Development Implementation Pty Ltd v Baulkham Hills Shire Council

[2000] NSWLEC 99

Land and Environment Court

of New South Wales

CITATION:	Development Implementation Pty Ltd v Baulkham Hills Shire Council [2000] NSWLEC 99
PARTIES:	APPLICANT Development Implementation Pty Ltd RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	10630 of 1999
CORAM:	Pearlman J
KEY ISSUES:	Section 56A Appeal :- error of law - whether gallery elsewhere specifically defined - meaning of gallery within definition of "educational establishment"
LEGISLATION CITED:	Baulkham Hills Local Environmental Plan 1991 cl 5
CASES CITED:	Adams v Wingecarribee Shire Council (Stein J, NSWLEC, 23 March 1987, unreported); Hope v The Council of the City of Bathurst (1980) 144 CLR 1; The Australian Gas Light Company v The Valuer-General (1940) 57 WN 53
DATES OF HEARING:	19/04/2000
DATE OF JUDGMENT:	05/24/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr P C Tomasetti (Barrister) SOLICITORS Carbone Anderson RESPONDENT Mr P D McClellan QC SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT:

IN THE LAND AND

10630 of 1999

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 24 May 2000

DEVELOPMENT IMPLEMENTATION PTY LTD

Applicant

v

BAULKHAM HILLS SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. This is a 56A appeal brought by Baulkham Hills Shire Council against the decision of Commissioner Bly who granted development consent subject to conditions in respect of alterations and additions to an existing building at 644 - 646 Old Northern Road, Dural (“the site”).

2. So far as concerns this appeal, the critical issue which confronted the Commissioner was whether, in accordance with the relevant provisions of the Baulkham Hills Local Environmental Plan 1991 (“the LEP”), the “gallery” part of the proposed development was permissible with consent, as the Commissioner decided, or whether on the contrary it was prohibited.

3. The applicant had sought development consent for alterations and additions to the site, including a two level extension containing a dwelling, a gallery and a restaurant. The proposed gallery use was described in the applicant’s statement of environment effects (“the SEE”) as follows:

The gallery will display and sell a range of arts and crafts, paintings and the like. It is anticipated that the trading hours of the gallery, would be similar to those of the existing shopping centre

4. The issue of whether development for the purposes of a gallery was permissible with consent or was prohibited arose, of course, in the context of the applicable provisions of the LEP. Almost the entire site falls within the Rural 1(c) zone under the LEP. The zoning table sets out development which is permissible without consent, development which is permissible only with consent, and development called “advertised development” , that is, development which is permissible with consent after the development application has been publicly advertised. All other development is prohibited. Specifically, under the Rural 1(c) zone, dwelling houses are permissible with consent, restaurants and educational establishments are advertised development, and shops are prohibited. Competing claims were made by the parties as to the proper characterisation of the gallery use. The council claimed that the proposed gallery was a “shop” and therefore prohibited, whilst the applicant claimed that the gallery was an “educational establishment” and therefore permissible with consent as advertised development.

5. An “educational establishment” is defined in cl 5 of the LEP as follows:

a building used as a school, college, technical college, academy, lecture hall, gallery or museum, but does not include a building used wholly or principally as an institution or child care centre;

6. In the same clause, a “shop” is defined as follows:

a building or place used for the purpose of selling, whether by retail or auction, or hiring of or displaying for the purpose of the selling or hiring of items (whether goods or materials), but does not include a building or place elsewhere specifically defined in this clause;

7. Against that background, the council’s grounds of appeal may be understood, bearing in mind that an appeal under s 56A is confined to an error of law. The council contends that the Commissioner, when granting development consent, erred in law upon the following grounds:

1. Misinterpreting the definitions “shop” and “educational establishment” within the Baulkham Hills Local Environmental Plan 1991 (“the LEP”) in the following ways:

(a) By construing the definition of “shop” in the LEP to:
(i) exclude a gallery on the basis that the “gallery” was “elsewhere specifically defined in this clause”. That specific definition appearing within “educational establishment”.
(b) By construing the definition of “educational establishment” in the LEP to:

(i) specifically define the word “gallery” when it does not.

(ii) Automatically exclude a “gallery” from fitting within another definition (such as “shop”) because of it being expressly referred to here.


2. Failing to undertake the required process of objectively characterising the proposed factual use of the premises on all available evidence.

3. Failing to undertake the required process of applying the definitions of the LEP to the facts.

4. Alternatively, Commissioner Bly applied the relevant definition within the LEP to the facts, but misapplied the proper test because the Commissioner concluded erroneously that if the proposed use was that of a gallery then it could not be a shop.

The Commissioner’s judgment

8. In the section of his judgment headed “gallery prohibition”, the Commissioner outlined the competing claims. He then dealt in the following way with the submissions put by Mr Tomasetti, counsel for the applicant:

Mr Tomasetti responded [to the claim that the gallery was a “shop”] by saying that notwithstanding the description in the SEE the application was for a gallery of the kind referred to in the educational establishment definition and cannot be prohibited. Moreover he submitted that because the definition of shop excluded “a building or place elsewhere specifically defined in this clause” and because “gallery” was defined in the educational establishment definition it could not be a shop. I am inclined to agree with this approach even though the kind of gallery proposed here would appear, to a non legal eye, to be a shop rather than an educational establishment.

9. The Commissioner had been referred to the decision of Stein J (as he then was) in Adams v Wingecarribee Shire Council (NSWLEC, 23 March 1987, unreported) where his Honour had held, in construing relevantly similar provisions, that the development proposed in that case was an educational establishment. The Commissioner quoted his Honour’s comment that the gallery use which his Honour was considering was “… a far cry from a ‘tourist’ type gallery specialising in cheap prints and geared to the tourist trade” and the Commissioner then continued as follows:

While there was no suggestion that the proposal in this case seeks to specialise in “cheap prints” it may be that the proposal is more like the kind of gallery which Stein J sought to distinguish from the gallery he was then considering but this is not enough to conclude that what is sought here is a “shop”.

10. The Commissioner then proceeded to distinguish Adams v Wingecarribee on its facts and declined to apply it as determinative of the issue. He went on to conclude as follows:

Hence I can only reiterate the conclusion that I reached earlier that a “gallery” is an “educational establishment” and not a “shop”. Consequently a consent can be granted for a “gallery” (as an “educational establishment”).

The competing arguments

11. Mr McClellan QC, appearing for the council, submitted that the task which the Commissioner faced was one of characterisation of the use of that part of the development specified in the SEE as a “gallery”. That task was a factual task and the Commissioner, in Mr McClellan’s submission, committed no error of law in undertaking it. The Commissioner found, on the facts, that the use was that of a “shop”. However, the Commissioner fell into legal error in applying the definitions set out in the LEP. First, it was wrong in law to construe cl 5 of the LEP as containing a specific definition of “gallery”. That word was not defined, it was simply one of the words used to define “educational establishment”. Secondly, insofar as the Commissioner decided that the proposed use fell within the definition of “educational establishment”, he fell into legal error, because he misconstrued the definition, and failed to recognise that the word “gallery” in the definition of “educational establishment” was one of a genus which involves characteristics of education or information.

12. Mr Tomasetti submitted that the task of characterisation was simply a factual task, and the Commissioner’s decision, made on the facts, was unassailable. In Mr Tomasetti’s submission, the words “shop”, “educational establishment” and “gallery” are words of ordinary meaning, and have no special or technical meaning. Accordingly, there could be no error of law in characterising the use as being a use described by any of those words, and, in particular, there was no error of law in characterising the use as a “gallery” or as an “educational establishment”. Furthermore, the Commissioner did not misconstrue the qualifying words in the definition of “shop” because “gallery” was elsewhere specifically defined, that is, “gallery” was defined in cl 5 of the LEP.

The proper approach

13. There is no doubt that the Commissioner’s task was to characterise the use of that part of the proposed development described in the SEE as a “gallery” so that he could determine whether the use was permissible with consent or was prohibited.

14. He carried out that task. In stating that the “gallery proposed here would appear, to a non legal eye, to be a shop rather than an education establishment” , the Commissioner made a finding of fact as to the characterisation of the use of that part of the proposed development.

15. The Commissioner’s next task was to apply the relevant provisions of the LEP to the facts he had found. If, in doing so, he misconstrued the relevant provisions, then he committed an error of law ( The Australian Gas Light Company v The Valuer-General (1940) 57 WN 53 at 55; Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 10). I have concluded that the Commissioner fell into legal error in this way.

16. The definition of “shop” in cl 5 of the LEP required a consideration of whether the proposed use was a “building or place elsewhere specifically defined”. In concluding that “gallery” was “elsewhere specifically defined” , the Commissioner fell into legal error. He misconstrued cl 5 in holding that the insertion of the word “gallery” in the definition of “educational establishment” amounted to a specific definition of “gallery”. The correct position was that what was defined in that section of cl 5 was “educational establishment” and the word “gallery” was simply one of a concatenation of words used to describe the meaning of “educational establishment”. There are two further reasons why this use of the word “gallery” did not amount to a specific definition. First, it can be seen that the approach adopted by the drafter of cl 5 was to signify those words or phrases which were specifically defined by placing those words or phrases in bold letters and in quotation marks. The word “gallery” is not so placed. Secondly, and more importantly, the meaning of the word “gallery” is nowhere set out or stated within cl 5. According to the Macquarie Dictionary, the word “define” means “to state or set forth the meaning of (a word, phrase, etc.)” or “to explain the nature or essential qualities of; describe” . Neither the meaning nor the nature or essential qualities of the word “gallery” are stated, explained or described in cl 5, and, as a consequence, the word “gallery” is not “a building or place elsewhere specifically defined” in cl 5.

17. It is not clear, from the passages of the judgment which I have quoted, whether the Commissioner determined, in addition or as an alternative to his conclusion that the word “gallery” was elsewhere specifically defined, that the proposed development fell within the definition of “educational establishment”. At the hearing before the Commissioner, Mr Tomasetti appears to have made two submissions - first, that the gallery was “of the kind referred to in the educational establishment definition” and, secondly, that the word “gallery” was elsewhere specifically defined. The Commissioner seemed to adopt both of those submissions in stating, as he did, that “I am inclined to agree with this approach” . His fundamental legal error was as I have set out in par 16, but, insofar as his adoption of Mr Tomasetti’s submissions resulted in a determination that the proposed use fell within the definition of “educational establishment”, then that also amounted to a misconstruction of that definition and a legal error. I agree with Mr McClellan’s contention that the words describing the meaning of “educational establishment” involve a class or genus, having the characteristics of education or information. So construed, the word “gallery” where it appears in the definition of “educational establishment” has a special meaning. It means a gallery which has an education or information characteristic so as to constitute it as an “educational establishment” within the definition. It was not reasonably open to the Commissioner to find that the gallery here proposed could be characterised as an “educational establishment” having regard to the description of its use as set out in the SEE and to the Commissioner’s own finding of fact that what was proposed “would appear, to a non legal eye, to be a shop rather than an education establishment”.

18. I reject Mr Tomasetti’s contention that Stein J in Adams v Wingecaribee was expressly disavowing a genus of that kind. As I understand the passage on p 4 of the judgment which deals with this point, his Honour was rejecting a submission that, to be an educational establishment, a gallery could not be an art gallery but had to be a school, college or academy. His Honour went on to say (also on p 4) that “[t]o the extent that an educational aspect of the gallery use is required by the definition I am satisfied by the evidence that this is established”. With respect, I think that this passage indicates that his Honour construed the relevant definition to require an educational aspect, and found on the facts that the gallery use he was considering fitted that description.

Conclusions

19. In accordance with the foregoing, my formal orders are as follows:

(1) The appeal is upheld.

(2) The Commissioner’s determination on 15 December 1999 is set aside.

(3) The proceedings are remitted to the Commissioner for determination in accordance with this judgment.

(4) The applicant must pay the costs of the council as agreed or as assessed.

(5) The exhibit may be returned.