R.I.G Consulting Pty Ltd v Queanbeyan-Palerang Regional Council

[2021] NSWCA 130

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R.I.G. Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2021] NSWCA 130

Hearing dates:

16 June 2021

Date of orders:

1 July 2021

Decision date:

01 July 2021

Before:

Basten JA at [1];
Leeming JA at [10];
Preston CJ of LEC at [24]

Decision:

(1)   The appeal is dismissed.

(2)   The appellant is to pay the respondent’s costs of the appeal.

Catchwords:

ENVIRONMENT AND PLANNING — consent — power to grant – subdivision – provision fixing development standard – minimum size of lots created by subdivision – proposed subdivision non-compliant – whether development standard applied to proposed subdivision – provision that consent not be granted for subdivision of “resulting lot” – proposed subdivision of a resulting lot – whether provision applied to proposed subdivision

Legislation Cited:

Community Land Development Act 1989 (NSW), s 22

Conveyancing Act 1919 (NSW), s 195

Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 1.5, 3.20, 4.2, 4.12, 4.16

Interpretation Act 1987 (NSW), s 33

Land and Environment Court Act 1979 (NSW), s 57(1)

Palerang Local Environmental Plan 2014, cll 2.16, 4.1, 4.1AA, 4.1A, 4.1B

Standard Instrument (Local Environmental Plans) Order 2006

Standard Instrument (Local Environmental Plans) Amendment (Minimum Subdivision Lot Size) Order 2018

Yarrowlumla Local Environmental Plan 2002, cl 20

Cases Cited:

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9

Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35

C&J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905; [1973] 2 All ER 513

DPP v Leys & Leys (2012) 44 VR 1; [2012] VSCA 304

Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149

In re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522

Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 95 ALJR 117

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513; [1997] HCA 38

Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339

Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352

Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd 278

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Sir Thomas Cecil’s Case (1597) 7 Rep 18b; 77 ER 440

Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270

Category:

Principal judgment

Parties:

R.I.G. Consulting Pty Ltd (Appellant)
Queanbeyan-Palerang Regional Council (Respondent)

Representation:

Counsel:
Mr S White SC (Appellant)
Mr J Lazarus SC, Ms J Walker and Mr S J Young (Respondent)

Solicitors:
Hazan Hollander (Appellant)
BAL Lawyers (Respondent)

File Number(s):

2021/55366

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 1

Citation:

[2020] NSWLEC 184

Date of Decision:

23 December 2020

Before:

Pain J

File Number(s):

20/156307

HEADNOTE

[This headnote is not to be read as part of the judgment]

R.I.G. Consulting Pty Ltd (RIG) applied under the Environmental Planning and Assessment Act 1979 (NSW) for development consent to subdivide an existing neighbourhood lot into three lots pursuant to s 22 of the Community Land Development Act 1989 (CLD Act). Queanbeyan-Palerang Regional Council (the Council) refused consent to the subdivision. The Council’s reasons included that cl 4.1B of Palerang Local Environmental Plan 2014 (PLEP) precluded the grant of development consent to the subdivision because, first, the average size of all the lots created by the subdivision would be less than the minimum size shown on the Lot Size Map in relation to the land, contrary to the requirement of cl 4.1B(4)(a) PLEP and, secondly, the existing neighbourhood lot proposed to be subdivided was a “resulting lot”, as defined in cl 4.1B(6) PLEP, which cannot be subdivided for the purposes of residential accommodation by reason of cl 4.1B(5) PLEP.

RIG appealed against the Council’s refusal of consent to the Land and Environment Court. The primary judge determined four separate questions, and subsequently dismissed RIG’s appeal. RIG contended that the primary judge erred in holding that cl 4.1B(4)(a) of PLEP applied to the proposed subdivision so that the grant of development consent to the proposed subdivision was precluded by that subclause, and that the lot proposed to be subdivided was a “resulting lot” within the meaning of cl 4.1B(6) of PLEP so that the grant of development consent was precluded by cl 4.1B(5) of PLEP.

The questions for the Court of Appeal included:

1. whether cl 4.1B(4) of PLEP applied to the proposed subdivision;

2. whether grant of development consent to the proposed subdivision was precluded by cl 4.1B(4) of PLEP;

3. whether the existing neighbourhood lot proposed to be subdivided was a “resulting lot” within the meaning of cl 4.1B(6) of PLEP; and

4. whether the grant of development consent to the proposed subdivision is precluded by cl 4.1B(5) of PLEP.

The Court dismissed the appeal and held:

In relation to (i) and (ii)

1. Clause 4.1B(4) did apply to the subdivision. Because cl 4.1 of the PLEP did not apply to subdivision under the CLD Act, the phrase “despite clause 4.1” in cl 4.1B(4) had no work to do: [9], [20]-[23], [55].

2. Because the clauses were not engaged, the direction after cl 4.1(3) and cl 4.1AA(4) of the Standard Instrument – Principal Local Environmental Plan was not engaged and was not relevant to the interpretation of cl 4.1B(4): [9]-[10], [17]-[19], [23], [64]-[65].

3. If the direction had been engaged, RIG’s argument that cl 4.1B(4) can only ever operate as an exception to a minimum subdivision lot size development standard fixed by either cl 4.1 or cl 4.1AA of PLEP nevertheless failed. An exception was permitted but was not mandatory. The direction was silent as to the form in which an exception may be made. The direction permitted an exception if the development standard applied to a particular kind of subdivision, but not if the development standard does not apply: [9], [10], [65]-[70].

In relation to (iii) and (iv)

1. Clause 4.1B(5) applies to preclude development consent being granted for the proposed subdivision of the existing neighbourhood lot, which is a resulting lot; a “resulting lot” is defined as including a lot created by a subdivision under cl 20 of Yarrowlumla Local Environmental Plan 2002. The lot proposed to be subdivided was so created: [5], [13], [14], [79], [80].

Judgment

1. BASTEN JA: This is a very simple case. It involves a challenge to a refusal of a development application for a three-lot subdivision of land which is itself a lot in a neighbourhood scheme. The land is located in Burra, south of Canberra. On 13 November 2019 the application was rejected by the respondent Council as the consent authority. The appellant then lodged an appeal with the Land and Environment Court.

2. On 23 December 2020, the Court (Pain J) dismissed the appeal: R.I.G Consulting Pty Ltd v Queanbeyan-Palerang Regional Council (No 2) [2020] NSWLEC 184. The application was rejected for two independent reasons, each sufficient in itself. The Council and the Court were correct to conclude that there was no power to grant the consent sought.

3. That conclusion turns on five agreed facts. First, the land was a “neighbourhood lot” created by a subdivision under cl 20 of the Yarrowlumla Local Environmental Plan 2002 (NSW), the planning instrument predating the Palerang Local Environmental Plan 2014 (NSW) which applied to the land at the date of the decision. Secondly, the land was in Zone E4 Environmental Living and was available for use as residential accommodation. Thirdly, the land had an area of 9.862ha and the proposed subdivision involved lots of 6ha, 2.5ha and 1.36ha (with an average lot size of 3.286ha). Fourthly, the minimum lot size for the E4 zone was 6ha. Fifthly, the purpose of the proposed development was for use as residential accommodation.

4. It was also not in dispute that the subdivision constituted development under the Environmental Planning and Assessment Act 1979 (NSW), permitted with consent, and that the respondent had power to grant consent. The exercise of the power was, however, constrained by cl 4.1B of the Palerang Local Environmental Plan, which provided:

4.1B   Lot averaging subdivision of land in Zone E4

(1)   The objective of this clause is to ensure that the subdivision of land to which this clause applies has regard to the topographical constraints, agricultural productivity and biodiversity values of, and environmental impacts on, the land.

(2)   This clause applies to land in Zone E4 Environmental Living.

…

(4) Despite clause 4.1, development consent may be granted for the subdivision of land to which this clause applies, under the Community Land Development Act 1989, if—

(a)   the average size of all the lots created by the subdivision will not be less than the minimum size shown on the Lot Size Map in relation to that land,

….

(5)   Development consent must not be granted for the subdivision of a resulting lot for the purposes of residential accommodation.

(6)   In this clause—

resulting lot means a lot able to be used for residential accommodation, being—

(a)   a lot that was created by a subdivision under this clause (other than for a public purpose), or

(b)   a lot that was created by a subdivision under any of the following provisions (other than a lot the area of which was excluded under the provision from the calculation of the average area of the lots to be created by the subdivision)—

(i) clause 20 of Yarrowlumla Local Environmental Plan 2002,

….

5. The first and second facts set out above engage the definition of a “resulting lot” in cl 4.1B(6). That is, the lot was able to be used for residential accommodation and was created under the clause of the former planning instrument identified in cl 4.1B(6)(b)(i). That, with the fifth fact, engaged the express, unqualified prohibition on granting consent in cl 4.1B(5). That was sufficient to deny the power to grant consent.

6. The third and fourth facts prevented the land satisfying the requirements for a subdivision under s 22 of the Community Land Development Act 1989 (NSW), as then in force. Clause 4.1B(4)(a) required the average size of the lots to be not less than the minimum size shown on the lot size map (6ha). Two of the three proposed lots failed to satisfy that requirement.

7. Although cl 4.1B(4) is expressed permissively, it must be understood as providing the necessary conditions for the exercise of the power to grant consent. That accords with the standard principles of statutory construction, as applied to the Local Environmental Plan, namely that where there is a general power and a specific power, the latter being subject to conditions, the specific power applies, either to the exclusion of the general power, or by way of imposing conditions on the general power. Were it otherwise, the conditions would be ineffective and the clause would serve no relevant purpose. Subject to the conditions, one effect of the clause was to permit flexibility in the size of the proposed lots, so long as the average size would not be less than the minimum lot size required for that land.

8. Limited attention was paid to the relationship between cl 4.1B(4) and cl 4.1B(5). It should, however, be accepted that the provisions operate cumulatively. That is, even if cl 4.1B(4) had been satisfied, if subcl (5) applied, its prohibition would operate to prevent consent being granted to the subdivision. Again, subcl (5) is a more specific provision than subcl (4), as the former applies only to land which has already been subdivided pursuant to specific powers. Further, no submissions were made in this Court as to the operation of s 22(5) of the Community Land Development Act, which, relevantly precludes subdivision of a neighbourhood lot except pursuant to a neighbourhood plan of subdivision. It is not necessary to consider whether that imposed its own constraint on the proposed subdivision.

9. It is clear that the provisions of cl 4.1B(4) and (5) of the Palerang Local Environmental Plan prevented consent to the appellant’s development application. A more complete explanation is provided by Preston CJ of LEC. I agree with his reasons, and the further reasons of Leeming JA. The orders proposed by the Chief Judge should be made.

10. LEEMING JA: I agree with the orders proposed by Preston CJ of LEC and with his Honour’s reasons. I add the following by way of emphasis, rather than qualification.

The grounds based on cl 4.1B(5)

11. Lot 4 was created by subdivision pursuant to cl 20 of the Yarrowlumla Local Environmental Plan 2002. Subclause 20(3) prohibited granting consent to any further subdivision of that land. The Yarrowlumla LEP was superseded by the Palerang Local Environmental Plan 2014 (PLEP) in its application to Lot 4: see cl 1.8(1). However, cl 4.1B(5) of the PLEP imposed the same prohibition upon further subdivision of lots which had been created by subdivision pursuant to cl 20 of the Yarrowlumla LEP (as well as replicating the same prohibition which had existed under other superseded local environmental plans). The evident purpose was to preserve the prohibition. Further, the zoning objectives extend to providing for low-impact residential development in areas with special ecological or aesthetic values, which does not have an adverse effect on those values, and which is visually compatible with the landscape and minimises the impact on the natural environment. Those objectives support the presence of a special regime prohibiting further subdivision.

12. On the appellant’s construction, this prohibition which had been preserved in the PLEP after the earlier local environmental plans had been superseded ceased to operate in 2018, following changes to other clauses in the Standard Instrument – Principal Local Environmental Plan (the details of the changes are contained in the Annexure to the judgment of Preston CJ of LEC). Acceptance of the appellant’s submission would therefore mean that the prohibition against further subdivision which applied at the time Lot 4 was created, and which continued to apply when the PLEP commenced, somehow ceased to apply in 2018 by reason of changes to other clauses in the Standard Instrument – Principal Local Environmental Plan, because of the happenstance that Lot 4 was land under the Community Land Development Act 1989 (NSW). It was not contended that there was any other purpose supporting the construction propounded by the appellant.

13. Ordinarily, legal meaning corresponds with grammatical meaning. “But not always”: there are cases where ostensibly unambiguous legislative language does not bear its prima facie meaning, once regard is had to purpose or context or other provisions in the instrument or consequences: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]. The present is far removed from any such case, for these reasons.

1. There is no real constructional choice in the meaning of “[d]evelopment consent must not be granted for the subdivision of a resulting lot for the purposes of residential accommodation” in cl 4.1B(5), and the appellant did not contend that there were competing available constructions, maintaining instead that the clause simply had no operation.

2. The appellant pointed to nothing in the context or purpose directed to the removal of an express prohibition on further subdivision, let alone something sufficiently cogent to warrant departure from the ordinary meaning of the words in cl 4.1B(5).

3. The construction advanced by the appellant meant that the constraint against further subdivision which at all times ex facie applied somehow ceased to apply, and there is not a skerrick of a suggestion that that was a purpose of the amendment to other clauses in the Standard Instrument – Principal Local Environmental Plan. To the contrary, it is inconsistent with the expressly enunciated objectives of the zone.

4. The appellant’s construction has the consequence that there is no constraint upon the power to consent to subdivision of land under the Community Land Development Act which is zoned E4. The unlikelihood of that consequence is heightened by the fact that elaborate and nuanced provision has been made in the PLEP, and in particular in cl 4.1B(5), to control subdivision.

14. Lot 4 continues to be subject to a prohibition upon further subdivision, just as it has always been. Clause 4.1B(5) means what it says. That suffices to resolve this appeal.

The grounds based on cl 4.1B(4)

15. The main question argued on appeal is slightly more complex. It concerned the separate constraint standing in the way of consent being granted to the appellant’s development application, namely, cl 4.1B(4). Once again, the appellant’s submission was that cl 4.1B(4) had no work whatsoever to do in relation to land under the Community Land Development Act. That is an unlikely construction, especially since the constraint is specific to land zoned E4 that is sought to be subdivided under the Community Land Development Act, and further because the plan included special provision in cl 4.1B(4)(b) and (c) concerning the possibility of a new lot created by the subdivision being as small as 1ha, and the requirement that association property include land “identified as having significant ecological, agricultural or cultural values”. Those specific, detailed provisions contrast with the different provisions in cl 4.1A applicable to differently zoned land, and the blunt prohibition applicable to differently zoned land under the Community Land Development Act in cl 4.1AA.

16. If there were overlap, this would be on its face a clear case for the application of the principle of construction in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9. In Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 95 ALJR 117 at [54] the joint judgment referred to “the well-settled principle of construction that ‘when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power’.” The same approach is capable of application wherever there is overlap between a general and a specific provision. In Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 at [19], Spigelman CJ referred to an “underlying principle” that a detailed regime for regulating a particular matter is intended to operate in accordance with its complete terms, and continued:

“Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.”

Such an approach accords with the purposive approach to interpretation mandated by s 33 of the Interpretation Act 1987 (NSW), to which reference was made in Ombudsman v Laughton at [25] and [40].

17. But there is no occasion to invoke that principle, because neither cl 4.1 nor cl 4.1AA applies to Lot 4. There is no overlap with cl 4.1 because cl 4.1 does not apply to subdivisions under the Community Land Development Act, and there is no overlap with cl 4.1AA because cl 4.1AA only applies to five land zonings which do not include zone E4. The PLEP thus treats land zoned E4 separately from, and, indeed, more flexibly and potentially favourably to a developer such as the appellant, in a separate clause. (It is potentially more favourable because the land averaging provisions permit some subdivisions which would have been forbidden under the strictures relating to minimum subdivision lot size in cl 4.1 and cl 4.1AA had those clauses applied.)

17. The insuperable difficulty faced by the appellant in seeking to rely upon the mandatory character of cl 4.1 and cl 4.1AA to denude cl 4.1B of all operation upon Lot 4 is that neither of those clauses purports to apply to zone E4, and there can be no sound basis to conclude that cl 4.1 and cl 4.1AA constitute a code thereby disapplying the operation of cl 4.1B in respect of land to which neither applies. That is to say, cll 4.1 and 4.1AA do not by some form of implication create an immunity from subdivision development controls upon land which is not governed by the minimum subdivision lot size restriction in those clauses.

18. Similar considerations based on the unlikelihood of the consequence and the absence of support from context or purpose as have been mentioned above in connection with the appellant’s submission based on cl 4.1B(5) also attend its submission based on cl 4.1B(4).

19. Unnecessary complexity is introduced by the words “[d]espite clause 4.1”, which have been inserted, perhaps without careful thought, in cl 4.1AA(4), cl 4.1A(3), cl 4.1B(3) and (4). Where those words appear in cl 4.1A and cl 4.1B, they appear to be copied from the form that appears in cl 4.1AA, and fail to have regard to the fact that cl 4.1 and cl 4.1AA impose separate non-overlapping restrictions on the power to grant consent. The prohibition in cl 4.1 – which expressly does not extend to land under the Community Land Development Act – is the only prohibition which is subordinated by the introductory words “this clause applies despite clause 4.1”, and no clause in the PLEP is introduced by the words “this clause applies despite clause 4.1AA”, even in cases where cl 4.1AA is the only applicable restriction and it is clear that cl 4.1 cannot apply. In particular, it is difficult to see the force of the words “[d]espite clause 4.1” introducing cl 4.1B(4), because the latter clause has application only to land under the Community Land Development Act, and therefore which is regulated (with respect to specific zonings) by cl 4.1AA, not cl 4.1.

20. A related difficulty, and one which transcends the PLEP, is the presence of cl 4.1AA(4). That was inserted by specific amendment of the Standard Instrument (Local Environmental Plans) Amendment (Minimum Subdivision Lot Size) Order 2018 with effect from 20 April 2018, simultaneously with the changes on which the appellant’s submissions are based, in accordance with s 3.20(4) of the Environmental Planning and Assessment Act 1979 (NSW). The Council submitted that cl 4.1AA(4) was to be understood as meaning “in spite of the lack of restriction in cl 4.1”. But that does not in substance address the issue, which is that in a scheme where land cannot be subject to both cl 4.1 and cl 4.1AA, there is no occasion for the words “this clause applies despite clause 4.1”.

21. “Despite” is a word used in more modern legislation where once “notwithstanding” might have been used: Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 at [33]; Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [28]. Its purpose is to ensure that the operation of one clause is unaffected by some other clause. The presence of the words “despite clause 4.1” does not imply that there is any conflict between two clauses which requires resolution. The words merely make it clear which clause prevails and which clause is subordinate in the event that there be a conflict. As Preston CJ of LEC points out, that is the orthodox approach to hierarchical words such as “despite” or “notwithstanding”; see for example Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 at 358-359; Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd 278 at 281, 283, 287 and DPP v Leys & Leys (2012) 44 VR 1; [2012] VSCA 304 at [157], all three appellate courts citing In re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 at 533. As Cussen J there demonstrated, by reference to Sir Thomas Cecil’s Case (1597) 7 Rep 18b; 77 ER 440, this mode of drafting is ancient.

22. However, as the submissions which have been advanced by the appellant to the Council, to the Land and Environment Court and again to this Court indicate, developers or those acting for them have a demonstrated capacity to advance constructions which have at best a tenuous link with the text or purpose of a planning instrument. It may be (as the Council suggested) that cl 4.1AA(4) was introduced by amendment in 2018 in order to address some submission that because land was not affected by the restrictions in cl 4.1, the restriction in cl 4.1AA did not apply. That would mean that the words would engage with any possible implication from the exclusion effected by cl 4.1(4). This Court was not taken to any material to suggest that that was the case, nor does anything turn upon the opaque purpose of the 2018 amendment. The critical consideration is that the words “Despite clause 4.1” cannot sustain a submission which denies operation to the self-same clause whose priority in the event of conflict is confirmed by those words.

23. PRESTON CJ OF LEC:

The nature of the appeal and outcome

R.I.G. Consulting Pty Ltd (RIG) applied under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to subdivide an existing neighbourhood lot, Lot 4 in Neighbourhood Plan DP 285984, into three lots pursuant to s 22 of the Community Land Development Act 1989 (NSW) (CLD Act). Queanbeyan-Palerang Regional Council (the Council) refused consent to the subdivision. The Council’s reasons included that cl 4.1B of Palerang Local Environmental Plan 2014 (PLEP) precluded the grant of development consent to the subdivision because, first, the average size of all the lots created by the subdivision (3.286ha) would be less than the minimum size shown on the Lot Size Map in relation to the land (6ha), contrary to the requirement of cl 4.1B(4)(a) and, secondly, the existing neighbourhood lot proposed to be subdivided is a resulting lot, as defined in cl 4.1B(6), which cannot be subdivided for the purposes of residential accommodation by reason of cl 4.1B(5).

25. RIG appealed against the Council’s refusal of consent to the Land and Environment Court under s 8.7(1) of the EPA Act. The Court ordered that four questions be determined separately from any other questions in the proceedings. The first and second questions concern the application of cl 4.1B(4)(a) of PLEP to the proposed subdivision while the third and fourth questions concern the application of cl 4.1B(5) to the proposed subdivision.

26. The four separate questions were determined by Pain J. In her judgment delivered on 23 December 2020, in R.I.G Consulting Pty Ltd v Queanbeyan-Palerang Regional Council (No 2) [2020] NSWLEC 184, the primary judge answered the questions as follows:

1. Clause 4.1B(4)(a) applies to the subdivision: at [32];

2. As the average lot sizes are not met, the grant of development consent for the subdivision is precluded by cl 4.1B(4): at [45];

3. The existing neighbourhood lot proposed to be subdivided is a resulting lot as defined in cl 4.1B(6): at [69]; and

4. Development consent may not be granted for the proposed subdivision in accordance with cl 4.1B(5) of PLEP: at [74].

27. Subsequently, on 5 February 2021, the primary judge dismissed RIG’s appeal, because the Court would have no power to grant development consent to the proposed subdivision.

28. RIG appealed under s 57(1) of the Land and Environment Court Act 1979 (NSW) to this Court against the decision and orders of the primary judge. The five grounds of appeal echo the primary judge’s reasons on the four separate questions and the subsequent dismissal of the appeal. RIG contends that the primary judge erred in holding that: cl 4.1B(4)(a) of PLEP applies to the proposed subdivision (ground 1), so that the grant of development consent to the proposed subdivision is precluded by that subclause (ground 2); the existing neighbourhood lot proposed to be subdivided is a “resulting lot” within the meaning of cl 4.1B(6) of PLEP (ground 3), so that the grant of development consent to the proposed subdivision is precluded by cl 4.1B(5) of PLEP (ground 4); and consequently, RIG’s appeal must be dismissed (ground 5).

29. I find that RIG has not established that the primary judge erred in her construction of cl 4.1B(4) and (5) of PLEP or in her answers to the separate questions. The appeal to this Court should be dismissed with costs.

30. Instead of first setting out the competing constructions contended for by RIG and the Council, I will proceed directly to explain the proper construction of cl 4.1B(4) and (5) of PLEP. In so doing, I will identify how RIG seeks to avoid this construction and explain my reasons for rejecting RIG’s arguments.

The proper construction of cl 4.1B(4) of PLEP

31. Subdivision of land is “development” for the purposes of the EPA Act: s 1.5(1)(b) of the EPA Act. “Subdivision of land” is defined in s 6.2(1) of the EPA Act to mean:

“the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected:

(a)   by conveyance, transfer or partition, or

(b)   by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.”

32. Subsection 6.2(2) of the EPA Act elaborates on the ways in which subdivision of land may be effected:

“Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of—

(a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or

(b)   a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes Development Act 2015.”

33. A plan of subdivision within the meaning of s 195 of the Conveyancing Act 1919 includes a plan that shows “(a) the division of an existing lot into two or more lots” (s 195(1)(a)) and a reference to a plan includes a reference to “(b) a neighbourhood plan, a neighbourhood plan of consolidation or a neighbourhood plan of subdivision…within the meaning of the Community Land Development Act 1989...” (s 195(2)(b)).

34. RIG proposes to effect its proposed subdivision of the land by the registration of a neighbourhood plan of subdivision as a deposited plan under s 22(1) of the CLD Act.

35. An environmental planning instrument, made under the EPA Act, may provide that specified development may not be carried out except with development consent: s 4.2(1) of the EPA Act. The applicable environmental planning instrument in this case, PLEP, provides that the specified development of the subdivision of land may be carried out, but only with development consent: cl 2.6(1) of PLEP.

36. Development consent may be obtained by the making of a determination by a consent authority to grant consent: s 4.2(2)(a) of the EPA Act. A person may apply to a consent authority for consent to carry out development: s 4.12(1) of the EPA Act. A consent authority may determine a development application by granting consent, either unconditionally or subject to conditions, or refusing consent to the application: s 4.16(1) of the EPA Act.

37. An environmental planning instrument may fix development standards in relation to the carrying out of development. “Development standards” are defined in s 1.4 of the EPA Act to mean:

“provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a)   the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point…”.

38. Part 4 of PLEP fixes development standards for, amongst other development, different kinds of subdivision of land. Four provisions are relevant, cl 4.1, cl 4.1AA, cl 4.1A and cl 4.1B. The annexure to the judgment sets out the current form of the provisions as well as how the provisions were amended in 2018. The discussion in the text of the judgment deals with the current provisions.

39. Clause 4.1 of PLEP applies to a subdivision of land shown on the Lot Size Map that requires development consent (cl 4.1(2)) and fixes the minimum subdivision lot size for the subdivision of the land (cl 4.1(3)), other than subdivision of land by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015 (NSW) or by any kind of subdivision under the CLD Act (cl 4.1(4)). The development standard is fixed by cl 4.1(3) in the following terms:

“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.”

40. The land that RIG proposed to subdivide is shown on the Lot Size Map. The minimum size shown on the Lot Size Map in relation to that land is 6ha. However, as RIG’s proposed subdivision is under s 22 of the CLD Act, cl 4.1 of PLEP does not apply to this subdivision of the land (cl 4.1(4)(b)).

41. Clause 4.1AA fixes the minimum subdivision lot size for a subdivision under the CLD Act of land (cl 4.1AA(3)) in five specified zones, being zones RU1 Primary Production, RU5 Village, RU2 Low Density Residential, R5 Large Lot Residential and E3 Environmental Management (cl 4.1AA(2)). The development standard is fixed by cl 4.1AA(3) in the following terms:

“The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 1989) is not to be less than the minimum size shown on the Lot Size Map in relation to that land.”

42. As Zone E4 is not one of the zones identified in cl 4.1AA(2), cl 4.1AA does not apply to subdivision under the CLD Act of land in Zone E4. RIG’s proposed subdivision, although under the CLD Act, is of land in Zone E4. Accordingly, cl 4.1AA does not apply to RIG’s proposed subdivision.

43. Clause 4.1A provides for flexibility in applying the minimum subdivision lot size development standard by allowing for lot averaging in the subdivision of certain land in Zone RU1 and Zone E3. Clause 4.1A does not apply to RIG’s subdivision as the land to be subdivided is not in Zone RU1 or Zone E3.

44. Clause 4.1A of PLEP nevertheless serves as an illustration of what RIG contends ought to have occurred in regulating subdivision under the CLD Act of land in Zone E4. RIG contends that provisions such as cl 4.1A and cl 4.1B can only operate as an exception to the minimum subdivision lot size development standard fixed by cl 4.1 (subdivision of land other than under the CLD Act) or cl 4.1AA (subdivision of land under the CLD Act) for subdivision of land in Zone RU1 or Zone E3. Clause 4.1A operates as an exception by allowing averaging of the sizes of lots created by a subdivision. This flexibility is provided by cl 4.1A(3):

“Despite clause 4.1, development consent may be granted to subdivide land to which this clause applies if—

(a)   the average size of all of the lots created by the subdivision will not be less than the minimum size shown on the Lot Size Map in relation to that land, and

(b)   each lot created by the subdivision will be at least 8 hectares, and

(c)   the total number of lots created by the subdivision having an area less than the minimum size shown on the Lot Size Map in relation to that land will not be more than 5.”

45. RIG contends that this provision is an exception to the development standard fixed by cl 4.1(3) and cl 4.1AA(3), as allowed for by the direction in the note after cl 4.1(3) and cl 4.1AA(4) in the Standard Instrument – Principal Local Environmental Plan. Both cl 4.1 and cl 4.1AA are identified as “optional” provisions that may be adopted in a local environmental plan, but if adopted, they must be adopted without variation: cl 4(1) and (2) of Standard Instrument (Local Environmental Plans) Order 2006.

46. RIG submits that cl 4.1A and cl 4.1B of PLEP are additional provisions that may be included in a local environmental plan, but only if they are not inconsistent with the mandatory provisions of the standard instrument and comply with any relevant directions to that instrument: cl 5(1) of Standard Instrument (Local Environmental Plans) Order 2006. Clause 4.1A satisfies these two requirements: it is not inconsistent with any mandatory provision (such as cl 2.6) and complies with the direction noted after cl 4.1(3) and cl 4.1AA(4) that: “An exception to the minimum size shown on the Lot Size Map may be provided in certain circumstances, for example, in the case of land that is to be used for attached dwellings”.

47. RIG submits that this structure of one clause of a local environmental plan fixing the development standard (s 4.1 or s 4.1AA of PLEP) and another clause operating as an exception to that development standard (s 4.1A of PLEP) is the mechanism permitted by the Standard Instrument (Local Environmental Plans) Order 2006, the Standard Instrument – Principal Local Environmental Plan and s 3.20 of the EPA Act. I will return to this structural argument of RIG shortly when I deal with RIG’s construction of cl 4.1B(4).

48. Clause 4.1B applies to subdivision of land in Zone E4 (cl 4.1B(2)). The clause deals separately with the subdivision of land in Zone E4 other than under the CLD Act (cl 4.1B(3)) and the subdivision of land under the CLD Act (cl 4.1B(4)). Both provisions allow flexibility by enabling lot averaging in the subdivision of the land. The mechanism by which lot averaging is allowed, however, differs between the provisions.

49. Clause 4.1B(3) applies to subdivision of land in Zone E4 other than under the CLD Act. The subclause provides:

“Despite clause 4.1, development consent may be granted to subdivide land to which this clause applies, other than under the Community Land Development Act 1989, if—

(a)   the average size of all the lots created by the subdivision will not be less than the minimum size shown on the Lot Size Map in relation to that land, and

(b)   none of the lots created by the subdivision will be less than 2 hectares.”

50. The minimum subdivision lot size for subdivision of land to which cl 4.1 applies is fixed by cl 4.1(3), which I have quoted earlier. Clause 4.1B(3) nevertheless allows for the size of any lot resulting from a subdivision of land to be less than the minimum size shown on the Lot Size Map if the requirements specified in cl 4.1B(3)(a) and (b) are satisfied. This operation of cl 4.1B(3) explains the opening words of the subclause, “Despite clause 4.1”.

51. Subclause 4.1B(4) applies to subdivision of land in Zone E4 under the CLD Act. The subclause provides:

“Despite clause 4.1, development consent may be granted for the subdivision of land to which this clause applies, under the Community Land Development Act 1989, if—

(a)   the average size of all the lots created by the subdivision will not be less than the minimum size shown on the Lot Size Map in relation to that land, and

(b)   none of the lots created by the subdivision will be less than 1 hectare, and

(c)   the lot comprising the association property (within the meaning of that Act) will include land identified as having significant ecological, agricultural or cultural values.”

52. For subdivision of land under the CLD Act in Zone E4, neither cl 4.1 nor cl 4.1AA fixes a minimum subdivision lot size as neither clause applies to subdivision under the CLD Act of land in Zone E4. Nevertheless, the requirements specified in paragraphs (a) and (b) of cl 4.1B(4) operate to fix a development standard in respect of the area of the lots created by the subdivision. Paragraph (a) does this by requiring that the average size of all the lots created by the subdivision not be less than the minimum size shown on the Lot Size Map in relation to the land, while paragraph (b) does this by requiring that none of the lots created by the subdivision be less than 2ha.

52. Both of these requirements are different to the development standard fixed by cl 4.1(3) or cl 4.1AA(3). The development standard fixed by cl 4.1(3) or cl 4.1AA(3) requires the size of any lot resulting from a subdivision of land not to be less than the minimum size shown on the Lot Size Map in relation to that land. The development standards fixed by cl 4.1B(4) instead require, first, “the average size” of all lots created by the subdivision not to be less than the minimum size shown on the Lot Size Map in relation to that land and, secondly, none of the lots created by the subdivision to be less than 2ha (which may be a different size to the minimum size shown on the Lot Size Map in relation to the land).

53. In this way, cl 4.1B(4) operates differently to how cl 4.1B(3) operates. As I have earlier noted, cl 4.1B(3) operates to allow consent to be granted to subdivision of land that does not satisfy the minimum subdivision lot size development standard in cl 4.1(3) provided that the requirements of cl 4.1B(3) are satisfied, that is to say, to operate “despite clause 4.1”.

54. Clause 4.1B(4), however, does not operate “despite cl 4.1”, notwithstanding the opening words, for the simple reason that cl 4.1 does not apply to subdivision of land under the CLD Act, being the kind of subdivision to which cl 4.1B(4) applies. There is no clash between cl 4.1 and cl 4.1B(4) that the phrase “despite clause 4.1” can operate to resolve. As Megarry J pointed out in C&J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 at 911; [1973] 2 All ER 513 at 520, “[w]here there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail”: see also Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 580; [1997] HCA 38.

55. The Council did suggest one sense in which the phrase “despite clause 4.1” might have work to do, notwithstanding that cl 4.1 does not apply to a subdivision under the CLD Act. The Council suggested that cl 4.1B(4) operates to impose a development standard restricting the lot size of subdivisions under the CLD Act in spite of the fact that such subdivisions are exempt from the minimum subdivision lot size development standard in cl 4.1. The Council submits that in this sense cl 4.1B(4) provides the only way in which a subdivision under the CLD Act may be carried out.

56. I do not agree that cl 4.1B(4) is the only way in which development consent may be granted under the EPA Act to a subdivision under the CLD Act of land in Zone E4. Clause 2.6 of PLEP and s 4.2 of the EPA Act require development consent for the carrying out of subdivision. Section 4.12(1) of the EPA Act enables a person to apply for development consent for subdivision. Section 4.16(1) of the EPA Act is the power to determine the development application for subdivision, including by granting consent. What cl 4.1B does do, however, is to condition the exercise of the power to grant consent for the subdivision under the CLD Act of land in Zone E4. Development consent can only be granted for such subdivision of land if all of the requirements in paragraphs (a), (b) and (c) of cl 4.1B(4) are satisfied.

57. Although cl 4.1B(4) is phrased in permissive terms, “development consent may be granted”, rather than prohibitory terms, “development consent must not be granted unless…”, the operation of the subclause is to the same effect. To say that development consent may be granted if specified requirements are satisfied is the same as saying that development consent must not be granted if specified requirements are not specified. Either way, the power to grant development consent is made conditional on the satisfaction of the requirements, or the non-satisfaction of the requirements, depending on the way in which the condition is expressed: see Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 at [93].

58. RIG’s proposed subdivision will not satisfy the requirement in paragraph (a) of cl 4.1B(4), as the average size of all lots created by the subdivision of the land (3.286ha) would be less than the minimum size shown in the Lot Size Map in relation to the land (6ha). Accordingly, cl 4.1B(4) operates to preclude development consent being granted to the subdivision of the land.

59. RIG seeks to avoid this conclusion by arguing that cl 4.1B(4) does not apply to its subdivision under the CLD Act of land in Zone E4. RIG’s primary argument is that cl 4.1B(4) can only ever operate as an exception to a minimum subdivision lot size development standard fixed by either cl 4.1 or cl 4.1AA of PLEP. Clauses 4.1 and 4.1AA are optional provisions that may be adopted in a local environmental plan, but if they are adopted, they must be adopted without variation. Clauses 4.1 and 4.1AA of PLEP have been adopted without variation. Clause 4.1B is an additional provision that may be included in a local environmental plan, but if so, it is required not to be inconsistent with the mandatory provisions of the standard instrument and to comply with any relevant directions in that instrument: cl 5(1) of the Standard Instrument (Local Environmental Plans) Order 2006.

60. RIG accepted that cl 4.1B(4) was not inconsistent with any mandatory provision of the standard instrument (such as cl 2.6) but argued that cl 4.1B(4) did not comply with the direction noted in the standard instrument after cl 4.1(3) and cl 4.1AA(4). That direction allows for the provision of an exception to the minimum size shown on the Lot Size Map in certain circumstances. RIG argues that such exception to the minimum size shown on the Lot Size Map is provided in cl 4.1A for subdivision of land in Zone RU1 and Zone E3 and in cl 4.1B(3) for subdivision of land in Zone E4 other than under the CLD Act, but is not provided in cl 4.1B(4) for subdivision of land in Zone E4 under the CLD Act.

61. The reason, RIG contends, is that for the first two kinds of subdivision, cl 4.1 or cl 4.1AA fixes the minimum subdivision lot size development standard, while cl 4.1A or cl 4.1B(3) provide the exception to that development standard. For the subdivision under the CLD Act of land in Zone E4, however, neither cl 4.1 nor cl 4.1AA fixes a minimum subdivision lot size development standard, so that cl 4.1B(4) cannot provide an exception to such a development standard. The consequence, RIG argues, of cl 4.1B(4) not operating in the only way that the direction and the Standard Instrument (Local Environmental Plans) Order 2006 permit the subclause to operate, as an exception to the development standard fixed by cl 4.1 or cl 4.1AA, is that cl 4.1B(4) has no application to RIG’s subdivision of land in Zone E4 under the CLD Act.

62. RIG argues that this conclusion is reinforced by the permissive language in which cl 4.1B(4) is couched, “development consent may be granted”. This reveals the operation of cl 4.1B(4) as an exception to the minimum subdivision lot size development standard in cl 4.1(3) or cl 4.1AA(3). That is, insofar as cl 4.1(3) or cl 4.1AA(3) apply to prevent a proposed subdivision, cl 4.1B(4) may allow that subdivision if it meets the lot size requirements in average across the entire subdivision. This manifests an intention that cl 4.1B(4) operate permissively.

63. I reject RIG’s argument for six reasons. First, RIG’s structural argument is founded on the direction noted in the standard instrument after cl 4.1(3) and cl 4.1AA(4). Neither of those clauses, which were adopted in PLEP, apply to the proposed subdivision under the CLD Act of land in Zone E4, with the consequence that the direction also does not apply. The foundation of RIG’s argument is flawed.

64. Secondly, assuming the direction could be seen to be of some relevance to interpreting cl 4.1B(4), the direction noted in the standard instrument after cl 4.1(3) and cl 4.1AA(4) – “An exception to the minimum size shown on the Lot Size Map may be provided in certain circumstances” – is permissive but not mandatory. An exception to the minimum subdivision lot size development standard in cl 4.1(3) and cl 4.1AA(3) is permitted to be made but it is not mandatory to make such an exception. There is no legal consequence, therefore, if cl 4.1B(4) does not operate as an exception to a minimum subdivision lot size development standard in cl 4.1(3) or cl 4.1B(4).

65. Thirdly, again assuming it can be relevant, the direction is silent as to the form in which any exception may be provided. It is not mandatory that any development standard in respect of the size of lots created by the subdivision be included in one clause of a local environmental plan and an exception be provided in another clause. Again, there is no legal consequence if both a development standard in respect of the size of lots created by a subdivision and an exception allowing the subdivision despite it not satisfying the standard if certain requirements are met, are included in the one clause.

66. Fourthly, again assuming it can be relevant, the direction permits an exception to the development standard fixing a minimum subdivision lot size in cl 4.1(3) or cl 4.1AA(4) to be provided, if the development standard applies to a particular kind of subdivision, but not if the development standard does not apply. A direction permitting an exception to be provided does not mandate fixing a minimum subdivision lot size development standard in order to be able to provide for an exception to that development standard. There is no legal consequence, therefore, in PLEP not applying the minimum subdivision lot size development standard in cl 4.1(3) or cl 4.1AA(3) to a subdivision under the CLD Act of land in Zone E4, but including a development standard in respect of the size of lots created by such a subdivision in cl 4.1B(4).

67. Fifthly, although RIG disavowed any challenge to the validity of cl 4.1B(4), its argument as to why cl 4.1B(4) could not be applicable was tantamount to such a challenge to the validity of cl 4.1B(4), which is not available in RIG’s merit appeal against the decision of the Council to refuse consent to its proposed subdivision. Subclause 4.1B(4) of PLEP is valid unless and until set aside by a court of competent jurisdiction in proceedings directly reviewing the validity of the subclause. It is, therefore, not to the point that the provisions of PLEP dealing with the size of lots created by a subdivision under the CLD Act of land in Zone E4 might have been dealt with differently, or even should have been dealt with differently having regard to the Standard Instrument (Local Environmental Plans) Order 2006, as the provisions of PLEP as made are valid until set aside and must be construed in their terms. The terms of cl 4.1 and cl 4.1AA are clear in not applying to a subdivision under the CLD Act of land in Zone E4 and the terms of cl 4.1B(4) are clear in fixing development standards for such subdivision under the CLD Act of land in Zone E4. There is no warrant for construing the terms of these provisions differently because the provisions could have been drafted in different terms.

68. Sixthly, notwithstanding RIG’s invocation of the mantra that it could not have been the drafter’s intention that cl 4.1B(4) would operate to preclude development consent being granted to a subdivision under the CLD Act of land in Zone E4 that did not satisfy the requirements of paragraphs (a), (b) and (c) of the subclause, that operation of the subclause is not only the natural and ordinary consequence of a plain reading of the text of cl 4.1B(4) but also accords with the context and purpose of cl 4.1B, cl 4.1 and cl 4.1AA, and of the objectives of Zone E4. There is nothing absurd or irrational with construing cl 4.1B(4) as having that operation.

69. The drafter of PLEP has made specific provision for regulating the subdivision of land in Zone E4. The objectives of Zone E4, specified in the Land Use Table at the end of Part 2 of PLEP, reveal a concern for the special ecological, scientific and aesthetic values of land in Zone E4 and the need to ensure that development, including residential development enabled by the subdivision of land, does not have an adverse effect on these values. PLEP deals specifically with subdivision of land in Zone E4 by adopting an additional provision dealing with the subdivision of land in Zone E4, being cl 4.1B. That clause has its own objective “to ensure that the subdivision of land to which this clause applies has regard to the topographical constraints, agricultural productivity and biodiversity values of, and environmental impacts on, the land.” (cl 4.1B(1)). The clause deals separately and specifically with the different kinds of subdivision of land in Zone E4, subdivision of land other than under the CLD Act being dealt with in cl 4.1B(3) and subdivision of land under the CLD Act being dealt with in cl 4.1B(4). One of the development standards for subdivision of land under the CLD Act required by cl 4.1B(4)(c) is that the lot comprising the association property “will include land identified as having significant ecological, agricultural or cultural values”. This careful scheme regulating subdivision of land in Zone E4 reveals the very purpose that RIG says cannot have been the legislative purpose, namely, to preclude the grant of development consent for the subdivision of land in Zone E4 under the CLD Act if the subdivision does not satisfy the requirements specified in cl 4.1B(4).

70. For these reasons, I reject RIG’s construction of cl 4.1B(4) of PLEP and its argument that cl 4.1B(4) does not apply to its proposed subdivision.

Proper construction of cl 4.1B(5)

72. RIG’s second challenge was to the primary judge’s construction of cl 4.1B(5) of PLEP. That subclause provides:

“Development consent must not be granted for the subdivision of a resulting lot for the purposes of residential accommodation.”

73. The term “resulting lot” used in cl 4.1B(5) is defined in cl 4.1B(6). The definition, so far as is relevant, provides:

“In this clause—

resulting lot means a lot able to be used for residential accommodation, being—

(a)   a lot that was created by a subdivision under this clause (other than for a public purpose), or

(b)   a lot that was created by a subdivision under any of the following provisions (other than a lot the area of which was excluded under the provision from the calculation of the average area of the lots to be created by the subdivision)—

(i) clause 20 of Yarrowlumla Local Environmental Plan 2002,

(ii) clause 13 (4) or 13A of Yarrowlumla Local Environmental Plan 1993,

(iii) clause 14 (4) of Yarrowlumla Local Environmental Plan 1986,

(iv)   clause 11B (3) or 11C of Interim Development Order No 1—Shire of Yarrowlumla,

(v) clause 16 (3) of Tallaganda Local Environmental Plan 1991,…”.

74. In this case, it is an agreed fact that the existing neighbourhood lot that RIG proposes to subdivide, being Lot 4 in Neighbourhood Plan DP285984, was created by a subdivision under cl 20 of Yarrowlumla Local Environmental Plan 2002 (YLEP). Clause 20 of YLEP allowed lot averaging of a subdivision of land in similar terms to what is allowed by cl 4.1B of PLEP. It is also an agreed fact that the existing neighbourhood lot to be subdivided was a lot able to be used for residential accommodation. On these agreed facts, this existing neighbourhood lot is a resulting lot within the meaning of cl 4.1B(6) of PLEP.

75. In this circumstance, it is plain that cl 4.1B(5) applies to preclude development consent being granted for the proposed subdivision of the existing neighbourhood lot, being a resulting lot, for the purposes of residential accommodation.

76. RIG seeks to avoid this conclusion by again arguing that cl 4.1B(5) of PLEP does not apply to its proposed subdivision. The reason RIG advances is similar to that it advanced for cl 4.1B(4) not applying to its subdivision. RIG submits that cl 4.1B(5) can only apply if cl 4.1B(3) or (4) applies. Clause 4.1B(3) and (4) can only operate as an exception to the minimum subdivision lot size development standard fixed by cl 4.1 or cl 4.1AA. The purpose of the subclauses is to allow development consent to be granted to subdivisions that would otherwise be prohibited because the minimum subdivision lot size development standard fixed by cl 4.1 or cl 4.1AA is not met, provided that the requirements of the subclauses are satisfied. Clause 4.1B(5) operates to limit the exception provided by cl 4.1B(3) and (4), of allowing averaging of the sizes of lots created by the subdivision, being used twice.

77. RIG submits, therefore, that this operation of cl 4.1B(5), of preventing cl 4.1B(3) and (4) applying twice, depends on cl 4.1B(3) and (4) applying to a subdivision of land in the first place. For RIG’s proposed subdivision, cl 4.1B(4) does not apply, for the reasons RIG has earlier advanced, with the consequence that cl 4.1B(5) also cannot apply. RIG submits that cl 4.1B(5) cannot be construed as operating as an independent prohibition.

78. I reject RIG’s construction of cl 4.1B(5) for two main reasons. First, RIG’s construction finds no support in the text of cl 4.1B(5). The subclause is clear: development consent must not be granted for the subdivision of a resulting lot. A resulting lot is a defined term, which includes not only a lot created by a subdivision under cl 4.1B but also a lot created by a subdivision under provisions of former environmental planning instruments, including cl 20 of YLEP. This makes plain that cl 4.1B(5) operates not only where a lot is created by a subdivision under cl 4.1B but also by other subdivisions, thereby undermining RIG’s argument of dependency of cl 4.1B(5) on a subdivision under cl 4.1B(3) or (4).

79. Secondly, RIG’s argument is dependent on RIG’s construction of cl 4.1B(4), which I have earlier rejected as being erroneous.

80. For these reasons, I reject RIG’s construction of cl 4.1B(5) of PLEP.

Conclusion and orders

81. RIG has not established that the primary judge erred in answering the four separate questions and determining RIG’s appeal. RIG’s appeal to this Court should be dismissed with costs.

82. I propose that the Court should order:

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

**********

Annexure

The current form of the relevant clauses of Pt 4 of the Palerang Local Environmental Plan 2014 (PLEP) is as follows:

“Part 4 Principal development standards

4.1   Minimum subdivision lot size

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

(a)    to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,

(b)    to ensure that lot sizes and dimensions are appropriate having regard to the objectives of this Plan and the relevant zone and the likely future use of the land,

(c)    to ensure that lot sizes and dimensions allow dwellings to be sited to protect significant natural or cultural features.

(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.

(4)    This clause does not apply in relation to the subdivision of any land—

(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or

(b) by any kind of subdivision under the Community Land Development Act 1989.

4.1AA   Minimum subdivision lot size for community title schemes

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

(a)    to ensure that land to which this clause applies is not fragmented by subdivisions that would create additional dwelling entitlements.

(2)    This clause applies to a subdivision (being a subdivision that requires development consent) under the Community Land Development Act 1989 of land in any of the following zones—

(a)    Zone RU1 Primary Production,

(b)    Zone RU5 Village,

(c)    Zone R2 Low Density Residential,

(d)    Zone R5 Large Lot Residential,

(e)    Zone E3 Environmental Management,

but does not apply to a subdivision by the registration of a strata plan.

(3)    The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 1989) is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4)    This clause applies despite clause 4.1.

4.1A    Lot averaging subdivision of certain land in Zone RU1 and Zone E3

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

(a)    to prevent the fragmentation of certain land in Zone RU1 Primary Production and Zone E3 Environmental Management,

(b)    to enable appropriate subdivision design of that land having regard to topographical constraints, agricultural productivity, biodiversity values and environmental impacts.

(2)    This clause applies to land within Zone RU1 Primary Production or Zone E3 Environmental Management that is identified as “Y” or “C-M” on the Lot Averaging Map.

(3)    Despite clause 4.1, development consent may be granted to subdivide land to which this clause applies if—

(a)    the average size of all of the lots created by the subdivision will not be less than the minimum size shown on the Lot Size Map in relation to that land, and

(b)    each lot created by the subdivision will be at least 8 hectares, and

(c)    the total number of lots created by the subdivision having an area less than the minimum size shown on the Lot Size Map in relation to that land will not be more than 5.

(4)    Development consent must not be granted for the subdivision of a resulting lot for the purposes of residential accommodation.

(5)    In this clause—

resulting lot means a lot able to be used for residential accommodation that—

(a)    was created by a subdivision under this clause (other than for a public purpose), or

(b) in the case of land identified as “Y” on the Lot Averaging Map—was created under clause 12 of Yarrowlumla Local Environmental Plan 1993 or clause 19 of Yarrowlumla Local Environmental Plan 2002 by a subdivision that created at least one lot of less than 80 hectares for the purpose of residential accommodation, or

(c) in the case of land identified as “C-M” on the Lot Averaging Map—was created by a subdivision under clause 14 (2A) of Cooma-Monaro Local Environmental Plan 1999—(Rural),

and includes a lot that would have been a resulting lot had it not been affected by—

(d)    a minor realignment of its boundaries that did not create an additional lot, or

(e)    a consolidation with adjoining land, or

(f)    a subdivision creating or widening a public road or public reserve or for another public purpose, or

(g)    a consolidation with an adjoining public road or public reserve or for another public purpose.

4.1B    Lot averaging subdivision of land in Zone E4

(1)    The objective of this clause is to ensure that the subdivision of land to which this clause applies has regard to the topographical constraints, agricultural productivity and biodiversity values of, and environmental impacts on, the land.

(2)    This clause applies to land in Zone E4 Environmental Living.

(3) Despite clause 4.1, development consent may be granted to subdivide land to which this clause applies, other than under the Community Land Development Act 1989, if—

(a)    the average size of all the lots created by the subdivision will not be less than the minimum size shown on the Lot Size Map in relation to that land, and

(b)    none of the lots created by the subdivision will be less than 2 hectares.

(4) Despite clause 4.1, development consent may be granted for the subdivision of land to which this clause applies, under the Community Land Development Act 1989, if—

(a)    the average size of all the lots created by the subdivision will not be less than the minimum size shown on the Lot Size Map in relation to that land, and

(b)    none of the lots created by the subdivision will be less than 1 hectare, and

(c)    the lot comprising the association property (within the meaning of that Act) will include land identified as having significant ecological, agricultural or cultural values.

(5)    Development consent must not be granted for the subdivision of a resulting lot for the purposes of residential accommodation.

(6)    In this clause—

resulting lot means a lot able to be used for residential accommodation, being—

(a)    a lot that was created by a subdivision under this clause (other than for a public purpose), or

(b)    a lot that was created by a subdivision under any of the following provisions (other than a lot the area of which was excluded under the provision from the calculation of the average area of the lots to be created by the subdivision)—

(i) clause 20 of Yarrowlumla Local Environmental Plan 2002,

(ii) clause 13 (4) or 13A of Yarrowlumla Local Environmental Plan 1993,

(iii) clause 14 (4) of Yarrowlumla Local Environmental Plan 1986,

(iv)    clause 11B (3) or 11C of Interim Development Order No 1—Shire of Yarrowlumla,

(v) clause 16 (3) of Tallaganda Local Environmental Plan 1991,

and includes a lot that would have been a resulting lot had it not been affected by—

(c)    a minor realignment of its boundaries that did not create an additional lot, or

(d)    a consolidation with adjoining land, or

(e)    a subdivision creating or widening a public road or public reserve or for another public purpose, or

(f)    a consolidation with an adjoining public road or public reserve or for another public purpose.”

The current form of cl 4.1(4), cl 4.1AA(2)(a) and cl 4.1AA(4) was introduced by the Standard Instrument (Local Environmental Plans) Amendment (Minimum Subdivision Lot Size) Order 2018. The amendments made by this Order were as follows.

Clause 4.1(4) of PLEP as made was omitted and the current cl 4.1(4) was inserted instead. Clause 4.1(4) as made had provided:

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

The amendment to cl 4.1(4) was apparently intended to address the interpretation of the subclause in DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173. The amendment had the effect that cl 4.1 did not apply to any kind of subdivision under the CLD Act and not merely to subdivision of individual lots in a community title scheme.

Clause 4.1AA(2)(a) of PLEP as made was omitted and the current cl 4.1AA(2)(a) was inserted instead. The only relevant change was to add, after the listing of the relevant zones, the words “but does not apply to a subdivision by the registration of a strata plan.”

The current cl 4.1AA(4) was inserted as a new provision after cl 4.1AA(3) of PLEP as made.

Although cl 4.1 and cl 4.1AA were both optional provisions, once adopted in PLEP they became mandatory: cl 4A of the Standard Instrument (Local Environmental Plans) Order 2006. As a consequence, they were able to be amended by the further order of the Standard Instrument (Local Environmental Plans) Amendment (Minimum Subdivision Lot Size) Order 2018: s 3.20(4) of the EPA Act.

Decision last updated: 01 July 2021