Rogan v Pittwater Council

[2000] NSWLEC 178

Reported Decision: 109 LGERA 321

Land and Environment Court

of New South Wales

CITATION:

Rogan v Pittwater Council [2000] NSWLEC 178

PARTIES:

APPLICANT:
Rogan

RESPONDENT:
Pittwater Council

FILE NUMBER(S):

10268 of 2000

CORAM:

Bignold J

KEY ISSUES:

Question of Law :- Preliminary Determination - (1) Is development prohibited by LEP? (2) Does LEP impose a development standard in respect of the minimum lot size in a subdivision of Non-Urban land?

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 97
State Environmental Planning Policy No 1 - Development Standards

CASES CITED:

DATES OF HEARING:

23 June 2000

DATE OF JUDGMENT:

08/14/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr B Hones, Solicitor
SOLICITORS
Hones Lawyers

RESPONDENT:
Mr A Galasso, Barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No . 10268 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 14 August 2000

M AND F ROGAN

Applicant

v

PITTWATER COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act) s 97 against the determination by the Council refusing consent to the Applicant’s development application, supported by an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP No 1), to subdivide into two lots an existing lot known as lot 81 Deposited Plan 875079, being No 2A Minkara Road, Bayview (the appeal site).

2. In its Notice of determination, one of the reasons for Council’s refusal was stated as follows:
2. The application is prohibited by virtue of being contrary to the zoning provisions under Clause 11 and 13 of Pittwater LEP 1993 which restricts subdivision to not more than 3 lots on land to which Clause 13(2) is not a development standard for the purposes of SEPP No 1.

3. In these pending proceedings, the Council has raised for preliminary determination the following question of law:

Whether the subdivision proposed in the development application the subject of these proceedings is prohibited by operation of clause 13(1) and (2) of the Pittwater Local Environmental Plan 1993.

4. Clause 13 of the Pittwater Local Environmental Plan 1993 (the LEP) provides as follows:

13. (1) This clause applies to the allotments of land situated at Bayview Heights, being—

(a) lots 31, 32, 37 and 38, D.P. 28908;

(b) Lot 2, D.P. 577145; and

(c) Lot Y, D.P. 103881.

(2) Notwithstanding any other provision of this plan, a person may, with the consent of the council, subdivide any of the allotments to which this clause applies into not more than 3 allotments, each allotment so created being not less than 4,000 square metres in area.

5. The competing cases are based upon the application to agreed facts of different interpretations of cl 13 of the LEP—the Council contending that it provides a specific and limited power for the Council to approve the subdivision of specified land which power has been fully exercised and is now fully spent, and the Applicant contending that the clause provides a “ development standard ” within the meaning of the EP&A Act and SEPP No 1 and for that reason, the relevant power is not fully spent.

B. THE RELEVANT FACTS

6. The parties have presented an Agreed Statement of Facts (Exhibit B), a copy of which is annexed hereto. From that statement and other common facts, the following most relevant facts may be distilled as follows—
1. The appeal site which comprises lot 81 Deposited Plan 875079, having an area of 8,822m2 is proposed to be subdivided into two lots of similar size, one lot being already developed by a substantial dwelling-house and the other lot being currently undeveloped.
2. The appeal site is situate within the Non-Urban 1(a) Zone under the LEP which came into force on 4 February 1994.
3. Historically, the appeal site can be traced back to a time immediately prior to 26 February 1988, when it formed part of a larger land unit known as Lot Y Deposited Plan 103881 (comprising an area of 5 acres 2 Roods 2 1/4 perches—(approx 2.1 ha) being one of a number of specified “allotments of land situated at Bayview Heights” to which Clause 13 of the LEP is expressed to apply.
4. On or about 26 February 1988, Lot Y Deposited Plan 103881 was subdivided into three lots registered as lots 61, 62 and 63 Deposited Plan 775498.
5. On or about 2 October 1997, lots 62 and 63 Deposited Plan 775498 were re-subdivided by way of boundary adjustment creating two lots—lots 81 and 82 Deposited Plan 857079, one of which is the appeal site.
6. In terms of the LEP, the subdivision of land is development that may be carried out with development consent (cl 10(a) but additional controls on the subdivision of land within the Non-Urban Zones are imposed by cl 12 which forbids the subdivision of such land “unless the area of each allotment to be created….will not be less than the area….specified in the Table” to the clause. The Table specifies a different minimum area for land in each of the Non-Urban zones. In respect of the Non-Urban 1(a) Zone (being the zoning of the appeal site) the specified minimum area is 2 ha.
7. Clause 13 of the LEP is one of a bracket of 5 clauses (cl 13 to cl 15B inclusive) each of which deals specifically with the subdivision of specified lands and is expressed to operate “Notwithstanding any other provision of this plan”.

C. THE COMPETING ARGUMENTS

7. The competing arguments each addressed the proper interpretation of cl 13 of the LEP upon the common assumption that that clause applied to the appeal site.

8. However, as I pointed out in the course of the argument, there is fundamental difficulty standing in the way of a ready acceptance of this common assumption. This difficulty lies in the fact that when cl 13 came into force upon the commencement of the LEP on 4 February 1994, lot Y in Deposited Plan 103881 did not currently exist. True it is that it existed historically in the period between 1958 when it was created, and 1988 when it was subdivided into three lots upon the registration of Deposited Plan 775498. However, upon registration of that Deposited Plan, lot Y in Deposited Plan 103881 ceased to exist as an allotment of land, having been subdivided into the three lots created by Deposited Plan 775498.

9. Whereas I can readily accept the Council’s argument that after the registration of Deposited Plan 775498, reference to Lot Y in Deposited Plan 103881 theoretically remained a meaningful reference, the reference nonetheless would be essentially a historical reference to something that previously existed but which no longer existed, namely “the allotment”.

10. Again, I can readily accept the Council’s argument that a reference to a thing, matter or place by name or description etc is to be taken to include a reference to that same thing, matter, or place by virtue of a superseded or replaced name or description etc.

11. However, that conventional principle of interpretation can have no application where the relevant change is not in respect of the name or description comprising the reference but rather, is a change to the very thing, matter or place itself.

12. That is the case here because “the allotment” that previously comprised lot Y in Deposited Plan 103881, being a single lot, currently comprises three separate lots and relevantly, when the LEP came into force on 4 February 1994, also comprised three separate lots.

13. Accordingly, from that date, there is simply no legitimacy in reading the reference in cl 13(1)(c) of the LEP to lot Y in Deposited Plan 103881 as a reference to the three existing lots (one of which is the appeal site) which that lot had become. This is more especially the case in view of the fact that the reference in cl 13(1) of the LEP is to “…the allotments of land situated at Bayview Heights, being—
(a) …….
(b) …….
(c) Lot Y, D.P. 103881”.

It is clear that the prime focus of the reference is specifically to “the allotments of land” so specified, and not to “land” generally. In other words, the reference is not simply to finite pieces or parcels of land, irrespective of their allotment pattern. Rather, it is to “the allotments” so specified.

14. The position is put beyond doubt when regard is had to the substantive operation of cl 13(2) which enables the Council to consent to the subdivision of “any of the allotments to which this clause applies into not more than three allotments, each allotment so created being not less than 4,000 square metres in area”. This is because it is inconceivable that the exceptional enabling power (created by cl 13(2)) allowing an allotment to be subdivided into a maximum number of three lots, be intended to operate in respect of each of the 3 lots (one of which being the appeal site) that one of the specified allotments has currently become.

15. For all the foregoing reasons, I am of the clear opinion that cl 13 does not apply to the appeal site, this conclusion being, in my judgment, an inevitable interpretation of cl 13, both as a matter of its plain text and purpose.

16. Two consequences flow from this conclusion. Firstly, the Council’s question of law must be answered in the negative (albeit not for any of the reasons advanced in the competing arguments). Secondly, it is not strictly necessary to interpret the operative part of cl 13, either generally (in order to consider the Council’s argument) or particularly (in order to consider the Applicant’s argument that it provides a “development standard” in terms of the EP&A Act and of SEPP No 1).

17. When it became apparent during the course of argument that cl 13 of the LEP would probably be held to have no application to the appeal site, I granted leave to the Applicant to raise a separate question of law, namely whether cl 12(2) of the LEP was a “development standard” within the meaning of the EPA and SEPP No 1. The Council raised no objection to leave being granted and both parties were prepared to immediately advance their competing arguments on that question.

18. The Applicant contended for an affirmative answer to this question and the Council contended for a negative answer.

19. In advancing their competing cases, the parties referred to what has become the familiar collection of decisions (either of this Court or the Court of Appeal) on this expanding subject. Indeed, the collection of relevant cases is growing and since the hearing of the present case was concluded and judgment was reserved, I have published two judgments which have considered similar statutory clauses to the LEP, cl 12(2): see Fencott Drive Pty Ltd v Lake Macquarie City Council [2000] NSWLEC 146; Poynting v Strathfield Municipal Council [2000] NSWLEC 147.

20. In each of those cases, I determined that the relevant statutory clause was a “development standard” within the meaning of the EP&A Act and SEPP No 1. I so concluded after considering the state of current authority from which I deduced that the Court of Appeal’s decision in Bell v Shellharbour Municipal Council (1993) 78LGERA 429 provided the most definitive guidance in the fulfilment of this Court’s task of statutory interpretation of the relevant statutory provisions.

21. In the present case, the Applicant’s argument is principally founded on the Court of Appeal’s decision in Bell.

22. The Council’s competing argument is principally founded upon the fact that in Healesville Holdings Pty Ltd v Pittwater Council (1997) 97LGERA 95, the Court of Appeal expressly reserved the question of the correctness of the Council’s concession made in that case that cl 12(2) of the LEP relevantly provided a “development standard”.

23. In my judgment, the Applicant’s argument is founded upon a far surer foundation (the Court of Appeal’s decision in Bell) than is the Council’s argument which is founded upon the Court of Appeal’s expressed reservation of the question in Healesville. My reasons for so concluding are the same as those expressed in my judgment in Fencott Drive in the following passages at par 65 and par 66:

As I would respectfully understand the relevant decisions of the Court of Appeal, I am of the opinion that what I have said is entirely supported by the decision of the Court of Appeal in Bell v Shellharbour Municipal Council (1993) 78LGERA 429. In my respectful opinion, it is that decision (which is the latest decision of that Court which has fully considered the question of what provisions of an environmental planning instrument are development standards) that provides the most definitive guidance as to how the task of construction is to be undertaken in the present context.

That decision, although not referred to in the later Court of Appeal decisions in Healesville Holdings Pty Ltd v Pittwater Council (1997) 97LGERA 95 and in Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94, is consistent with the concession made by the Council in Healesville (where the Court considered it unnecessary to decide whether the concession was well founded) and is entirely consistent with the decision in Fast Buck$ (which is the most recent occasion that the Court of Appeal has considered the operation of SEPP No 1, but without directly addressing the question whether a development standard was involved, that fact simply being assumed.)

24. Immediately following those passages, I referred to my detailed analysis of Bell in Bowen v Willoughby Council [2000] NSWLEC 69, which analysis includes the following reference to Healesville:

Although the later decision of the Court of Appeal in Healesville appears to have adopted a more cautious approach as to whether a very similar statutory provision (albeit in an urban setting) operated as a development standard (inasmuch as Priestley JA who gave the leading judgment considered it unnecessary to consider whether the concession that a development standard was involved, was well founded) the Court’s attention does not appear to have been directed to the decision in Bell . Rather, the argument directed attention to the earlier decisions in Vaniga and P D Mayoh .

However, in the still later decision of the Court of Appeal in Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 where the relevant statutory provisions and relevant facts were not materially different from those in Bell, the Court of Appeal proceeded on the basis that the statutory provision was relevantly a development standard amenable to the dispensational power conferred by SEPP No 1.

25. In my opinion, and generally for the reasons more fully elaborated in Fencott Drive , cl 12(2) of the LEP, upon its proper construction, relevantly is a “ development standard ”.

26. Accordingly, I would determine the Applicant’s question of law in the affirmative.

27. For completeness, I should say that in considering the competing arguments on the question whether cl 12(2) of the LEP is, relevantly a “development standard”, I am of the opinion that cl 12 clearly applies to the appeal site, being land within the Non-Urban 1(a) Zone.

28. In so concluding, I would reject the Council’s interpretation of cl 13 of the LEP that it provides the sole source of power available under the LEP to grant consent to the subdivision of allotments of land to which cl 13 is expressed to apply.

29. In advancing that argument, the Council has placed considerable reliance upon the opening words of cl 13(2) “Notwithstanding any other provision of this plan”. However, those words, do not, in my respectful opinion, have the limiting operation that the Council’s argument contends for. This is because, to adopt the words of Lord Fraser of Tullybelton in the House of Lord’s decision in Marren v Ingles (1980) 1 WLR 983 at 989:

The ordinary meaning of the word notwithstanding according to the Shorter Oxford English Dictionary is despite . in spite of. One might perhaps suggest also whether or not . It is a word of extension not of limitation .

30. Although the precise effect of the expression “ Notwithstanding any other provision ” in a given case can present interpretive difficulty (see Perrett v Robinson (1981) 169 CLR 172), in the present case, it is tolerably clear that the purpose and effect of cl 13 is to enable specified land to be subdivided in a form and manner that may not otherwise be permitted in terms of the LEP.

D. CONCLUSIONS AND ORDERS

31. For the foregoing reasons, I would answer the question of law raised by the Council in the negative and the question of law raised by the Applicant in the affirmative.

32. Accordingly, I order that the questions of law be determined as follows:

Question 1	Is the proposed development prohibited by cl 13 of the LEP?	Answer No
Question 2	Is cl 12(2) of the LEP a development standard?	Answer Yes

ANNEXURE (2 PAGES)