Cranbrook School v Woollahra Municipal Council

[2005] NSWLEC 716

Land and Environment Court

of New South Wales

CITATION:	Cranbrook School v Woollahra Municipal Council [2005] NSWLEC 716
PARTIES:	APPLICANT Cranbrook School RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	40997 of 2005
CORAM:	Cowdroy J
KEY ISSUES:	Question of Law :- Woollahra Local Environmental Plan 1995 - zoning permitting development of community facilities - whether development for a school constitutes a "community facility" under the LEP - whether Cranbrook is a "body of persons associated"
LEGISLATION CITED:	Companies Act 1961 s 14, s 24(1) Education Act 1990 Pt 7 Environmental Planning and Assessment Act 1979 s 117 Interpretation Act 1987 s 33 Woollahra Local Environmental Plan 1995 Pt 3, Sch 1, cl 2, cl 4, cl 5, cl 6, cl 7, cl 8(4), cl 13
CASES CITED:	Attorney-General for the Northern Territory v Hand and Others (1991) 172 CLR 185 ; Baulkham Hills Council v The Australian Kafarsghab (Lebanese) Association Limited [1994] NSWLEC 86; Council of the Municipality of Randwick v Rutledge and Others (1959) 102 CLR 54 ; Dilworth and Others v The Commissioner of Stamps, Dilworth and Others v The Commissioner for Land and Income Tax [1899] AC 99 ; Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160; Hollow and Kaye v State Planning Authority (1980) 45 LGRA 39 ; Latoudis v Casey (1990) 170 CLR 534; Smith v Anderson (1880) 15 Ch D 247; Storey v The Council of the Municipality of North Sydney and Another (1970) 123 CLR 574 ; Y Z Finance Company Pty Limited v Cummings (1964) 109 CLR 395
DATES OF HEARING:	07/11/05
EX TEMPORE JUDGMENT DATE:	12/14/2005
LEGAL REPRESENTATIVES:	APPLICANT M Craig QC SOLICITORS Aitken McLachlan Thorpe RESPONDENT D Officer QC SOLICITORS Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

14 December 2005

40997 of 2005

CRANBROOK SCHOOL
Applicant

WOOLLAHRA MUNICAL COUNCIL
Respondent

JUDGMENT

1 Cowdroy J: The applicant, Cranbrook School (“Cranbrook”), seeks a declaration that its proposed development for the erection of school buildings and associated facilities on land known as 6 Kent Road, Rose Bay (“the subject land”) constitutes a “community facility” within the meaning of the Woollahra Local Environmental Plan 1995 (“the LEP”) and accordingly is permissible with development consent.

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 and 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 (“the EP&A Act”), 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.

6 Under the LEP, the Dangar land is within Zone No 5 – Special Uses Zone, being zoned for school purposes. The subject land is contained in Zone No 6 – Open Space. The objectives of the Open Space zone are relevantly as follows:

3. Objectives of the zone
The objectives 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.

7 Clauses 4 to 7 of the Development Control Table contained in the LEP specify the permissible uses of the Open Space Zone as follows:

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.

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).

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

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.

8 The term “community facility” is defined in Sch 1 of the LEP 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.

9 Cranbrook submits that the development will comprise a building or buildings which will be owned and controlled by a body of persons being the corporate body incorporated as Cranbrook, the function of which is that of providing for the “the physical, social, cultural … intellectual or religious welfare of the community”. The purpose for which the buildings would be used would be for the benefit of the community.

10 Cranbrook submits that the definition of “community facilities” is not limited to the uses enumerated in paras (a) and (b) of the definition. The opening words of the definition, namely “a building or place owned or controlled by … a body of persons” associated for the relevant purposes, are plenary provisions. Paragraphs (a) and (b) are merely examples of permissible uses, as is apparent from the words “which may include” which introduce those paragraphs. The Junior School Redevelopment involves the construction of a building or place which will be owned by Cranbrook which is a body of persons associated for a relevant purpose. Accordingly the development is the development of a “community facility” as defined in the LEP.

11 Cranbrook says the development is consistent with the objectives of the Open Space Zone as well as the general objectives of the LEP which are contained in cl 2. Clause 2(2)(c) sets out the objectives of the LEP “in relation to community services and facilities” and includes “to provide opportunities for the development of community services and facilities in appropriate areas”. Cranbrook says the Junior School Redevelopment is consistent with this objective.

12 Additionally Cranbrook submits that pursuant to cl 8(4), the development control table should be read in conjunction with Pt 3 of the LEP. Clause 13 of the LEP (contained in Pt 3) relevantly provides:

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

13 Cranbrook submits that cl 13 demonstrates the close relationship between community facilities and schools. Such relationship militates against a technical or artificial approach which would exclude school uses from the definition of “community facilities”.

14 Cranbrook refers to Storey v The Council of the Municipality of North Sydney and Another (1970) 123 CLR 574 at 577 where McTiernan J said:

It is of course not incompatible with the notions of public recreation and public enjoyment that certain restrictions, both as to time and as to the activity pursued, should be placed on the use made by members of the public of a piece of land: Council of the Municipality of Randwick v Rutledge and Others (1959) 102 CLR 54 at p 88; 5 LGRA 127 at 172.

15 Cranbrook submits that it is immaterial that the Junior School Redevelopment may also be characterised as an “educational establishment” as defined in the LEP. Despite the fact that use as an educational establishment is prohibited in the Open Space zone, since the development can also be characterised as a “community facility” under the LEP it is permissible: see Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160. This is specifically so under the LEP which includes the words “whether or not that building or place is also used for another purpose”. These words show that a development can simultaneously be characterised as both an education facility and a community facility.

16 The Council submits that one of the essential prerequisites of a “community facility” is that it be a “building or place owned or controlled by a body of persons associated” for one of the purposes referred to in the definition. The respondent submits that Cranbrook, being a company limited by guarantee, is not a “body of persons associated” for the purposes of the definition.

17 The Council submits that the phrase “body of persons associated” does not include “body incorporated”. It says that the definition of “club” in the LEP specifically contains the term “body incorporated”, and that its omission from the definition of “community facility” is deliberate. Had the drafters intended to include the term “body incorporated” it would have been a simple matter to do so.

18 Alternatively if the Court should find that Cranbrook is a “body of persons associated”, the Council submits that Cranbrook is not associated for the relevant purposes. The Council relies upon the decision of this Court in Baulkham Hills Council v The Australian Kafarsghab (Lebanese) Association Limited [1994] NSWLEC 86. The Council submits that Cranbrook is primarily engaged in operating a school and other ancillary educational activities for a fee. While such activities may be for the physical, social, cultural, economic, intellectual or religious welfare of the pupils, Cranbrook is not associated for the purpose of benefiting the “community”. The Council refers to the Macquarie Dictionary, which defines “community” as:

1. A social group of any size whose members reside in a specific locality, share government and have a cultural and historical heritage.
2. The community, the public.

19 The Council submits that the LEP requires that the entity be formed to benefit the community as a whole, not simply to bestow benefits on a limited number of persons. Cranbrook’s proposal would not be of a community or public nature: cf Council of the Municipality of Randwick v Rutledge and Others (1959) 102 CLR 54 at 88; Storey v The Council of the Municipality of North Sydney and Another (1970) 123 CLR 574.

20 The Council also submits that the uses identified in paras (a) and (b) of the definition of “community facility” are intended, as a matter of construction, to enumerate exhaustively those uses which constitute a community facility. The Council says the word “include”, although usually indicative of a non-exhaustive list, may in the context of a specific statute be intended to define comprehensively the intended meaning. The Council relies upon Y Z Finance Company Pty Limited v Cummings (1964) 109 CLR 395 at 398-9. The Council submits that in the present case the statutory context indicates that paras (a) and (b) were intended be exhaustive of the permitted uses.

21 The Council points to the words “may include” which it says are equivalent to “means” or “includes only”. Further, the Council says that if Cranbrook’s interpretation were adopted, paras (a) and (b) would have no work to do. The Court should reject an interpretation which would make these paragraphs superfluous.

22 In addition, the Council submits that paras (a) and (b) are themselves broad and flexible, which indicates that they were intended to be exhaustive of the permissible uses, not mere examples of permissible uses. The Council refers to the words “or any similar building, place or activity” contained in para (a). Further, the Council submits that the words “whether or not that building or place is also used for another purpose” in the definition of “community facility” would have no work to do if paras (a) and (b) were merely intended as examples of permitted uses.

23 The Council says that since Cranbrook does not claim that its proposal falls within para (a) or (b) of the definition, it accordingly does not come within the definition of “community facility” in the LEP.

24 Additionally, the Council also says that if Cranbrook’s construction of the definition of “community facility” be correct, the only restraint on zone 6 land would be the identity of the developer. Any building or place could be approved regardless of the actual use to be undertaken therein, provided it were operated by a body of persons associated for one of the listed purposes. Such a construction of the definition could not have been intended and should be rejected since, if adopted, there would be no meaningful use constraints on the Open Space Zone land.

25 The Council submits that a purposive approach to construction of the LEP should be used in accordance with s 33 of the Interpretation Act 1987. The structure of the LEP as a whole, and in particular the objectives of the Open Space Zone show that the uses of that zone are intended to be more restricted than development in other zones, and are justified in order to preserve the environmental characteristics of land in the Open Space Zone. Such Zone plays a significant part in achieving the objectives (g) and (h) of the LEP since it is the mechanism by which certain areas are to be used to:

(g) conserve the environmental heritage of the area of Woollahra, and
(h) to protect the amenity and natural environment of the area of Woollahra.
The Council submits that the type of buildings and places referred to in para (a) of the definition of “community facilities” are generally less intensive uses which could be developed in Open Space areas without detracting from the scenic qualities and the availability of such lands for public recreation. A school does not accord with such objectives.

26 The Council says that the proposed school is properly defined under the LEP as an “educational establishment” and should not be simultaneously defined as a “community facility”. There is nothing in Cranbrook’s proposal which extends beyond activities as a school or as an “educational establishment”.

27 In response to the reliance placed by Cranbrook on cl 13 of the LEP, the Council submits that such clause results from a statutory requirement as contained in s 117 of the EP&A Act. Clause 13 provides added support for the proposition that the use as a school and the use as a community facility are separate and distinct uses. Clause 13 supports an interpretation that “community facilities” are intended to represent a lower impact type of use which may co-exist easily with other uses of land where the use of the school or use of land for Open Space purposes. Such clause reinforces a hierarchy wherein community facilities are permissible wherever schools are permissible. However schools, being a higher impact use, are constrained to only those areas where an “educational establishment” is permissible.

28 The Council submits that Cranbrook is not an entity which may operate a “community facility” as defined in the LEP. There are two bases to this submission. Firstly, the Council says that the definition contained in the LEP does not extend to bodies incorporated, and since Cranbrook is a company limited by guarantee it is thereby excluded from the definition. Secondly, the Council submits that Cranbrook is not associated for the relevant purposes under the definition.

29 Cranbrook is a company limited by guarantee, incorporated under s 14 of the Companies Act 1961, which relevantly provided:

14 (1) Subject to this Act any five or more persons or, where the company to be formed will be a proprietary company, any two or more persons associated for any lawful purpose may by subscribing their names to a memorandum and complying with the requirements as to registration form an incorporated company.
(2) A company may be:
…

…

30 In Smith v Anderson (1880) 15 Ch D 247, CA, James LJ, at pp 273-4 said:

I cannot understand what the difference is between a company and an association. The word ‘association’, in the sense in which it is now commonly used, is etymologically inaccurate, for ‘association’ does not properly describe the thing formed, but properly and etymologically describes the act of associating together, from which act of associating there is formed a company or partnership.
James LJ continued:
A company or association (which I take to be synonymous terms) is the result of an arrangement by which parties intend to form a partnership which is constantly changing, a partnership today consisting of certain members and tomorrow consisting of some only of those members along with others who have come in, so that there will be a constant shifting of the partnership, a determination of the old and a creation of a new partnership, and with the intention that, so far as the partners can by agreement between themselves bring about such a result, the new partnership shall succeed to the assets and liabilities of the old partnership.

31 It is clear from the above that a company is properly understood as an association of persons. The Memorandum and Articles of Cranbrook themselves refer to the company as “the Association”. The Court cannot accept that the term “body of persons associated” does not include a company limited by guarantee such as Cranbrook.

32 The Council submits that it is significant that the term “body incorporated” is used in the definition of “club” in the LEP but not in the definition of “community facility”. However the Court notes that the definition of club refers only to “persons associated” not to a “body of persons associated” as contained in the definition of “community facility”. In these circumstances there is no basis on which an inference should be drawn on the basis that the words “body incorporated” are omitted.

Whether Cranbrook was associated for a relevant purpose

33 To qualify as a “community facility” within the meaning of the LEP, Cranbrook must be associated for the “physical, social, cultural, economic, intellectual or religious welfare of the community”. These words raise for the question of what is meant by “the community”.

34 There are several meanings for the word “community”: see the definition contained in the Macquarie Dictionary, set out in [22] above. In Hollow and Kaye v State Planning Authority (1980) 45 LGRA 39 the Full Court of South Australia observed (at 50) that “the community” could relate to a geographic area. The High Court of Australia in Attorney-General for the Northern Territory v Hand and Others (1991) 172 CLR 185 at 191 observed of the terms “group” and “community”:

Both terms indicate a cohesiveness in the persons said to constitute the community or group.

35 The Memorandum and Articles of Association of the Cranbrook show that “Cranbrook School” was incorporated pursuant to the Companies Act 1961 as an association not for gain and limited by guarantee. The word “Limited” was not included in the name of the company so incorporated. Section 24(1) of the Companies Act 1961 authorised the omission of the word “Limited” (otherwise required by s 22(3)) from a company’s registered name in certain circumstances. It provided:

(1) Where it is proved to the satisfaction of the Minister that a proposed limited company is being formed for the purpose of providing recreation or amusement or promoting commerce, industry, art, science, religion, charity, pension or superannuation schemes or any other object useful to the community, and will apply its profits (if any) or other income in promoting its objects and will prohibit the payment of any dividend to its members, the Minister may (after requiring, if he thinks fit, the proposal to be advertised in such manner as he directs either generally or in a particular case) by license direct that it be registered as a company with limited liability without the addition of the word “Limited” to its name, and the company may be registered accordingly.

36 Since the word “Limited” was omitted from Cranbrook’s registered name the Court concludes that the company was created for the purposes referred to in s 24(1) of the Act. It is clear from the Memorandum and Articles of Association that Cranbrook was a company incorporated on a non-profit basis: see object 7 of the Memorandum of Association.

37 The first three objects for which Cranbrook was incorporated are contained in objects 3(a) to (c) as follows:

3. The Objects for which the Association is established are:
(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.

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 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.

39 The Court accepts that the Junior School Redevelopment is not excluded from the definition of “community facility” merely because it also satisfies the definition of “educational establishment” under the LEP. This is so even though development for the purpose of an educational establishment would be prohibited on the subject land. The question which must be answered is whether the use as a school falls within the definition of “community facility” contained in the LEP.

40 The interpretation of the word “include” has been the subject of much judicial debate: see Pearce, Statutory Interpretation in Australia, 5th ed,at 6.56ff. In Dilworth and Others v The Commissioner of Stamps, Dilworth and Others v The Commissioner for Land and Income Tax [1899] AC 99 at 105-6, the Court said:

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 shew 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 may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.

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.

46 It follows from the above that the Junior School Redevelopment is not development of a “community facility” because it does not comply with the categories of permissible development in the 6 – Open Space zoning. The Junior School Redevelopment is accordingly prohibited on the subject land.

47 Costs were not argued before the Court. Accordingly, the Court will make the usual order for costs (see Latoudis v Casey (1990) 170 CLR 534), but allow Cranbrook 21 days to seek a different order if it so wishes.

48 The Court makes the following orders:

1. The applicant’s proposed development comprising the erection of school buildings and associated facilities on land at 6 Kent Road, Rose Bay is not development comprising a “ community facility ” under the provisions of the Woollahra Local Environmental Plan 1995.
2. The applicant pay the respondent’s costs, unless within 21 days an application is made for a different order.
3. Liberty to apply in respect of costs on two days notice.
4. The exhibits be returned.

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