Holz v Kiama Municipal Council

[2001] NSWLEC 26

Land and Environment Court

of New South Wales

CITATION:	Holz and Anor v Kiama Municipal Council [2001] NSWLEC 26
PARTIES:	APPLICANTS Holz and Anor RESPONDENT Kiama Municipal Council
FILE NUMBER(S):	10790 of 2000
CORAM:	Pearlman J
KEY ISSUES:	Construction & Interpretation - Question of Law :- Construction & Interpretation:- recreation area - commercial use Question of Law:- preliminary question of law
LEGISLATION CITED:	Interpretation Act 1987 Kiama Local Environmental Plan 1996
CASES CITED:	Brooks v Minister for Planning and Environment and Anor (1988) 68 LGRA 91; Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (1980) 147 CLR 297; Finn v Shoalhaven City Council (1995) 86 LGERA 425
DATES OF HEARING:	02/02/2001
DATE OF JUDGMENT:	03/07/2001
LEGAL REPRESENTATIVES:	APPLICANTS Mr P R Clay (Barrister) SOLICITORS Williams RESPONDENT Mr D R Parry (Barrister) SOLICITORS Kearns & Garside

JUDGMENT:

IN THE LAND AND 10790 of 2000
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 7 March 2001

MICHAEL CRAIG HOLZ AND BELINDA ANN HOLZ

Applicants

v

KIAMA MUNICIPAL COUNCIL

Respondent

JUDGMENT

Introduction

1. A preliminary question of law has arisen for determination in this class 1 appeal. The question of law is as follows:

Whether, on the proper construction of the terms of the nominated permissible uses in the subject 6(b) Private Recreation Zone under the Kiama Local Environmental Plan 1996, the proposed development for a commercial equestrian centre and the erection of a dwelling house in connection with a commercial equestrian centre is prohibited on the land.

2. The class 1 appeal has been brought by the applicants against the council’s refusal to grant development consent for the purpose described above. The land the subject of the development application is lot 341 DP 790657, 7 Newing Circuit, Kiama Downs (“the site”).

3. The greater part of the site falls within zone no 6(b) Private Recreation under the Kiama Local Environmental Plan 1996 (“the LEP”), although a thin strip along the western edge of the site is within zone no 2(a) Residential “A”. The proposed development is to be located on that part of the site which is zoned 6(b).

4. It is not in dispute that the proposed development is to be a commercial undertaking to be conducted by one of the applicants, Mrs B A Holz, for profit. Indeed, the commercial nature of the proposed development is made explicit in the statement of environmental effects, which accompanied the development application and to which a business plan was appended. However, it is that commercial nature which has led to the raising of the preliminary question of law. The council contends that an equestrian centre, being a commercial development undertaken by an individual, is prohibited in the 6(b) zone, whilst the applicants contend that it is a permissible development. For the purpose of answering the preliminary question of law, I focus on the equestrian centre as the proposed development, and I put aside the proposed dwelling.

The relevant provisions of the LEP

5. The zoning table relating to the 6(b) zone is in a conventional form. It contains three zone objectives. Only objective (b) is relevant, and it is in the following terms:

(b) to enable development of recreation areas by bodies of persons associated for the purposes of the physical, cultural or intellectual welfare of the community and to provide land for recreational facilities for those purposes;

6. The table sets out those purposes for which development may be carried out without consent, those for which development consent is required, and those which are prohibited. The purposes for which development consent is required are as follows:

Advertising structures; clubs used in connection with and situated on recreation areas; drainage; dwelling-houses and dual occupancy development required for use or occupation by persons employed in connection with a land use permitted in the zone ; fill; utility installations (other than gas holders or generating works); recreation areas; roads; sports grounds (my emphasis)

7. It is apparent that the proposed development will be permissible with consent only if it is properly characterised as a “recreation area” or a “sports ground”. The term “sports ground” is not defined in the LEP, but cl 6 contains the following definition of “recreation area”:

6(1) In this plan:

“recreation area” means:

(a) a children’s playground;
(b) an area used for sporting activities or sporting facilities;
(c) an area used by the council to provide recreational facilities for the physical, cultural or intellectual welfare of the community; and
(d) an area used by a body of persons associated together for the purposes of the physical, cultural or intellectual welfare of the community to provide recreational facilities for those purposes,

but does not include racecourses and showgrounds.

The competing arguments

8. Mr Parry, appearing for the council, submitted that, properly construed, neither of the terms “recreation areas” or “sports grounds” where appearing in the 6(b) zoning table include a commercial undertaking operated by an individual for profit. He put that submission on three bases.

9. First, Mr Parry submitted that, although the proposed development might prima facie be encompassed by par (b) of the definition of “recreation area” in the LEP, the context requires that the definition does not apply in relation to the 6(b) zoning table. Mr Parry relied on s 6 of the Interpretation Act 1987, which provides as follows:

6. Definitions to be read in context

Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires (my emphasis).

10. He pointed to the following matters of context which, in his submission, require that the definition does not apply to the 6(b) zone:

(a) Development for the purpose of “recreation areas” is permissible with consent in ten zones under the LEP, but in only three of those ten zones is there any reference to “recreation areas” in the zone objectives. Thus, the relevant objective of the 6(a) Existing Recreation Zone provides as follows:

(a) to provide sufficient recreation areas for the benefit and use of the residents of and visitors to Kiama:
The relevant objective of the 6(c) Proposed Recreation Zone is as follows:

Those objectives are to be contrasted with objective (b) of the 6(b) zone, which expressly adopts only one of the four categories set out in the definition of “recreation area”, that is, category (d) which refers to “an area used by a body of persons associated together for the purposes of the physical, cultural or intellectual welfare of the community to provide recreational facilities for those purposes”. In Mr Parry’s submission, the clear implication is that the definition (which encompasses more categories than simply category (d)) does not apply in the 6(b) zone.

(b) The reference in the class of permissible development in the 6(b) zone to “clubs used in conjunction with and situated on recreation areas” indicates, in Mr Parry’s submission, that the term “recreation areas” is confined to development by private bodies for community purposes;

(c) The 6(b) zone is identified as and termed “Private Recreation”. That is in contrast to the 6(a) zone, which is called “Existing Recreation” and the 6(c) zone which is called “Proposed Recreation”. In Mr Parry’s submission, this is yet another contextual indication that the definition does not apply. This is exemplified by category (c) of the definition. That category is concerned with recreational facilities provided by the council, that is, public recreation areas, but, that category of the definition would be inappropriate in a zone which is confined to “private” recreation.

11. Secondly, Mr Parry submitted that the Court should have regard to the objectives of the zone in construing its provisions. Objective (b) makes it clear, in his submission, that the term “recreation areas” in the list of permissible uses is restricted to development by bodies of people associated for the welfare of the community. The term does not encompass a commercial development operated for profit by an individual.

12. Thirdly, Mr Parry contended that the 6(b) zone is a zone with a specific mandate under the LEP. In his submission, it is to provide for and facilitate the development of land for the welfare of the community through bodies of associated persons. It has a specific public interest objective. The Court should adopt a purposive approach to the task of interpretation (s 33 Interpretation Act 1987) and adopt a construction of the term “recreation areas” which would promote that purpose. Hence the Court should not construe the term in a way which would permit a private commercial development.

13. Mr Clay, appearing for the applicants, took issue with Mr Parry’s contentions. Mr Clay submitted that the proposed development plainly falls within category (b) of the definition of “recreation areas” - it is an “area used for sporting activities or sporting facilities”. He relied upon Finn v Shoalhaven City Council (1995) 86 LGERA 425 at 427 for the proposition that the categories in the definition are disjunctive, and it is only necessary to show that the proposed development falls within one of them. He further submitted, citing Brooks v Minister for Planning and Environment and Anor (1988) 68 LGRA 91, that a recreation area use can include a private and commercial use and is not confined to use of a public nature.

14. As to the context, Mr Clay pointed to the permissible uses of “advertising structures” and “utility installations” as being uses which obviously have a commercial character, and which are not usually or necessarily confined to development by bodies associated for a community purpose. Mr Clay also submitted that the construction which Mr Parry urged upon the Court would require reading the definition of “recreation area” as if it was followed by the words “other than those conducted on a commercial basis”.

Prohibited or permissible use?

15. The answer to the preliminary question of law requires the Court to embark upon the task of construing the term “recreation areas” where it appears in the list of development permissible with consent in the 6(b) zoning table.

16. It is a fundamental canon of construction that words are to be given their plain and ordinary meaning (Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (1980) 147 CLR 297 at 305). Clause 6(1) of the LEP is clear. By its use of the words “In this plan”, it stipulates that words and expressions defined therein apply throughout the LEP. The term “recreation area” is one of the expressions defined in cl 6(1), and therefore, on the face of it, it is to be given the meaning ascribed to it where it appears in the zoning table for the 6(b) zone.

17. It is also a canon of construction that words must be read in their context (Cooper Brookes v Commissioner of Taxation at p 304). Furthermore, s 6 of the Interpretation Act 1987 is statutory support for the proposition that the context may require a particular definition not to be applied. But, in my opinion, there is nothing in the context of the LEP as a whole which would require that the definition of “recreation area” should not be applied to that term where it appears in the list of permissible uses in the 6(b) zoning table. This proposition is supported by the scheme of the LEP, read as a whole.

18. That scheme is based conventionally upon zoning tables which specify development which is permissible without consent, development which is permissible only with consent and development which is prohibited (cl 9(2)). Again conventionally, the zoning tables vary - the uses which are listed in the zoning tables vary from zone to zone. Also, conventionally, each zone has objectives which are set out in the zoning tables (cl 9(1)). In that scheme, therefore, development is controlled throughout various zones firstly, by listing those uses which are permissible without consent, or only with consent, or which are prohibited, and, secondly, by forbidding the council to grant development consent unless it is of the opinion that the carrying out of the particular development is consistent with the relevant zone objectives (cl 9(3)).

19. It follows from that scheme that the zone objectives may differ from zone to zone. And it may be, conformably with the scheme, that the requirement for consistency with the zone objectives may confine particular permissible development to development having certain characteristics, such as, in this case, development by “bodies of persons associated for the purposes of the physical, cultural or intellectual welfare of the community”. But that does not mean that the definition of “recreation area” does not apply to the use of that term in the list of permissible uses in the 6(b) zoning table.

20. Accepting, then, that the definition of “recreation area” does apply, the question is whether that definition should, by reason of its context and the objectives of the zone, be read down or confined so that it excludes development of a commercial nature undertaken by an individual. In my opinion, there is nothing in the context of the zoning table which suggests that the definition should be confined in this manner. The zoning table obviously contemplates uses which are commercial in nature and which may be undertaken by individuals or by bodies who are not specifically associated for the welfare of the community. Mr Clay correctly pointed to “advertising structures” and “utility installations” as examples. Nor is there any indication in the definition itself to the effect that it should be confined to activities which are public rather than private. Indeed, in construing an identical definition in the Eurobodalla Rural Local Environmental Plan 1987, Hemmings J in Brooks v Minister for Planning and Environment at pp 95 - 96 expressed the opinion that the uses contemplated by the definition “… are not limited to development by the public sector or on public lands, and include private and commercial use”.

21. Furthermore, objective (b) does not require the term “recreation areas”, as defined, to be read down or confined so as to apply only to the development described by objective (b) with the effect that any development for the purpose of a “recreation area” which did not meet that description is to be regarded as prohibited. That would be contrary to the scheme of the LEP. Development which is prohibited is set out in the list of development in the zoning table under that heading; it is not prohibited by reason of the zone objectives. Rather, the zone objectives take force and effect from cl 9(3); that is, development which is permissible with consent by reason of being so listed in the zoning table may yet not receive that consent by reason of inconsistency with the zoning objectives as a consequence of the application of cl 9(3).

22. Of course, a construction which promotes the purpose or object underlying the LEP as a statutory instrument is to be preferred to a construction which would not promote that purpose or object (s 33 Interpretation Act 1987). Mr Parry sought to persuade the Court that the purpose or object of the LEP is to provide for development of land zoned 6(b) for the welfare of the community through associations which exist for that purpose and to promote the public interest in terms of the activities of clubs, sporting organisations and other community associations. Accordingly, he submitted, the definition of “recreation area” should be construed in a way which promotes this purpose or object. I disagree. Assuming (but without deciding) that this articulation of the purpose or object of the LEP in relation to land zoned 6(b) is correct, it is promoted, not by adopting the construction of the term “recreation area” which Mr Parry sought, but by applying cl 9(3) so as to achieve consistency with the zone objectives. In other words, the construction sought by Mr Parry is unnecessary to achieve the articulated purpose or object of the LEP in relation to land zoned 6(b), and that purpose or object does not justify a departure from the plain and unambiguous words of the definition.

Conclusion

23. I conclude, for the reasons I have set out, that the proposed development of a commercial equestrian centre upon the site falls within the definition of “recreation area” in cl 6(1) of the LEP, and is development which is permissible upon the site.

24. As I earlier indicated, I have not directed my attention to whether or not the proposed development of a dwelling upon the site is also permissible with consent. No evidence or submissions were directed specifically to this point as a question of the proper construction of the LEP. Since I have concluded that the commercial equestrian centre is a use permitted in the 6(b) zone, it is a question of fact whether or not a dwelling is “required for use or occupation by persons employed in connection” with that use. I prefer for this reason not to answer the question as to whether the proposed dwelling is permissible or prohibited and I will confine the preliminary question of law accordingly.

25. My formal answer to the preliminary question of law is therefore as follows:

Question

Whether, on the proper construction of the terms of the nominated permissible uses in the subject 6(b) Private Recreation Zone under the Kiama Local Environmental Plan 1996, the proposed development for a commercial equestrian centre is prohibited upon the land.

Answer

The proposed development for a commercial equestrian centre upon the land is permissible with consent .

26. The class 1 appeal should proceed to a hearing upon the basis of the answer I have provided. The proceedings should be stood over to a callover before the Registrar for their further disposition.

27. The exhibits may be returned.

28. I make no order as to costs.