It is of critical importance to have an exact understanding of legislation as it is written. This was demonstrated by the judgement by NSW Land & Environment Court (Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181) on our client’s case in 2019. It always pays to read every word in an LEP clause carefully, to ensure it is saying what you think it is saying.
Recently, Precise Planning prepared a development application for a 5 lot subdivision, relating to a property in the Wollondilly Local Government Area. The land in question was part of an “original holding”, under clause 4.1B of the Wollondilly Local Environmental Plan.
The LEP does not define “original holding”, rather it points to the “Original Holdings Map” contained in the LEP. The Map defines each original holding with red lines around certain boundaries.
The effect of the clause required that the area of the “original holding” be divided by 4, in order to determine the maximum number of lots that it could yield. The original holding that our client’s property was part of was 80ha. Therefore, according to the calculation, a total of 20 lots could result from subdividing this original holding.
Our client’s land was partly zoned E4 Environmental Living and partly RU2 Rural Landscape.
It had always been the accepted practice that, when dealing with a split zone, the calculation to determine yield should apply only to the area contained within the E4 Environmental Living zone. Had this been the case, our client’s 5 lot subdivision would not have been possible. However, a very careful reading of the precise wording contained in the LEP clause revealed that the calculation was not restricted to the land contained in the E4 Environmental Living zone, but could include the land within the RU2 Rural Landscape zone as well. Confining the operation of the development standard just to the E4 Environmental Living zone was simply the way it had always been done.
The Council resisted our interpretation of the clause and the matter was eventually decided in our client’s favour by NSW Land & Environment Court (Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181).
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