Trustees of the Roman Catholic Church Diocese of Broken Bay v Ku-ring-Gai Council

[2002] NSWLEC 9

Reported Decision: 118 LGERA 407

Land and Environment Court

of New South Wales

CITATION:	Trustees of the Roman Catholic Church Diocese of Broken Bay v Ku-ring-Gai Council [2002] NSWLEC 9
PARTIES:	APPLICANT: Trustees of the Rman Catholic Church Diocese of Broken Bay RESPONDENT: Ku-ring-Gai Council
FILE NUMBER(S):	40176 of 2001
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- Special Uses Zone (Church) & Special Uses Zone (Seminary)-whether permits school for kindergarten to year 6 children
LEGISLATION CITED:
CASES CITED:	Crosland v North Sydney Council (2000) 109 LGERA 244; House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440; Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541
DATES OF HEARING:	1 February 2002
DATE OF JUDGMENT:	02/05/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr D Wilson, Barrister SOLICITORS Grahame Goldberg Partners RESPONDENT: Mr P Rigg, Solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND

Matter No. 40176 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

5 February 2002

TRUSTEES OF THE ROMAN CATHOLIC CHURCH DIOCESE OF BROKEN BAY

Applicant

v

KU-RING-GAI COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its class 4 application filed 25 September 2001, the Applicant claims the following relief:

A declaration that on the true construction of the Ku-Ring-Gai Planning Scheme Ordinance, a deemed environmental planning instrument, the land situate at 35 – 41 Billyard Avenue, Wahroonga and zoned Special Uses 5(a) Church and Special Uses 5(a) Seminary under that said instrument may be used for the purpose of a school for children of primary school age, classes Kindergarten to Year 6.

2. The Respondent (the Council) opposes the declaration claimed and cross-claims a declaration that the said land may not be used for the foresaid school purpose.

B. THE RELEVANT FACTS

3. The relevant facts which are not in dispute may be briefly noted as follows:
1. The subject land is included within the Special Uses “A” Zone designated by the Ku-Ring-Gai Planning Scheme Ordinance (KPS0) which came into force on 29 September 1971 and continues in force as a “deemed environmental planning instrument” in terms of the Environmental Planning and Assessment Act 1979. (the EP&A Act).
2. The Special Uses “A” Zone which is shown in a distinctive manner on the Scheme Map (forming part of the KPSO) applies to various parcels of land situate within the municipality. Each said parcel so shown on the Scheme Map has superimposed upon it in scarlet lettering a word or words or an abbreviation of a word or words. For example, the following words or abbreviations (not an exhaustive list) appear on various such parcels—

“ School ”

“Hospital”

“Church”

“Ch”

“Commonwealth Purposes”

“Mun Purposes’

“Seminary”

“Convent”

“Aged Persons Home”

“Sub Stn”

“WS&D”

3. The subject land which comprises three adjoining lots with an aggregated land area of some 17,000 m2 is depicted on the Scheme Map as being divided into two parts of approximately equal size—one part of which bears the abbreviation “Ch” (which the parties agree is the abbreviation for the word “Church”) and the other part of which bears the abbreviation Semin” which the parties agree is the abbreviation for the word “Seminary”).

4. The Applicant has lodged with the Council a development application in respect of the subject land seeking consent for the development of a school educating children from kindergarten to year 6. The proposed school is intended to replace an existing school conducted on nearby land fronting Water Street which is zoned Special Uses “A” with the word “School” superimposed on the land as shown on the Scheme Map. Part of the proposed development is to be located on that part of the subject land that is zoned Special Uses “A” (Church) zone and the greater part of the proposed development is to be located on the other part of the subject land that is zoned Special Uses A (Seminary).

5. The Applicant has obtained legal advice that the proposed development is “permissible development” in terms of the KPSO and the EP&A Act and the Council has obtained legal advice that the proposed development is not “permissible development” in terms of the KPSO and the EP&A Act.

4. It is common ground that the question whether the proposed development is permissible development or prohibited development is entirely dependent upon the effect of cl 23 of the KPSO which specifies in the accompanying Land Use Table in relation to lands included in the various Zones designated by the KPSO (i) development which may be carried out without development consent (Column 2 to the Table); (ii) development which may be carried out only with development consent (Column 3 to the Table); and (iii) prohibited development (Column 4 to the Table).

5. In respect of the Special Uses “A” zone, it is common ground that the effect of cl 23 of the KPSO is that the proposed development is permissible development only if it is embraced by the following words appearing in Column 3 of the Land Use Table—

The particular development indicated by Scarlet lettering on the Scheme Map

noting that the relevant lettering contains the words “Church” and “Seminary” in respect of the two different portions of the subject land.

C. THE COMPETING ARGUMENTS

6. In contending that the proposed development is “permissible development” in terms of KPSO, the Applicant curiously advanced no argument in favour of the proposition that the proposed development for a school educating children from kindergarten to year 6 qualified as development for a “church”.

7. It was only in reply to the Council’s submission that it was faintly submitted that the proposed development could be regarded as development for a “church”.

8. The principal argument advanced by the Applicant was that the proposed development could properly be regarded as development for a “seminary” because the ordinary meaning of that term was broad enough to comprehend a school. In support of this submission, the Applicant relied upon the following meaning of “seminary” provided by the Oxford English Dictionary:

4. A place of education, a school, college, university or the like

1. often with qualifying word, as S. of science, theological S.

9. Another meaning provided by the Oxford English Dictionary is:—

5. R.C. Ch A school or college for training persons for the priesthood

10. It is the latter meaning that is adopted as the first of the meanings provided by the Macquarie Australian Dictionary. Those meanings are as follows:

1.

Rom. Cath. Ch. A college for the education of men for the priesthood or ministry. 2. a school, esp. one of higher level. 3. Hist. A school for young ladies. 4. a place of origin and development.

11. The arguments advanced by the Council in resisting the declaration sought by the Applicant and in support of its cross-claim can be summarised as follows:
(i) The proposed development is not “Church” development. The meaning of the word “church” in a planning context in Australia in 1954 was held to be “a place of public worship” by the Court of Appeal in House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440. The proposed development clearly falls outside of that meaning and concept. Nor is it ancillary to a “church”.
(ii) The proposed development is not “Seminary” development. The meaning of the word “seminary” is influenced by its context in the Special Uses A Zone designated by KPSO (which differentiates in that same Zone between “church”, “school”, “convent”, “seminary”, and “training centre”).
(iii) As a matter of context, the broader meaning of “seminary” urged by the Applicant is inappropriate. In particular, the Applicant’s submission that the words “seminary” and “school” are interchangeable words flies in the face of the express differentiation between those words made by the KPSO in designating the Special Uses “A” zone.
(iv) Even if attention is focussed on to the various dictionary meanings of the word “seminary”, the predominant trait or characteristic is the provision of theological or ecclesiastical education or training.
(v) In any event, dictionary meanings are only of limited assistance in the task of the judicial determination of the interpretation and construction of statutes and other documents. (House of Peace and Crosland v North Sydney Council (2000) 109 LGERA 244).
(vi) Where, as in the present case, the word “seminary” carries its ordinary or natural meaning, that meaning is that which reflects the ordinary usage of society and that meaning is to be taken from the judge’s understanding of the sense in which words are used: see Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560/561.
D. ADJUDICATION ON COMPETING ARGUMENTS

12. In my judgment, the Council’s arguments on the disputed question are to be decisively preferred to the Applicant’s competing arguments.

13. The words “Church” and “Seminary” as employed by the KPSO, in designating the Special Uses A Zone are ordinary English words. The ordinary and natural meaning of each of those words does not include or embrace the concept of a “school” for the education of children from kindergarten to year 6. To say of children of that age group in our society, that they attend a “Seminary” rather than a “School” would represent a manifestly inapt usage of current language.

14. The essential ordinary meaning of “church” is a place of public worship and the essential ordinary meaning of “seminary” is a place of theological or ecclesiastical education or training.

15. Moreover, those respective ordinary meanings are suitable and conducive to usage in a town planning context, such as is provided by the KPSO.

16. In the particular context, namely as descriptions of developments that are permissible on designated parcels of land within the Special Uses “A” Zone under the KPSO, that context provides a cogent, if not overwhelming, reason for rejecting the broader meaning of “seminary” advanced by the Applicant. In that particular context, to seek to equate as the Applicant’s argument would do, the word “seminary” to the word “school” (where each word is employed to identify a particular development that is permissible on a particular parcel of land designated in the Special Uses Zone) is to not merely ignore considerations of context, but to frustrate the clear purpose of the Special Uses Zone differentiating between a “seminary” and a “school”. Such an interpretive approach is contrary to established principles and must be rejected.

17. For all the foregoing reasons, I am of the opinion that the proposed school development of the subject land is not permissible development in terms of the KPSO. Rather, it is prohibited development in terms of cl 23 of the KPSO.

18. Accordingly, the Applicant is not entitled to the declaration claimed but the Council is entitled to the declaration it cross claims.
E. ORDERS

19. Accordingly, I make the following orders—

1. The Applicant’s application is dismissed.

2. Declare that the proposed development of land known as Nos 35 – 41 Billyard Avenue, Wahroonga for a school educating children from Kindergarten to Year 6 is prohibited development within the Special Uses (Church) and the Special Uses A Zone (Seminary) in terms of the Ku-Ring-Gai Planning Scheme Ordinance.

3. Exhibits be returned.

4. Question of costs be reserved.