Oneten Properties Pty Ltd v Hawkesbury City Council; Jeanette v Hawkesbury City Council

Case •

[2016] NSWLEC 1405

•

09 September 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Oneten Properties Pty Ltd V Hawkesbury City Council; Jeanette & anor v Hawkesbury City Council [2016] NSWLEC 1405
Hearing dates:26 and 27 April 2016
Date of orders: 26 September 2016
Decision date: 09 September 2016
Jurisdiction:Class 1
Before: Dixon C
Decision:

At [90]

Catchwords: APPEAL: Development Application for subdivision of land containing environmental constraint area – purpose and application of clause 4.1 E(4) (a) of the Hawkesbury Local Environmental Plan 2012 – prohibition or development standard
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Interpretation Act 1987
Hawkesbury Local Environment Plan 2012
Hawkesbury Local Environmental Plan 1989
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Project Blue Sky Inc v Australian Broadcasting Australia (1998) 194 CLR 335
Valuer-General v Fivex Pty Ltd [2015] NSWCA 15
Stevens v Kabushiki Kaishi Sony Computer & Entertainment 224 CLR 139; [2005] HCA 58
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319
Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; [2006] NSWCA 323
MP Investments Pty Ltd v Hawkesbury City Council [2015] NSWLEC 1361
Ogg v Hawkesbury City Council [2015] NSWLEC 1413
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Blue Mountains City Council v Laurence Browning Pty Ltd 150 LGRA 130; [2006] NSWCA 331
North Sydney Municipal Council v PD Mayoh Pty Ltd (No2) (1990)71 LGRA 222;
Willoughby Council v Spa &Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101
Hecar Investments No 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA
Texts Cited: Australian Concise Oxford Dictionary 1987
Category:Principal judgment
Parties: Oneten Properties Pty Ltd (Applicant of 2016/154235)
Jeanette Bentley & Jonn Bacic (Applicants of 2016/154259)
Hawkesbury City Council (Respondent)
Representation:

Counsel:
Andrew Pickles SC (Applicants )
Roslyn McCulloch, Hawkesbury City Council (Respondent)

  Solicitors:
Hones Lawyers (Applicants)
Pikes & Verekers Lawyers (Respondent)
File Number(s):154235 and 154259 of 2016 (formerly 11007and 11008 of 2015)
Publication restriction:No

TABLE OF CONTENTS

Introduction

Background/Facts

Local Environmental Plan provisions

Appeal No 154235 of 2016 - (Oneten)

Appeal No 154259 of 2016 – (Grose Vale)

Issues

Clause 4.1E properly construed

Development standard?

Council calculation for (Bacic &Bentley) (Grose vale)

Council’s calculation of lots for Oneten (Grose Wold)

Findings about the meaning of cll 4.1 and 4.1E of HLEP 2012

Oneten

Bacic and Bentley

Conclusion

Oneten

Bacic and Bentley

Directions

Judgment

Introduction

  1. This judgment deals with two separate development appeals for the subdivision of land within the Hawkesbury City Council Local Government Area.

  2. They were commenced under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) and were the subject of a joint conciliation conference convened under s 34 of the Land and Environment Court Act 1979 (the Court Act). As that process did not resolve the appeals, the conciliation was terminated and the parties requested that I determine the appeals in accordance with s 34(4) (b) (i) of the Court Act.

  3. In each case, the Council contends that the proposed subdivision is prohibited by cl 4.1E (4) (a) of the Hawkesbury Local Environment Plan 2012 (HLEPHLEP 2012) because there has already been subdivision of the original lot which has realised the maximum lot yield achievable under the clause.

  4. The proper construction of cl 4.1E of the HLEP is central to the determination of each case and for that reason the appeals were heard together.

Background/Facts

  1. Before I deal with the proper construction of cl 4.1E of the HLEP 2012, it is necessary to set out the common facts and the particular facts in each case. I have derived these facts from the Council’s Amended Statement of Facts and Contentions dated 22 March 2016 in each case (Exhibits 1 and 10) and the evidence.

Local Environmental Plan provisions

  1. Each appeal relates to land zoned RU4 Primary Production Small Lots under HLEP 2012.

  2. Clause 4.1 of HLEP 2012 provides for minimum allotment sizes on land zoned RU4. The minimum allotment size under this clause is four hectares.

  3. Clause 4.1B also applies to the land in the RU4 zone. The Council does not contend, in the Amended Statement of Facts and Contentions, that cl 4.1B is not met. It may be assumed, therefore, that the Council is satisfied that cl 4.1B is met.

  4. Clause 4.1E also applies to the land, as it is identified within Area B and edged heavy yellow on the Lot Size Map referred to in cl 4.1E (2) (p 9 map, Council bundle, pp 66-67).

  5. The land in each case contains an environmental constraint area, hence cl 4.1E (4) applies.

  6. Clause 4.1E(4)(a) of the HLEP 2012 provides:

(4) Despite clauses 4.1, 4.1AA, 4.1A and 4.1C, if land to which this clause applies contains an environmental constraint area, development consent must not be granted for the subdivision of that lot unless:

(a) the number of lots to be created for a dwelling house by the subdivision will not exceed the area of the original lot for the land to be subdivided, in hectares, divided by 4,

  1. Subclause (6) of cl 4.1E defines “original lot” in the following terms:

"original lot" for land being subdivided means a lot that existed immediately before 2 June 2000 that included the land.

  1. That statutory provision also defines “environmental constraint area” meaning land so identified on the Environmental Constraints Area Map. The land is so identified.

  2. Therefore, the relevant date to determine the “original lot” for the purposes of cl 4.1E (4) (a) is 2 June 2000 in each appeal.

Appeal No 154235 of 2016 - (Oneten)

  1. According to the Applicant’s submissions, Oneten Pty Limited (the Applicant) is the owner of Lot 1 DP 1172184, 34 Oakford Place, Grose Wold.

  2. The Applicant seeks the subdivision of Lot 1 DP 1172184 into four lots.

  3. Lot 1 DP 1172184 was created by the subdivision of Lot 3 DP 87137 and Part Lot 52 DP 751649 into nine lots on 3 December 2010 (the original lot for the land to be subdivided).

  4. The subdivision was to be carried out in two stages. Stage 1 involved the creation of Lots 1-8 of DP 1172184. Stage 2 involved the subdivision of Lot 1 (the land the subject of the development application) into two lots. This stage has not been carried out.

  5. The first subdivision was undertaken pursuant to Hawkesbury LEP 1989 (the HLEP 1989) under cll 10 and 11.

  6. The original lot for the land to be subdivided has an area of 34.34 hectares and, after subdivision, Lot 1 has an area of 29.53 hectares.

  7. The proposed further subdivision of Lot 1 is to create four allotments of 4.2 hectares (Lot 108), 4.0 hectares (Lots 802 and 804) and 17.34 hectares (Lot 803).

Appeal No 154259 of 2016 – (Grose Vale)

  1. According to the Applicants’ submissions, the Applicants, Bacic and Bentley, are the owners of Lot 620 DP 1175975, 317 Grose Vale Road, Grose Vale.

  2. They seek the subdivision of Lot 620 DP 1175975 into three lots.

  3. The land the subject of the appeal, Lot 620 DP 1175975, was created by subdivision of Lot 10 DP 740634, Lot 201 DP 787650 and Lot 31 DP 730900 (“the original lot of land to be subdivided”). These lots had a combined area of 73.33 hectares.

  4. Development consent was granted on 15 August 1991 for the subdivision of Lot 10 DP 740634 into three lots, which became Lots 100, 101 and 102 in DP 1014579. The subdivision was not registered until 19 July 2000 - after the relevant date, 2 June 2000.

  5. Development consent, DA 0307/03 as modified, approved the further subdivision of Lot 100, DP 1014579 to create Lots 101 to 106, DP 1144915 (Stage 1) and Lots 620 to 625, DP 1175975 (Stage 2) and the Community Title subdivision of Lot 105, DP 1144915 into eight development lots (Stage 3). Development consent for the subdivision was granted pursuant to HLEP 1989 under cl 41AA.

  6. The original lot for the land to be subdivided had an area of 73.33 hectares and, after subdivision, Lot 620 has an area of 37.6 hectares.

  7. The proposed further subdivision of Lot 620 is to create three allotments of 6.8 hectares (Lot 711), 17.2 hectares (Lot 712) and 13.6 hectares (Lot 713).

Issues

  1. The following questions arise in each case :

  1. Does the development comply with cl 4.1E of the HLEP 2012 properly construed?

  2. If it does, is the provision a development standard that can be varied under cl 4.6?

  3. Is such a variation necessary on the facts in each case?

Clause 4.1E properly construed

  1. The Court has received a Joint Town Planning Report from the Council’s Colleen Haron and the Applicants’ consultant, Glenn Falson, in each appeal (Exhibits 12 and 3). It has also received comprehensive written submissions from the parties’ advocates about the proper construction of cl 4.1E of the HLEP 2012.

  2. Generally, they offer conflicting interpretations of cl 4.1E and cl 4.1 of HLEP 2012. Put simply, the Council contends that cl 4.1 is displaced by cl 4.1E (4) (a) in each case, while the Applicants contend that cl 4.1E (4) (a) should be read subject to cl 4.1.

  3. Clause 4.1 sets a minimum lot size for subdivision for the land in each appeal by reference to a Lot Size Map. The clause provides:

4.1   Minimum subdivision lot size

(1)   The objectives of this clause are as follows:

(a)    to ensure that the pattern of lots created by subdivision and the location of any buildings on those lots will minimise the impact on any threatened species, populations or endangered ecological community or regionally significant wetland, waterways and groundwater as well as any agricultural activity in the vicinity,

(b)    to ensure that each lot created in a subdivision contains a suitable area for the erection of a dwelling house, an appropriate asset protection zone relating to bush fire hazard and a location for on-site effluent disposal if sewerage is not available,

(c)   to ensure a ratio between the depth of the lot and the frontage of the lot that is satisfactory having regard to the purpose for which the lot is to be used.

(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.

(3A)   If a lot in a following zone is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size:

(a)   Zone R1 General Residential,

(b)   Zone R2 Low Density Residential,

(c)   Zone R3 Medium Density Residential.

(4)   This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

  1. Clause 4.1E provides :

4.1E   Exceptions to minimum subdivision lot size for Grose Wold

(1)    The objective of this clause is to provide an alternative method to clause 4.1 for the subdivision of land to which this clause applies in a way that ensures the protection of the Cumberland Plain Woodland.

(2)    This clause applies to land in the area known as “Grose Wold”, being the land identified as “Area B” and edged heavy yellow on the Lot Size Map.

(3)    Development consent may be granted for the subdivision of land to which this clauses applies only if:

(a)    the consent authority is satisfied that the pattern of lots to be created by the subdivision and the location of any buildings on those lots will minimise the impact on any Cumberland Plain Woodland, any land in an environmental constraint area and waterways and groundwater, and

(b)    the consent authority has considered a geotechnical assessment demonstrating the land is adequate for the on-site disposal of effluent in accordance with best practice, and

(c)    the Cumberland Plain Woodland and any land in an environmental constraint area is retained in one lot as much as possible, and

(d) the consent authority is satisfied there will be no significant adverse impacts on Cumberland Plain Woodland or land in any Page 44 Clause 4.1F Hawkesbury Local Environmental Plan 2012 Part 4 Principal development standards 2012 No 470 environmental constraint area located downstream or surrounding the development.

(4)    Despite clauses 4.1, 4.1AA, 4.1A and 4.1C, if land to which this clause applies contains an environmental constraint area, development consent must not be granted for the subdivision of that lot unless:

(a)    the number of lots to be created for a dwelling house by the subdivision will not exceed the area of the original lot for the land to be subdivided, in hectares, divided by 4, and

(b)    any lot created for a dwelling house will contain at least one hectare of land that is not in an environmental constraint area.

(5)    When considering a development application to which this clause relates, the consent authority must have regard to the effect the development is likely to have on the following:

(a)    the water quality and water quantity in the Grose River and its tributaries,

(b)    the scenic quality of the area,

(c)    existing riparian vegetation, the rehabilitation of local native riparian vegetation located along the Grose River and along drainage lines and creeks.

(6) In this clause: Cumberland Plain Woodland means the critically endangered ecological community with that name referred to in Part 2 of Schedule 1A to the Threatened Species Conservation Act 1995. environmental constraint area means land identified as “Environmental Constraint Area” on the Environmental Constraints Area Map. original lot for land being subdivided means a lot that existed immediately before 2 June 2000 that included the land.

  1. It is agreed that cl 4.1E is curiously worded in a number of respects. It is headed “Exceptions to Minimum Lot Size For Grose Wold”, and such a heading suggests that the provision is intended to create an exception to the standard otherwise applying under cl 4.1. However, the heading of the provision does not form part of the instrument: s 35(2) Interpretation Act 1987.

  2. Despite the heading, subcl (1) provides that the clause is intended to be “alternative method to cl 4.1 for the subdivision of land to which this clause applies in a way that ensures the protection of the Cumberland Plain Woodland". The word “alternative" is not defined, but it can mean “in place of another”, or it can mean “liberty to choose between two possibilities”: Australian Concise Oxford Dictionary (1987). The difficulty with the use of the term in this context is that the two different meanings would have two different results. The first means that cl 4.1E replaces cl 4.1; on the second meaning it would be open to choose between methods of determining lot size.

  3. Another layer of complexity is added by cl 4.1E(4) which is said to operate “despite clauses 4.1 and 4.1A” and “development consent must not be granted for the subdivision of that lot unless”. This suggests that rather than being at liberty to choose, or in place of cl 4.1, cl 4.1E applies in addition to cl 4.1 where the land contains an environmental constraint area. Despite the ambiguity in the word “alternative", as used in the objective stated in cl 4.1E (1), the words of cl 4.1E (4) probably operate as an additional constraint on the grant of consent to the lot size provision in cl 4.1, rather than in the replacing of it. The Lot Size Map supports this interpretation by showing the land the subject of the development applications as coloured “4HA", overlaid by “Area B" and a reference to cl 4.1E.

  4. An issue then arises as to how the provision in cl 4.1E (4) (a) is to be interpreted. The Council contends (Contention 1(b)) that, in calculating the lot yield from a lot to which the clause applies, it is necessary to include the lots already created since the relevant date, being 2 June 2000, otherwise the application of subcl (4) would be contrary to the purpose of cl 4.1E. Ms Haron explains this in the joint report at [3.15] (Exhibit 12). She states:

“If these prior subdivisions are not considered then the application of subclause (4) would be contrary to the purpose of Clause 4.1 E, as:

(a)   this would result in a greater lot yield than that from a “conventional” subdivision carried out pursuant to clause 4.1 of HLEP 2012; and

(b)   an increased number of lots and development on these lots would result in additional impacts/pressure on the natural environment contradictory to the purpose of clause 4.1E to protect Cumberland Plain Woodland”.

  1. Despite her evidence, Ms Haron agreed that the wording of cl 4.1E (a) does not infer that lots that have been created by previous subdivisions are to be included (Exhibit 12, p 8 at [3.15]).

  2. Before I explain the Applicants’ position, I note that the parties accept that the process of statutory construction must always begin, firstly, by examining the text of the legislation: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47].

  3. As discussed in Project Blue Sky Inc v Australian Broadcasting Australia (1998) 194 CLR 335 at [78], this will usually correspond with the grammatical meaning of the provision. It is wrong to approach the question of construction by confining attention to the legislative purpose and disregarding the text: Valuer-General v Fivex Pty Ltd [2015] NSWCA 15 at [26].

  4. In short, a purposive construction of statutory interpretation cannot displace the need, at first instance, for close examination of the text and structure of the relevant provision: Stevens v Kabushiki Kaishi Sony Computer & Entertainment 224 CLR 139; [2005] HCA 58 at [30].

  5. Approaching the interpretation of cl 4.1E through an analysis of the words of the provision requires the identification of the following matters:

  1. The “original lot for the land to be subdivided";

  2. The area of the “original lot for the land to be subdivided" in hectares;

  3. The area of that lot divided by four; and

  4. An area of at least one hectare not within an environmental constraint area.

  1. Accepting that every word in the provision informs statutory construction (Project Blue Sky at [71]), it follows that cl 4.1E requires a calculation to be undertaken based on “the original lot for the land to be subdivided".

  2. The words “original lot for the land to be subdivided", as defined in subcl (6), contemplates that the land to be subdivided might not necessarily be the whole of the original lot because of the additional words “that included the land". In fact, the Applicants' case rests upon an interpretation of cl 4.1E that ignores previously subdivided lots to be counted because the original lot for the land to be subdivided may not be the whole of the original lot before the subject land was excised.

  3. The Council contends that all previous subdivisions have to be included in the calculation. The Council believes that the clause is intended to limit the number of lots resulting from a subdivision of the original lot while the Applicants contend that it is concerned with imposing an additional limit on the number of lots created by a subdivision of the land in addition to the lot size requirements in the other clause. In other words, cl 4.1 is designed to achieve a minimum lot size and cl 4.1E is designed to restrict the number of lots that may be created by a subdivision by reference to the size of the original lot. The Council submits that the consequence of the Applicants’ interpretation is that any new lots controlled by cl 4.1E may be further subdivided into further lots. The Applicants concede this but contend that cl 4.1 operates as a restraint on further subdivision of lots created under cl 4.1E to prevent further subdivision of land of less than four hectares. Additionally, there is a further constraint in cl 4.1E(4)(b) which requires that any lot created for a dwelling house will contain at least one hectare of land that is not in an environmental constraint area. This additional constraint is aimed at facilitating the objects of the clause in cl 4.1E (1), ie ensuring the protection of the Cumberland Plain Woodland.

Development standard?

  1. Even if the Applicants' construction of cl 4.1E(4)(a) is not accepted by the Court, the Applicants submit that cl 4.1E is a development standard that is capable of being the subject of a variation under cl 4.6. Applying the two-step approach in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 (as refined by Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; [2006] NSWCA 323), the Applicants invite the Court to decide whether the provision is a development standard.

  2. The test in Poynting poses the following questions:

  1. Does the provision prohibit the development in question under any circumstances,

  2. Does the provision specify a requirement or fix a standard in relation to an aspect of the “non-prohibited" development?

  1. If the answer to each of these questions is “yes”, then the Applicants submit it is necessary for the provision to be properly characterised as a development standard: Poynting per Giles JA at [96]-[98].

  2. Applying the propositions in Chase Property at [60]-[61], the Applicants submit:

(a)   The provisions of cl 4.1E must be construed having regard to the objectives of the clause and the LEP provisions as a whole. The wider context reveals a different standard relating to the size and number of lots that may be created. The distinction between the lot-size standards and the number of lots created has been identified.

(b)   The number of lots into which land may be subdivided can be seen to be a standard within the meaning of subcl (e) of the definition of “development standard”: “(e) the intensity or density of the use of any land, building or work”. It also relates to the carrying out the development – namely the subdivision of land.

(c)   Although the provision is couched in the negative “consent must not be granted unless”, this does not purport to “prohibit" the carrying out of the development in all circumstances. Substance must take precedence over form the Applicant submits.

(d)   The provision does not prevent the development under any circumstances.

(e)   The development in question is a subdivision of land. The control also relates to the manner of carrying out the subdivision of land.

(f)   Clause 4.1E(4) does fix a standard for carrying out the development.

(g)   The aspect of the development in respect of which the clause fixes a standard is the number of lots to be created by the subdivision, which is an aspect of density or intensity.

  1. Clause 4.1E fixes a standard for the carrying out of subdivision, which is a development standard amenable to variation under cl 4.6. As earlier stated, the Applicants have, as a precaution, lodged a cl 4.6 objection. On the evidence, there is no contest to the merits of that objection, the Applicants contend.

  2. Ultimately, the Applicants contend that the proper construction or interpretation of cl 4.1E is that the land to be subdivided may be divided according to the formula, regardless of whether the original lot has already been subdivided.

  3. The Applicants submit that the proposed development complies with the formula in cl 4.1E (4) (a), properly construed. If the Applicants’ construction of cl 4.1E (4) (a) is incorrect, the provision is, nevertheless, a development standard. The Applicants have lodged a cl 4.6 objection. Absent satisfactory evidence to the contrary to contradict that objection, it may be upheld and consent granted subject to conditions.

  4. The Council contends for a different outcome after a proper interpretation of cl 4.1E (4) (a). It relies heavily on a purposive approach and, while ultimately conceding that cl 4.1E (4) (a) provides an additional layer of control to cl 4.1, it also submits that the clause allows a departure or a relaxation from cl 4.1 (see submissions [47] and [33] of the Council’s written submissions). The Council's case is that cl 4.1E(4)(a) applies in the alternative (and contrary to the position argued in MP Investments Pty Ltd v Hawkesbury City Council [2015] NSWLEC 1361 – a case that is distinguished on its facts (the land did not contain an environmental constraint area).

  5. The Council submits, with respect, that the decision of the Court in the matter of Ogg v Hawkesbury City Council [2015] NSWLEC 1413, which dealt with the same clause and postdates the decision in MP Investments, results in an absurd outcome with no limit to the number of subdivisions. It submits:

“The logical consequence of the Ogg decision is that there would be no limit to the number of subdivisions which could be undertaken of lots which formed part of the original lot, provided that each application was limited to a two lot subdivision. That was not and could not have been the intention of the Minister in making the clause.” (CWS at [37]).

  1. The Applicants disagree and submit that the effect of the Ogg decision does not result in an absurd outcome or “no limit”. Clause 4.1E is an additional constraint on the subdivision of land over and above the lot size requirement of cl 4.1. The clauses do different things. Clause 4.1 regulates the size of the allotments, cl 4.1E regulates the number of allotments that may be created (AWS in reply at [7]).

  2. The Council submits that a consideration of the legislative history of cl 4.1E of the HLEP 2012 is relevant as it demonstrates that the clause, and its predecessor, cl 41AA of the HLEP 1989, was designed to both protect (cl 4.1(3)) and provide flexibility (cl 4.1E) when considering the subdivision of land within the Grose Wold area which contains an environmental constraint area. According to the Council, these provisions impose more stringent requirements on the subdivision of such environmentally sensitive land by permitting smaller lots than might be achieved, whilst limiting the lot yield from the original lot according to the formula: original lot area in hectares divided by four. To ensure this outcome, the Council submits that, on 8 December 2015 the Council resolved to amend cl 4.1E and, on 18 December 2015, sought to expedite the amendment of cl 4.1E by application PP_HAWKE_003_00 pursuant to s 73A of the EPA Act. (At the time of writing this judgment, I am not aware of any change to the provision, nor the relevance of these submissions.)

  3. The Applicants contend that the abandonment of the plain words of the text is not justified because the plain words of the text do not have an unreasonable or absurd result: Hecar Investments No 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA at [323] per Cripps J. The lot size provisions in cl 4.1 would prevent that result. They also submit that it is not useful, nor relevant, to rely on the legislative history where the provision under review is a new instrument (albeit a standard instrument) and not an amendment of an existing provision.

  4. On a reading of the whole of HLEP 2012, the Council submits that cl 4.1E could not have been intended to simply avoid the minimum lot size requirements of cl 4.1. The purpose of cl 4.1E was to place additional constraints on the subdivision of land within Area B and, where the land contained an environmental constraint area, to relax the minimum lot size controls by way of a different formula which would result in an equivalent lot yield to a subdivision which observed the minimum lot sizes. The Council submits that the approach in Ogg pays no regard to that purpose of cl 4.1E. It concentrates solely on the text without regard for the context of the clause, leading to an absurd result: the potential for unrestricted subdivisions of the original lot. Such absurd results should be avoided: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 322.

  5. Ultimately, the Council submits that the appropriate approach to the construction of cl 4.1E is to examine its text in the context of the whole HLEP 2012 and the legislative history of the clause in an endeavour to achieve a harmonious construction: Project Blue Sky at [69]-[70].

Council calculation for (Bacic &Bentley) (Grose vale)

  1. The Council’s position in respect of the application of cl 4.1E to the facts is set out in its written submissions at [7]–[12].

  2. In summary, the Council contends that the “original lot” in relation to the land, Lot 10 DP 74634, Lot 201 DP 787650 and Lot 31 DP 730900 (Grose Vale), had a combined area of 73.33 hectares.

  3. Clause 4.1E(a) only permits 18 lots having regard to Lot 10 DP 74634, Lot 201 DP 787650 and Lot 31 DP 730900 as the original lot (ie 73.33 divided by 4 = 18.33 lots).

  4. Since June 2000, 13 lots have been created from the “original lot”, leaving a potential for five additional Lots.

  5. Upon registration of Stage 3 (for the additional eight lots), a total of 20 lots will have been approved – created from the subdivision of the “original lot”. Whilst only 18 lots are permitted, the Council accepts that it has approved the creation of 20 lots.

  6. The creation of the three lots in the proposed subdivision before the Court will exceed that permitted by cl 4.2E (4) (a) of the HLEP 2012 for the subdivision of the “original lot”.

Council’s calculation of lots for Oneten (Grose Wold)

  1. The Council’s position in respect of the application of cl 4.1E to the facts is set out in its written submissions at [13]–[18].

  2. In summary, the Council contends that the “original lot“ in relation to the land comprised Lot 3 DP 87137 and Part Lot 52 DP 751649. The combined area is 38.45 hectares.

  3. Clause 4.1E(4)(a) only permits nine lots having regard to Lot 3 DP 87137 and Part Lot 52 DP 751649 (renamed Lot 2 DP 1118655 in 2007) as the “original lot”.

  4. Development application 0220/10 granted on 3 December 2012 has been carried out, creating eight lots. The land has only potential for one additional lot.

  5. The proposed subdivision for four lots will result in two additional lots being created in excess of that permitted by cl 4.1E (b) of the HLEP 2012.

Findings about the meaning of cll 4.1 and 4.1E of HLEP 2012

  1. The Court has delivered two conflicting decisions about the meaning of cll 4.1 and 4.1E – albeit in two very different factual contexts. I prefer the meaning of the provisions accepted by the Court in Ogg because it relies on a literal application of the text and the meaning of the provision corresponds with the grammatical meaning of the words: Project Blue Sky at [78].

  2. In my opinion, a literal application of the text of cl 4.1E to the facts at hand does not result in an absurd outcome or unrestricted subdivisions. The approach outlined by the Applicants means that cl 4.1E (4) (a) operates as an additional constraint on the grant of consent to the lot size provision in cl 4.1 rather than in place of it. I agree with the applicants’ reasoning that the two provisions do different things. Clause 4.1 regulates the size of allotments, and cl 4.1E regulates the number of allotments that may be created by the subdivision. The application of the plain words of the text does not have an unreasonable or absurd result. The lot size provisions in cl 4.1 would prevent such a result. Relevantly, the Lot Size Map supports this interpretation of the clauses by showing the land the subject of the DAs as designated “4HA” and overlaid by Area B and a reference to cl 4.1E.

  3. After an examination of the text of the clause, and having given meaning to every word in the provision, I accept that cl 4.1E (4) requires the calculation to be undertaken based on the original lot for the land to be subdivided. The “original lot” for the land to be subdivided, as defined in subcl (6), contemplates that the land to be subdivided might not be the whole of the original lot because of the additional words “that included the land".

  4. As the Applicants submit, the Council's interpretation - which requires all previous subdivisions to be included in the calculation - simply ignores the words of the clause and the definition which contemplates that the land to be subdivided may not be the original lot. The plain words in the provisions cannot be ignored in order to achieve a different result. I accept the Applicants’ submission that a purposive construction of statutory interpretation cannot displace the need, at first instance, for close examination of the text and structure of the relevant provision: Stevens v Kabushiki Kaishi Sony Computer & Entertainment 224 CLR 139; [2005] HCA 58 at [30].

  5. It is not correct to approach the question of construction by confining attention to the legislative purpose and disregarding the text: Valuer-General v Fivex Pty Ltd [2015] NSWCA 15 at [26] (CWS at [39]-[46]). The process of statutory construction must always begin, firstly, by examining the text itself: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]. It is only when an examination of the text fails to derive meaning that it is appropriate to look for other means to understand the provision. I cannot accept, in order to achieve the Council’s desired outcome, that, as it submits at [50] of its written submissions, a harmonious construction principle be applied and the words “the subdivision" in cl 4.1E (4) (a) should be read as the subdivision of the original lot so as to prevent “the mischief” that it believes is a necessary consequence of a literal reading of the word. The words of cl 4.1E (a) simply do not say that, and the consequence of a literal application of the text of the provision to the facts does not create a mischief because cl 4.1 operates to regulate the size of allotments.

  6. Put simply, the clause does not refer to the number of lots created by all subdivisions of the original lot, but instead specifically relates to the number of lots created by the subdivision. It is only concerned with the subdivision the subject of the application and not past subdivisions. If Council’s interpretation were correct, the words “by the subdivision” in the clause, and “that included that land" in the definition, would be unnecessary.

  7. Nothing in cl 4.1E requires the previously subdivided lots to be counted in the calculation. Clause 4.1E is not concerned with the number of lots “resulting" from the "original lot” but, rather, the number of lots “created by the subdivision". The difference in language between cl 4.1E and cl 4.1 is designed to achieve a different result. In other words, I accept, as the Applicants contend, cl 4.1 is designed to achieve a minimum lot size and cl 4.1E is designed to restrict the number of lots that may be created by reference to the size of the original lot. I do not accept it would be appropriate to interpret these provisions of HLEP 2012 by reference to the instrument that it repealed, HLEP 1989. I can interpret the words for myself and derive a meaning for the purposes of these appeals based on the text alone. Such an interpretation in this case does not have an absurd or unreasonable result. While, as the Council submits, the consequence of the Applicants’ interpretation is that any new lots controlled by cl 4.1E may be further subdivided into further lots, it is the case that cl 4.1 operates as a restriction on the further subdivision of lots created under cl 4.1E to prevent further subdivision of land less than four hectares. On top of that, there is the further constraint in cl 4.1E(4)(b) which requires that any lot created for a dwelling house will contain at least one hectare of land that is not in the environmental constraint area. This additional constraint facilitates the objects of the clause in 4.1E (1), i.e. ensure the protection of the Cumberland Plain Woodland.

  8. In my assessment, cl 4.1E (4) (a) is not a prohibition. It does not create a precondition for development along the lines discussed by the Court in Blue Mountains City Council v Laurence Browning Pty Ltd 150 LGRA 130; [2006] NSWA 331 at [77]; and North Sydney Municipal Council v PD Mayoh Pty Ltd (No2) (1990)71 LGRA 222; or create an exception as discussed by the Court in Willoughby Council v Spa &Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101 at [28].

  9. For the reasons outlined by the Applicants (as summarised above), there is no prohibition to the proposed developments by virtue of cl 1.4E.

  10. I will now examine the merits of each case against the planning framework defined above.

Oneten

  1. I accept that cl 4.1E, properly construed, is as the Applicant submits (at AWS [18]):

Immediately before 2 June 2000, Lot 1 formed part of Lot 3 in DP 87137 and Part Lot 52 DP 751649. Therefore the original lot for the land to be subdivided has an area of 38.34 hectares. Undertaking the calculation required by cl 4.1E (4) (a) results in limitation that the number of lots to be created from the subdivision be not more than 9,585. Rounded down, this means the maximum number of lots that can be created by the subdivision is nine. The proposed development complies with this requirement because only four lots are proposed to be created by the subdivision. It also complies with the requirement that the lots have more than one hectare of land not in an environmental constraint area and the requirement of cl 4.1 that the lots have an area of four hectares.

  1. For the reasons stated, nothing in cl 4.1E requires the previously subdivided lots to be counted in the calculation.

Bacic and Bentley

  1. I accept that cl 4.1E, properly construed, is as the Applicants submit (at AWS [19]).

Immediately before 2 June 2000, Lot 602 formed part of Lot 10 DP 740634, Lot 201 DP 787650 and Lot 31 730900. Therefore, the original lot for the land to be subdivided had an area of 73.33 hectares. Undertaking the calculation required by cl 4.1E (4) (a) results in a limitation that the number of lots to be created from a subdivision be not more than 18.3325. Rounded down, this means the maximum number of lots that can be created by the subdivision is 18. The proposed development complies with this requirement because only three lots are proposed to be created by the subdivision. It complies with the requirement that the lots have more than one hectare of land not in an environmental constraint area and the requirement of cl 4.1 that the lots have an area of 4 ha.

  1. For the reasons stated, nothing in cl 4.1E requires the previously subdivided lots to be counted in the calculation.

Conclusion

  1. I am satisfied, on the evidence, that the proposed subdivisions will provide suitable lot sizes having regard to the future uses of the land. In the absence of any satisfactory evidence to the contrary, I am also satisfied that there is capacity for the land to support these uses and capacity within the locality to provide adequate levels of infrastructure, services and amenities for the developments. I am satisfied in respect of the matters raised by cl 1.4 E (3) (a) and (d) of the HELP2012 and have considered the matters in cl1.4E (3) (b) and (c). I have also had regard to the matters in cl1.4 E (5) in light of the evidence including the amended plans.

  2. There are no objectors to the appeals and no reasonable basis, on my interpretation of the clause, and the evidence before me to refuse the applications on public interest grounds. Needless to say, any future subdivision application will turn on its own facts.

Oneten

  1. After a view of the land and an assessment of the evidence under s 79C of the EPA Act including;

  • the amended plans,

  • the supplementary flora and fauna assessment report,

  • the updated site constraints to on-site waste-water report,

  • the updated bushfire evaluation and the updated Statement of Environmental Effects; and

  • the latest correspondence from Transgrid,

I am satisfied that the development application for the proposed four-lot subdivision of Lot 1 DP 1172184 at 34 Oakford Place, Grose Wold should be approved, subject to the Council’s draft conditions in Exhibit 13.

Bacic and Bentley

  1. After a view of the land and an assessment of the evidence under s 79C of the EPA Act including;

  • the amended plans “A” and “G” of the Supplementary Flora and Fauna Report,

  • the Statement of H J Fiander, Environmental Soil and Water Engineer,

  • the flora and fauna plan (Exhibit 5) in the planning evidence,

I am satisfied that the development application for the proposed three-lot subdivision of Lot 620 DP 1175975 at 317 Grose Vale Road, Grose Vale should be approved, subject to the Council’s draft conditions in Exhibit 4 - incorporating replacement condition 5b in Exhibit F.

  1. I have considered the other suggested changes proposed by the Applicants in Exhibit F but decline to make those changes after assessment.

Directions

  1. The Court directs the parties to forward to the Court Conditions of Consent in respect of each appeal reflecting my reasons for judgment within 14 days. Upon receipt of the final Conditions of Consent I will make final orders approving the development applications.

  2. Addendum made on 26 September 2016

    In accordance with the terms of paragraph [90] of my judgment of 9 September 2016, on 13 September 2016 (2016/00154235) and on 21 September 2016 (2016/00154259) the parties provided me with the agreed conditions of consent. I am satisfied that the conditions of consent accord with my findings and accordingly I make orders in chambers as follows:

    Matter number: 2016/00154235 (Formerly 2015/11008)

    (1)          The appeal is upheld.

    (2)          Development Consent be granted to DA0239/15 for the subdivision of Lot 1 DP1172184, subject to the Conditions marked Annexure ‘A’.

    (3)          The exhibits are returned.

    Matter number: 2016/00154259 (Formerly 2015/11007)

    (1)          The appeal is upheld.

    (2)          Development Consent be granted to DA0179/15 for the subdivision of Lot 620 DP1175975, subject to the Conditions marked Annexure ‘A’.

    (3)          The exhibits are returned.

Susan Dixon

Commissioner

154235.16 - Annexure A (37.8 KB, pdf)

154259.16 - Annexure A (26.8 KB, pdf)

Amendments

26 September 2016 - 'Date of orders' on judgment cover sheet.

26 September 2016 - Addendum - Final Orders

Decision last updated: 26 September 2016

Citations

Oneten Properties Pty Ltd v Hawkesbury City Council; Jeanette v Hawkesbury City Council [2016] NSWLEC 1405

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