Hastings Co-operative Ltd v Port Macquarie Hastings Council

[2009] NSWCA 400

Reported Decision: 171 LGERA 152[2010] ALMD 3113

New South Wales

Court of Appeal

CITATION:	HASTINGS CO-OPERATIVE LTD v PORT MACQUARIE HASTINGS COUNCIL [2009] NSWCA 400
HEARING DATE(S):	3 November 2009
JUDGMENT DATE:	8 December 2009
JUDGMENT OF:	Allsop P at 1; Basten JA at 2; Handley AJA at 41
DECISION:	(1) Appeal dismissed. (2) Appellant to pay the second respondent's costs in this Court.
CATCHWORDS:	ENVIRONMENT AND PLANNING – development control – prohibited development – shops prohibited by zoning table – proviso to definition of shop – proviso consisting of building or place elsewhere specifically defined or place used for land use elsewhere specifically defined – general store defined as type of shop – whether general store falls within scope of proviso - STATUTORY INTERPRETATION – environment and planning – overall context of planning instrument – identification of coherent theme or policy underlying instrument – whether anomaly in interaction of definitional and substantive provisions – whether operation of definition should be denied within specific substantive provision - WORDS AND PHRASES – "building or place" – "general store" – "prohibited development" – "shop"
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW), ss 4, 101 Hastings Local Environmental Plan 2001 (NSW), cll 6, 9, Sch 2 Interpretation Act 1987 (NSW), s 6
CATEGORY:	Principal judgment
CASES CITED:	Calleja v Botany Bay City Council [2005] NSWCA 337; 142 LGERA 104 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 Delaney v Staples [1992] 1 AC 687 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 Kelly v The Queen [2004] HCA 12; 218 CLR 216 Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; 61 NSWLR 394 No 2 Cannon Street Ltd v Singer & Friedlander Ltd [1974] Ch 229 Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc [2000] NSWCA 65; 48 NSWLR 548
PARTIES:	Hastings Co-operative Ltd - Appellant Port Macquarie Hastings Council - First Respondent Emanlach Pty Ltd - Second Respondent
FILE NUMBER(S):	CA 40245/09
COUNSEL:	M Craig QC/M Staunton - Appellant C McEwen SC/F Berglund - Second Respondent
SOLICITORS:	Storey & Gough - Appellant Marsdens Law Group - First Respondent Lindsay Taylor Lawyers - Second Respondent
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 41266/08
LOWER COURT JUDICIAL OFFICER:	Lloyd J
LOWER COURT DATE OF DECISION:	26 June 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99

CA 40245/09
LEC 41266/08

ALLSOP P
BASTEN JA
HANDLEY AJA

8 December 2009

HASTINGS CO-OPERATIVE LTD v PORT MACQUARIE HASTINGS COUNCIL

Headnote

On 25 August 2008 the first respondent ("the Council") granted consent to a development application submitted by the second respondent, Emanlach Pty Ltd. The proposed development involved a supermarket, being a single storey building having a gross floor area of a little over 2000 square metres and being designed for the retail sale of food items, and other domestic and household items of a kind commonly obtainable from supermarkets.

The Council granted the consent on the basis that the supermarket was a "general store", and on the basis that it was a permissible form of development within the zoning for the particular land. The appellant commenced proceedings in the Land and Environment Court challenging the validity of the development consent. An issue was raised in the Court below as to whether the supermarket, in addition to being a "general store", is a "shop" for the purposes of the Hastings Local Environmental Plan 2001 (NSW) ("Hastings LEP"), and hence a prohibited development in the relevant zone. "General store" is defined in the dictionary to the Hastings LEP as a shop used for the sale by retail of general merchandise. Clause 9 of the Hastings LEP permits or prohibits development in the relevant zone. The definition of shop, when applied to cl 9, excludes a "building or place elsewhere specifically defined in this Dictionary or place used for a land use elsewhere specifically defined in this Dictionary". Clause 9, whilst prohibiting the development of a "shop", excludes from that prohibition certain other specified commercial premises, listed in Sch 2.

Lloyd J held that the supermarket is not a "shop" and, accordingly, dismissed the challenge to the validity of the consent. The appellants appealed from that decision to this Court.

The issues for determination on appeal were:

(i) whether a "general store" remains within the scope of the definition of "shop" despite the proviso contained within that definition, and

(ii) whether anomalies within the statutory context of the definition of "shop" are such as to deny the operation of the definition within cl 9.

The Court held, dismissing the appeal:

In relation to (i)

(per Basten JA, Allsop P agreeing)

1. The usual purpose of a definition in a statutory instrument is not to form an operative provision, but to identify some element of an operative provision and thus define its scope of operation: [16].

Kelly v The Queen [2004] HCA 12; 218 CLR 216, cited.
Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; 61 NSWLR 394; No 2 Cannon Street Ltd v Singer & Friedlander Ltd [1974] Ch 229, referred to.

2. The logical difficulty created by the interaction of the definitions of "general store" and "shop" in the context of cl 9 can be resolved by recognising that the definitions operate separately from their context in the operative provisions. By construing the definitions separately, as definitions, before notionally inserting their terms into the operative provisions, it is apparent that a shop, not including a general store, is a prohibited development; a general store is not a prohibited development: [18].

3. There is no practical reason why a general store should not fall within the concept of a building or place or a land use elsewhere specifically defined, merely because it uses the term "shop" in its own definition. Accordingly, a general store falls within both limbs of the exception to the definition of "shop": [22]–[24].

(per Handley AJA, dissenting)

4. The words "does not include a building or place elsewhere specifically defined", constituting the proviso within the definition of "shop", should not be construed as if they read "a shop elsewhere specifically defined". The fact that a general store is specifically defined as a shop, rather than a building or place, takes it beyond the scope of the proviso within the definition of "shop", and accordingly it is prohibited development: [60]–[62].

In relation to (ii)

(per Basten JA, Allsop P agreeing, Handley AJA not deciding)

5. No anomaly, arising out of the fact that general stores are not excluded as prohibited development when all other "shops", other than those identified in Sch 2, are so prohibited, can be clearly identified by reference to the statutory context. Accordingly, there is no contextual basis for inferring an intention to deny the operation of the definition of "shop" within cl 9 when to do so would serve to rewrite the Hastings LEP in order to give it a different operation from that which, in its terms, it has: [25]–[34].

6. A contextual argument that seeks to identify and give effect to a logical and coherent theme underlying various zoning provisions may sometimes have weight; in the present case, there is no clear or coherent policy which would provide a basis for the appellant's underlying proposition: [38].

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309; Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc [2000] NSWCA 65; 48 NSWLR 548; Calleja v Botany Bay City Council [2005] NSWCA 337; 142 LGERA 104; Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379, referred to.

CA 40245/09
LEC 41266/08

ALLSOP P
BASTEN JA
HANDLEY AJA

8 December 2009

HASTINGS CO-OPERATIVE LTD v PORT MACQUARIE HASTINGS COUNCIL

Judgment

1 ALLSOP P: I agree with Basten JA.

2 BASTEN JA: On 25 August 2008 the first respondent (“the Council”) granted consent to a development application submitted by Emanlach Pty Ltd (“the developer”), which is the second respondent in the appeal.

3 On 15 December 2008 the appellant commenced proceedings in the Land and Environment Court challenging the validity of the development consent. In the proceedings in the Land and Environment Court, there was an issue as to whether, and if so when, a public notice of the granting of consent had been given by the Council, in accordance with the regulations, for the purposes of s 101 of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”). That section seeks to prohibit the commencement of legal proceedings challenging the validity of a consent from the expiration of three months from the date on which public notice was given.

4 In the Court below, Lloyd J held that the development consent was not void or invalid on the bases asserted by the appellant: Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99; 167 LGERA 205. Accordingly, his Honour did not need to consider whether s 101 had been complied with and, if not, what consequences might flow from that fact. However, if the appellant were to be successful on the appeal, the operation of s 101 would need to be determined, whether in this Court or in the Land and Environment Court.

5 For the reasons set out below, the appeal should be dismissed. Accordingly, it will not be necessary to consider the operation of s 101 of the EP&A Act.

Issues

6 The proceedings before the Land and Environment Court concerned a proposed supermarket, being a single storey building designed for retail sales and having a gross floor area of a little over 2000 square metres. It was proposed that the bulk of the area would be devoted to the display of food items, but some 30%-40% of the display area would include other domestic and household items of a kind commonly obtainable from supermarkets. The retail building was to be associated with a parking area at ground level permitting 85 car parking spaces.

7 The Council granted the consent on the basis that the supermarket was a “general store”, which was a permissible form of development within the zoning for the particular land at Wallace Street, Wauchope. An issue was raised before the primary judge as to whether the supermarket was properly characterised as a “general store” for the purposes of the Hastings Local Environmental Plan 2001 (NSW) (“Hastings LEP”). His Honour dismissed the challenge based on the characterisation of the development and there has been no appeal from his Honour’s determination in that regard.

8 The second issue raised in the Court below was whether the supermarket was a “shop” for the purposes of the Hastings LEP and hence a prohibited development in the relevant zone. His Honour held that it was not and, accordingly, dismissed the challenge to the validity of the consent on that ground also. It is that conclusion which is challenged on appeal. The arguments raised by the appellant may broadly be identified in the following terms:

(a) although the supermarket does not fall within the definition of “shop” in the Dictionary to the Hastings LEP, by reference to textual considerations that definition does not operate where the context or subject matter indicates otherwise;

(b) the nature of the contextual material in the Hastings LEP does indicate otherwise, so as to include a supermarket or “general store” within the meaning of a “shop”, and

(c) that construction is consistent with the objectives of the relevant zone.

9 The land in question fell within zone 4(b) “service industrial” as identified in the “Zone table” which forms part of cl 9 of the Hastings LEP. The opening provisions of cl 9 are as follows:

“ 9 Zoning of land and zone table
(1) Development of land is controlled by zoning, subject to the general and special provisions of Parts 3-11. The zoning map shows what zone applies to land.
(2) Consent may be granted to development (otherwise than as complying development) only if the consent authority has taken into consideration the objectives of the zone that are relevant to the development.
(3) The following table specifies the objectives of each zone, and the development allowed with or without consent or prohibited within each zone.”

10 In relation to zone 4(b), four objectives are set out in the following terms:

“ Zone objectives
(a) To provide land for the establishment of services and light industry appropriate to the locality.
(b) To enable a range of light industrial and related served land uses, without unduly detracting from the retail strength of existing business districts.
(c) To ensure industrial activities are of a kind compatible with adjoining urban land uses.
(d) To enable appropriate development where allowed with consent.”

11 There then follow, in standard form, categories of development which do not require consent (nil); development allowed only with development consent (any development not included in item 3) and, item 3, prohibited development. Within item 3 are numerous industrial and commercial uses, including:

“Shops (other than those referred to in Schedule 2).”

12 Schedule 2 is identified as “specified commercial premises” and includes the following:

“Delicatessen
Financial institution
Mortuary
Newsagency
Take-away food shop
Veterinary establishment.”

13 The Hastings LEP deals with matters of interpretation both in cl 6 and in the Dictionary. Relevantly for present purposes, cl 6, which reflects s 6 of the Interpretation Act 1987 (NSW), reads:

“ 6 Interpretation
(1) Unless the context or subject-matter indicates otherwise, terms used in this plan have the meaning set out in the Act or as defined in the Dictionary.”

14 It was not suggested that any relevant term was defined in the EP&A Act. The Dictionary, however, contained definitions of “general store” and “shop”, which were as follows:

“ general store means a shop used for the sale by retail of general merchandise and which may include the facilities of a post office.
…
shop means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but (in the table to clause 9) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used for a land use elsewhere specifically defined in this Dictionary.”

15 In the relevant zoning table in cl 9, there is no reference to “general store”. Accordingly, unless it constitutes prohibited development, because it is a shop, other than a shop referred to in Schedule 2, a general store will be development permitted with consent.

16 The usual purpose of a definition in a statutory instrument is not to form an operative provision, but to identify some element of an operative provision and thus define its scope of operation. As explained by McHugh J in Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103], “the function of a definition is not to enact substantive law”. His Honour continued:

“There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think 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.”

17 As his Honour noted, the alternative approach, which he deemed to be erroneous, was to construe the definition independently of the substantive enactment: cf Megarry J in No 2 Cannon Street Ltd v Singer & Friedlander Ltd [1974] Ch 229 at 240. However, it is possible that different approaches may be necessary in different circumstances. Where a term is used in various contexts within a statute, it may be of assistance to consider the definition separately, as well as when incorporated into a particular operative provision. That approach would promote consistency of interpretation. Further, as has also been recognised, a definition will not usually be construed without regard to the normal meaning of the word defined: see Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; 61 NSWLR 394 at [8]-[9] (Handley JA) referring, amongst other authorities, to Lord Browne-Wilkinson in Delaney v Staples [1992] 1 AC 687 at 692. That step is at least consistent with considering the definition in isolation from its context in an operative provision.

18 In the present case, the definitions set out above raise separate problems of construction which need to be addressed by reference to their own terms. Thus the definition of “general store” indicates that it is a sub-category of “shop”. So far as the operation of the Dictionary is concerned, that gives rise to no difficulty. However, a difficulty does arise when the meaning of “shop” is incorporated into the operative provisions of the zoning table in cl 9. Once so included, those buildings or places elsewhere specifically defined in the Dictionary, which would include “general store” do not fall within the term “shop”. There is at least a theoretical difficulty in defining something as a member of a class of which it is not a member. The resolution of that conundrum is to recognise that the definitions operate separately from their context in the operative provisions; it is only in a particular context, namely the zoning table, that the conundrum arises. The logical difficulty is thus avoided by construing the definitions separately, as definitions, before notionally inserting their terms into the operative provisions. On that approach, a shop, not including a general store, is a prohibited development; a general store is not a prohibited development.

19 Other textual issues were considered in the course of the hearing. The first involved an argument that the proviso to the definition of “shop” did not cover a general store because the definition of “general store” did not constitute “a building or place elsewhere specifically defined”, but was formulated by reference to the definition of “shop”. Although the proviso to the definition of “shop” had two limbs, expressed in the alternative, each relied upon there being a definition elsewhere of “a building or place”. Thus, it was submitted, the definition of “general store” did not fall within either limb of the proviso.

20 Relevantly for the zoning tables in cl 9, the definitions broadly fell into three categories. These were definitions that:

(a) identified “a building or place” having a specified use or purpose;
(b) specified an activity, or
(c) identified a particular “land use”.

21 The significance of the various forms of definition must be assessed bearing in mind the purpose of the Hastings LEP, which is to give effect to planning controls in respect of “development” as defined in the EP&A Act, s 4(1) and (2). Planning control is undertaken by reference to specific parcels of land. The term “development” includes any use of land and any change in the use of land. Land includes a building erected on land: EP&A Act, s 4(1), land (d). If a shop were defined only by reference to a “building”, it might not include all land used for retail sale of goods or merchandise. However, the inclusion of the word “place” in the definition would extend the definition to cover any land or part of the land on which the specified activity took place.

22 To the extent that another definition relates to a building or place as opposed to a defined land use, the first limb of the proviso would operate; to the extent that the other definition does not relate to a building or place, but otherwise specifically defines a land use, the second limb of the proviso would operate. Because the term “general store” is defined as “a shop” it picks up the definition of “shop” in the Dictionary which in turn refers to a building or place. To the extent that the definition of “general store” specifies a land use, it does so by reference to a shop “used for the sale by retail of general merchandise”. Accordingly, a “general store” would appear, subject to what follows, to fall within both limbs of the proviso to the definition of “shop”.

23 The final textual issue identified in respect of the definition of shop was the use of the term “specifically” in the proviso. It was noted in the course of argument that some defined terms had a proviso in similar form (commercial premises), whilst others omitted the word “specifically” in the provisos to their definitions (see community facility and depot).

24 Although variations in drafting must be acknowledged, there is no evident purpose to them. In particular, there is no practical reason why a general store should not fall within the concept of a building or place or a land use elsewhere “specifically” defined, merely because it uses the term “shop” in its own definition.

Contextual matters

25 The appellant relies not only on the issues of construction addressed above, but also on contextual matters, to contend that the definition of “shop” found in the Dictionary does not operate in the table to cl 9 because the context and subject-matter indicate otherwise.

26 The primary contextual matter relied upon by the appellant was that if general stores were not excluded as prohibited developments within zone 4(b), an anomaly would arise because all other “shops” were prohibited developments other than those identified in Schedule 2, namely delicatessens, newsagencies and take-away food shops. The existence of such an anomaly was said to give rise to a contextual indication that the standard definition of “shop” should not operate in relation to zone 4(b).

27 The construction of an environmental planning instrument, as with a statute, is not to be undertaken in isolation from the context “internal to the legislative scheme, in which the words must be construed”: see Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc [2000] NSWCA 65; 48 NSWLR 548 at [106]-[107] (Spigelman CJ, Handley JA agreeing), relying, at [108] on the principles stated by Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315. No reference to extraneous general law principles is, in any event, required in the present case because the propriety of looking to context and subject matter to determine whether the definition in the Dictionary is to be applied is expressly mandated by cl 6(1). In this context, the appellant’s reliance upon apparent anomalies should be understood as an indication of an intention that the definition not apply.

28 The appellant submitted that it was only where, as in the table for zone 4(b), a prohibition operated with respect to “shops (other than those referred to in Schedule 2)” that an indication was to be found excluding the definition of “shop” found in the Dictionary. The definition of “shop” had operation in relation to the table to cl 9 where it was used without qualification by reference to Schedule 2. Had the definition of shop no such operation in relation to the table, it would have been difficult to place reliance upon supposed anomalies in its operation, in circumstances where the proviso to the definition expressly operated only with respect to the table to cl 9.

29 There are four cumulative reasons for rejecting this interpretation. The first arises from the structure of the Hastings LEP and, in particular, the use of the Dictionary. Where the Dictionary identifies a genus, such as “shop” or “commercial premises” the proviso, in each case operating in relation to a use of the term in the table to cl 9, removes other defined buildings, places or uses from the generic definitions. It thus isolates the specific definitions and gives them a separate operation.

30 Secondly, the operation of the generic definitions, with their provisos, allows an understanding as to the purpose of Schedule 2: each of the uses which Schedule 2 identifies is undefined in the Dictionary. Arguably each of those uses may be seen as a minor departure from the overall objective of a particular zoning, and as promoting a facility which the public may expect to find in many zones.

31 Thirdly, the anomaly identified by the appellant should also have existed with respect to commercial premises. Prohibited development in zone 4(b) included “commercial premises (other than those referred to in Schedule 2)”. Schedule 2 contained six items, of which all were properly identified as commercial premises, but three of which were also shops. If the table clearly included commercial premises otherwise specifically defined in the Dictionary, the appellant’s argument in relation to shops was greatly undermined, unless it could distinguish the approach taken in the Dictionary in relation to shops from that in relation to commercial premises. Apart from the semantic point (discussed above) that the definition of general store was undertaken by reference to the genus of shop, a drafting device which appeared to have no distinguishing purpose, that distinction was hard to maintain. Furthermore, one of the prohibited developments in zone 4(b) was “neighbourhood centres”, itself a term defined in the Dictionary, the substance of the definition being “an integrated development containing shops and commercial premises which served the local community and are limited in scale …”. Other forms of anomaly would arise if the definitions of “shop” and “commercial premises” operated differentially within the table to one zone, which expressly identified as a prohibited development, neighbourhood centres.

32 Fourthly, the limited purpose of Schedule 2, noted above, and its intended operation in conjunction with the provisos to the definitions of generic uses, will be confirmed if the uses excluded by the provisos are also to be found expressly listed in the table to cl 9. In fact, that is confirmed by the table for zone 4(b). The definition of commercial premises is “a building or place used as an office or for other business or commercial purposes”, followed by a proviso in similar terms to that in relation to the definition of shop. Commercial premises (like shops) are prohibited development in zone 4(b), other than those in Schedule 2. It seems likely, however, that hotels, junkyards, liquid fuel depots and neighbourhood centres would all fall within the broad definition of commercial premises. Nevertheless, each has a specific definition in the Dictionary and each is expressly identified amongst the prohibited developments in relation to zone 4(b). Further, roadside stalls, which are also specifically listed in the table to cl 9 for zone 4(b), would also appear to fall within the generic definitions of both commercial premises and shops, but are separately defined. The inclusion of each of these uses is only explicable if the provisos to the definitions of shops and commercial premises each operate despite the qualification in relation to Schedule 2. Indeed, shops themselves would appear to fall within the definition of commercial premises and should therefore not be separately listed (as they are) in the table for zone 4(b), were the proviso in respect of commercial premises not to operate.

33 These examples can be expanded by reference to other zones. The aforementioned are sufficient, however, to demonstrate that a reference to either shops or commercial premises in the table to cl 9, whether or not in combination with an exception referring to Schedule 2, involves the application of the proviso in each case. Thus, what is said to be an anomaly, is found to be no more than the reflection of a view that permitting a delicatessen, newsagency or take-away food shop, but prohibiting all other forms of shop, is inconsistent with allowing a general store to be a permissible use. That was a decision to be made by the Council: to abandon the proviso to the definition where reference is made to Schedule 2 in the table is to rewrite the Hastings LEP in order to give it a different operation from that which, in its terms, it has.

34 While it is not clear that any true anomaly has been identified in the operation of the Hastings LEP, if it had, the proper course would have been, as submitted by the respondent, to treat the anomaly as raising a reason for inquiry as to whether the definition applied or not. Even the existence of an anomaly would not necessarily demonstrate an intention that the definition not apply.

35 Furthermore, and despite the terms of cl 6(1), it is appropriate to exercise caution before identifying an intention that a definition not apply. The purpose of a Dictionary is to delineate the circumstances in which particular provisions operate, by the use of defined terms. A planning instrument is intended to apply to almost every conceivable proposed use and change in use of land within its boundaries. If possible, it should be construed in a way which renders it accessible to the general public, as well as members and officers of consent authorities. Generally speaking, that purpose will be promoted by giving effect to the definitions of defined terms. It is likely to be undermined by the finding of an intention that a definition not apply, not because of any express statement to that effect, but by a process of construction. Further, the more abstruse and complex the arguments in favour of such a construction, the greater the departure from the purpose of transparency and ease of application.

36 Next, it was submitted by the appellant that to allow general stores to be built in zone 4(b) areas would be inconsistent with one objective of such zones which was to allow light industrial and related service land uses “without unduly detracting from the retail strength of existing business districts”: objective (b). It was submitted that to permit a supermarket in such a zone would inevitably detract from the retail strength of existing business districts and could not, therefore, have been intended.

37 Finally, it was noted that “neighbourhood centres” were prohibited in zone 4(b). A neighbourhood centre is defined as “an integrated development containing shops and commercial premises which serve the local community and are limited in scale …”. In one sense, the exclusion of neighbourhood centres is consistent with the exclusion of shops. On the other hand, even a development containing shops and commercial premises which was limited in scale was prohibited, implying that the purpose of the prohibition would apply with added weight in the case of a large-scale development such as a supermarket.

38 The difficulty with each of these contextual propositions is that it seeks to identify a logical and coherent theme underlying various zoning provisions. Sometimes such an argument will have weight; in the present case, there is no clear or coherent policy which would provide a basis for the appellant’s underlying proposition.

39 The importance of reading a definition in the context of the planning instrument, considered as a whole, may be conceded: see Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 at [36] (McColl JA, Beazley JA agreeing). However, it has also been said with some justification that a search for logic and consistency within planning instruments is often doomed to fail. As has been explained by Tobias JA, to seek “planning logic in planning instruments is generally a barren exercise”: Calleja v Botany Bay City Council [2005] NSWCA 337; 142 LGERA 104 at [25]. Why one use is permissible and another similar use is prohibited will often be a matter of speculation. Where the language used has an identifiable meaning, that meaning should not be set aside by an attempt to impose logical consistency. Thus, the shops which are clearly not prohibited development include delicatessens, newsagencies and take-away food shops. (Each is identified in Schedule 2.) Separately, the zoning table prohibits roadside stalls, which might otherwise fall within the definition of “shop”. It may be conceded that there is no obvious logic in permitting a general store, but not other forms of shop. Nevertheless, the promotion of logic and consistency provides no sound basis for a court to rewrite a planning instrument.

Conclusion

40 The primary judge applied the statutory definition in its terms, so as to conclude that a general store was a permissible development with respect to the land. That conclusion has not been shown to be in error. Accordingly, the appeal should be dismissed. The appellant should pay the costs in this Court of the developer.

41 HANDLEY AJA: I have had the benefit of considering the reasons for judgment of Basten JA in draft. He has set out the history of the proceedings and the planning framework. I agree with much of his reasoning but have the misfortune to differ from his ultimate conclusion.

42 The issue in the appeal is whether a general store is prohibited development and this turns on the definitions of general store and shop in the Hastings Local Environmental Plan 2001 (the LEP) and the application of those definitions to that part of para 3 of the Zone Table for Zone 4(b), which prohibited "shops (other than those referred to in Schedule 2)".

43 Schedule 2 included only three types of shops, delicatessen, newsagency and take-away food shop. A general store is not excluded by Schedule 2 from the general prohibition of shops in this Zone.

44 If shop had its ordinary meaning in Schedule 2 "a general store", being a type of shop not included in the Schedule, would be prohibited development.

45 The Dictionary of the LEP defines shop and general store as follows:

"Shop means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials but (in the Table to cl 9) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used for a land use elsewhere specifically defined in this Dictionary"
General store means a shop used for the sale by retail of general merchandise and which may include the facilities of a post office."

46 Because of the definition of shop the prohibition of shops in Zone 4(b), other than those in Schedule 2, does not extend to "a building or place elsewhere specifically defined in this Dictionary." The question is whether a general store is within the exclusion.

47 General store is elsewhere defined in the Dictionary, but the question is whether it is "a building or place … specifically defined".

48 Every definition is specific to the term defined, but the qualification "specifically" was presumably intended to have some operative effect. Moreover the specific definition must in terms relate to "a building or place".

49 While "shop" is defined as a particular type of "building or place", "general store" is only defined as a particular type of shop. It is not in terms defined, or specifically defined, as a type of "building or place".

50 The Dictionary includes a number of "buildings or places" which are "elsewhere specifically defined" that are not referred to as shops but would ordinarily be considered a type of shop.

51 If the drafter of the LEP wished to exclude from the definition of shop those shops, not so described, which defined a particular type of building or place, but not to exclude any kind of shop expressly defined as a type of shop, the words of exclusion in the definition of shop ("but does not include a building or place") may have been intended to achieve that result.

52 The definition of "General store" is the only definition in the Dictionary which expressly incorporates the word "shop".

53 The Dictionary definitions of the uses of "a building or place", which are within the ordinary meaning of shop, are those for a motor showroom, a retail plant nursery, a roadside stall, and a service station.

54 Motor showroom is defined as "a building or place used for the display or sale of motor vehicles, caravans, and boats …"; retail plant nursery is defined as "a building or place used for both the growing and retail selling of plants …"; roadside stall is defined as "a building or place … where … primary products … are exposed or offered for sale or sold by retail"; and service station is defined as "a building or place used for the fuelling of motor vehicles involving the sale by retail of petrol, oil and other petroleum products … ".

55 Of these four uses, only a roadside stall is expressly included in the list of prohibited uses in this Zone. This would not be necessary if it was a shop as defined, but would be necessary if it is within the exclusion for “a building or place elsewhere specifically defined.” This suggests that the other three uses defined in this way are permissible with consent in this Zone.

56 Retailing of bulky goods is defined in the Dictionary as the use of land for "the sale by retail or auction, or the hire or display" of bulky goods. This use is not within the definition of “shop", which is limited to sale by retail, and thus it is not expressly prohibited in this Zone.

57 Commercial premises are defined as "a building or place" used as an office or for other business or commercial purposes. However, like the definition of shop, it does not include in the Table to cl 9 "a building or place elsewhere specifically defined in the Dictionary". The Dictionary includes a number of definitions which incorporate the words "a building or place" when used for a business or commercial purpose.

58 There is no definition which expressly incorporates the words “commercial premises”.

59 "Commercial premises (other than those referred to in Schedule 2)" are expressly prohibited in this Zone. Those listed in Schedule 2 are not defined in the Dictionary but a number of defined uses of “a building or place” for what would ordinarily be considered a commercial purpose are expressly prohibited in this Zone. This would only be necessary if the uses, so defined, were within the words of exclusion.

60 In my judgment the words in the definition of shop "does not include a building or place elsewhere specifically defined", read literally have work to do, because of the definitions of what would ordinarily be understood as shops which incorporate the words "a building or place". In these circumstances the words should not be construed as if they read "a shop elsewhere specifically defined".

61 The literal construction makes sense of the general prohibition of all shops in this Zone subject to the express exclusion of the three types of small shops in Schedule 2. It also makes sense of the specific prohibition of a roadside stall which would ordinarily be understood as a shop, although not defined as such.

62 On this construction a general store, defined as a type of shop, is not within the exclusion for “a building or place elsewhere specifically defined.” Accordingly it falls within the general prohibition of shops in this Zone and is prohibited development.

63 In my opinion therefore the appeal should be allowed.

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