TC Punnett and Associates Pty Limited v Warringah Council
[2001] NSWLEC 152
•07/18/2001
Reported Decision: 115 LGERA 314
Land and Environment Court
of New South Wales
CITATION: TC Punnett and Associates Pty Limited v Warringah Council [2001] NSWLEC 152 PARTIES: APPLICANT
RESPONDENT
TC Punnett and Associates Pty Limited
Warringah CouncilFILE NUMBER(S): 11117 of 2000 CORAM: McEwen AJ KEY ISSUES: Construction and Interpretation - Question of Law :- prohibited use - zone objectives - preliminary question of law LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 36(2)
Interpretation Act 1987 s 5, s 33, s 34(2)(a), s 35CASES CITED: Argyropoulos v Canterbury Municipal Council (1988) 66 LGERA 202;
Bradford City Premises [1928] CH 138;
Gold Star Bakeries v Waverley Municipal Council (1964) 10 LGRA 396;
Goodwins (Sydney) Pty Limited v Sydney City Council (1960) 5 LGRA 346;
Invergowrie Properties Pty Ltd v Willoughby City Council (1992) 78 LGERA 67;
Leahy v City of Camberwell (1983) 50 LGRA 397;
Levingstone Posters v Leichhardt Council (McClleland CJ, NSWLEC No 20278 of 1981, unreported);
Pacific Outdoor Advertising v Leichhardt Council (1982) 51 LGRA 25;
Scotts Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191;
Sydney Water Corporation v South Sydney City Council (Stein J, NSWLEC, 21 March 1996, unreported);
Wallace v Sydney City Council (1952) 18 LGR 130;
Warringah Shire Council v Raffles (1980) 38 LGRA 306;
Wotton v Wingercarribee Shire Council (1989) 68 LGRA 38DATES OF HEARING: 05/07/2001 DATE OF JUDGMENT:
07/18/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr M Craig QCSOLICITORS
Tzovaras LegalRESPONDENT
SOLICITORS
Mr A Galasso (Barrister)
Wilshire Webb
JUDGMENT:
IN THE LAND AND 11117 of 2000
ENVIRONMENT COURT McEwen AJ
OF NEW SOUTH WALES 18 July 2001
- Applicant
Respondent
Introduction
1. On 28 August 2000 the applicant sought consent from the respondent Council to develop land at 26 Campbell Avenue, Dee Why (“the subject land”), for the purpose of 50 aged person units with associated facilities and services, under the provisions of State Environmental Planning Policy No 5 (“SEPP 5”). That application was refused by the respondent Council on 14 November 2000.
2. Pursuant to the provision of Warringah Local Environmental Plan (“WLEP 1985”) the subject land is zoned 6(b)(Private Recreation “B”). The land use table for that zone, under WLEP 1985 does not permit development of the subject land for the purpose of multi unit housing for aged persons, and hence the applicant’s reliance upon SEPP 5.
3. On 5 December 2000 Warringah Local Environmental Plan 2000 (“WLEP 2000”) came into effect. Clause 5 of WLEP 2000 contained a savings provision such that in respect of development applications submitted but not determined prior to the making of that LEP, the provisions of WLEP 1985 and SEPP 5, remain as the relevant instruments controlling the application which had been made on 28 August 2000.
4. The subject land is presently used as a tennis centre with 14 courts, a roller hockey court, a beach volleyball court, a building with squash courts, gymnasium clubroom and shop, and other associated facilities, and car parking.
5. It is common ground that the zoning of 6(b)(Private Recreation “B”), for the purposes of SEPP 5, is primarily for urban purposes; also that the subject lands adjoin land to the south and west zoned “Residential A”, which has been developed for housing purposes and is otherwise “urban purposes”. Under WLEP 1985, the uses permissible with consent on the subject land are as follows:
Advertisements; advertising structures; attached dwellings, boarding-houses, dwelling houses, group buildings or residential flat buildings required for use or occupation by persons employed in connection with a purpose permissible under this heading; commercial premises or industries required in connection with a purpose permissible under this heading; helipads; recreation areas; utility installations.
On the map to the LEP the land zoned 6(b)(Private Recreation “B”), together with three other forms of land zoned with different recreation descriptions are described in the index under the heading numbered 6 “Open Space”.
6. Relevant to the issues raised in the matter is the permissibility of dwelling-houses and residential flat buildings when “required for use or occupation by persons employed in connection with a purpose permissible under this heading”. A “residential flat building” is defined in the interpretation clause (cl 5) of WLEP 1985 as “a building containing two or more dwellings”. “Dwelling” is defined as “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” is defined as “a building containing one but not more than one dwelling”.
7. Each of the permissible uses are given definitions in the interpretation clause of the LEP. Some attention was paid, in argument, to the permissible use of “recreation area”, which is defined as follows:
(a) a children’s playground;
(b) an area used for sporting activities or sporting facilities; or
(c) an area used to provide facilities for recreation activities which promote the physical, cultural or intellectual welfare of persons within the community being facilities provided by -
(i) the council; or
(ii) a body of persons associated for the purposes of the physical, cultural or intellectual welfare of persons within the community,
but does not include a racecourse or a showground.
Questions Posed
8. Three questions of law are posed for consideration, as preliminary matters, in these proceedings, viz:
Question 1
Question 2
Whether Clause 9 of Warringah Local Environmental Plan 1985 (“WLEP 85”) for the 6(b) (private recreation “B”) zone prohibits the proposed development on the subject land.
Whether State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability (“SEPP No. 5”) by reference to clause 4(1)(b) does not apply to the subject land as WLEP 85 does not permit development on the subject land for the purpose of dwelling-houses; residential flat buildings; hospitals or special uses.
Question 3
Wether SEPP No. 5 by reference to clause 4(2)(a) does not apply to the subject land as the land is described in Schedule 1 (Environmentally sensitive land) being land identified in another environmental planning instrument, namely WLEP 85, by the description of open space.
9. Clause 9(1) provides:
9. (1) Except as otherwise provided by this plan, in relation to the 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 … appearing in the matter (manner?) relating to the zone.
(my emphasis in bold)
As to question 1, Mr Craig QC for the applicant accepted at the outset that cl 9 of WLEP 1985 acts as a prohibition, but that the source of claimed entitlement for his client was State Environmental Planning Policy No 5 (“SEPP 5”), and in particular cl 5 of that policy which gives it precedence where it is found to be inconsistent with any other environmental planning instrument. This concession, and conclusion, does not impede consideration of questions 2 and 3.
10. Questions 2 and 3 Mr Craig submitted were, when reduced to their essential or critical inquiry, respectively:
(b) Whether the subject land is to be described as “open space” for the purpose of Schedule 1 to SEPP 5.(a) Whether development for the purpose of dwelling-houses or residential flat buildings is permitted on the land;
Permissible Development
11. Clause 4 of SEPP 5 provides:-
4 (1) This policy applies to land within New South Wales:
(a) that is zoned primarily for urban purposes, or that adjoins land zoned primarily for urban purposes, and
(b) on which development for the purpose of any of the following is permitted:
(i) dwelling-houses,
(ii) residential flat buildings,
(iii) hospitals,
(iv) special uses including churches, convents, educational establishments, schools and seminaries.
12. To gain the benefit of the provisions of SEPP 5, land needs to comply with both cl 4(1)(a) and cl 4(1)(b). The parties agree that the subject land is either zoned for urban purposes, or adjoins land zoned primarily for urban purposes. The issue is whether or not the subject land is zoned in a manner which permits development for either dwelling-houses or residential flat buildings. The applicant says that it does allow this type of development and hence SEPP 5 development is permitted, and the Council says it is not.
13. Clause 9 of WLEP 1985 introduces a development control table, identifying the headings for each zone as to what development can be carried out, with and without consent, and what development is prohibited.
14. Mr Galasso for the Council submitted that the “permitted purpose” in cl 4(1)(b) of SEPP 5, required an inquiry into the use of the development that was being permitted. That “use”, here, per the provisions of the zoning table for the 6(b)(Private Recreation “B”) land, of necessity confined the activity to “persons employed in connection with a purpose permissible under this heading”. That limitation circumscribed the permitted use such that it fell outside, or beyond, the simple definition of “dwelling-houses” or “residential flat buildings”. Put another way Mr Galasso submitted that without the qualification of type of user, viz “for persons employed…(et cetera)”, there was no permissible use for dwelling-houses or residential flat buildings. The rider or condition of “persons employed…(et cetera)” meant that this constraint or limit on user prevented compliance with the requirements of cl 4(1)(b) of SEPP 5.
15. In response Mr Craig pointed to the aim, inter alia, of SEPP 5 to “make efficient use of infrastructure and services…” (cl 3(1)(b)). If, he said, the objective of cl 4(1)(b) was addressed generically, then without regard to any idiosyncratic qualification it could be stated that dwelling-houses are permitted, and any limitation should be seen as a qualification or rider which does not detract from an affirmative answer to the present question (as put by Mr Craig in par 10 above), ie that dwelling-houses and residential flat buildings are permitted.
16. The applicant submits that from the description of development which is permissible with consent for the subject land, “dwelling-house” and “residential flat buildings” are permissible separate uses, notwithstanding a stated need for a nexus with one or other of the other identified permissible uses. It is put that such a constraint on the manner of occupation does not detract from the use of dwelling-houses or residential flat buildings, per se. That such a use is permitted and obtained only by way of nexus with one of these other permissible uses, does not exclude from categorisation of the use as a permissible use as dwellings et cetera, - and for that reason, the requirement of cl 4(1)(b) of SEPP 5 is complied with. The applicant says that the need for the occupants of the dwelling-houses or flat buildings to be involved in a particular activity associated with one or other of the permissible uses, does not detract from the permissibility, for the intrinsic residential use.
17. In support of the submission that the construction of the words in the zoning table call for a distinction to be drawn between “use” on the one hand, and “purpose” on the other, the applicant cited in support the following authorities: Wallace v Sydney City Council (1952) 18 LGR 130, Scotts Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191, Goodwins (Sydney) Pty Limited v Sydney City Council (1960) 5 LGRA 346, and Gold Star Bakeries v Waverley Municipal Council (1964) 10 LGRA 396.
18. Mr Craig referred to the decision by Mr Justice Cripps (as he then was) in Argyropoulos v Canterbury Municipal Council (1988) 66 LGERA 202. There the applicant was the owner of a battleaxe lot, the head of which was zoned light industrial, but the access handle was zoned residential. The applicant wished to use the head of the lot for storage of formwork material (which was a permissible use), and use the access handle for delivery vehicles. A permissible use in the residential zone was “road” but light industry was prohibited.
19. The question hence was whether the specified permissible use of “road” was lost due to the road being used to access, (and in conjunction with), the light industry zone use at the head of the battleaxe block.
20. Cripps J held that it was open to the council to grant consent for the use of the access handle as “road” within the meaning of that term in the land use table for the residential zone. His Honour cited the judgment of Sugerman J in Scotts Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191. There a bakery business wished to use adjoining land which was in a living area zone for the purpose of parking associated with the business. His Honour held that the prohibition for “industries other than local light industries” in the living area zone did not extend to an area which was to be used for a purpose (namely parking) which by itself was permissible in the living area zone. That use his Honour held to be severable from the exercise of the light industrial operation per se and in his Honour’s view could be “conveniently termed a separate use” (at p 195).
21. Cripps J, in approving and applying this approach, in Argyropoulos said:
- The application of Sugerman J’s reasoning to the instant case leads me to the conclusion that permission may be granted for the use of the land as a “road” notwithstanding that the vehicles will proceed to and leave from land zoned light industrial. I do not think that the innominate prohibited light industrial use excludes, in the present case, the nominate permissible use. It is true that the road will serve an area of land zoned light industrial but that circumstance does not give it a separate “light industrial” purpose or, perhaps more precisely, “a formwork and materials storage” purpose within the meaning of the Canterbury Planning Scheme Ordinance. In my opinion, a “road” use is contemplated by the scheme as a separate use. The function of a road is to permit the passing and repassing of vehicles. The use of the handle for a “road” which is a nominate, permissive use under the relevant residential zoning does not become an innominate, prohibited use because the start and/or destination of vehicles passing over the road is light industrial land. (at p 195)
22. Mr Craig submitted that applying this approach to the instant facts lead to the conclusion that use and function in accordance with constraints in the land use table would not prevent or preclude the structures being classified otherwise than as dwelling-houses or residential flat buildings. In my view this approach is correct.
23. I am fortified in this conclusion by the decision of Waddell J in Warringah Shire Council v Raffles (1980) 38 LGRA 306. The applicant Council in those proceedings sought an injunction to restrain Dr Raffles from landing and taking off in a helicopter from his residential premises. His Honour, referring to the cases cited in par 17 above, observed that it was well established that in applying planning scheme laws “a distinction must be drawn between the nature of a purpose and the nature of a use” (at p 308)
The distinction between the “purpose” for which land is said to be used for the application of planning scheme restrictions and the nature of the use made of it, referred to above, is well established by decisions of the courts. In my opinion it does not depend upon any question of whether the use made is novel or upon its town planning consequences. Where land is used for the purpose of a dwellinghouse the use of some part of that land for some means of private transport seems to me necessarily to be use of the land for the purpose of a dwellinghouse. (at p 310)
24. By analogy, in the present instance the use of dwelling-houses or residential flat buildings “by persons employed in connection with a purpose permissible under this heading” (viz those permissible under the land use table for zone 6(b)(Private Recreation “B”)) necessarily remains a use for the purpose of a dwelling-house or a residential flat building.
25. It follows that the answer to question 2 is that development for the purpose of dwelling-houses and residential flat buildings within the meaning of clause 4(1)(b) of SEPP 5, in respect of the land subject of these proceedings, is permissible with consent.
Open Space
26. Under clause 4(2) of SEPP 5, it is stated that the Policy does not apply to land, inter alia, described in Schedule 1. Schedule 1 is headed “Environmentally Sensitive Land”, and relevantly reads:
- Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions:
- (a) the land is within a residential zone in which development of two storeys or more in height is permitted, or
(b) an adjacent residential zone, also identified as scenic, permits development of two storeys or more in height)
(my emphasis in bold)
27. Under Part II of WLEP 1985 “General Restrictions on Development of Land”, the identity of the various zones for land use in the Shire are described as “zones indicated on the map”. “Map” is defined (cl 5) as meaning “…the map which supports the local environmental plan”.
28. Clause 8 WLEP 1985 states:
For the purposes of this plan, land to which this plan applies shall be within a zone specified hereunder if the land is shown on the map in the manner specified hereunder in relation to that zone:
Zone No 6(b)(Private Recreation “B”) - coloured dark green with yellow edging.
29. I have set out (par 5 above) the permissible uses under the 6(b)(Private Recreation “B”) zoning. The qualification in cl 8 to the identification of the zoning of land in the Shire is that it be “…shown on the map in the manner specified hereunder in relation to that zone”.
30. Mr Craig submits that the correct approach is to commence with the introductory words of cl 8 in WLEP 1985 to discover the land to which the relevantly described zone applies (see par 28 above). This, he says, is achieved by posing the question “what is the land specified hereunder as 6(b)(Private Recreation “B”) which is shown on the map in the manner specified by that description, in relation to that zone” - and one obtains a straightforward and unembellished answer to that question without reference to the headings on the index to the map, simply by finding a similar description on the map. One does not need to have regard to the heading “6. Open Space” on the index to the map, to discover where in the Shire land zoned 6(b)(Private Recreation “B”), is to be found. The inquiry when applying the words of cl 8 of WLEP 1985 do not require or direct that any regard be, or weight given to any description other than “the manner specified hereunder…” - anything else is surplusage.
31. To the contrary, Mr Galasso on behalf of the Council contends that the subject lands are to be categorised as “open space” and hence falling within Schedule 1 to SEPP 5, by the following steps:
(i) Clause 8 of WLEP 1985 identifies the land which is to be the subject of different zonings, within the Council’s jurisdiction. That land is shown on the map with the LEP, the map being defined in cl 5 of WLEP 1985 as “the map which supports the local environmental plan”.
(ii) The index to the map identifies nine separate headings of zoned land, the subject land being - zone 6(b)(Private Recreation “B”) falls under the heading “6. Open Space”.
(iii) Of the four separate zones under “6. Open Space” on the index under the map, each are of the genus of “Open Space” - the other three being “Existing Recreation”, “Proposed Recreation”, and “National Park and State Recreation Area”.
(iv) The zoning map must be read together with WLEP 1985 and as the subject land is categorised as land falling within the descriptions in Schedule 1 to SEPP 5 (being “Open Space”), the exclusion in SEPP 5 against the operation of that policy to these lands runs, and the subject lands do not have the benefit of the policy.
(v) The interpretation in cl 5 of WLEP 1985 of “map”, meaning “the map which supports the local environmental plan”, does not suggest that the map be “read down”, but rather that it be read concomitantly with the written portion of the instrument, with its index having equal standing.
32. Mr Galasso referred to the decision of Stein J in Invergowrie Properties Pty Ltd v Willoughby City Council (1992) 78 LGERA 67. There his Honour was dealing with claimed permissibility of subdivision of land pursuant to SEPP 25 “residential allotment sizes and dual occupancy subdivision” (which SEPP has now been repealed).
33. The land under consideration by his Honour was zoned residential 2(a2) under Willoughby Local Environmental Plan (“WLEP 25”). The map which accompanied WLEP 25 marked the land, the subject of those proceedings, as “Foreshore Protection Area”, whilst the plan itself otherwise made no reference to, or defined or identified “foreshore protection areas”. Notwithstanding hatched markings on the map designated “Foreshore Protection Area”, “…(there was) not one word in the plan itself (referring) in any way to a foreshore scenic protection area, the hatching or marking on the map or anything remotely relevant to it. In fact, the plan is totally silent on the subject”. (at p 68)
34. This lead his Honour to conclude:
While I accept that the map forms part of the local environmental plan, there must be some operable words in the text of the plan to give effect and meaning to the markings on the map. In the total absence of any such words, the effect of the hatching on the map must be neutral unless it can be given some effect by another planning instrument. (at p 68)
Applying that approach here, in the absence of operable words in the text of the LEP giving effect and meaning to the description “open space” on the index to the map, those words would, and in my opinion should, be regarded as neutral. Without meaning attaching to the words “open space” , either in the map or the instrument proper, the description alone cannot work in a planning sense. There being no guidance as to what the purpose may mean, or what effect it may have, suggests that the description was an aberration (perhaps better described by Mr Craig as a cartographer’s flourish) on the part of the draftsmen.
35. Mr Galasso submits that in the instant case a clear distinction can be drawn, factually - namely that here the key to the map forming part of WLEP 1985, designates four separate zones under the heading numbered 6 as “Open Space”. Further, that the four categories of zoning under heading numbered 6 “Open Space”, are each of the genus, kind or class, such as to be consistent with the ordinary concept of “open space”. In my view such an approach is not open because there is a clear distinction between the permissible uses in the zoning attaching to the subject land, and the uses in the other three zones for recreation purposes.
36. “Open space” is not defined in either SEPP 5 nor in WLEP 1985. Although the phrase is used extensively in other planning instruments, that is of no present assistance. On one view it is irrelevant what the phrase means - the SEPP 5 prohibition in clause 4(2)(a) arising simply from the use of the words “open space”, a like description or one which incorporates those words. Mr Galasso says that as the actual words “open space” are used in the index to the map to the LEP, as a heading of the category which the subject land is listed within, that is sufficient; and if the heading in the index cannot be availed of, that the words “private recreation”, and the permitted uses under the 6(b)(Private Recreation “B”) are such that the subject zoning is a like description to “open space”.
37. “Open space” is not defined in the Macquarie Dictionary. In the Shorter Oxford English Dictionary the given meanings include “the part of country not enclosed; ground without buildings, trees etc”; “of a space: not shut in; unenclosed, unwalled, unconfined”; and “of a passage or space: unobstructed, clear. Of a country: free from wood, buildings etc”.
38. In ordinary everyday language the phrase “open space” has a wide diversity of meaning. Notwithstanding its regular and wide spread use, what is meant by that phrase by a resident of Muttaburra, Queensland, would be significantly different from the meaning ascribed to it by a resident of Kings Cross, Sydney. If used in planning instruments one expects the words “open space” to be defined or explained, and then to be used and applied in a technical or special sense. Absent such a definition, as Tomlin J found in re Bradford City Premises [1928] CH 138 at 143 “…the essential quality which is connoted by “an open space of land” is the quality of being unbuilt upon”. An Australian decision (Leahy v City of Camberwell (1983) 50 LGRA 397) opined (in obiter) that land used for recreational purposes could still fall within the description of land used for “open space”, “notwithstanding that for its more efficient use and as incidental thereto part of the land is covered by buildings or other structures or other like amenities.” (per Adam J at p 400). By way of example, the construction of toilet facilities in the Sydney Domain, or Centennial Park, would not detract from their being described as “open space”.
39. The applicant points to the objective of the land in Schedule 1 to SEPP 5 being excluded from its operation because the variously described land uses or categories fall one way or the other within the category of “environmentally sensitive land”. That description and objective is at loggerheads with the types of uses which are permissible under the 6(b)(Private Recreation “B”) zoning in the WLEP 1985. Both residential and commercial premises, or industries, associated with the permissible objectives, are themselves permissible with consent. The examples of activities which may qualify are diverse - an institute of sport (like the Academy at Narrabeen), a music college, a religious seminary, a university, or perhaps even a leagues club - all with accommodation for those seeking or enjoying the benefit of the activity. Structures associated with those types of uses would be anathema to a description of “open space”.
40. In support of the submission that the permissible activities on the subject land could result in it being substantially covered by buildings or structures, Mr Craig referred to the decision of Hemmings J in Wotton v Wingercarribee Shire Council (1989) 68 LGRA 38. There the Council had consented to the erection on land zoned “Open Space Recreation (existing)” of a complex which comprised an exhibition area, theatre, workshop, library, gallery, shop and refreshment room, amenities buildings and exhibition rooms, all associated with the Bradman Trust and Bradman Oval. His Honour found the approval acceptable in that it would “provide recreational facilities which (would) promote the physical culture and intellectual welfare of persons…” (at p 46). Mr Craig submitted that applying a similar approach to the instant case, the permissible uses could result in buildings being constructed for an acceptable purpose, which would result in direct conflict with the ordinary concept of “open space”. For this reason he submitted that “open space” should be read down in favour of the permissible uses which demonstrate the subject land could not be so categorised.
41. The way by which land in the Shire of Warringah is categorised within, or given, a particular zoning is two fold - the description of the permissible or prohibited uses or purposes in the body of the LEP, coupled with identification in the map. To carry out this exercise highlights attention on the primary inquiry as to what meaning or effect can be given to the heading numbered 6 of the index to the map. The difficulty in the way of Mr Galasso’s approach is that there is no meaning attached, or explanation given, as to the words “open space” either in the map or WLEP 1985. The description alone of “open space” does no work in a planning sense. There being no guidance, as to what it may mean, or what effect it may have, leads to the conclusion that the description “open space” is to play no role in the construction of the instrument, nor in the interpretation of the land uses it purportedly defines.
42. Regard can be had to lettering or descriptions on maps to planning instruments to divine the intention of the draftsmen and the purposes or uses which are permissible on particular land (Levingstone Posters v Leichhardt Council (McClleland CJ, NSWLEC No 20278 of 1981, unreported); Pacific Outdoor Advertising v Leichhardt Council (1982) 51 LGRA 25; Sydney Water Corporation v South Sydney City Council (Stein J, NSWLEC, 21 March 1996, unreported) (No 40009 of 1996)). However there needs to be some reference or nexus between such a reference on the map and the instrument for it to play a role, or part, in describing the permissible purpose or use. Without such a link, the map reference or statement, or heading, is without parentage. Its not as though it started life with some nexus or definition which it then lost, but rather it came into being without any such association, foundation, or origin.
43. WLEP 1985, as an environmental planning instrument, is amenable to the provisions of the Interpretation Act 1987 (via s 5). The effect of s 35 of that Act is that headings to parts, divisions and subdivisions of an Act become part of the Act; the index to the map is none of these. Section 34(2)(a) allows that material which does not form part of an Act in question can be used in ascertaining the meaning of the Act. That material includes “…all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the government printer”. Here the index to the map does not “contain the text” of the LEP. Nor in my view does s 35(4) of the Interpretation Act 1987 assist. It provides (relevantly) “a heading to a provision of an …instrument… shall be taken to be part of the instrument if - …(b) it is a heading… to a table or form in the instrument”. However the heading in the index of category numbered 6 is not a “heading to a provision”; nor is it a heading “to a table or form”. It is simply a heading to an internal part of the index, itself not a table or form.
44. To allow the words “open space” in the index to the map to work or be applied in the manner in which the Council contends, would in my view work a nonsense and produce a result at odds with the intent of both WLEP 1985 and SEPP 5. The subject land can be developed in a way totally inconsistent with the ordinary concept of “open space” viz, unbuilt upon land. Yet the description of “open space” in Schedule 1 to SEPP 5 is but one of 11 categories of “environmentally sensitive land” (see par 26 above). In my opinion it is legitimate to have regard to the other 10 categories to discover the meaning of the phrase “open space” in SEPP 5 - ie to look to the context in which it is used or listed, (in accordance with the maximum noscitur a sociis). In the main those other 10 categories are aptly designated “environmentally sensitive land”. It could not be argued that the subject land, with its potential for development (see par 5 above) could be so described or categorised.
45. The legislature has provided that State environmental planning policies are to prevail over a local environmental plan (the Environmental Planning and Assessment Act 1979 s 36(2)). Further, a construction which promotes the purpose or objective of an Act is to be preferred to one which does not do so (Interpretation Act, 1987 (NSW) s 33). Here the stated, and clear purpose of SEPP 5 is to “make efficient use of existing infrastructure and services”, to achieve the objective of “increasing the supply and diversity of housing that meets the needs of older people or people with a disability” (SEPP 5 cl 3(1)(a), cl 3 (1)(b)). Given the conflict between the constructions here contended for, that which favours a beneficial promotion of the objectives of the Policy is to be preferred.
46. For these reasons I conclude that the subject land is not to be described as “open space” for the purpose of Schedule 1 to SEPP 5; and accordingly in respect of question 3, SEPP 5 by reference to cl 4(2)(a) does apply to the subject land.
47. The answers to the three questions posed are:
1. Clause 9 of WLEP 1985 does act as a prohibition in respect of the proposed development on the subject land.
2. Development for the purposes of SEPP 5, by reference to cl 4(1)(b) does apply to the subject land as WLEP 1985 does permit development of the subject land for the purposes of dwelling-houses residential flat buildings hospitals or special uses.
3. SEPP 5 by reference to cl 4(2)(a) does apply to the subject land, as the subject land is not identified under WLEP 1985 as open space for the purpose of SEPP 5.
48. Costs are reserved; the exhibits to remain with the file for 28 days and then be returned to the parties.
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