14.

Council acknowledges that this may be an unintended result of the drafting of the LEP but there is no other provision in the LEP to make cl 15 relevant to the

zones in cl 14. There are clearly many zones within the Council area that are beyond cl 14, so cl 15 still has work to do.

In those zones to which cl 14 applies, it has an overriding effect.

7. CONCLUSIONS

Clause 9 of the LEP establishes 30 zones.

Clause 15 applies to subdivision of land which falls within any two zones.

Kinley’s land complies with cl 15(2) and falls within only two zones. Both of those zones are in the list of 8 heading cl 14.

Clause 14(1) is absolutely clear on its face. If the land sought to be subdivided falls within one or more of the 8 zones that clause specifies, the provisions of cl 14 apply to the proposal.

In those circumstances, cl 14 has an overriding effect, even though a proposal for subdivision complies with cl 15 in all other respects.

The construction advanced on Council’s behalf is correct, even though, as Mr O’Rourke conceded on its behalf, this may be an unintended consequence.

The answer to the sixth question is therefore:

“Yes; a subdivision proposal which falls within cl 15(2) of Wyong LEP, but deals with land in zones to which cl 14 applies, must also satisfy the conditions of cl 14”.

There will be no order as to costs, but the Council bundle ( Exhibit C1 ) tendered again on this occasion may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.