O'Neill v Yarrowlumla Shire Council

[1989] NSWLEC 181

Land and Environment Court

of New South Wales

CITATION:	O'Neill v Yarrowlumla Shire Council [1989] NSWLEC 181
PARTIES:	APPLICANT O'Neill RESPONDENT Yarrowlumba Shire Council
FILE NUMBER(S):	10684 of 1988
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Interpretation Act 1987
CASES CITED:	Sim Poh Amalgamated (HK) Limited v The Attorney-General & Anor 1965 1AER 225.
DATES OF HEARING:	16/12/88
DATE OF JUDGMENT:	05/01/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: On 16 June 1987, Mr O'Neill made application to the Yarrowlumla Shire Council for development consent to subdivide approximately 743.6ha of land being portions 22 and 23 in the Shire of Yarrlowlumla Parish of Clive County of Buccleuch and being the whole of the land comprised in Certificates of Title Volume 15357 Folio 35 and Volume 15232 Folio 46.

The application was amended and in its amended form was considered by the Council and refused by Notice of Determination on 27 October 1988. The stated ground of refusal was that the proposed development was prohibited under the provisions of the Yarrowlumla Local Environmental Plan 1986.

The applicant appealed to the Court on 16 December 1988. The application before the Council was to subdivide the subject land into eighteen allotments of approximately 40ha each. At the hearing, I was invited to consider an amended plan which proposed a subdivision into twelve allotments, six of which were less than 80ha and six were being 80 ha or more. The amended subdivision plan for which development consent is now sought has been before Council. It is agreed by the Council that if the special provisions of the LEP permit, development consent should be granted to the application.

The subject land is zoned 1(a) in the LEP. The objectives of the zone are:

(a) to protect the agricultural potential of rural land and to prevent the fragmentation of viable rural holdings;

(b) to prevent premature and sporadic subdivisions and to ensure consolidation of urban areas, thus enhancing the prospect of the economic provision of public services; and

(c) to prevent the subdivision of land on the fringe of urban areas into small allotments that may prejudice the proper layout of future urban areas.

Part III of the Local Environmental Plan relevantly provides:

except 12(1) This clause applies to land within Zone (2) The Council shall not consent to the clause subclause (3), (4) or (6).

Council may consent to the clause if it is satisfied that each proposed to be created by the (a) an area of not less than 80 (b) an adequate ratio of depth to having regard to the purposes which the allotment is likely to be (c) where the allotment will have to a main or arterial road - a to that road of not less than (d) where the allotment will have frontage that lake or river of not less than (4) The Council may consent to the clause so as to create a single 80 (5) The council may not grant consent as to in subclause (4) in respect land that comprises the whole or any (a) land in respect of which the Council previously granted consent as (b) an existing holding that has, at any so as to create one or more allotments (6) Without limiting the generality of the subdivision of land to which this applies so as to create an 80 if it is satisfied that the is intended to be used for a (other than agriculture or for which development lawfully be carried out on that land is to be subdivided for the purpose of permit

ting it to be used for forestry. The council accepts that all the allotments in the amended plan (and all the allotments in the original plan) are intended to be used for a forestry purpose and that a forestry purpose is one which may lawfully be carried out on the land. Furthermore, it is conceded by the council that on merit grounds, and subject to conditions, development consent should be granted. The Council concedes that to grant development consent would not defeat the objects of the zone and that, unless prohibited, the relevant consent should be granted. The issue is whether it is open to the Council, and hence the Court, to grant development consent by reason of the meaning and effect of cl 12 of the LEP.

Notwithstanding inelegant drafting and the inappropriate use of certain words, in my opinion, the planning purpose sought to be achieved by clauses 11 and 12 is clear. There can be no subdivision of land within the municipality without the consent of the council. With respect to land zoned 1(a), Council is given a discretion to consent if each allotment is not less than 80 hectares, provided that standards with respect to ratio of depth to frontage, frontage to main roads and frontage to rivers are complied with. The Council may consent to an application to subdivide land into two or more allotments, only one of which is less than 80 hectares, without intention as to the purpose of use of the allotment of less than 80 hectares being a requirement for the consent. However, in respect of the land the subject of the abovementioned consent, the Council cannot consent to another subdivision having an allotment of less than 80 hectares without being satisfied that it is intended to be used for a purpose as set out

in cl 12. Subject to the above, councils have the power to consent to the subdivision of land to create allotments of less than 80 hectares provided that it is intended that each allotment be used for the purpose set out in the clause. Such an interpretation is, in my opinion, consistent with the objectives of the zone.

On behalf of the Council, it is submitted that cl 12(6) does not authorise subdivision of land if more than one allotment is less than 80 hectares notwithstanding that the allotments are intended to be used for the purpose referred to in the subclause. It is not clear to me exactly what is meant by the words "without limiting the generality of subclause (4)" where appearing in subclause (6). Sub-clause (4) empowers the Council to grant consent to subdivide land so as to create within the subdivision a single allotment having an area of less than 80 hectares. I think, however, that the opening words in subclause (6) should be interpreted to mean that when a single allotment of less than 80 hectares is created for the first time, the provisions of subclause (6) as to purpose do not apply to that allotment. In my opinion, the words "an allotment having an area of less than 80 hectares if it is satisfied that the allotment is intended ..." mean "allotments having an area of less than 80 hectares if it is satisfie

d that any such allotment ...". The Interpretation Act 1987 provides that, except in so far as the context or subject matter indicates or requires, a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form. In my opinion, the context of the delegated legislation the subject of these proceedings would lead a reasonably minded person to suppose that if the amendment such as I have referred to above were advanced, the maker would not have rejected it but would have concluded that it made more plain what was intended. That is, I do not think there is any contrary intentions sufficient to exclude the operation of the Interpretation Act (see Sim Poh Amalgamated (HK) Limited v The Attorney-General & Anor 1965 1AER 225.

Accordingly, I have come to the conclusion that development consent should be granted. The formal orders I make are:

1. Application to subdivide the land known as Portions 22 and 33 in the Shire of Yarrowlumla Parish of Clive County of Buccleuch and being the whole of the land in Certificates of Title 15357 Folio 35 and 15232 Folio 146 in accordance with the proposed plan of subdivision marked Exhibit '3' in the proceedings and attached to this consent be granted subject to the following conditions:

of the land for the purpose of forestry not carried out prior to the granting of consent to use the land for that (2) A contribution in the amount of $500 per created by the subdivision being Subdivision for Application towards the cost (3) No dwelling house is to be erected on any of