Cranbrook School v Woollahra Municipal Council

[2006] NSWCA 155

Reported Decision: 146 LGERA 313
66 NSWLR 379

Court of Appeal

CITATION:	Cranbrook School v Woollahra Council [2006] NSWCA 155
HEARING DATE(S):	30 March 2006
JUDGMENT DATE:	19 June 2006
JUDGMENT OF:	Beazley JA at 1; McColl JA at 7; Basten JA at 73
DECISION:	(1) Appeal allowed; (2) Set aside the Judgment and Orders (other than Order 2) of the Land and Environment Court dated 14 December 2005; (3) Declare that the development proposed in Development Application No. 508/2005/1 lodged by the appellant with the respondent on 16 August 2005 seeking development consent for the erection of school buildings and associated facilities on the land contained in Folio Identifiers 6/17607, 2/317149, 1/1033645 and 2/1033645 to be used for the purpose of the School conducted by the appellant is development permissible with consent under the provisions of the Woollahra Local Environmental Plan 1995 being development that constitutes a “community facility” within the meaning of that Plan; (4) Respondent to pay the costs of the appeal.(D)
CATCHWORDS:	ENVIRONMENTAL PLANNING - local environment plan - whether proposed development a "community facility" within meaning of Woollahra Local Environmental Plan 1995 - STATUTORY INTERPRETATION - function of definition clauses - WORDS AND PHRASES - community facility".
LEGISLATION CITED:	Crimes Act 1900 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Land and Environment Court Act 1979 Registered Clubs Act 1976 Woollahra Local Environmental Plan 1995
CASES CITED:	Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 79 ALJR 1079 Batchelor & Co Pty Ltd v Websdale [1963] SR (NSW) 49 Betella v O’Leary [2001] WASCA 266 Calleja v Botany Bay City Council [2005] NSWCA 337 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 Cranbrook School v Woollahra Municipal Council [2005] NSWLEC 716. Deeble v Robinson [1954] 1 QB 77 81 Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 Dilworth v Commissioner of Stamps [1899] AC 99 Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 Hall v Jones (1942) 42 SR (NSW) 203 Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95 Hepples v Federal Commissioner of Taxation (1990) 22 FCR 1 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 MacFarlane v Burke, ex parte Burke [1983] 2 Qd R 584 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v McN (1963) 63 SR (NSW) 186 Transport Accident Commission v Treloar [1992] 1 VR 447 Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 Warringah Shire Council v Punnett & Associates Pty Ltd [2001] NSWCA 480; (2001) 122 LGERA 1 YZ Finance Co Pty Limited v Cummings [1964] HCA 12; (1963-1964) 109 CLR 395 Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310
PARTIES:	Cranbrook School - Appellant Woollahra Municipal Council - Respondent
FILE NUMBER(S):	CA 40980/05
COUNSEL:	M Craig QC with J Sheller - Appellant D Officer QC with B Jones - Respondent
SOLICITORS:	Aitken McLachlan Thorpe - Appellant Lindsay Taylor Lawyers - Respondent
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40997/05
LOWER COURT JUDICIAL OFFICER:	Cowdroy J
LOWER COURT DATE OF DECISION:	14 December 2005

CA 40980/05
LE 40997/05

BEAZLEY JA
McCOLL JA
BASTEN JA

Monday 19 June 2006

CRANBROOK SCHOOL v WOOLLAHRA MUNICIPAL COUNCIL

Judgment

1 BEAZLEY JA: I have had the advantage of reading in draft the judgments of McColl JA and Basten JA. McColl JA has set out in her judgment both the facts relevant to this appeal as well as the regulatory scheme encompassed in the Woollahra Local Environmental Plan 1995 (the WLEP). It is sufficient therefore for me to make a brief comment only in relation to the outcome of the appeal.

2 As McColl JA points out, the WLEP is far from a model of drafting clarity. A "community facility" as defined in Sch 1 of the WLEP does not immediately or necessarily encompass a school or educational facility within its meaning unless the reference to "intellectual … welfare of the community” is sufficiently wide to include a school or educational facility. There is obviously a connection between the two concepts although I would not see them as being synonymous. In particular, I would have thought that a building or place owned or controlled by a relevant entity within the definition for the "intellectual … welfare of the community" was intended to identify something different from a school or educational facility. Rather, it might be expected to relate to places of learning or intellectual activity that were beyond education provided within the educational construct of a school. It is therefore logical for a public library to be included or a building for cultural activities, being specific buildings referred to within the definition.

3 A further reason why it might be thought that a school did not fall within the meaning of a community facility as defined, is because there are provisions within the WLEP where the reference to a school is explicit. It might have been thought, therefore, that when the drafters of the WLEP intended to refer to a school, there would be an express provision relating to it. This in fact can be found in the definition of "educational establishment" in Sch 1, which is defined to mean, inter alia: "a building used as a school, college, technical college”. However, the definition is far more extensive and also means: “a building used as a[n] … academy, lecture hall, gallery or museum". These latter buildings might be thought to more readily fit within the construct of “intellectual welfare" in the definition of "community facility". This is one indicator, therefore, that definitions in the WLEP are not to be read in a restrictive sense, or with any pre-conceived notion of the usual meaning of a particular word or concept.

4 The likelihood that the meaning of “community facility” should not be read in a restrictive way is reinforced by the provisions of the Development Control Table for Zone No 5 – Special Use Zone. Clause 2 of the Table provides for the description of the zone. It specifies that the zone applies to land used for “community facilities”, which expressly include “schools”.

5 It would be abhorrent as a matter of statutory construction for "community facilities" to extend to "schools" in one part of the WLRP but not to do so in another part. As McColl JA points out at [47], the definition of "community facilities" must bear a meaning that is intelligible, and, I would add, consistent, in all the contexts in which it appears.

6 Accordingly, for the reasons given by her, I agree with McColl JA. I should add that, although the route taken by Basten JA is somewhat different to that taken by McColl JA, I do not understand there to be a different underlying approach to the construction question.

7 McCOLL JA: The issue in this case is whether a development proposed by Cranbrook School comprising the erection of school buildings and associated facilities on land at 6 Kent Road, Rose Bay (the “subject land”) is a “community facility” and, therefore, a development permissible with consent, within the meaning of the Woollahra Local Environmental Plan 1995 (the “WLEP”). Cowdroy J held that it was not: Cranbrook School v Woollahra Municipal Council [2005] NSWLEC 716.

8 In my view his Honour erred in so deciding. The appellant’s proposed development is permissible with consent under the provisions of the WLEP, being development that constitutes a “community facility” within the meaning of that Plan.

9 The proceedings were commenced in Class 4 of the jurisdiction of the Land and Environment Court and, accordingly, this appeal is brought pursuant to s 58 of the Land and Environment Court Act 1979. It extends to questions of both fact and law.

Statement of the case

10 The facts are uncontroversial and can be reproduced from the judgment below:

“2 The subject land is contained in folio identifier 6/17607, 2/317149 and old system title land contained in Conveyance Book number 1826 folio 406, within the Woollahra local government area. The subject land is the site of the former Rose Bay Bowling Club.

3 Cranbrook was incorporated on 10 April 1918 for the object, inter alia, of establishing and operating a school for boys and/or girls:

‘… in which they may obtain a sound classical mathematical and general education of the highest order including (except in those cases in which the parent or guardian of the pupil shall object) such religious instruction [in] conformity with the principles of the Church of England as may be approved by the Council of the School.’
(see cl 3(a) of the Memorandum of Association of Cranbrook).

Cranbrook currently operates a school providing education for boys at sites in Rose Bay and Bellevue Hill.

4 The subject land was recently acquired by Cranbrook and adjoins other land owned by it (“the Dangar land”) which is currently used as playing fields. The Dangar land is also the site of an early learning centre for students of the school from kindergarten to year 2.

5 On 16 August 2005, pursuant to the Environmental Planning and Assessment Act 1979 … Cranbrook applied to the Council for approval for development on the subject land and the Dangar land. Cranbrook proposes to relocate its Junior School from Bellevue Hill to a new complex located on the subject land and the Dangar land (“the Junior School Redevelopment”). The Junior School Redevelopment will involve the erection of classroom buildings and facilities on the subject land.”


The legislative framework

11 The Dangar land is within WLEP, Zone No 5 – Special Uses Zone, being zoned for school purposes by delineation on a land use map (cl 5, Zone No 5 table), while the subject land is contained in WLEP, Zone No 6 – Open Space.

12 The Open Space Zone applies to public or private land that is used or intended to be used for recreational purposes and also for community facilities: cl 2, Zone 6 – (Open Space Zone).

13 The aims and objectives of the WLEP as set out in Pt 1 are, relevantly:

“2. The aims and objectives of this plan

(1) The aims of this plan are -
…
(b) to provide a comprehensive planning instrument that is clear and explicit but which provides flexibility in its application,
…
(d) to provide for an appropriate balance and distribution of land for commercial, retail, residential and tourist development and for recreation, entertainment and community facilities,…

(2) The objectives of this plan are:

……..

(c) in relation to community services and facilities:

(i) to facilitate the provision and equitable distribution of community services necessary to meet the needs of the population,

(ii) to provide opportunities for the development of community services and facilities in appropriate areas, and

(iii) to allow for contributions towards the provision of community services and facilities.”

14 Clause 5(a), Pt 1 of the WLEP provides that “in this plan … words and expressions listed in Schedule 1 have the meanings given to them in that Schedule”.

15 “Community facility” is defined in Sch 1 as follows:

“‘Community facility’ means a building or place owned or controlled by the Council, a public authority, a religious organisation or a body of persons associated for the physical, social, cultural, economic, intellectual or religious welfare of the community, [ ** ] which may include:
(a) a public library, rest rooms, meeting rooms, recreation facilities, a childcare centre, cultural activities, social functions or any similar building, place or activity, or

(b) a community club, being a building or place used by persons sharing like interests, but not a registered club,

whether or not that building or place is also used for another purpose.”
In oral argument Mr Craig QC submitted, and Mr Officer QC accepted, that the definition should be read as if the words “the use of” appeared at this point.

16 The Development Control Table for the Open Space Zone provides:

2 Description of the zone
The Open Space Zone applies to public or private land used or intended to be used for recreational purposes. Land which is within this zone may also be used for community facilities.

3 The objectives of the Open Space Zone are:

“(a) to identify existing publicly and privately owned land used or capable of being used for recreational purposes,

…

(c) to increase the provision of public open space within the Council’s area to meet the needs of the population,

(d) to enable development for the purpose of public and private recreation and community facilities sympathetic to the environmental characteristics of the land and surrounding areas, and

(e) to protect the visual and environmental attributes of the foreshores.”

4. Development which may be carried out without development consent

Development for the purpose of:

Bushfire hazard control; drainage; maintenance of gardens and structures. Development pursuant to, or approved in accordance with, the plan of management adopted under Division 2 of Part 2 of Chapter 6 of the Local Government Act 1993 and for the time being applicable to the subject land.
5. Development which may be carried out only with development consent

Development for the purpose of:

Community facilities; recreation areas; recreation facilities; roads; uses or building associated with development permitted in the zone without development consent; utility installations (other than gas holders or generating works).
6. Development which is prohibited

Any development other than development included in Item 4 or 5.

7. Related provisions

Parts 3 and 4 of, and Schedule 2 and 3 to, this plan must be read in conjunction with this development control table as they also affect the nature of development which can be carried out.”

17 Pt 3 of the WLEP relevantly provides:

“PART 3 - ADDITIONAL PROVISIONS FOR THE DEVELOPMENT OF LAND
…

Community use of certain facilities

13 Community use of certain facilities

A person may, with the consent of the Council, use the facilities and sites of schools, colleges or other educational establishments for:

(a) community uses, or

(b) commercial operation of both the facilities and sites, or

(c) development for the purpose of community facilities,

whether or not the development is ancillary to the use of those facilities and sites for the purposes of schools, colleges, or other educational establishments.”

18 The Development Control Table for Zone No 5 – Special Use Zone should also be mentioned. It relevantly provides:

“1 Zone identification on the land use map

Coloured yellow, with red lettering and with or without broken red line edging.

2 Description of the zone

The Special Use Zone applies to land used or reserved for government and community facilities. These include railways, roads, defence installations, water, sewer and drainage works, hospitals, schools, churches, police stations and lighthouses.

3 Objectives of the zone

The objectives are:

(a) to identify land:

(i) which is used for particular public and community facilities, educational facilities , railway purposes or urban infrastructure, or

(ii) which is reserved for road widening purposes being land coloured yellow, edged with a broken red line and marked with letters “a.r.r.” in red (signifying arterial road reservation—proposed road widening) or the letters “l.r.r.” in red (signifying local road reservation—proposed road widening), and

(b) to improve access to and along the foreshores where opportunities arise.

4 Development which may be carried out without development consent

Development for the purpose of:

Drainage; parks and gardens; roads.
5 Development which may be carried out only with development consent

Development for the purpose of:

The particular land use indicated by red lettering on the land use map, including land uses ordinarily incidental or ancillary to the particular use (other than the particular use of railways); local community facilities ; land uses related to railways authorised by the Transport Administration Act 1988 , but only where the use indicated by red lettering is a railway use; utility installations (other than gas holders or generating works); works to enable public access to and along the foreshores.” (emphasis added)

19 “Open space” is not defined in the WLEP. However “public open space” is defined in Sch 1 to mean “land used for public recreation purposes and includes public parks, recreation reserves, civic spaces, formal gardens, beaches, public playgrounds and bushland”.

The primary judgment

20 Several issues were litigated before the primary judge and decided favourably to the appellant. The respondent has not challenged those findings.

21 The first issue considered by the primary judge was whether the appellant was “a body of persons associated … ” within the definition of “community facility”. The respondent submitted the appellant did not fall within that description, in essence, because it was a company limited by guarantee. His Honour rejected that submission (at [31]).

22 The respondent next submitted that the appellant was not associated for the relevant purposes set out in the definition of “community facility”.

23 The primary judge noted that the appellant was incorporated for, among others, objects 3(a) to (c) of its Memorandum of Association being:

“(a) To establish and carry on at Sydney (and/or elsewhere) in the State of New South Wales a school for boys and/or girls in which they may obtain a sound classical mathematical and general education of the highest order including (except in those cases in which the parent or guardian of the pupil shall object) such religious instruction in conformity with the principles of the Church of England as may be approved of by the Council of the School.

(b) To provide for the delivery and holding of lectures games exhibitions public meetings classes and conferences calculated directly or indirectly to advance the cause of education whether general professional or technical.

(c) To provide board lodging and attendance and all necessaries and conveniences to pupils whether boarders or otherwise.”

24 The primary judge held that Cranbrook was associated for the relevant purposes, saying:

“38 The Court is satisfied that Cranbrook is a body of persons associated for a relevant purpose under the definition of ‘community purpose’. The fact that enrolments at the school are discretionary, and that the school is available only [on] a fee-paying basis, does not alter the fact that Cranbrook provides an educational establishment to the community as a whole. Cranbrook is registered as a non-government school under Pt 7 of the Education Act 1990. Its prime purpose is that of education based upon a religious foundation. The fact that some members of the community may not have use of its facilities does not mean that Cranbrook is not associated for the welfare of the community. Whilst no school can offer its services to every citizen, the object of providing education is nonetheless clearly an object aimed at improving the welfare of the community.”

It was common ground on appeal that his Honour’s reference to “community purpose” should have been to “community facility”.

25 The primary judge next considered, and rejected (at [39]), the respondent’s submission that because the proposed school was classified under the WLEP as an “educational establishment” it could not also be a “community facility”. He then turned to consider the question whether use of the subject land as a school fell within the definition of “community facility”. Resolution of this question turned on the respondent’s submission that the uses identified in paragraphs (a) and (b) of the definition of “community facility” were exhaustive. His Honour accepted that submission saying:

“41 In this instance, the definition of ’community facility’ preceding paras (a) and (b) contains no reference to the uses of a building or place which will constitute uses as a ‘community facility’. If the applicant’s interpretation of the word ‘include’ were accepted, it would have the result that a building or place used for any purpose would constitute a ‘community facility’, provided it were owned or controlled by a relevant body. The Court does not accept that this interpretation is correct. The definition is clearly intended to define a community facility by reference to both its ownership and the use to which it is put. Paragraphs (a) and (b) itemise the uses which qualify a building or place as a ‘community facility’, and provide the only indication of such uses in the definition. As such, paras (a) and (b) must be treated as the exhaustive list of the uses which constitute authorised uses of a building or place as a ‘community facility’.

42 Such construction is reinforced by the terms of paras (a) and (b). Paragraph (a) is expansive on its own terms, providing a list of uses as well as ‘any other similar building, place or activity’. These words would be entirely unnecessary if, as the applicant suggests, the uses contained in para (a) were merely examples of acceptable uses.

43 Similarly, para (b) suggests that a community club is allowed but specifically states that a registered club is not. If the applicant’s definition were accepted, this paragraph would have the effect that any building or place owned or controlled by a relevant body was a ‘community facility’, with the exception of a registered club. This would produce an absurd result.

44 Furthermore, the words ‘whether or not that building or place is also used for another purpose’ which appear at the end of the definition of ‘community facility’ would be rendered otiose if (a) and (b) were merely examples of appropriate buildings or places. If there were no relevant restrictions on the uses which qualified a building or place as a ‘community facility’, then no question of whether a building or place with multiple uses was a ‘community facility’ would arise. These words are clearly intended to indicate that a building may still be a community facility if it has a multiplicity of uses, of which one is a use as a ‘community facility’. Accordingly, it gives tacit acknowledgment to the fact that only certain uses of a building or place qualify as uses as a community facility. Paragraphs (a) and (b) are the only portions of the definition which make any reference to the nature of permissible uses. Such paragraphs exhaustively define the range of uses which qualify as uses as a community facility.

45 The Junior School Redevelopment can only constitute a ‘community facility’ if the use of a school falls within either para (a) or para (b) of the definition of ‘community facility’. The Court is of the opinion that such as use does not. Paragraph (b) is clearly inapplicable, and the range of uses contained in para (a) do not extend to a school.”

26 His Honour concluded at [46]) that the Junior School Redevelopment was not the development of a “community facility” because it did not comply with the categories of permissible development in cl 5 of the Open Space zoning and, accordingly, was prohibited on the subject land.

Submissions on Appeal

27 The appellant submits that the primary judge’s conclusion that paras (a) and (b) of the definition of “community facility” were exhaustive failed to give effect to the plenary ambit of the prefatory words “which may include”. The appellant contends those words demonstrate an intention that paras (a) and (b) are not exhaustive. It argues that a development may fall within a definition of “community facility” if it involves a building, place or activity fulfilling the primary purpose or function of the entity described as owner or controller in the first three lines of the definition. Understood that way, its provision of school facilities in fulfilment of its primary function and in accordance with its objects is a permissible use. It submitted that that interpretation, as derived from the words of the definition, avoids the absurdity of result to which the primary judge adverted and is necessary in order to inform at least one of the identified examples of authorised activity being “social functions”.

28 The appellant next argued that most, if not all, of the Junior School Redevelopment included buildings within the list in para (a) of the definition of “community facility” when regard is had to the final words of that paragraph, “or any similar building…”. It relies upon the fact that the Junior School Redevelopment comprises infants’ department classrooms and facilities, tennis courts, road access and parking. It submits that the “childcare centre” referred to in para (a) of the definition is similar to infants’ school classrooms and facilities, a meeting room is similar to the multipurpose room intended for the land and tennis courts are similar to recreation facilities. Accordingly, it contends, it could properly be said that its development proposal involves buildings and activities “similar to” those described in para (a) and is permissible with consent.

29 The respondent accepts that the fact that the Junior School Redevelopment falls within the definition of “educational establishment” in the WLEP would not preclude the proposed development being permissible within the Open Space Zone if it also fell within the definition of “community facility”. That concession does not, it contends, have the result that educational establishments per se are permitted in that zone. It submits that the primary judge’s finding that the word “include” in the definition of “community facility” introduced an exhaustive enumeration of the authorised uses was correct. It also contended that the words “may include” ought to be construed as equivalent to “means” or “may include (and only include)”, or “which is permitted to include”.

30 The respondent next contended that the appellant’s submission that a building, place or activity may fall within the definition of a “community facility” if it fulfilled the primary purpose or function of the entity falling within the description of owner or controller found no support in the definition. It argued that the words “for the physical, cultural, economic, intellectual or religious welfare of the community” qualified the phrase “body of persons associated” and not the words “building or place”.

31 The respondent argued that if the primary judge’s interpretation of the definition was wrong then the only operative control within the definition of “community facility” was that the building or place must be owned or controlled by the identified entity regardless of its actual use. That would lead to an absurd result having the effect, for example, that if the building or place was owned or controlled by a religious organisation it could be used for any purpose at all.

32 Alternatively, the respondent submitted that if the primary judge was in error the identification of the uses in sub-paras (a) and (b) would be superfluous to the opening words of the definition. It argued that such a construction ought not be adopted.

33 The respondent argued that the flexibility within sub-paras (a) and (b) indicated they were intended to set the parameters of permissible uses, an interpretation reinforced by the phrase “or any similar building, place or activity” in para (a). The confining nature of sub-paras (a) and (b) was reinforced by the words “whether or not that building or place is also used for another purpose” which would have no operation if sub-paras (a) and (b) were merely intended as examples of a permitted use.

34 Finally, the respondent submitted that the appellant’s argument that individual components of the Junior School Redevelopment were similar to the list of buildings, places or activities in para (a) of the definition was a new argument which ought not be entertained on appeal. It argued that if that issue had been raised at trial it would have raised factual issues requiring expert planning evidence as to whether, in a planning sense, there was any difference between the buildings, places and activities in para (a) and the proposed development, including evidence regarding the expected impact of each of those types of development. The respondent contended that it would be prejudiced because of the inability to explore such matters if the appellant was permitted to advance this argument on appeal.

35 In the event the appellant was permitted to rely upon this argument, the respondent submitted that it impermissibly sought to establish a similarity between the proposed development and sub-para (a) activities by splitting the proposed development into component parts. It argued that the question was whether a school was similar to any of the buildings or places listed in para (a) and contended it was not. It contended that, applying a purposive construction, development in the Open Space Zone was intended to be more restricted than development in other zones in order to preserve the environmental characteristics of land zoned “Open Space”. Thus, it contended, when regard was paid to the type of buildings or spaces explicitly identified in para (a) they were “generally less intensive uses which could be embedded within a public open space area without detracting from its scenic qualities and its availability for public recreation”. It argued a school “does not fit within this pattern…..usually [being] a fairly major type of development which occupies a large tract of land.”

Consideration

36 Environmental planning instruments are a species of delegated legislation, a statutory instrument (s 3, Interpretation Act 1987) and should be interpreted in accordance with the general principles of statutory interpretation: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398; see also Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95 at 101 per Priestley JA (with whom Powell and Stein JJA agreed). A construction should be preferred that is consistent with the language and purpose of all the provisions of such instruments: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, 384 [69], [78] per McHugh, Gummow, Kirby and Hayne JJ.

37 The judgment below focussed too narrowly, in my view, on the definition of “community facility”.

38 In Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635, Barwick CJ, McTiernan and Taylor JJ stated:

“The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way … the effect of the Act and its operation in relation to dividends as defined by the Act must … be found in the substantive provisions of the Act which deal with ‘dividends’.”

39 Gibb underlines the proposition that the meaning of a definition turns on the context in which it appears, considered as a whole: Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108 per Mahoney JA; Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 79 ALJR 1079 at [26] per McHugh J. As McHugh J explained in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103]:

“‘[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment ... [O]nce ... the definition applies, ... the only proper ... course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment ... [T]he true purpose of an interpretation or definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies.” (emphasis added)

40 It should also be recognised that even though the words “unless the contrary intention appears” do not appear in a definition section, they are implied: Transport Accident Commission v Treloar [1992] 1 VR 447 at 449; Hall v Jones (1942) 42 SR (NSW) 203 at 207-8. This also ensures that a definition is not interpreted in a manner which would defeat a meaning required by the context: Betella v O’Leary [2001] WASCA 266 at [13] per Burchett AUJ (with whom Wallwork and Wheeler JJ agreed).

41 The primary judge’s finding that the definition of “community facility” was exhaustive turned on his application of the second of Lord Watson’s statements in Dilworth v Commissioner of Stamps [1899] AC 99 at 105 – 106 concerning the alternative meanings of the word “includes” in a definition clause that:

“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions”.

42 There is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined: Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 at 588 – 599 per Barwick CJ; applied Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 at 329-330 by Toohey, McHugh and Gummow JJ; see also Deeble v. Robinson [1954] 1 QB 77 81 per Denning LJ.

43 Lord Watson applied orthodox principles of statutory interpretation in Dilworth, requiring the meaning of “includes” to be determined in the context of the statutory instrument as a whole, an approach adopted in like cases: see YZ Finance Co Pty Limited v Cummings [1964] HCA 12; (1963-1964) 109 CLR 395 at 401-402 per Kitto J; R v McN (1963) 63 SR (NSW) 186 at 187 per Herron CJ and Manning J; Hepples v Federal Commissioner of Taxation (1990) 22 FCR 1 at 21 per Gummow J; Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 at [30] per Spigelman CJ.

44 In some cases a definition uses the word “includes”, then recites matters which would fall within the ordinary connotation of a defined expression as well as some which do not. Again the sense in which “includes” is to be understood turns on the context. In R v McN, s 154A of the Crimes Act 1900 provided, inter alia, that “ ‘vehicle’ includes any cart, wagon, cab, carriage, aeroplane or other aircraft, motor car, caravan, trailer, motor lorry, motor or other bicycle”. The Chairman of Quarter Sessions held, applying Dilworth and Batchelor & Co Pty Ltd v Websdale [1963] SR (NSW) 49 that, as all or most of the enumerations were within the ordinary meaning of the word “vehicle”, that expression did not include an “omnibus”. Herron CJ and Manning J reached the opposite conclusion (at 187-188). Taking into consideration “the nature of the legislation, the language used, the evil sought to be remedied and the nature of the offences specified” they found that “includes” should be understood in its ordinary sense as “a word of extension not of restriction” without recourse to what they described as “the artificial rules of construction” in Dilworth and Batchelor. So understood they held that a “motor omnibus is undoubtedly comprehended within the word ‘vehicle’ ”.

45 MacFarlane v Burke, ex parte Burke [1983] 2 Qd R 584 is another case where a definition expressed in inclusive language referred to matters which fell within the ordinary connotation of the defined expression (“obscene publication”) as well as some which did not. The Court of Appeal held that the matters enumerated were not an exhaustive statement of that term.

46 The meaning of “community facility” must be determined in accordance with these principles in the context of the WLEP and having regard to its policy and purpose.

47 The objectives of the WLEP insofar as community facilities are concerned include providing opportunities for their development in appropriate areas: Pt 1, cl 2(2)(c)(ii). Both the Special Purpose and Open Space Zones are identified as zones in which community facilities are permitted with development consent. In addition Pt 3, cl 13 permits community facilities to be developed on the facilities and sites of schools, colleges or other educational establishments. The definition of “community facility” must, therefore, admit of an interpretation intelligible in all three contexts in which it appears.

48 In my view it is the first four lines of the definition which indicate how “community facility” is to be understood in the WLEP. They identify the essential characteristic of such a facility being a building or place owned or controlled by an entity which, according to the WLEP has the requisite community character. Each of the first three-named entities, the Council, a public authority and a religious organisation has, self-evidently, a community character, even though, in the case of a religious organisation, it may only serve part of the community. In the case of the “body of persons” the necessary community character flows from the requirement that they be associated for the “physical, social, cultural, economic, intellectual or religious welfare of the community”.

49 The primary judge’s concern (at [41]) about this construction was that it would lead to the “absurd result” that any building or place owned or controlled by a relevant body was a “community facility”. For my part I do not perceive the absurdity which struck his Honour.

50 It is the fact that the entities identified in the definition have the requisite community character that operates as a control on the use to which the land can be put. Such entities could only use buildings or places they own or control in accordance with their constitutions.

51 Mr Officer submitted that on this approach a religious organisation could, for example, erect a block of flats on open space land – presumably intended to be an illustration of the extreme result of the interpretation which appeals to me. I do not see that as illustrating the absurdity of the proposition. A block of flats erected, for example, by the Catholic Church to house priests, nuns or the destitute readily falls within the ordinary connotation of a community facility – at least once it is recognised, as it is in the WLEP, that a religious organisation has the requisite community character. It may be that when considering whether permission should be granted for such a proposal, discretionary issues such as intensity of the development may lead to its rejection having regard the objectives of the Open Space Zone that community facilities be “sympathetic to the environmental characteristics of the land and surrounding areas” – however such considerations do not inform the interpretation issue.

52 Another use to which Open Space land can plainly be put demonstrates why the proposition that the WLEP permits the erection of a block of flats on land so zoned, but owned or controlled by the relevant community organisation is not an absurd result. “Utility installations” are permitted with consent on Open Space land: cl 5, Open Space Zone table. Such installations include a building or work used by a public utility carrying on any of a “railway, road transport, water transport, air transport, wharf or river undertakings”: see Sch 1 definitions of “utility installations” and “public utility undertaking”. If a railway can, theoretically at least, be constructed on open space land, a block of flats may seem to many to be a lesser evil.

53 Thus the opening words of the definition are capable of being given an intelligible interpretation identifying the key characteristic of a “community facility”.

54 This interpretation does not mean, as the respondent also submitted that sub-paras (a) and (b) are superfluous. It serves, as the appellant submitted, both to indicate some such facilities, but also in an enlarging or clarifying sense as appears from the identification of “recreational facilities” as a community facility. “Recreation facilities” are defined in Sch 1 to include places such as “a table tennis centre, squash court, swimming pool, gymnasium, health studio, bowling alley or any other building or place of a like character used for recreation whether or not operated for profit or gain”, but not including a place of assembly or an amusement centre - the former but not the latter, being a defined term. The drafter presumably thought it necessary to identify facilities operated for profit or gain as permissible community facilities - a proposition which may have been contentious to the extent such facilities were proposed for public open space land.

55 The proposition that the sub-para (a) list is not exhaustive is supported, in my view, by the use of further expansive words, “or any similar building, place or activity” which appear at the end of sub-para (a).

56 Sub-para (b) plays the obvious purpose of excluding registered clubs from the meaning of community clubs.

57 There are textual indications elsewhere in Sch 1 which support the proposition that “includes” is used to enlarge and not exclude. It is apparent that the combination of the words “means” to introduce a definition and either “includes” or “may include” is used in an enlarging sense: see the definitions of “boatshed”, “healthcare professional”, “hospital”, “housing for aged persons” and “parish centres”.

58 Conversely, care has been taken to exclude uses which might otherwise fall within the ordinary connotation of a defined expression: see the definitions of “backpackers’ accommodation”, “bed and breakfast accommodation”, “boarding-house”, “educational establishment” (the definition of which I note, in passing, does not exclude community facilities), “medical consulting rooms”, “place of assembly”, “recreation area”, “recreation facility”, “serviced apartments”, “skid” and “utility installations”.

59 Finally, a generic approach has been taken in the case of the definitions of “commercial premises”, “residential flat building” and “shop” to exclude buildings, places or purposes specifically defined elsewhere in the Schedule.

60 In short, therefore, Sch 1:

(a) uses “includes” or “may include” in an enlarging sense; and

(b) excludes uses not to be included within an expression into which they might otherwise have fallen either by specifically excluding nominated uses or by generally excluding buildings, places or purposes defined elsewhere in the schedule.

61 Either of the exclusionary techniques deployed elsewhere in Sch 1 could have been used in sub-para (a) to make plain, if it was so intended, that the list was exhaustive. The fact one such technique was used in sub-para (b) by express exclusion of registered clubs supports the proposition that sub-para (a) is not exhaustive.

62 I accept it is not readily apparent why sub-para (a) includes matters which would usually be owned by a Council or public authority such as a public library or rest rooms. Inclusion of such assorted matters in sub-para (a) brings to mind Tobias JA’s lament that “any attempt to always find planning logic in planning instruments is generally a barren exercise”: Calleja v Botany Bay City Council [2005] NSWCA 337 at [25].

63 In the final analysis it is “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”: Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon CJ.

64 When, as required, the words of the definition are read into the substantive WLEP and it is construed in that context it is clear that the sub-para (a) does not exhaust the matters which may be community facilities.

65 In the Special Purpose Zone, “community facilities” are said to “include railways, roads, defence installations, water, sewer and drainage works, hospitals, schools, churches, police stations and lighthouses”. Such facilities would readily, in my view, be understood to be owned or controlled by one or other of the four entities identified in the first four lines of the definition. Many would be governmental undertakings, but that cannot be said of either schools which may be government or non-government or, of course, churches.

66 Critically, for present purposes this list recognises that, prima facie, schools are a community facility for the purposes of the WLEP. The list is a contrary indication to the proposition that matters listed in sub-para (a) of the definition of “community facility” are exhaustive.

67 I do not accept that the list of community facilities identified in the Special Use Zone is restricted to that Zone. The uses permitted in the Special Use and Open Space zones overlap. Both can be used for community facilities as well as utility installations. It is consistent with the objectives of the WLEP to identify areas that can be used for community facilities that such facilities can be developed in more than one area, the critical control being that they are owned or controlled by an appropriate community entity.

68 In my view, it being accepted that the appellant is an entity within the meaning of the opening words of the definition of “community facility”, the development it proposes is permissible with consent in the Open Space Zone.

69 Mr Officer sought also to argue that the Open Space Zone envisaged an intensity of development less than one would normally anticipate to be the case in relation to a special use educational facility. This submission is belied by the fact that the Zone is fundamentally used for a purpose inconsistent with its nomenclature. As I earlier indicated “open space” is not defined, while public open space is defined in a manner which, if it applied to the Zone, would lend some support to Mr Officer’s submission.

70 “Open space” ordinarily connotes an area without buildings (Warringah Shire Council v Punnett & Associates Pty Ltd [2001] NSWCA 480; (2001) 122 LGERA 1 at 9 per Mason P, with whom Beazley JA and Ipp JA agreed) and yet, as is apparent from any reading of the definition of “community facility”, building development is permitted in the Open Space Zone. Any of the expressly identified buildings in the definition could well be of the intensity contemplated by the appellant’s proposal. In my view intensity issues may go to discretionary permission but not to permissibility.

71 This conclusion makes it unnecessary to consider the appellant’s alternative argument that the Junior School Redevelopment involves building and activities “similar to” those described in sub-para (a).

72 I propose the following orders:

1. Appeal allowed.

2. Set aside the Judgment and Orders (other than Order 2) of the Land and Environment Court dated 14 December 2005.

3. Declare that the development proposed in Development Application No. 508/2005/1 lodged by the appellant with the respondent on 16 August 2005 seeking development consent for the erection of school buildings and associated facilities on the land contained in Folio Identifiers 6/17607, 2/317149, 1/1033645 and 2/1033645 to be used for the purpose of the School conducted by the appellant is development permissible with consent under the provisions of the Woollahra Local Environmental Plan 1995 being development that constitutes a “community facility” within the meaning of that Plan.

4. Respondent to pay the costs of the appeal.

73 BASTEN JA: The Appellant, Cranbrook School, seeks to develop as a junior school a block of land purchased from the Rose Bay Bowling Club, and adjacent to its existing Rose Bay school buildings and grounds. The land of the existing school is zoned “special uses – school”; the question is whether the School can develop a new junior school on the adjacent land which is zoned “open space”.

74 The question is not whether the development application, which concededly needs the consent of Council, should be approved, but whether it was a permissible development which the Council should consider. On advice, the Council considered that it was not a permissible development and hence indicated that it would reject the application. The Land and Environment Court upheld that decision, dismissing an application by the School for declaratory relief pursuant to s 20(2) of the Land and Environment Court Act 1979 (NSW): Cranbrook School v Woollahra Municipal Council [2005] NSWLEC 716.

75 The land zones are controlled by the Woollahra Local Environment Plan 1995 (“the Plan”). Any land within Zone No. 6 (Open Space) is attractively shown in dark green on the land use map which accompanies the Plan. However, to assume that it requires land to be largely left as open space, as the name and colouring of the zone suggests, would be misconceived.

76 Part 2 of the Plan sets out a number of “development control tables” which identify and describe zones shown on the land use map. Zone No. 6 “Open Space” is described in the following terms in clause 2 of the relevant table:

“The Open Space Zone applies to public or private land used or intended to be used for recreational purposes. Land which is within this zone may also be used for community facilities.”

77 Clause 5 of the table indicates what developments may be carried out with consent of the Council in the zone:

“Development for the purpose of:
community facilities; recreation areas; recreation facilities; roads; uses or buildings associated with development permitted in the zone without development consent; utility installations (other than gas holders or generating works).”

78 These purposes are defined in Schedule 1 of the Plan. The critical category for the School is “community facilities”. However, before turning to the definition of that term, it is convenient to look at some of the other developments which may take place within the zone, in order to understand the context within which the definition of community facilities must be understood. Thus, the term “recreation facility” is defined to mean “a building or place used for indoor recreation, such as a table tennis centre, squash court, swimming pool, gymnasium, health studio, bowling alley or any other building or place of a like character used for recreation whether or not operated for profit or gain, but does not include a place of assembly or an amusement centre”. Putting to one side the exclusions, it is clear that a wide range of structures may be built on open space as recreation facilities.

79 A similar inference may be drawn from the definition of “utility installation” which means “a building or work used by a public utility undertaking, but does not include a building designed wholly or principally as administrative or business premises or as a showroom”. The term “public utility undertaking” is defined to mean:

“Any of the following undertakings carried on or permitted or suffered to be carried on by or by authority of any Government Department or under the authority of or in pursuance of any Commonwealth or State Act:
(a) railway, road transport, water transport, air transport, wharf or river undertakings,
(b) undertakings for the supply of water, hydraulic power, electricity or gas or the provision of sewerage or drainage services.”

Again, it is clear that the zoning permits the development of substantial structures which would prevent the land being open space in any colloquial sense. Indeed, the colloquial sense is covered by a separate term “public open space” which is defined to mean “land used for public recreation purposes and includes public parks, recreation reserves, civic spaces, formal gardens, beaches, public playgrounds and bushland”. That term is not used in the context of Zone No. 6. The fact that open space zoning applies to private as well as public land removes the element of public access inherent in the concept of public open space, as private freehold land is a tenure which confers on the owner a right of possession to the exclusion of others.

80 Returning to the first phrase in the list of purposes for which development may be carried out with consent, “community facilities”, the question is whether a school can fall within its terms. The phrase is defined in Schedule 1 to mean -

“… a building or place owned or controlled by the Council, a public authority, a religious organisation or a body of persons associated for the physical, social, cultural, economic, intellectual or religious welfare of the community, which may include:
(a) a public library, rest rooms, meeting rooms, recreation facilities, a child care centre, cultural activities, social functions or any similar building, place or activity, or
(b) a community club, being a building or place used by persons sharing like interests, but not a registered club,
whether or not that building or place is also used for another purpose.”

81 The first question decided by the Land and Environment Court was whether Cranbrook School, being a company limited by guarantee, was “a body of persons associated” for one of the relevant purposes. It was necessary for the Court to decide whether the School fell within any of the relevant categories of bodies or associated persons. It held that it did and there is no appeal from that conclusion.

82 The second question addressed by the Court was whether the persons constituting the School were associated for a relevant purpose. The Court found that the prime purpose of the School was “that of education based upon a religious foundation”. The Court further held that the School provided educational services to the community as a whole, although places for students were available only on a fee-paying basis. At [38] the Court stated:

“Whilst no school can offer its services to every citizen, the object of providing education is nonetheless clearly an object aimed at improving the welfare of the community.”

There was no appeal against that finding.

83 The third issue addressed below, and the only matter in issue in this Court, was whether the development proposed by the School was a “community facility” within the definition of that term set out above. The argument that the school development did not fall within the definition of “community facility” involved the combination of three factors. The first was that the definition did not expressly refer to a school. The second was that the words “which may include” required that the following list be treated as exclusive of the class identified, rather than merely as indicative of the membership of the class. The third factor relied upon was the reliance on the “special uses” zone to provide for schools, thus demonstrating, it was said, the inappropriateness of the open space zone for that purpose.

84 The Court below upheld the Council’s submission, largely on the basis of the second factor, although the first is implicit in the reasoning at [39]-[45]. In this Court, some support for that conclusion was also placed on the third factor. It is convenient to deal with the third factor first as it does not, in my view, carry significant weight.

85 Indeed, on one view, the description of Zone No. 5, Special Use, gave support to the School’s argument. Thus the description provided:

“The Special Use Zone applies to land used or reserved for government and community facilities. These include railways, roads, defence installations, water, sewer and drainage works, hospitals, schools, churches, police stations and lighthouses.”

The reference to “schools” in the second sentence, at least implies that they may come within the class of “community facilities”.

86 On the other hand there are contrary indications within the Zone No. 5 table. Thus, clause 3, which identifies the objectives of the zone, refers to land which is used for “particular public and community facilities, educational facilities …”. The term “educational facilities” is not defined, but, like the defined term “educational establishment”, it must include a school. Its separate identification may suggest that the term “community facilities” was not so intended. More importantly, however, it is clear that many of the uses which fall within the special use zone also fall within the open space zone as permissible developments. The developments which may be carried out in the special use zone include “local community facilities” (an undefined term, but presumably involving a class of uses similar to “community facilities”) and “utility installations (other than gas holders or generating works)” demonstrating expressly the overlap between the zones.

87 The second element of the contention, and that relied upon below, was that the list of activities specified in paragraphs (a) and (b) of the definition of “community facility” was intended to be an exhaustive, and not merely an indicative, list. As it did not include a school or educational establishment, those were excluded.

88 It is undoubtedly true to say that the term “include” may have different meanings in different contexts. One use of the term is to indicate that which was intended to be covered, by way of illustration. Strictly speaking, such inclusions may be mere surplusage. On the other hand, they may indicate the narrowness or breadth of the class intended to be identified and may, at some point on a continuum, engage the second purpose, namely to identify items which might not generally be thought to fall within the class, but which are intended to be included in this provision. At [40], the primary judge set out a passage from the opinion of the Privy Council in Dillworth v Commissioner of Stamps [1899] AC 99 at 105-6, in which the different usages of “include” are considered before it is stated that:

“It may be equivalent to ‘mean and include’, and in that case may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.”

89 As his Honour noted, that passage is cited in Pearce and Geddes, Statutory Interpretation in Australia, (5th ed, 2001) at [6.58]. However, the authors go on to warn that the passage gives little practical assistance in determining when an exhaustive explanation may be ascribed to the class identified, and suggest that such an approach should not too readily be adopted. For reasons noted below, that caution should be accepted.

90 A problem noted by his Honour was that to treat the definition as non-exhaustive left the purposes which would constitute a building or place as a community facility undefined and therefore unlimited, except by the nature of the owner or controller. As the definition indicated an intention to limit both by reference to ownership and use, the identification of classes of use must therefore be treated as “exhaustive”. Support for that conclusion was said to flow from the expansive terms of paragraph (a) and the final words referring to “any other similar building, place or activity”. Those words would, his Honour suggested, have been otiose if the list were merely indicative. That approach was confirmed by paragraph (b), which contained the only specific exclusion, namely registered clubs. If the list were merely indicative, it would include everything except registered clubs: at [43].

91 His Honour drew the same conclusion from the final words of the provision referring to possible use for other purposes. His Honour stated at [44]:

“If there were no relevant restrictions on the uses which qualified a building or place as a ‘community facility’, then no question of whether a building or place with multiple uses was a ‘community facility’ would arise.”

92 In my view, the presence within the list of class members of such indeterminate phrases as “any similar” building, place or activity, suggests that the list is illustrative rather than exhaustive and that the words “may include” mean precisely what they would in ordinary English, namely that what follows is illustrative. But it is not only paragraph (a) which contains such a broad concept based on mere similarity. Paragraph (b), referring to a community “club” presumably incorporates the definition of “club”, which means “a building used by persons associated, or by a body incorporated, for social, literary, political, sporting, athletic or other lawful purposes whether of the same or of a different kind” and includes registered clubs, being clubs registered under the Registered Clubs Act 1976 (NSW), a class which paragraph (b) otherwise excludes. The fact that a club includes a building used by persons associated for any lawful purpose gives a breadth to the meaning of “community facility” which greatly diminishes any practical utility in describing the definition as exhaustive.

93 A reading of the Plan as a whole suggests that, quite apart from the apparent breadth of definitions contained in paragraphs (a) and (b), and the intentional imprecision of the words “which may include”, the Plan demonstrates a degree of flexibility in the limitations it imposes by zoning which may reflect an intention to allow the Council a broad discretionary control in evaluating applications pursuant to s 79C of the Environmental Planning and Assessment Act 1979 (NSW).

94 This does not mean that the purposes for which buildings or places can be used in an open space zone are unlimited. The words “community facility”, read together with the kinds of bodies which must own or control such facilities, and the illustrations of acceptable uses, indicate that the category is not without limits. On the other hand, reading the permissible uses as a whole, no narrow definition is revealed. For example, the inclusion of gymnasiums, health studios and bowling alleys operated for profit, focuses attention on the purpose of recreation, but demonstrates little by way of restriction on the means which may be used to that end.

95 When considering specifically the definition of “community facility”, the purpose for which a body of persons is associated cannot be treated as irrelevant to the nature of the facilities provided. For example, the fact that the controlling or owning entities include “a religious organisation” and “a body of persons associated for the … religious welfare of the community” must permit facilities ordinarily operated by such bodies, even though there is no express reference to religious facilities in either paragraph (a) or paragraph (b).

96 Some restriction might be thought to arise from the use of the word “community” which qualifies not only “facility” but also “club”. However, the word is more aspirational than definitive. It is used in innumerable different contexts, with different connotations. It might refer to the people living in the municipality, or it might refer to people associated for particular purposes or people having particular ethnic, racial or other cultural ties. Its use in the present context is not suggestive of any particular geographical limitation on the persons who use the facilities. Nor was any such limitation suggested in the present case.

97 One is left with the conclusion that Cranbrook School, being an organisation of persons seeking to promote the physical, social, cultural, intellectual and religious welfare of school children and seeking to develop a junior school on the land, are providing a “community facility” for the purposes of the definition. Whether the particular development is appropriate and adapted to the land in question is a different question, but a question could equally arise under this zoning with respect to a multi-storey gymnasium or sports centre or indeed a railway or helipad (for air transport). That will be a matter for Council to determine in due course.

98 In my opinion the appeal should be allowed and orders 1 and 2 made by the Land and Environment Court should be set aside. The declaration should be made in accordance with the relief sought by the School in the Land and Environment Court. The Council should pay the Appellant’s costs in this Court; the Appellant did not seek to interfere with the costs order made below. Accordingly, I agree with the orders proposed by McColl JA.

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