Sealark Pty Ltd v Shoalhaven City Council
[2000] NSWLEC 166
•08/02/2000
Reported Decision: 109 LGERA 263
Land and Environment Court
of New South Wales
CITATION: Sealark Pty Ltd v Shoalhaven City Council [2000] NSWLEC 166 PARTIES: APPLICANT:
RESPONDENT:
Sealark Pty Ltd
Shoalhaven City CouncilFILE NUMBER(S): 10769 of 1999 CORAM: Bignold J KEY ISSUES: Question of Law :- Preliminary determination of questions whether proposed subdivision creating concessional lots is permissible development.
LEGISLATION CITED: Shoalhaven Local Environmental Plan 1985 cl 11 CASES CITED: Smith v Shoalhaven Council (unreported 30 November 1994) DATES OF HEARING: 5th May 2000 DATE OF JUDGMENT:
08/02/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr M J Astill, Solicitor
SOLICITORS
Blake Dawson Waldron
Mr J Webster, Barrister
SOLICITORS
Morton and Harris
JUDGMENT:
IN THE LAND AND Matter No . 10769 of 1999
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 2 August 2000
SEALARK PTY LIMITED
Applicant
v
SHOALHAVEN CITY COUNCIL
Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. The Council has raised a number of questions of law for preliminary determination in pending class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act), s 97 against the Council’s determination refusing development consent to the Applicant’s development application to subdivide land known as lot 8 Deposited Plan 880060 situate at St Georges Basin (the appeal site) into eight lots.
2. The reason for the Council’s determination was:
- The proposal is contrary to the provisions of cl 11 of the Shoalhaven Local Environmental Plan 1985. Consequently Council does not have the legal duty to approve this application.
3. The questions of law, in the form they were propounded at the hearing are as follows:
1. Whether the Council has power to approve the subdivision, having regard to the express limitation on the size of the land to be subdivided contained in cl 11(4) of Shoalhaven Local Environmental Plan 1985 (the LEP);
2. Whether the proposed subdivision infringes cl 11(5) of the LEP.
3. Whether the development application attracts the operation of s 80(2) of the EP&A Act .
4. The Council contends that each of these questions should be answered in the affirmative with the result that the development application must be automatically refused without the need for any consideration of the pending proceedings on the planning merits. Indeed, such would be the result if any one of the questions be answered affirmatively.
5. The Applicant contends that each of the questions should be answered in the negative with the result that the pending appeal should be allowed to proceed to a hearing on the merits.
B. THE RELEVANT FACTS
6. From the Agreed Statement of Facts (Exhibit B—a copy of which is annexed hereto), the following most relevant facts may be distilled—
1. The appeal site which is owned by the Applicant comprises an area of 33.63 ha, some 18 ha of which is zoned Residential 2(c) under the LEP and the residue (some 15.63 ha) is zoned Rural 1(d) under the LEP.
2. The Applicant’s subdivision application proposes to create seven lots (numbered 1 to 7) within that part of the appeal site that is zoned Rural 1(d) and one lot (numbered 8) in respect of that part of the appeal site that is zoned Residential 2(c).
3. Proposed lots 1, 2, 3, 5 and 6 (each comprising an area of between 1 and 2 ha) are designated by the development application as “concessional allotments”, as defined by cl 11(2) of the LEP and proposed lots 4 and 7 are each designated by the development application as “residue” lots within the meaning of cl 11(5) of the LEP.
4. Proposed lot 8 comprises land which is the subject of an existing development consent SF 6415, granted by the Council on 31 March 1989 for the residential subdivision of a larger land unit (that includes the land comprising proposed lot 8 and which residential development is proceeding in stages).
5. Subdivision of land within the City of Shoalhaven requires the consent of the Council vide cl 10 of the LEP.
6. Clause 11 of the LEP imposes additional controls in respect of the subdivision of lands within specified Rural Zones and Environment Protection Zones so designated by the LEP, including land within the Rural 1(d) Zone.
7. Subject to specific exceptions (including those in relation to “concessional allotments”) consent may not be granted to a subdivision of lands within such Rural Zones and Environment Protection Zones unless each lot has an area of not less than 40 ha. (the minimum area requirement).
8. Exceptions to the minimum area requirement are expressly provided for (i) by cl 11(4) of the LEP in respect of “concessional allotments”, (ii) by cl 11(7) of the LEP in respect of lots intended to be used for a permissible purpose (other than the purposes of “agriculture”, “forestry” or “dwelling-houses”) and (iii) by cl 11(10) of the LEP in respect of minor miscellaneous matters eg to make minor adjustments to common property boundaries of existing lots.
9. The definition of “concessional allotment” contained in cl 11(2) of the LEP relevantly includes “an allotment referred to in subclause (4)(a); an allotment conferred to in subclause (4)(b) or an allotment conferred to in subclause (4)(c)”;
10. By virtue of the size of the area of each of the five lots designated by the development application as a “concessional allotment”, the only possible type of “concessional allotment” relevant in the present case is that provided by cl 11(4)(b) of the LEP which relevantly provides:
(4) Subject to subclauses (5) and (6), the Council may consent to an application to subdivide land within Zone No. 1(a), 1(b) or 1(d) (not being land, which forms the whole or part of an existing holding of less than 10 hectares in area) for any one or more of the following purposes:
- …………..
(b) to create an allotment of not more than 2 hectares but not less than 1 hectare if—
(i) the Council is satisfied that the creation of the allotment will not significantly reduce the agricultural viability of the land from which it is subdivided;
(ii) the ratio of depth to frontage is satisfactory in the opinion of the Council;
(iii) where the allotment has a frontage to a main road, access is not direct from the main road where alternative access is available;
(iv) adequate access and services are available
(v) the development of the allotment will not have a significantly adverse visual impact on the surrounding area;
(vi) the creation of the allotment will not lead to undue hazard from bush fires to life and property.
11. Clause 11(2) of the LEP provides the following definition of “ existing holding ”, being a term specifically referred to in cl 11(4) , cl 11(5) and cl 11(6) of the LEP:
- existing holding means—
(a) except a provided by paragraph (b)—the area of a lot, portion or parcel of land as it was at 28th February, 1964; or
(b) where, as at the 28th February, 1964, a person owned 2 or more adjoining or adjacent lots, portions or parcels of land, the aggregation of the areas of those lots, portions or parcels as they were at the 28th February, 1964.
12. Clause 11(5) of the LEP dealing with “ residue lots ” provides as follows:
- In any subdivision made under this clause there may be one residue from the whole of an existing holding and such residue shall not be less than the area and frontage required for a concessional allotment.
13. Clause 11(6) of the LEP which prescribes the maximum number of “ concessional allotments ” that may be created from an “ existing holding ” provides as follows:
- The total number of concessional allotments that may be created (whether by one or more subdivisions made at any time on or after 28th February, 1964) from an existing holding is—
(a) where the area of the existing holding is less than 20 hectares but not less than 10 hectares—1;
(b) where the area of the existing holding is less than 30 hectares but not less than 20 hectares—2; and
(c) where the area of the existing holding is not less than 30 hectares—3.
14. Clause 11(9) of the LEP limits the power of the Council to grant consent to the subdivision of land to which clause 11 applies by providing as follows:
- The Council shall not grant consent in respect of an application to subdivide land to which this clause applies so as to create an allotment other than an allotment referred to in subclause (3), (4), (7) or (10).
15. That part of the appeal site which is zoned Rural 1(d) was, at 28 February 1964, included within two adjoining “ existing holdings ”— one comprising an area of some 78 ha then owned by Wandandian Pty Ltd (Wandandian existing holding) and the other comprising an area of some 22 ha then owned by J Neale (Neale existing holding.
16. The proposed subdivision creates three concessional allotments and one residue lot from that part of the Wandandian existing holding that is zoned Rural 1(d) under the LEP, comprising an area of some 9.8 ha and it also creates two concessional allotments and one residue lot from that part of the Neale existing holding that is zoned Rural 1(d) under the LEP comprising an area of some 5.1 ha .
17. No “ concessional allotments ” have previously been created by subdivision of either the Wandandian or Neale existing holdings, but they have been extensively subdivided for residential purposes.
C. THE COMPETING ARGUMENTS
7. Although the competing arguments have focussed on the three particular questions raised by the Council (and each of the these will need to be separately considered), it may be helpful to make some general observations concerning the operation of the LEP in respect of its controls on the subdivision of lands within the Rural Zones created by the LEP.
8. Firstly, subdivision of land situate within the City of Shoalhaven is an activity that requires development consent: cl 10 of the LEP.
9. Secondly, cl 11 of the LEP which expressly applies to land within designated Rural Zones and Environment Protection Zones imposes particular controls on the subdivision of lands within such zones and specifically limits the power of the Council to grant development consent to the subdivision of land to defined categories of allotments: vide cl 11(9)..
10. Thirdly, cl 11 of the LEP in terms only applies to a subdivision of land within the designated Rural or Environment Protection Zones and hence prima facie, it does not apply to a subdivision of land which is partly within such designated zones and partly within some other zone under the LEP (such as is the appeal site).
11. Fourthly, cl 11, in making provision for the creation of “a concessional allotment” employs as a controlling concept, encapsulated in the defined term “existing holding”, (i) the historical position with land holdings as at 28 February 1964, and (ii) the subsequent subdivision history of those land holdings.
12. That 1964 date reflects the commencement of town planning controls applying to the Shoalhaven Local Government Area by virtue of the coming into force on that day of Interim Development Order No 1—Shire of Shoalhaven (the IDO).
13. Fifthly, the function in cl 11 of the LEP of the concept of “existing holding” is (i) to define the circumstances in which “concessional allotments” may be created and (ii) to prescribe the maximum extent of their creation. Thus, a “concessional allotment” may be created from land that comprises “the whole or part of” an existing holding provided that (i) the area of the existing holding is not less than 10 ha and (ii) the relevantly prescribed maximum number of concessional allotments have not been exceeded (that maximum number being one, two or three such allotments where the area of the existing holding respectively is (i) not less than 10 ha but less than 20 ha; (ii) not less than 20 ha but less than 30 ha; and (iii) not less than 30 hectares).
14. Sixthly, “concessional allotments” are lots that have been created from an existing holding since 28 February 1964 where such lots comprise an area less than the prescribed general minimum area (which the LEP fixes at 40 ha and which the IDO, as in force between 28 February 1964 and May 1985 (when the LEP came into force), fixed at the same size for the second half of that period, having earlier in that period been fixed at a lesser size).
15. Having made these general observations on the content and effect of the provisions of the LEP, it will also clarify an understanding of the competing legal arguments and my determinations made thereon, to note some basic features of the Applicant’s proposed subdivision and their relationship to the general operation of the LEP as I have just expounded it.
16. Firstly, it is to be noted that the land to be subdivided involves a single land unit, namely lot 8 Deposited Plan 880860, but with different parts of its overall land area included in two different zones under the LEP— Residential 2(c) and Rural 1(d).
17. Secondly, it is to be noted that the land contained within that single lot, comprises separate parts of two separate existing holdings (the “Wandandian” and the “Neale” existing holdings).
18. Thirdly, it is to be noted that the vast majority of the land contained in each of the two existing holdings was included in the Residential 2(c) zone under the LEP (some 75 per cent of the “Neale” existing holding and some 85 per cent of the “Wandandian” existing holding being so zoned).
19. Fourthly, it is to be noted that but for the area of some 18 ha of zoned Residential 2C land included in the Applicant’s development application (which itself is included in the development consent for residential subdivision granted by the Council on 31 March 1989), all of the Residential 2C land contained in the two existing holdings has been developed as a residential subdivision estate.
20. What follows from the conjunction of the foregoing sets of observations concerning (i) the operative provisions of the LEP and (ii) the Applicant’s subdivision proposal is that the Applicant must demonstrate that the proposed subdivision falls within the ambit of cl 11 of the LEP and conforms to the controls and limitations therein imposed. In particular, it must ultimately demonstrate that cl 11(4) of the LEP applies to the proposed subdivision despite the following facts (which emerge from my earlier exposition):
(i.) the land to be subdivided includes land which is within a zone to which cl 11 does not apply, namely the Residential 2C zone.
(ii.) the land to be subdivided is currently in the form of a single lot, although historically (ie as at 28 February 1964) it formed part of the “Wandandian” existing holding and also formed part of the “Neale” existing holding.
(iii.) the vast majority of the areas of the “Wandandian” and the “Neale” existing holdings have since 28 February 1964 been subdivided into residential lots, having been zoned Residential 2C since the commencement in 1985 of the LEP.
(iv.) part of the land to be subdivided forms only a part of the “Wandandian” existing holding and the other part forms only a part of the “Neale” existing holding.
(v.) the creation of “concessional allotments” out of the land to be subdivided notionally draws upon and accumulates the maximum entitlement to create such allotments that applies to the whole of each of the “Wandandian” existing holding and the “Neale” existing holding; and
(vi.) the proposed subdivision creates three lots in addition to the maximum number of five concessional allotments in circumstances where cl 11(5) of the LEP limits the number of residue lots to one “from the whole of the existing holding”.
21. In my judgment, it is manifestly clear that the Applicant has not demonstrated that cl 11(4) of the LEP empowers the Council to grant consent to the Applicant’s proposed subdivision. There are a number of reasons for so concluding which are essentially founded upon two factors indisputably established in the present case— (i) the fact that the land to be subdivided comprises a single land unit situate partly within the Rural 1(d) zone and partly within the Residential 2C zone, and forming a small part of two existing holdings; and (ii) the fact that the vast majority of the area of land comprising each of the “Wandandian” and “Neale” existing holdings is zoned Residential 2C (having been so zoned since the LEP came into force in 1985).
22. Factor (i) creates, in my judgment, insuperable difficulties for the Applicant’s proposed subdivision. Firstly, it means that the Applicant’s development application is not the subdivision of land within Zone No 1(d) (as it obviously includes land within the Residential 2C zone). Secondly, it means that it is wholly artificial to say at the present time that the land to be subdivided is part of two existing holdings, even though it is possible by tracing back to the historical date, 28 February 1964, to identify part of the land as forming part of the “Wandandian” existing holding and part of the “Neale” existing holding.
23. Thirdly, it is equally artificial to say that the proposed subdivision creates one residue lot out of each part of each of the two existing holdings.
24. Fourthly, even if the artificiality of the third reason could be put aside, it is clear beyond argument that the proposed subdivision creates more than “one residue from the whole of an existing holding” (being the limit on residue lots set by cl 11(5) of the LEP) by virtue of the proposed creation of lot 8 (being that part of land to be subdivided that is zoned Residential 2C and itself forms part of the same identified existing holdings).
25. Factor (ii) also, in my opinion, creates insuperable difficulties for the Applicant’s proposed subdivision.
26. Firstly (although it is not clear beyond doubt), I think that the concept of “existing holding” in cl 11 of the LEP is properly to be understood as being limited by implication to land that is included in the Rural and Environment Protection Zones to which cl 11 is expressed to apply and more particularly, to land that is zoned so as to permit the creation of concessional allotments.
27. Whereas no express limitation is found in the definition of “existing holding” contained in cl 11(2) of the LEP, the fact that the sole function of the concept of “existing holding” is (i) to define the circumstances in which a concessional allotment may be created; and (ii) to prescribe the maximum number of such allotments than may be so created, when combined with the concept of “concessional allotment” leads inevitably to the implication that the concept of “existing holding” is limited to land so zoned as to permit the creation of a “concessional allotment” by way of a concession to the general minimum area of 40 ha for lot sizes prescribed by cl 11(3) of the LEP.
28. The very notion of a “concession” from the normative minimum area requirement appears to be singularly unnecessary and inappropriate in a case (such as the present) where the vast majority of the area of the existing holding is zoned so as to permit residential subdivision.
29. Moreover, apart from these considerations (which give effect to a purposive construction of cl 11 of the LEP), there are textual factors in cl 11 which point in the same direction. In particular, cl 11(1) expressly specifies the land to which the clause applies, namely the nominated Rural and Environment Protection Zones. Moreover, clause 11(4) which is expressed to apply to “land within zone No 1(a), 1(b), or 1(d)” expressly excludes land (so zoned) “which forms the whole or part of an existing holding of less than 10 hectares in area”. Clearly, in that context it is contemplated that the existing holding be included in the specified Rural zones.
30. However, if the first reason be put aside and the defined concept of “existing holding” be given its literal meaning unaffected by any implication that it be limited to land within the designated Rural Zones (as referred to in cl 11(4) of the LEP), the limitation imposed by cl 11(5) of the LEP that there be “one residue from the whole of the existing holding” applies not only to the two residue lots included within that part of the land to be subdivided which is within Zone No 1(d), but also to the residue lot (ie proposed lot 8) comprising that part of the land which is within zone No 2C. (The reasons for this conclusion are more fully developed in my determination of the second question raised by the Council.)
31. Although what I have already said amply demonstrates why it is that the Council does not have the power under cl 11(4) of the LEP to grant approval to the proposed subdivision, I must nonetheless proceed to determine the three questions specifically raised by the Council. In doing so, I note that Council’s argument on the first question came close to, but did not entirely embrace the matters upon which I have just elaborated in respect of the two all important factors concerning (i) the fact that the land to be subdivided comprises a single lot; and (ii) the existing holding concept.
32. Despite the confinement of the Council’s argument, nevertheless the question asked does raise for consideration all that I have said by way of exposition of cl 11 of the LEP and by way of application of that exposition to the facts of the case. Moreover, it must be recalled that in fulfilling its role of statutory construction, the Court is not confined to the choices presented by the parties’ competing arguments. In this respect, my exposition of the meaning and application of cl 11(4) proceeds directly and logically from the matters raised in the competing cases, including the supporting arguments.
33. In the light of the foregoing, I shall now consider each of the three questions raised by the Council—
- Question 1 : Does cl 11(4) of the LEP empower the Council to grant consent to the Applicant’s development application?
34. Obviously, for the reasons that I have already given, I would answer this question in the negative. However, in deference to the parties’ argument, I shall proceed further.
35. The question is necessarily complex because cl 11(4) is expressed to operate “subject to subclauses (5) and (6)”.
36. However, the competing arguments proceeded along the lines that the second question would encounter the effect of cl 11(5) and possibly cl 11(6).
37. Accordingly, as I have earlier noted, the Council’s argument fastened upon the bracketed expression in cl 11(4) as limiting “the land” to which cl 11(4) applied in the sense that only such land may be subdivided to create a concessional allotment.
38. Clause 11(4) in terms applies to “land within Zone No 1(a), 1(b) or 1(d) (not being land which forms the whole or part of an existing holding of less than 10 hectares in area)”.
39. The competing arguments focussed on the question whether the phrase ‘of less than 10 hectares in area” qualified “land” (within the designated Rural Zones) as contended by the Council or “existing holding” as contended by the Applicant.
40. As a matter of syntax, it is apparent that the antecedent noun of the qualifying phrase “of less than 10 hectares in area” is “existing holding”. This meaning is confirmed by the fact that subclause (6), in prescribing the maximum number of concessional allotments that may be created “from an existing holding”, does so on a graduated scale according to the size (ie area) of the existing holding, and in so prescribing the maximum number of such allotments, commences with the case of an existing holding having an area of “less than 20 hectares but not less than 10 hectares”.
41. Although the target of the Council’s argument was the thesis that cl 11(4) of the LEP only applied to the subdivision of land (i) which was within the designated Rural Zones; and (ii) which was not less than 10 ha in area, on the facts of the present case, the argument appeared to go nowhere, since the land to be subdivided comprises a lot which albeit contained within more than one zone (including the Residential 2C zone) nonetheless comprises an area within Zone No 1(d) of some 15 hectares. Accordingly, the Council’s argument that cl 11(4) did not apply in the present case, based upon the Council’s suggested interpretation of the bracketed matter in the subclause, is essentially misdirected. Despite this inevitable conclusion, the Council’s argument, properly conceived and properly directed, clearly enough contains the seeds for the assertion that the land to be subdivided must be within the designated Rural Zones, as must be the existing holding from which the concessional allotments are created (see subclause (6)). In other words, the Council’s argument can be readily realigned to accord with the reasoning that has led me to conclude that cl 11(4) of the LEP does not sanction the proposed subdivision.
- Question (ii) — Does the proposed subdivision infringe cl 11(5) of the LEP?
42. Here the competing arguments turn on one critical factor—whether the limitation contained in cl 11(5) on the creation of “ one residue from the whole of an existing holding ” extends to land not included in the designated Rural Zones.
43. The Applicant submits that cl 11(5) only applies to land within the Rural Zones so that the creation of proposed lot 8 in the Applicant’s proposed subdivision (which lot is wholly contained in the Residential 2C zone) is not affected by the operation of cl 11 of the LEP and of cl 11(5) in particular.
44. The Applicant’s argument reveals the inherent difficulty in the Applicant’s selective and inconsistent approach to cl 11 of the LEP inasmuch as it wholly relies upon the “Wandandian” and “Neale” existing holdings (including the fact of their land areas where the vast majority is within the Residential 2C zone) in order to justify the application to create five concessional allotments, plus two residue lots (where all seven proposed lots are within that part of the land to be subdivided that is within the Rural 1(d) zone) but then entirely ignores the Residential 2C zoned parts of the “Wandandian” and “Neale” existing holdings so as to avoid the limitation imposed by cl 11(5) in respect of the creation of residue lots.
45. In my judgment, such a dualistic approach to the concept of “existing holding” in the context of cl 11 of the LEP, which is a fundamental plank in the Applicant’s argument, is legally flawed and misconceived.
46. I have earlier reasoned and held that the concept of “existing holding” in cl 11 of the LEP is subject to the implied limitation that the land forming the existing holding must be within the designated Rural or Environmental Protection Zones to which cl 11 is expressed to apply: vide cl 11(1).
47. However, for present purposes, I am prepared to accept the Applicant’s argument that the concept of “existing holding” is not so limited, and in the present case extends to that part of the area of each of the “Wandandian” and “Neale” existing holdings that is within the Residential 2C zone.
48. Even accepting the correctness of this assumption, there is in my opinion no justification for avoiding, as the Applicant’s argument would have it, the limitation imposed by cl 11(5) on the creation of residue lots in a subdivision that primarily is directed to the creation of “concessional allotments”. In such a case (of which the present is an obvious example) the limitation imposed by cl 11(5) is applicable and it requires that there be “one residue from the whole of an existing holding”.
49. The meaning of cl 11(5) of the LEP was extensively discussed and considered in my decision in Smith v Shoalhaven Council (unreported 30 November 1994) upon which the Applicant relies. In Smith I discussed a particular difficulty with the requirement of cl 11(5) (that “there be one residue from the whole of the existing holding”) that appeared to arise in a case where the concessional allotments are created from an existing holding by successive subdivisions (being a possibility that subclause (6) expressly provides for). After discussing the possible meanings of the requirement of cl 11(5), I expressed the following conclusions at p 11 and p 12:
Because the principal effect of subcl (5) appears to confer some additional entitlement (namely for the creation of a residue in a subdivision creating concessional lots)I would prefer a facultative interpretation of subcl (5) which avoids frustrating the concessional lot entitlement conferred by subcl (6) (which entitlement is expressly recognised to be exercisable by a number of subdivisions). Accordingly I think the preferable interpretation of subcl (5) is one that preserves the legal entitlement to create the maximum number of concessional lots, including by virtue of a number of subdivisions.
Accordingly subcl (5) should be understood as allowing for (but not necessarily requiring) the creation of one residue out of the whole of the existing holding in any subdivision creating a concessional lot(s) where that residue (i) may itself be used to create a concessional lot(s); and (ii) in such a case, may be substituted by a different resulting residue, provided that there does not exist at any one time, out of the whole of the existing holding, more than one residue.
50. It should at once be noted that the situation of successive subdivisions which was the focus of the discussion in Smith is not the situation in the present case which involves for the first time a subdivision proposal to create concessional allotments from the “ Wandandian ” and “ Neale ” existing holdings.
51. However, more relevantly, it is clear from the last passage quoted from Smith that the residue (be it the original or substitute residue) must be “out of the whole of the existing holding”.
52. The Applicant’s proposed subdivision simply does not comply with that clear requirement. Rather, it creates two residue lots from that part of the land that is within the Rural 1(d) Zone and one residue lot from that part of the land that is within the Residential 2C zone.
53. Although the Applicant’s proposed subdivision does not raise the same difficulty in the interpretation of cl 11(5) that was discussed in Smith, namely the situation of successive subdivisions form the existing holding to create concessional allotments, it does raise a separate difficulty, namely that of a subdivision of part only of an existing holding. How can such a subdivision satisfy the requirement of cl 11(5) that there be only “one residue from the whole of the existing holding”? On the agreed facts, it is known that the vast majority of the areas of the “Wandandian” and “Neale” existing holdings have previously been subdivided for residential purposes. That fact is itself radically repugnant to the requirement of there being only “one residue from the existing holding”.
54. However, there is no need to explore this matter because even if it were possible to construe cl 11(5) as applying its requirement for there to be only one residue from the whole to part only of the existing holding that is the subject of the proposed subdivision (a highly difficult conception indeed) nonetheless the Applicant’s proposed subdivision does not comply even with that requirement, by virtue of its proposal to create three lots in addition to the five concessional allotments.
55. It follows that the relevant requirement of cl 11(5) is not satisfied by the proposed subdivision and it follows from the fact that cl 11(4) is expressed to operate “subject to subclauses (5) and (6)” that the power under cl 11(4) is not available to consent to the Applicant’s subdivision application.
56. Accordingly, I would answer this question in the affirmative.
- Question (iii)—whether the proposed development application attract the operation of s 80(2) of the EP&A Act
57. In view of my answers to questions (i) and (ii), this question does not arise because I have held that the power conferred upon the Council by cl 11(4) of the LEP is not available on the agreed facts of the present case. Accordingly, there can be no consent and hence s 8092) of the EP&A Act is not enlivened.
D. CONCLUSIONS AND ORDERS
58. For the foregoing reasons, I make the following orders:
1. The questions of law be answered as follows:
Question 1 Whether the Council has power to approve the subdivision, having regard to the express limitation contained in cl 11(4) of Shoalhaven Local Environmental Plan 1985 (the LEP);
Answer—No
Question 2—Whether the proposed subdivision infringes cl 11(5) of the LEP.
Answer—Yes
Question 3— Whether the development application attracts the operation of s 80(2) of the EP&A Act.
Answer— In view of the answers given to questions 1 and 2 this question does not arise.
2.
2. Stand the proceeding over to the Registrar’s Callover on 14 August 2000.
ANNEXURE
AGREED STATEMENT OF FACTS
1. The Applicant is the registered proprietor of the land known as Lot 8 DP 880060 situate at St Georges Basin in the Parish of Wandrawandian and having an area of approximately 33.63 hectares (the "Subject Land").
2. The Applicant has made a development application (no 8633) to subdivide the Subject Land into 7 rural lots and 1 residue parcel in the configuration shown on the sketch plan prepared by Allen, Price & Associates ("APA") and dated November 1998, Reference 23092, (the "Plan").
3. The Subject Land is within the Shoalhaven Local Environmental Plan 1985 ("LEP 1985"). The Subject Land is partly within zone 1(d) and partly within zone 2(c). The boundary between the two zones coincides with the boundary between the 7 proposed rural allotments (which are within the 1(d) zone) and the residue allotment (which is within the 2(c) zone) shown on the Plan.
4. Clause 11 of the LEP 1985 defines "existing holding" as: -
(a) "Except as provided by paragraph (b) the area of a lot, portion or parcel of land is as it was at the 28th February 1964; or
(b) Where, as at the 28th February 1964, a person owned two or more adjoining or adjacent lots, portions or parcels of land, the aggregation of the areas of those lots, portions or parcels as they were at the 28th February 1964".
5. As at 28 February 1964 (the "Relevant Date"), Wandandian Pty Limited owned the following land:
(a) Lots E and C in D P No. 17698;
(b) Lots 2 - 35 and 37 - 44 inclusive in D P No. 17823; and
(c) Lots 38 and 46 in D P No. 24521.
6. All of the land in paragraph 5(a), (b) and (c) was adjacent or adjoining, and Wandandian Pty Limited owned no other land that was adjacent or adjoining that land, as at the Relevant Date.
7. The land in paragraph 5 is an "existing holding" under Shoalhaven IDO No. 1 and also under the LEP 1985.
8. As at the Relevant Date J A Neale owned the following land:
(a) Lot F in D P No. 17698.
9. Neale owned no other land adjacent or adjoining as at the Relevant Date and Lot F, DP 17698 is an "existing holding" under Shoalhaven IDO No. 1 and also under the LEP 1985.
10. Lot F in DP 17698 is adjacent to Lot E and G, DP 17698.
11. All the land referred to in paragraphs 5 and 8 above, (together the "Existing Holdings" ) is depicted on a plan prepared by APA dated March 2000, Reference 23092 (64), Sheet 1 of 6. A copy of Sheet 1 is attached and marked Annexure "A". Copies of the registered DPs 17698, 17823 and 24521 are attached and marked Annexure "B".
12. Prior to 31 March 1989, the Shoalhaven City Council (the "Council") had approved and the owner had acted upon various consents to subdivide the Existing Holdings. A plan dated March 2000 Reference 23092, Sheet 3 of 6, shows the registered subdivisions of the Existing Holdings (except that the heavy green line is the zone boundary only). This plan has been prepared by APA to overlay Annexure "A" . A copy of that plan is attached and marked Annexure "C".
13. On 31 March 1989, the Council gave development consent SF 6415 to the subdivision of part of the Existing Holdings. The consent SF 6415 was granted in respect of the residential subdivision as set out on plan 20914 dated November 1988 and concerned part of Lots E, F and G DP 17698, (it being noted that DP 880060 had not at that date been registered). A copy of the approved plan 20914 is attached and marked Annexure "D". Consent SF 6415 has been acted on and some of the residential allotments approved under that consent have been created by being excised in stages. In this regard the Applicant has lodged successive plans taking out residential allotments which plans have been endorsed with Council's consent and been registered as deposited plans and the excised lots subsequently sold. The Subject Land forms the balance of the land remaining in SF 6415 after the excision of previous stages. Lot 8 in the plan before the Court in these proceedings encompasses the balance of the residential allotments in SF 6415.
14. On 16 September 1998, DP No. 880060, the Subject Land was registered. Lot 8 in DP 880060 includes:
(a) approximately 15 hectares of land zoned residential 2(c) (approved for residential subdivision pursuant to SF 6415); and
(b) approximately 15.05 hectares of land zoned rural 1 (a).
A copy of that deposited plan is attached and marked Annexure "E".
15. On 25 June 1999, the Applicant lodged a Development Application SF 8633. A plan dated March 2000, Sheet 5 of 6, which shows the cadastral boundaries proposed by the development application 8633 has been prepared by APA to overlay the plans in Annexures "A" and "C". A copy of that plan is attached and marked Annexure"F".
16. That application was to subdivide the Subject Land:
(a) along the zone boundary shown as the diagonal green line on Annexure "F";
(b) so that the rural part of Lot 8 DP 880060 will comprise seven (7) allotments. The Applicant contends that these will be five (5) concessional allotments and two (2) residue allotments in accordance with clause 11 of the LEP 1985; and
(c) providing for lot 8 which encompasses the balance of the Subject Land previously approved for residential subdivision SF 6415.
17. On 16 July 1999 Amendment No 127 of the LEP 1985 was gazetted.
18. Pursuant to .39D of Shoalhaven LEP 1985, this application not being finally determined when certain amendments were gazetted to the LEP, on 16 July 1999, the application is to be determined as if the amendments had not been made.WAY.
19. The respondent's power to approve applications for subdivision of land is regulated by the provisions of Part III Division 1 of Shoalhaven LEP 1985, in particular, clause 11. A copy of the relevant provision of Clause 11 as it was prior to 16 July 1999 is set out in Annexure “G”.
Dated 2 May 2000
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Peter Johnstone by his Grant Gleeson
Partners Michael Astill, Solicitor for
Solicitor for the Applicant the Respondent
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