Southam v District Council of Lower Eyre Peninsula
[2015] SASC 82
•1 June 2015
Supreme Court of South Australia
(Land and Valuation Division)
SOUTHAM v DISTRICT COUNCIL OF LOWER EYRE PENINSULA
[2015] SASC 82
Judgment of The Honourable Justice Blue
1 June 2015
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - GENERAL MATTERS
Appeal against dismissal of application for review of classification as non-complying development.
The appellant Mr Southam owns three allotments totalling 343 hectares at Louth Bay on the Lower Eyre Peninsula. He sought development plan consent to realign the boundaries between the three allotments. The land is situated partly in the Coastal Zone and partly in the General Farming Zone.
The Lower Eyre Peninsula Development Plan provides that land division is non-complying in the Coastal Zone unless, relevantly, it is for the adjustment of allotment boundaries where no additional allotments are created and where no new allotment of less than 40 hectares is created (paragraph 13(b))
The Council’s Development Assessment Panel classified Mr Southam’s application as being for non-complying development because it entailed part of two allotments being created in the Coastal Zone when currently there is only one. Mr Southam’s application for review of that decision was dismissed by a Commissioner of the Environment, Resources and Development Court.
On appeal, Mr Southam contends that on its proper construction paragraph 13(b) of the Development Plan refers to an allotment within the meaning of and under the Real Property Act 1886 regardless of whether it lies wholly or partly in the Coastal Zone; and alternatively that it permits the creation of one additional allotment but not of multiple additional allotments.
Held (allowing the appeal):
1. Paragraph 13(b) refers to an adjustment of allotment boundaries in which the number of allotments does not increase (whether by one or more than one) (at [36]).
2. Paragraph 13(b) refers to allotments within the meaning of and under the Real Property Act 1886 regardless of whether the allotments fall wholly or partly within the Coastal Zone (at [53]).
3. Appeal allowed. Commissioner’s decision set aside. Council’s classification reversed and development classified as not non-complying. Council’s refusal of the application quashed and application remitted to Council for assessment as a merit form of development (at [54]).
Acts Interpretation Act 1915 (SA) s 26(c); Community Titles Act 1996 (SA); Development Act 1993 (SA) s 32, s 35, s 86(1)(f)(i); Environment, Resources and Development Court Act 1993 (SA) s 30(1)(b); Real Property Act 1886 (SA); Strata Titles Act 1988 (SA), referred to.
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; Blue Sky v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 ; Caltex Australia Petroleum Pty Ltd v City of Holdfast Bay [2014] SASCFC 59; District Council of Mount Barker v Palma [2002] SASC 104, (2002) 120 LGERA 182; Telstra Corporation Limited v City of Mitcham [2001] SASC 166, (2001) 79 SASR 509, considered.
SOUTHAM v DISTRICT COUNCIL OF LOWER EYRE PENINSULA
[2015] SASC 82Miscellaneous Appeal (LVD)
BLUE J:
This is an appeal[1] against dismissal by a Commissioner of the Environment, Resources and Development Court of an application for review[2] of a decision by a Council classifying a proposed development as non-complying development.[3]
[1] Environment, Resources and Development Court Act 1993 (SA) s 30(1)(b).
[2] Development Act 1993 (SA) s 86(1)(f)(i).
[3] Development Act 1993 (SA) s 35.
The appeal raises for determination the proper construction of provisions in the Lower Eyre Peninsula Development Plan that create an exception to the general principle that land division in various zones is non-complying, which exception applies to a land division for the adjustment of allotment boundaries where no additional allotments are created.
The questions raised are twofold.
1.In determining the number of allotments before and after the proposed development, is it in the case of Torrens System land the number of allotments within the meaning of and under the Real Property Act 1886 (SA), or is it the number of allotments that fall wholly or partly within the Coastal Zone?
2.Does the term no additional allotments in the exception refer to the creation of two or more additional allotments (ie plural) or to the creation of any additional allotment (ie singular or plural)?
Background
The appellant Christopher Southam owns three contiguous[4] allotments at Louth Bay on the Lower Eyre Peninsula (the Land). The Land comprises 343 hectares.[5] It lies between the Lincoln Highway to the west and Louth Bay to the East. It is comprised of three allotments:
1.Allotment 1 in filed plan 105714 (Lot 1) comprising 120 hectares, which has a frontage onto Louth Bay and runs the entire length of the Land from south to north.
2.Section 279 in the hundred of Louth (Lot 2) comprising 106 hectares, which comprises the southern half of that portion of the Land that lies west of Lot 1.
3.Section 382 in the hundred of Louth (Lot 3) comprising 117 hectares, which comprises the northern half of that portion of the Land that lies west of Lot 1.
[4] The allotments are separated by road reserves vested in the Council but it is common ground that the existence of the road reserves has no effect on the issues on appeal and they can be ignored.
[5] All references to hectares are rounded to the nearest hectare.
The Land straddles the boundary between the Coastal Zone and the General Farming Zone under the Lower Eyre Peninsular Development Plan[6] (the Development Plan). The zone boundary travels in a northerly direction along the boundary between Lot 1 on the one hand and Lots 2 and 3 on the other hand, except that over the northernmost quarter of the Land the boundary diverts towards the north-east leaving the north-western corner of Lot 1 in the General Farming Zone.
[6] Lower Eyre Peninsular Development Plan (consolidated 21 February 2013).
Mr Southam uses the Land for general farming (cropping and grazing), except that he has voluntarily preserved a section of the land adjoining Louth Bay as a conservation corridor.
Sections 32 and 34 of the Development Act 1993 (SA) (the Act) require, subject to irrelevant exceptions, all development to be approved by the relevant authority. Development is defined by section 4(1) to include “division of an allotment”. “Allotment” is relevantly[7] defined to have the same meaning as in Part 19AB of the Real Property Act 1886 (SA) (the Real Property Act), which in turn is relevantly[8] defined in the case of Torrens System land to mean:
(a) the whole of the land comprised in a certificate except for a community or development lot or common property within the meaning of the Community Titles Act 1996 or a unit or common property within the meaning of the Strata Titles Act 1988; [or] …
(f) a separately defined piece of land identified as an allotment for the purposes of this Part in a plan prepared by the Registrar-General and accepted for filing in the Lands Titles Registration Office; …
[7] It also includes a community lot, development lot and common property within the meaning of the Community Titles Act 1996 (SA) and a unit and common property within the meaning of the Strata Titles Act 1988 (SA) but these are not relevant in this case.
[8] It also includes various other categories in the case of non-Torrens System land and in the case of land under the Community Titles Act 1996 (SA) or the Strata Titles Act 1988 (SA) but these are not relevant in this case.
“Division of an allotment” is relevantly[9] defined by section 4(1) of the Act to mean:
(a) the division, subdivision or resubdivision of the allotment (including by community plan under the Community Titles Act 1996 and by strata plan under the Strata Titles Act 1988); or
(b) the alteration of the boundaries of an allotment; …
[9] It also includes the creation of certain long-term leases or licences but these are not relevant in this case.
Mr Southam wishes to realign the boundaries between the three allotments to create three differently shaped allotments. He accepts that the alterations comprise division of an allotment within the meaning of the Act and require development approval. He wishes to realign the boundaries as follows:
1.An allotment (Lot A) comprising the eastern portion of the Land totaling 120 hectares. Lot A would comprise Lot 1 plus the eastern portion of Lot 3 minus the southern portion transferred to Lot 2.
2.An allotment (Lot B) comprising the southern portion of the Land totaling 138 hectares. Lot B would comprise Lot 2 plus the southern portion of Lot 1 minus the northern portion transferred to Lot 3.
3.An allotment (Lot C) comprising the north-western portion of the Land totaling 74 hectares. Lot C would comprise Lot 3 plus the northern portion of Lot 2 minus the eastern portion transferred to Lot 1.
Appendix A shows the existing boundaries of Lots 1, 2 and 3 as well as the proposed boundaries of reconfigured Lots A, B and C.
In December 2013, Mr Southam lodged with the respondent, the District Council of Lower Eyre Peninsula (the Council), an application for provisional development consent and land division consent to the proposed re-division of the Land into the three differently configured Lots A, B and C.[10]
[10] Development Act 1993 (SA) s 32 and definition of development in s 4 as including land division.
Paragraph 35 of the Coastal Zone section of the Development Plan relevantly provides:
35 The following kinds of development are non-complying in the Coastal Zone:
…
Land division, other than under any one of the circumstances listed in principles of development control numbered 13, 22 and 23.[11]
…
[11] Paragraphs 22 to 28 are confined to the development of dwellings on Crown land at Shelley Beach and paragraphs 22 and 23 can be ignored.
Paragraph 13(b) of the Coastal Zone section (paragraph 13(b)) provides:
Land should not be divided except under the following circumstances:
…
(b) for the adjustment of allotment boundaries where no additional allotments are created and where no new allotment of less than 40 hectares is created;
…
In July 2014, the Council’s Development Assessment Panel classified the proposed development as non-complying because it considered that it would result in the creation of an additional allotment within the Coastal Zone within the meaning of paragraph 13(b). The Council refused development plan consent consequential on its decision that the proposed development was non-complying.
Mr Southam applied to the Environment, Resources and Development Court for review of that decision. A Commissioner upheld the Council’s decision.[12]
[12] [2015] SAERDC 1.
It is important to note that Mr Southam did not, and could not, apply to the Environment Court for review of the Council’s consequential decision refusing development plan consent. However, the Council accepts that, if the appeal is allowed and it is determined that the proposed development was not non-complying, the Council’s refusal of development plan consent should be quashed and the application remitted to the Council to assess whether to grant development plan consent on the merits. No question of planning merit arose on the review before the Commissioner or arises on appeal.
The Commissioner’s reasons for judgment
The Commissioner rejected the principal construction of paragraph 13(b) advanced by Mr Southam:
The appellant also submits that CoZ Principle 13(b) – linked to the non-complying Principle 35 of the Zone, is met on the basis that no additional whole allotments are to be created in the zone.
As detailed in the above para 25, I reason that “no additional allotments are created” speaks to both whole or part allotments (and one or more), not just whole allotments, which ensures the intent of discouraging and minimising additional dwelling potentials in the CoZ is achieved.
Currently one part of allotment 1, which is a whole allotment, is within the CoZ and the other part in the GFZ, and the proposal is to create two part allotments (new so-called s 279 and new so-called allotment 1) in the CoZ. Despite no change to additional dwelling potentials (one now and only one arising from the proposal, given that the re-arranged new allotment s 279 in the CoZ has the farm dwelling on it), I determine that the proposal does not fall within the exemption to Principle 35 provided by CoZ Principle 13(b). The subject land in question is three whole allotments and not part of an allotment or a leased sub-parcel as appeared to be the case in Hagger v Development Assessment Commission. Hence, that authority is of virtually no relevant to this matter.
The so-called reasonable expansion or development of an existing land use principle has been applied where an existing non-complying development is sought to be altered/extended/changed or varied …
That is clearly not the case here. The existing use is farming and that is a complying form of development in both relevant zones. In addition, and importantly, the proposal is a separate form of development under the Act, namely division of an allotment or so-called land division. I see no work for this principle to apply in the present circumstances of this matter.
If constituting part of a development or the development is located only on part of a subject land and it is non-complying, the whole application is to be treated as such. That is the case here. In particular, the development falls within CoZ Principle 35 and is not excluded from being non-complying development by reasoning of Zone Principle 13 and (b) in particular (or by Zone Principles 22 or 23).
I have given some, but relatively limited regard to the so-called policy intent factor in determining this matter, essentially a legal question. I find it to be somewhat neutral in terms of this application and the questions. On the one hand the general tone of the CoZ policies is to limit/control building development and to support both conservation-environmental preservation roles of much of the land in the Zone. Vegetation retention and farming as a land use are all encouraged. However, on the other hand it also envisages certain development including tourist accommodation.[13]
[13] [2015] SAERDC 1 at [25]-[27], [29]-[30] and [41]-[42]. (Emphasis in original. Citations omitted)
The Commissioner also rejected Mr Southam’s alternative contention that the reference in paragraph 13(b) to additional allotments is a reference to two or more additional allotments. The Commissioner said:
The phrase “where no additional allotments are created”, to my sense, training and experience means and relates to one or more allotments in number. To construe that to exclude additional single (one more) allotments being captured would be nonsensical, as multiple, consecutive applications each creating one additional allotment with re-adjustment of boundaries is likely to avoid the non-complying development description and more onerous processing procedures. I cannot envisage that being a proper or acceptable approach or outcome.[14]
[14] [2015] SAERDC 1 at [24].
The contentions on appeal
Section 5(1) of the Act provides:
Subject to subsection (2), if a term defined in this Part [Part 1] is used in a Development Plan then the term has, unless the contrary intention appears, the defined meaning.
and section 4(1) defines “allotment” as set out at [8] above.
Mr Southam contends that the Development Plan uses the term allotment which is defined in Part 1 of the Act, and no contrary intention appears from the Development Plan that the term allotment is used with the different meaning of denoting all or part of an allotment within the meaning of the Act that falls within the Coastal Zone.
Mr Southam contends that, if it had been the Council’s intention to count part allotments in determining whether an additional allotment is created, paragraph 13(b) would have made express reference to part allotments or would have referred to allotments “within the Coastal Zone”.
Mr Southam contends that the construction advanced by the Council and accepted by the Commissioner involves reading words into paragraph 13(b) that are not there.
Mr Southam invokes the unius est exclusio alterius principle by contrasting the corresponding provisions of the Development Plan in respect of the Coastal (Coffin Bay) Zone. Paragraph 19 provides:
Land division should not occur where it will result in the creation of additional allotments within the Zone.
and paragraph 28 provides that land division is a non-complying use but excludes:
Land division by virtue of which a number of allotments wholly or partly in the Coastal (Coffin Bay) Zone on resulting from the division is equal to, or less than the number of allotments wholly or partly in the Coastal (Coffin Bay) Zone into which the land subject to the plan of division is already divided.
Mr Southam calls in aid the so-called “existing non-complying use principle” that “provisions of a planning instrument that submit particular land uses to special restrictions on the basis of their incompatibility with the general character of a zone, or on the basis that they call for special controls, should not ordinarily be interpreted as applying to a proposal which is a reasonable development of an existing use.”[15]
[15] District Council of Mount Barker v Palma [2002] SASC 104; (2002) 120 LGERA 182 at [44] per Doyle CJ (with whom Mulligan J agreed). See also Caltex Australia Petroleum Pty Ltd v City of Holdfast Bay [2014] SASCFC 59.
The Council contends that the Development Plan considered as a whole evinces a general policy of discouraging land division within the Coastal Zone. The Council-wide part of the Development Plan includes a section under the heading Coastal Development. Those provisions are expressed to be:
applicable to all development which could impact on coastal areas, affect coastal processes or be subject to effect or hazard from coastal processes now or in the future, whether or not the development is located in the Coastal Zone.
Paragraph 116 provides:
Land should only be divided in such a way that:
(a) it all subsequent development and use of the land will not adversely affect the management of the land, adjoining land or the coast;
(b) sand dunes, wetlands and remnant vegetation are maintained in single parcels;
(c) the number of allotments abutting directly onto the coast or onto a reserve for conservation purposes is minimised; and
(d) outside of urban, tourist accommodation and rural living zones it will not result in allotments with frontages to the coast or coastal reserve shorter than the depth of the allotment (or less than the square root of the area for irregular shaped allotments).
The Council contends that Objectives 12 and 13 and Principle 13 of the Coastal Zone also evince a general policy of discouraging land division within the Coastal Zone. Objectives 12 and 13 are “Land division enabling security of tenure for existing erected dwellings on Crown land, or land owned by the Crown or a Minister of the Crown” and “The upgrading of existing erected dwellings to assist environmental improvements” respectively. Principle 13 provides:
Land should not be divided except under the following circumstances:
(a) an owner requires a separate Certificate of Title in respect of one or two dwellings which were in existence prior to 1 September, 1989, and provided one of those allotments does not exceed 1.0 hectare; or
(b) for the adjustment of allotment boundaries where no additional allotments are created and where no new allotment of less than 40 hectares is created; or
(c) an owner who, as the registered proprietor of an allotment of 100 hectares or more which is used for farming purposes, wishes to create an additional allotment not larger than one hectare for the purpose of erecting a dwelling for a relative employed on the property, or for the owner’s retirement; or
(d) for the creation of a public road or reserve; or
(e) for the creation of an allotment to accommodate an existing dwelling on Crown land, or land owned by the Crown or a Minister of the Crown, unless the requirements of principle of development control numbered 25 are in place or provided for in the development application.
The Council contends that it would defeat the objects and overall purpose of the Development Plan to interpret paragraph 13(b) such that it does not apply to boundary realignments which result in increased numbers of partial allotments in the Zone as well as whole allotments.
The Council contends that the unius est exclusio alterius principle of interpretation should not be applied by comparing paragraphs 19 and 28 of the Coastal (Coffin Bay) Zone section with paragraph 13(b) of the Coastal Zone section of the Development Plan for two reasons. First, development plans should not be interpreted as if they are statutes.[16] Secondly, the predecessor of the Coastal Zone was the Rural Coastal Zone which contained paragraph 8(b) being the predecessor of paragraph 13(b) as follows:
(b) for the re-adjustment of allotment boundaries to improve agricultural pastoral efficiency and productivity, provided there is no increase in the total number of allotments and provided no allotment of less than 40 hectares in area is created
[16] Telstra Corporation Limited v Corporation of The City of Mitcham [2001] SASC 166, (2001) 79 SASR 509 at [25] per Debelle J (with whom Prior, Nyland, Martin and Williams JJ agreed).
The Council contends that Coastal (Coffin Bay) Zone section was only created in 2005 (at the same time as the Coastal Zone) which was several years after the predecessor of paragraph 13(b), namely paragraph 8(b) of the Rural Coastal Zone, had been drafted and it cannot be assumed that there was a comprehensive review and comparison of different paragraphs dealing with similar subject matter in the Development Plan in 2005.
The Council contends that the “existing non-complying use principle” has no application to land division for the reasons given by the Commissioner.
Mr Southam advances an alternative contention that the reference in paragraph 13(b) to “additional allotments” is a plural reference to two or more additional allotments. The Council contends that this is a collective reference to one or more additional allotments for the reasons given by the Commissioner.
Meaning of allotments: plural or collective
I first address Mr Southam’s alternative contention that on its proper construction the reference to “additional allotments” is a reference to two or more additional allotments because it uses the plural form “allotments”.
I reject this contention. In construing a provision, regard should be had to its text, context and evident purpose. Paragraph 13(b) only applies to an adjustment of allotment boundaries. If one additional allotment is created – for example, if a parcel of land subdivided into three allotments is to be re-subdivided into four allotments – the change could not be characterised as an adjustment of allotment boundaries. The evident purpose of paragraph 13(b) is to permit neighbours to move the boundary between their respective allotments or to permit a single owner of land encompassing multiple allotments to adjust the boundaries between them with a view to their being in different ownership or control in the future. The creation of one additional allotment is foreign to that purpose.
It would have been cumbersome for paragraph 13(b) to have read “no additional allotment is or no additional allotments are created”. The drafter instead adopted the expedient of referring to “no additional allotments” on the premise that the plural includes the singular.[17]
[17] See in respect of Acts and statutory instruments Acts Interpretation Act 1915 (SA) s 26(c).
The word “allotments” in paragraph 13(b) is used in the collective grammatical sense and not in the plural grammatical sense.
Meaning of allotment
Before turning to the proper construction of the term “allotment” in paragraph 13(b), I make two preliminary observations. First, development plans should not be interpreted as if they are statutes.[18] Secondly, the so-called “existing non-complying use principle”[19] has no application to the land division form of development at least in circumstances such as in the present case for the reasons given by the Commissioner.
[18] Telstra Corporation Limited v Corporation of The City of Mitcham [2001] SASC 166, (2001) 79 SASR 509 at [25] per Debelle J (with whom Prior, Nyland, Williams and Martin JJ agreed).
[19] District Council of Mount Barker v Palma (2002) 120 LGERA 182 at [49]-[52] per Doyle CJ (with whom Mulligan J agreed).
While development plans should not be interpreted as if they were statutes, nevertheless in construing any provision, whether it be legislative, contractual or otherwise in character, regard should be had to its text, context and evident purpose.[20]
[20] Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 105-106 per Barwick CJ and 109-110 per Gibbs J; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at [10] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and [68]-[70] per Kirby J; Westfield Management Limited v AMP Capital Property Nominees Limited [2012] HCA 54 at [27]; (2012) 247 CLR 129 a [27] per French CJ, Crennan, Kiefel and Bell JJ.
Starting with the text of paragraph 13(b), it provides:
Land should not be divided except … for the adjustment of allotment boundaries where no additional allotments are created and where no new allotment of less than 40 hectares is created
The paragraph refers on three occasions to the concept of an allotment. That concept is renowned in the development context and in development plans, being the meaning under the Real Property Act, namely land shown in a separate certificate of title or an allotment shown in a deposited plan of division and thereby potentially the subject of a separate certificate of title. For ease of reference, I refer to an allotment in the Real Property Act context as “an RPA allotment”. RPA allotments are independent of zoning under development plans and it is well known that more often than not zone boundaries will traverse RPA allotments. The fact that the drafter chose to utilise the concept of an allotment in the circumstances suggests that the allotments referred to in paragraph 13(b) are RPA allotments independent of zone boundaries.
The first reference to “allotment” in the paragraph is to the allotment’s boundaries. This is unequivocally a reference to an RPA allotment, ie to the boundaries shown in the relevant certificates of title or deposited plan of division. Similarly, because the purpose of creating a new allotment is to create an allotment the subject of a separate certificate of title, the third reference to “allotment” in the paragraph is also to an RPA allotment. While not conclusive, this suggests that the same meaning is given to the second reference to “allotment” in the paragraph.
Turning to the context of the paragraph in the Development Plan as a whole, the Development Plan creates 17 zones. Appendix B is a large scale zone map.
Ten zones are primarily for residential purposes[21] or commercial or industrial purposes[22] in respect of which land division is not a non-complying form of development and they can be put to one side. One zone is for conservation purposes in which all land division is a non-complying form of development and it also can be put to one side.
[21] Residential Zone, Town Centre Zone, Deferred Urban Design, Rural Living Zone, Mixed Use (Port Boston) Zone, Settlement Zone and Tourist Accommodation Zone.
[22] Commercial (Bulk Handling) Zone, Industrial Zone and Special Uses Zone.
Five of the remaining six zones contain provisions rendering land division generally a non-complying form of development subject to exceptions which include an exception for the purpose of realigning allotment boundaries where no additional allotments are created (the boundary realignment exception). Four zones being the General Farming Zone, Water Protection Zone, Airfield Zone and Coastal Zone collectively account for over 80 percent of the land area falling within the Development Plan.[23] In these four zones, farming is a complying use. The three specific zones involve additional constraints overlaying the principles applicable to the General Farming Zone due to the need to accommodate water protection, the airfield and coastal management respectively. The boundary realignment exception in each of the General Farming Zone, Water Protection Zone and Airfield Zone is expressed in the following terms:
for the readjustment of allotment boundaries to improve agricultural efficiency and provided no additional allotments are created.[24]
[23] The Conservation Zone accounts for the vast majority of the balance.
[24] General Farming Zone 17(a); Water Protection Zone 14(a); Airfield Zone 6(a). Paragraph 17(a) adds the words “and production” and paragraph 14(a) adds the words “and productivity” but these additions are largely otiose. Note that the predecessor of paragraph 13(b) for the Coastal Zone, namely paragraph 8(b) for the Rural Coastal Zone contained a similar requirement that the readjustment was to improve agricultural efficiency, but that requirement was omitted when the Coastal Zone was created in 2005: see [29] above.
Each of the Water Protection Zone and the Airport Zone adjoin land within the General Farming Zone. It is likely that the zone boundaries traverse allotment boundaries. The evident purpose of the boundary realignment exception in these three zones is to permit neighbours to move the boundary between their respective allotments or to permit a single owner of land encompassing multiple allotments to move the boundaries between those allotments with a view to their being in different ownership or control in the future where this is done to improve agricultural efficiency. Where allotments straddle the boundary between the General Farming Zone and either the Water Protection Zone or the Airport Zone, it would be irrational to construe the boundary realignment exception as referring to allotments wholly or partly within one of the zones. In the case of these three zones, the boundary realignment exception should be construed in the manner advanced by Mr Southam by reference to allotments RPA without regard to zone boundaries.
The evident purpose of the boundary realignment exception in the Coastal Zone section (paragraph 13(b)) is to permit neighbours to move the boundary between their respective allotments or to permit a single owner of land encompassing multiple allotments to move the boundaries between those allotments with a view to their being in different ownership or control in the future.
The wording of the boundary realignment exception in the Coastal Zone section is similar to the wording of the boundary realignment exception in the General Farming Zone, Water Protection Zone and Airfield Zone sections of the Development Plan. They all refer to the purpose of the land division being for the adjustment of allotment boundaries where no additional allotments are created. If the exception relating to the other three zones is construed as referring to RPA allotments independently of zone boundaries, that is a strong indication that the equivalent exception in relation to the Coastal Zone should be construed in the same manner.
The Coastal Zone adjoins land within the Coastal (Settlement) Zone. It is likely that the zone boundaries traverse allotment boundaries. Where allotments straddle the boundary between the Coastal Zone and the Coastal (Settlement) Zone, it would be irrational to construe the boundary realignment exception as referring to allotments wholly or partly within one of the zones. In the case of these two zones, the boundary realignment exception should be construed in the manner advanced by Mr Southam by reference to RPA allotments without regard to zone boundaries.
As observed above, the Coastal (Coffin Bay) Zone section contains an exception to land division being a non-complying development that is quite differently expressed to the boundary realignment exception in the Coastal Zone section and the four other zones referred to in the previous paragraphs. The exception does not require that the purpose of the land division be adjustment of boundaries and specifically refers to allotments wholly or partly in the zone. I accept the Council’s submission that the wording of this exception is not of assistance in construing the exception in the Coastal Zone section.
In considering the context of the reference to “allotment” in paragraph 13(b), it is relevant to note that the mere fact that a land division falls within the paragraph does not render it complying development. It is still to be assessed by the Council on merit by reference to, amongst other things, the principles of development control contained in the Development Plan. Those principles include paragraph 116 of the Council-wide section extracted at [26] above which the Council is entitled to take into account. The consequences of a land division falling within the exception created by paragraph 13(b) are not as dramatic as if they resulted in the land division being complying development. While this is a relatively minor factor in the overall construction of the paragraph, it is an answer to some of the contentions advanced by the Council in support of its construction of paragraph 13(b).
Subparagraphs 116(b) and (c) provide that land, whether or not falling within the Coastal Zone, should only be divided in such a way that sand dunes, wetlands and remnant vegetation are maintained in single parcels and the number of allotments abutting directly onto the coast or onto a reserve for conservation purposes is minimised. These provisions do not support the Council’s construction of paragraph 13(b) for two reasons. First, they apply to land division regardless of whether the land falls within the Coastal Zone and in the case of subparagraph 116(c) apply to allotments abutting onto a reserve for conservation purposes which allotments are quite unlikely not to fall within the Coastal Zone. Secondly, they provide specific, precise and discriminating criteria in contrast with the general and undiscriminating criterion that would be applied on the Council’s construction of paragraph 13(b).
While the unius est exclusio alterius principle ought not to be applied by reference to paragraphs 19 and 28 of the Coastal (Coffin Bay) Zone section to support Mr Southam’s construction, those paragraphs do provide a convenient exemplar of the manner in which paragraph 13(b) might be expected to have been drafted if it had been the intention of the drafter of the Development Plan to confine attention to allotments falling wholly or partly within the Coastal Zone.
Taking into account the text, context and evident purpose of paragraph 13(b), the word allotment should be construed as referring to an RPA allotment.
Conclusion
I allow the appeal. I set aside the Commissioner’s decision on the review. In lieu thereof, I reverse the Council’s classification of the proposed development as non-complying and determine that it is not non-complying. I quash the Council’s refusal of the application and remit the application to the Council for assessment against the Development Plan as a merit form of development.
I will hear the parties as to the precise orders to be made and any consequential orders.
Appendix 1
Appendix 2
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