Marscon Pty Limited v Holroyd City Council

[2003] NSWLEC 22

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Reported Decision: (2003) 123 LGERA 323

Land and Environment Court

of New South Wales

CITATION:	Marscon Pty Limited v Holroyd City Council [2003] NSWLEC 22
PARTIES:	APPLICANT: Marscon Pty Limited RESPONDENT: Holroyd City Council
FILE NUMBER(S):	10511 of 2002
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- Whether proposed development prohibited development in terms of LEP.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97
CASES CITED:	Baker v Cumberland County Council 1 LGRA 321; Ku-Ring-Gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154; Shire of Perth v O'Keefe (1964) 110 CLR 529
DATES OF HEARING:	05/02/03
DATE OF JUDGMENT:	02/10/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Galasso, Barrister SOLICITORS Coleman and Grieg RESPONDENT: Ms J Jagot, Barrister SOLICITORS McKees Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10511 of 2002

Coram : Bignold J

10 February 2003

MARSCON PTY LIMITED

Applicant

v

HOLROYD CITY COUNCIL

Respondent

JUDGMENT

INTRODUCTION

1. A preliminary question of law has been raised by the Council in pending class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 in respect of the Council’s deemed refusal of the Applicant’s development application to demolish existing buildings on a development site comprising three lots situate at the corner of Great Western Highway and Centenary Avenue, Wentworthville and to erect a new five storey building over basement carparking for the purposes of a mixed residential and commercial development. The hearing of the appeal on the merits has been allocated for 24 to 26 February 2003. However, if the question of law raised by the Council is answered in the affirmative, as the Council contends it should be, the result will be that the proposed development is prohibited development and the appeal must be dismissed on that account.

2. The question of law raised by the Council is whether the proposed development is prohibited development by reason of the provisions of the Holroyd Local Environmental Plan 1991 (the LEP).

THE RELEVANT FACTS

3. The development site of the proposed development is included in zone No 3(a) “Business General Zone” in terms of the LEP.

4. Within that Zone, cl 9 of the LEP provides as follows:

Zone objectives and development control table

9. (1) The objectives of a zone are set out in the Table to this clause under the heading Objectives of zone appearing in the matter relating to the zone.

(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which:


(a) development may be carried out without development consent;

(b) development may be carried out only with development consent; and

(c) development is prohibited,

are specified under the headings Without development consent Only with development consent and Prohibited, respectively appearing in the matter relating to the zone.


(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development proposed is to be carried out.

TABLE

ZONE No. 3(a) (BUSINESS GENERAL ZONE)

The objectives of this zone are:

(a) to provide and foster the economic well-being of existing and proposed business;

(b) to permit non-commercial development within the zone where such development is compatible with the commercial character of the locality;

(c) to encourage the development and expansion of business activities which will contribute to the economic growth of and employment opportunities within, the City of Holroyd;

(d) to ensure that there is adequate provision for car parking facilities in the vicinity of commercial centres; and

(e) to minimise conflicts between pedestrian and vehicular movement systems within commercial areas.

2. Without development consent

Nil

3. Only with development consent

Any purpose other than a purpose included in Item 4.

4. Prohibited

Brothels; dual occupancies; dwellings sand residential flat buildings (other than those attached to or used in conjunction with shops or commercial premises or otherwise permitted under clause 32); hazardous industries; hazardous storage establishments; industries (other than light industries); hazardous storage establishments; industries (other than light industries;) institutions; integrated housing; junk yards; liquid fuel depots; medium density housing; mines; offensive industries; offensive storage establishments; road transport terminals; warehouses.

5. It may be observed that cl 9 of the LEP adopts the conventional approach available under the EP&A Act (see ss 26, 30 and 31) of specifying development controls by reference to three categories (i) permissible development (ii) development requiring development consent and (iii) prohibited development in respect of the carrying out of development on land included within each of the designated zones. The LEP creates 16 separate zones—three residential zones, two business zones, four industrial zones, two special uses zones, three open space zones and two road or transport zones. It may also be noted that in the case of the development controls applying to the Residential, Business and Industrial Zones (except for Zone No 4(d) “the Industrial Extractive Zone”) cl 9 specifies the particular purposes of development that are “prohibited development” and specifies as the purposes for which development may be carried out only with development consent “any purpose other than a purpose included in Item 4” (that item containing the specification of the particular purposes that constitute “prohibited development” within each zone).

6. For all other zones, cl 9 specifies the particular purposes for which development is permissible development or development that may be carried out only with development consent and specifies as “prohibited development” “any purpose other than a purpose included in Item 2 or 3” (those items comprising the other two categories of permissible development).

7. Thus, to employ long established concepts of “nominate” and “innominate” purposes (see Ku-Ring-Gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154) cl 9 of the LEP, in specifying development controls of the various zones created by the LEP nominates the particular purposes for which development is “prohibited development” for specified zones, including all of the Residential and Business Zones, thereby specifying as the “innominate” purposes the purposes for which development may be carried out only with development consent.

8. This particular feature of the LEP will be shown to be crucial to the determination of the question of law raised in the present case where it is common ground between the parties that the proposed development does not fall within any of the particular purposes of prohibited development specified in respect of Zone No 3(a) (General Business Zone).

9. This common ground means that it is not necessary to recite the definitions adopted by the LEP for all of the nominated purposes of prohibited development within Zone No 3(a).

10. It is sufficient to note that in the case of Zone No 3(a), each of the nominated particular purposes of prohibited development is defined by the LEP—either by virtue of the definitions contained in cl 5(1) of the LEP or by virtue of the adoption by cl 6(1) of the LEP of all but a few of the definitions contained in the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions).

11. In order to appreciate the Council’s argument in the present case, it is necessary to note that the LEP adopts (either directly or via the Model Provisions) definitions of the following terms, each being a recognised type or form of residential development—

(i) dwelling

(ii) dwelling-house;

(iii) dual occupancy;

(iv) integrated housing;

(v) medium density housing;

(vi) residential flat building.

12. It is only necessary to recite the definition of “residential flat building” adopted by the LEP (cl 5(1))—

residential flat building means a building containing 2 or more dwellings that has not more than 3 residential storeys whether above parking or not, and includes buildings that have not more than three residential storeys commonly known as walk-up flats or home units

13. That definition may be contrasted with the following definition of the same term contained in the Model Provisions, which definition was expressly not adopted by the LEP (vide cl 6(1))

residential flat building means a building containing two or more dwellings.

14. For completeness I should recite the following definitions contained in the Model Provisions which are adopted by the LEP:

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile;

dwelling-house means a building containing 1 but not more than 1 dwelling

15. Details of the proposed new building are as follows—

(i) the building comprises five separate levels above two levels of carparking;

(ii) at ground floor level there is a pedestrian lobby, garbage storage area, loading dock and commercial floor space (including a restaurant) of 918 m2; and
(iii) each of the other four floor levels comprises apartments—eight apartments on floor levels 1 and 2, six apartments on floor level 3 and two apartments on floor level 4.

THE COMPETING ARGUMENTS ON THE QUESTION WHETHER THE PROPOSED DEVELOPMENT IS PROHIBITED DEVELOPMENT

16. When effect is given to what is common ground in the competing arguments (ie that the proposed development does not fall within any of the nominated purposes of “prohibited development” with respect to Zone No 3(a)) the true focus of the disputed question is significantly narrowed, and can be stated as follows:

Is the proposed development which is relevantly not “ prohibited development ” development for “ any purpose ” (other than a purpose of prohibited development) within the meaning of cl 9(2) of the LEP as that provision applies to Zone No 3(a).

17. The competing arguments proffer different interpretations of the expression “any purpose” (other than a nominated purpose of prohibited development).

18. The Applicant submits that the word “purpose” in the expression “any purpose (other than a nominated purpose of prohibited development)” in the context of cl 9(2)(b) of LEP specifying “the purposes for which development may be carried out only with development consent” should be interpreted according to its ordinary and natural meaning eg The Shorter Oxford English Dictionary:
2. The object for which anything is done or made, or for which it exists; end; aim

19. The Council’s competing argument is that the word “purpose” for contextual and purposive reasons should be construed more narrowly to mean only “planning purpose of development that is identified in, or recognised by, the LEP”.

20. In other words, the Council’s argument is that the word “purpose” should be interpreted to be limited to any of the definitions of the various categories of development that are employed by the LEP. Since it is common ground that the residential component comprising four separate floor levels of the proposed development does not fall within the definition of “residential flat building” or any other category of residential development defined by the LEP it follows, if the Council’s interpretation of the relevant expression “any purpose other than…” be adopted, that the proposed development does not constitute development for “any other purpose” within the meaning of cl 9(2)(b) of the LEP.

21. As I pointed out during the course of argument, the manner that the LEP formulates development controls by reference to “the purposes for which development may or may not be carried out” in the various zones created by the LEP reflects conventional town planning practice for the past 50 years. The County of Cumberland Planning Scheme which came into force in 1951 formulated controls on the erection and use of buildings and the use of land by reference to specified “purposes”: vide cll 26 and 29.

22. Speaking of such provisions in 1956, Sugerman J said in Baker v Cumberland County Council 1 LGRA 321 at 333/334:

The relevant provision of fasciculus of provisions, also makes provision by way of regulating the purposes for which buildings may be erected in Green Belt Area Zones. Buildings may be erected for specified purposes with the consent of the responsible authority and shall be erected for no other purposes. The enumeration of purposes , which is common to both the erection of buildings and the use of buildings, has certain peculiarities. The statement of a purpose is sometimes a statement of a kind of building and sometimes a statement of a kind of activity. Reading the enumeration of purposes in conjunction with the relevant definitions in cll. 3 and 24, the kind of building may be found to be described by reference to the uses for which it is required, or designed, or in fact used, and the statements both of kinds of buildings and of kinds of activities may be found to be accompanied by what are in substance, if not in form, conditions.

These complexities, and other difficulties associated with a classification of buildings by reference to purpose, may lead to difficulties in the construction of the Ordinance and in its application in particular cases. But such cases are of an exceptional character and, subject to them, it may in general be said that a requirement of consent for the erection of buildings for the purposes of, for example, dwelling-houses, is, in its ordinary operation and application, a requirement of consent for the erection of buildings of the kind ordinarily designed for those purposes—in short, a requirement of consent for the erection of dwelling-houses; and that a requirement of consent for the erection of buildings for the purposes of, for example, rural industries is, in its ordinary operation and application, a requirement of consent for the erection of buildings of the kinds which are customarily designed and used for the industries which fall within the definition of rural industries.

23. To similar effect, and addressing a similar statutory town planning context is the following passage from the judgment of Kitto J in Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534:

Each purpose in the prohibitory by-laws is indicated by means of a description of a character which a purpose imparts to premises in which it is pursued; and while for the most part the purposes that are thus pointed to are such that they may be pursued in a wide variety of ways (in the case of a church, for example), in some instances they connote a narrow range of choice (for example, in the case of a blacksmith’s shop or a woodyard). All that may usefully be noted is that in each case the description employed, be it of wide of narrow connotation, has an evident relevance to town-planning considerations.

24. I have referred to these long standing decisions and to the fact that the LEP is entirely conventional in the manner that it imposes controls on development within the various zones it created to emphasise the novelty of the Council’s argument. That feature of itself, of course does not diminish the argument, but it is significant that in more than 50 years experience with similar planning controls, it has never been held that the innominate purposes of development (ie purposes that are expressed, as in the present case, by way of the expression “any purpose other than a nominated purpose of prohibited development”) are confined to those purposes which are embraced by the defined categories of development, but no other.

25. The extract quoted from Baker indicates the relationship between the term “the purposes of” and the definitions of various types of development employed by the planning instrument. But it has never been held that the defined types or classes of development employed in town planning instruments from the time that the County of Cumberland Planning Scheme came into force in 1951 provided or were intended to provide an exhaustive or closed list of the purposes for which “buildings may or may not be erected or used or land used” (in the case of the County Scheme) or for which “development may or may not be carried out” (in the case of the LEP and other environmental planning instruments made in pursuance of the EP&A Act). A moment’s reflection suggests that the maker of an environmental planning instrument operating like the LEP to impose development controls throughout an entire local government area by reference to designated zones, would hardly conceive of even the possibility of attempting to provide exhaustive definitions of every conceivable or possible form of development that may be carried out.

26. The mind boggles when confronted by the idea of the imposition of development controls on the basis of an exhaustive and closed system of definitions of the purposes of development. Indeed, experience has long shown the great utility of employing the concept of the “innominate” category of purposes of development, either for specifying permissible or prohibited purposes of development The LEP employs that concept in imposing the various development controls by virtue of the operation of cl 9 as I have earlier indicated.

27. The decided cases have addressed a different, though related, question, namely the meaning to be given to the purpose of an “existing use’ in the context of a planning instrument that imposes prohibitory controls on the carrying out of development by reference to defined purposes.

28. That was the key question that arose in O’Keefe where it was held that the proper particularisation of the purpose of an “existing use” did not require or depend upon the application of the defined purposes of development (ie defined for the purpose of imposing controls on development) but rather was to be concluded “by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date”: per Kitto J at 535.

29. In my judgment, there is no justification for reading down the innominate “any purpose” (other than a nominated purpose prohibited development) appearing in the Table to cl 9 of the LEP so that it means only a purpose that is defined or recognised by the LEP. Properly construed, the innominate “any purpose” (other than a nominated purpose of prohibited development) in the context of cl 9(2)(b) specifying “the purposes for which development may be carried out in Zone No 3(a) only with development consent” is the object or end to which the development is carried out. This understanding of the meaning of the expression “purpose” reflecting the ordinary and natural meaning of the word accords with the judicial decisions in respect of the same or similar statutory planning controls operating under town planning delegated legislation for the past 50 years in NSW.

30. In rejecting the Council’s interpretation of the expression “any purpose” (other than a nominated purpose of prohibited development) I should in passing note what would have been the extraordinary consequence in the present case if the Council’s interpretation had been adopted. The consequence would have been that the proposed development (or at least the residential component thereof comprising four of the five floor levels above the two levels of basement carparking) would be neither prohibited development (as conceded by the Council’s argument) nor development that may be carried out only with development consent. Accordingly, neither s 76B nor s 76A of the EP&A Act would apply to the development with the consequence that the development would stand beyond the reach or ambit of the EP&A Act (not only in terms of the controls on development imposed by Part 4 but also in terms of the operation of Part 5).

31. In other words, the Council’s argument would produce the unintended result of the residential component of the development being simply untouched by the operation of the EP&A Act.

32. The Council’s argument postulated that because the LEP had adopted six definitions of residential type development any residential development falling outside of the defined six categories was not to be recognised because the six definitions were intended to cover the field or to exhaust the range of residential development contemplated by the LEP. However, this argument is seriously flawed. Firstly, it is erroneous in fact since another form of residential development expressly recognised by the LEP is “boarding house” development, being a purpose that is specifically included in the nominated particular purposes of prohibited development within the Residential 2(a) Zone.

33. More relevantly for present purposes “boarding houses” are not included in the nominated particular purposes of prohibited development within Zone No 3(a) and accordingly the Council’s argument that the six definitions of residential development are prohibited development within Zone No 3(a) is factually incorrect.

34. However, a greater problem with the Council’s argument is that the defined categories of residential development operate in an exhaustive fashion to cover the field. But how can this be especially in the light of the obvious fact that the definition of “residential flat building” adopted by the LEP in substitution for the definition of the same term in the Model Provisions, does not purport to close the class of residential development.

35. In my judgment, the Council’s argument must be rejected and affords no justification for the Council’s proffered interpretation of the term “any purpose” etc. appearing in cl 9(2)(b) of the LEP in respect of Zone No 3(a).

36. Similarly, I am unconvinced by the Council’s argument based upon the suggested absurdity or unreasonable effect upon the development controls imposed in respect of Zone No 2(a) or upon the operation of cl 10 or cl 32 flowing from the consequence of recognising the possibility of a residential development being permitted under the LEP that falls outside the defined term “residential flat building”. These suggested difficulties are not insuperable, but in any event, they do not provide any justification for departing from the ordinary and long established meaning of the expression “any purpose” where employed as the relevant innominate category of permissible development, as in the present case.

37. The suggested difficulties in truth arise from the combined effect in the LEP of the artificially defined term “residential flat building” and the innominate category of development (being purposes other than a purpose of prohibited development) specifying the permissible purposes for which development may be carried out only with development consent. These are not difficulties that can be legitimately resolved by the process of interpretation.

CONCLUSIONS

38. For all the foregoing reasons, the Council’s preliminary question of law is determined by holding that the proposed development is not prohibited development in terms of the Holroyd Local Environmental Plan 1991 or the Environmental Planning and Assessment Act.