Westpoint Corp. Pty Ltd v Rockdale City Council

[2000] NSWLEC 148

Reported Decision: 109 LGERA 398

Land and Environment Court

of New South Wales

CITATION:	Westpoint Corp. Pty Ltd v Rockdale City Council [2000] NSWLEC 148
PARTIES:	APPLICANT: Westpoint Corp. Pty Ltd RESPONDENT: Rockdale City Council
FILE NUMBER(S):	10362 of 2000
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- whether proposed "mixed use development" is prohibited by LEP.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 97
CASES CITED:	Egan v Hawkesbury City Council (1993) 79LGERA 321; Friends of Pryor Park Inc v Ryde Council (unreported 25 September 1995 Bignold J))
DATES OF HEARING:	08/06/00
DATE OF JUDGMENT:	07/12/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr P McClellan QC SOLICITORS] Coudert Bros RESPONDENT: Mr D Officer QC with Mr J Johnson, Barrister SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND Matter No . 10362 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 14 July 2000

WESTPOINT CORPORATION PTY LTD

Applicant

v

ROCKDALE CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Council has raised a question of law for preliminary determination in pending Class 1 proceedings involving an appeal pursuant to Environmental Planning and Assessment Act 1979 s 97 against the Council’s deemed refusal of the Applicant’s development application to carry out a major development on land known as lot 8 Deposited Plan 231950 and lot 2 Deposited Plan 247112 situate at 383 West Botany Street, Rockdale (the appeal site).

2. The proposed development which was described in the development application and supporting plans and statement of environmental effects as a “mixed use development” (a term defined by the Rockdale Planning Scheme Ordinance (the LEP) involves the erection on the appeal site of a number of buildings providing the following overall accommodation—(i) 3,300 m2 of light industrial floor space; (ii) 139 m2 of commercial floor space; and (iii) 356 residential apartments.

3. The proposed residential apartments are to be accommodated in (i) two x 14 storey residential towers; (ii) two x 3 storey walk-up residential flat buildings; and (iii) a building containing 17 townhouses.

4. The question of law is whether the proposed development is “prohibited development” in terms of the LEP.

B. THE RELEVANT FACTS

5. The relevant facts are as follows:-
1. The appeal site comprises two separate lots with a combined area of some 2,472 m2.. The Applicant proposes to consolidate the lots so that the entire development will be located on one lot.
2. The appeal site is included in the Industrial Light Zone No 4(b) under the LEP.
3. The proposed development is to be located wholly on the appeal site in a number of buildings.
4. The residential apartment component of the proposed development is not to be “used in conjunction with” the non-residential component (ie either the light industrial space or commercial space).
5. The proposed development is governed by the provisions of the LEP. The relevant provisions are as follows:
(i) Clause 22 which contains the conventional “Land Use Table” in relation to Zone No 4(b) specifies in Column IV “the purposes for which buildings or works may be erected, carried out or used only with the consent of the responsible authority (the Council)” and specifies in Column V “the purposes for which buildings or works may not be erected, carried out or used”.

The purposes so specified in Column IV are:

Any purpose other than those prohibited by Column V.

The purposes so specified in Column V include the following:


dwellings, dwelling-houses, medium density housing and residential flat buildings other than those used in conjunction with a non-residential purpose permissible on the land and situated on the same land.

(ii) Clause 4(1) of the LEP contains the following definitions (“ unless the context or subject matter otherwise indicates or requires ”) which are relevant to the content of Column V of the Land Use Table.

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 one but not more than one dwelling.

medium density housing means development of a parcel of land resulting in 3 or more dwellings where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling and includes any such development resulting in dwellings commonly known as villas or townhouses, but not a residential flat building.

residential flat building means a building containing 3 or more dwellings, but does not include other forms of residential buildings or development as defined in this Ordinance.

(iii) Clause 4(1) of the LEP also contains the following definition upon which the Applicant’s case is founded:

Mixed use development means one or more dwelling attached to or on the same parcel of land as a building used or intended to be used for a non-residential purpose permissible on the land, whether or not that dwelling will be used in conjunction with that non-residential use.

C. THE COMPETING ARGUMENTS

6. The Applicant’s argument is founded upon the existence in the LEP of the defined term “mixed use development”. The Applicant submits that this term is relevantly a “purpose” (for which buildings may be erected, carried out, or used) within the meaning of cl 22 of the LEP and more particularly, is a “purpose” that is comprehended or embraced by the purposes specified in Column IV to the Land Use Table in respect of Zone No 4(b), namely:

Any purpose other than those prohibited by Column V

7. The Applicant’s argument proceeds along these lines.

(i.) “ Mixed use development ” is relevantly a “ purpose ” (for which buildings or works may, or may not be erected, carried or used) in terms of the LEP, cl 22.

(ii.) “ Mixed use development ” is not a “ purpose ” that is prohibited by Column V of the Land Use Table to the LEP cl 22 in relation to Zone No 4(b) .because its residential component is not included in the expression containing the relevant prohibition.

(iii.) Therefore, it is a “ purpose ” that is comprehended or embraced by the content of Column IV of the Land Use Table in relation to Zone No 4(b).

8. The Council’s competing argument is that even if the purpose of the proposed development is capable of being properly categorised as “mixed use development” it nonetheless is a prohibited purpose because it is embraced by the words of prohibition relevantly contained in Column V to the Land Use Table, namely:

dwellings, dwelling-houses, residential housing and residential flat buildings other than those used in conjunction with a non-residential purpose permissible on the land and situated on the same land as that purpose

9. According to the argument, this is because of the fact (which was also expressly conceded at the hearing by the Applicant’s Senior Counsel) that the residential component of the proposed development is not to be “ used in conjunction with a non-residential purpose permissible on the land and situated on the same land in that purpose ” with the inevitable legal consequence that the residential component of the proposed development falls within the express prohibition in respect of “ dwellings, dwelling-houses, medium density housing and residential flat buildings ”.

10. Each party’s argument has made some reference to the decision of the Court of Appeal in Egan v Hawkesbury City Council (1993) 79LGERA 321 which dealt with a similar, but not identical question to that raised in the present proceedings.

11. In Egan, the purposes for which development was prohibited in the particular zone included “industries” (a term defined by the relevant environmental planning instrument). Within the same Zone, the purposes for which development may be carried out with development consent were specified as follows:

Any purpose other than a purpose included in item 2 or 4.

(The purposes included in item 2 were not relevant but one of the purposes included in item 4 was “industries”.)

12. In that case, the argument proceeded upon similar lines to the argument presented in the present case, with the appellant submitting that the proposed development fell within the defined term “ industries ” and the respondents submitting that the proposed development was not within the defined term “industries ” but that if it were, it also was within the definition of “ extractive industry ” and by virtue of that fact, it was not within the ambit of the prohibition of industries ”: see p 325. By a majority, the Court upheld the appeal by preferring the appellant’s submission.

13. Mahoney JA who gave the leading majority judgment understood the appellant’s argument to suggest that the defined term “industries” constituted a genus and that the various kinds of industries that were relevantly nominated and defined by the planning instrument were a species of that genus with the result that the proscription of the genus necessarily proscribed each of the species: see at 326.

14. The provisions of the LEP in the present case do not, in my opinion readily fit within the interpretive doctrine of “genus” and “species”. This is because the relevant prohibition in Column V is in the form of a compound expression, though in part employing a number of defined terms.

15. Notwithstanding that particular difference between the present case and Egan, the Council does especially rely upon the following passage from the judgment of Mahoney JA at 328 in urging the Court to adopt a similar approach to the interpretation of the relevant content of Columns IV and V respectively of the Land Use Table in the LEP:

The submission for the respondents would involve that, if an activity for which development approval is sought is within a definition of an activity which is proscribed, it would yet not be proscribed if it fell also within a definition or class of activity not so prescribed. [sic]. I do not think that that is how the local environmental plan was intended to operate. It intended to remove from use with council approval the kinds of activities falling within the definition as proscribed. The fact that a proscribed activity might fall within another definition was not intended to have the effect that it could be carried on, or carried on with consent.

16. Ultimately however (as I held in Friends of Pryor Park Inc v Ryde Council (unreported 25 September 1995), a case involving a proposed development that was capable of being categorised as falling within two defined purposes—one permissible and the other prohibited), the solution to a dispute such as that raised in the present case, is to be entirely found in the proper statutory interpretation of the relevant provisions of the LEP.

D. THE TRUE CONSTRUCTION OF THE LEP

17. The relevant content of the Land Use Table to the LEP, cl 22 raises a number of questions of construction, the answers to which are relevant to the determination of the question of law raised by the Council, namely:
(i.) the true meaning of the expression (appearing in Column V) “dwellings, dwelling-houses, medium density housing and residential flat buildings other than those used in conjunction with a non-residential purpose….”
(ii.) the true meaning of the expression (appearing in Column IV):

“ Any purpose other than those prohibited by Column V ”;

(iii.) whether the defined term “ mixed use development ” is comprehended or embraced (wholly or partly) by the recited expression appearing in Column V;

(iv.) whether the defined term “ mixed use development ” is relevantly “ a purpose ” (other than those prohibited by Column V) within the meaning of that expression appearing in Column IV;

(v.) whether there is a conflict or an inconsistency between the respective contents of Columns V and IV in relation to the defined term “ mixed use development ” and if so how is that conflict or inconsistency to be resolved.

18. In posing these questions, I am content to adopt the Applicant’s categorisation of the proposed development as “mixed use development” as defined by the LEP. This reflects the description given to the proposed development by the Applicant’s development application and supporting materials.

19. Description of a proposed development, and categorisation of it, are not necessarily co-extensive. Categorisation of a proposed development conventionally is undertaken by reference to defined terms or purposes in the relevant environmental planning instrument principally to determine whether the proposed development is for a permissible purpose. Unless a proposed development is shown to be for a permissible purpose of development, it is axiomatic that a valid development consent cannot in law be granted to that application. Hence, the raising by the Council of the question of law in the present case.

20. The resolution of the preliminary question of law in the present case does not truly involve a question of disputed categorisation of the development. Nor does the categorisation of the proposed development as a “mixed use development” resolve the question of law. Rather like the issue raised in Egan, the present case involves a disputed question of interpretation of the relevant provisions of the LEP.

21. I proceed to separately consider each of the five questions of construction I have earlier identified.

Question (i): The content of Column V

22. The proper interpretation of the relevant expression appearing in Column V, in my opinion, involves no difficulty. Each of the specified four types of residential development referred to in the compound expression is defined by the LEP and prima facie, each is to be given its defined meaning.

23. Similarly, there is nothing in that part of the expression (“other than….”) which excludes or qualifies the prohibition of the specified four types of residential development, which presents any difficulty.

24. None of the words in the “exclusion” clause is defined by the LEP. However, they are ordinary English words and are to be interpreted according to their ordinary meaning.

25. As will be seen when I come to consider question (iii), the Applicant’s argument places considerable reliance upon the fact that each of the types of residential development referred to in Column V is separately defined and upon the fact that “mixed use development” which also involves residential development is itself separately defined, but is not included in the expression of prohibited purposes.

Question (ii): The content of Column IV

26. In my opinion, the proper construction of the content of Column IV is that the specification of “ permissible purposes ” is directly subordinate to the prohibiting effect of the content of Column V .

27. Accordingly, if a “purpose” is “prohibited by Column V” (ie if a “purpose” is comprehended or embraced by the prohibition of Column V), it is not, and cannot be, a “permissible” purpose. This is the plain meaning of the content of Column IV cf Egan at 328 (per Mahoney JA):

If the terms of cl 9 and its tables be read literally, this argument is unsound. Consent can be given for a purpose other than a purpose included in item….4 ; the purpose for which consent is sought is an industry and so within item 4; and accordingly consent cannot be given for it.
Question (iii): “ Mixed use development ” and the content of Column V

28. Here, the question is whether the compound expression of “ prohibited ” purposes comprehends or embraces (wholly or partly) the “ mixed use development ” purpose (assuming that the defined term is relevantly a “ purpose ”).

29. The question invites a closer analysis of the prohibited purpose than I have hitherto given it. I have already noted that the prohibition is not simply expressed in the form of a defined purpose. Rather, the prohibition is in the form of a compound expression which employs a number of defined purposes of residential type development but excludes from the prohibition those types of residential development which satisfy both the two express qualifying conditions, namely:-
(i.) such residential development that is used in conjunction with a non-residential purpose permissible on the land; and
(ii.) such residential development that is situate on the same land on which that non-residential purpose is situate.

30. The similarity of the content of the exclusion clause in the compound expression and the definition of “mixed use development” is immediately apparent.

31. In those cases where the “mixed use development” involves the “use (of the dwellings) in conjunction with the non-residential purpose” situate on the same land, there is no material difference between the meaning and effect of the exclusion clause and of the defined term.

32. In such a case, the residential development would not fall within the scope and operation of the prohibited purpose because it would fall within the scope and operation of the exclusion clause.

33. However, in a case (such as the present) where the mixed use development does not involve the use of the dwellings in conjunction with a non-residential purpose etc, there is a material difference between the meaning and effect of the exclusion clause and of the defined term. In this respect, it is to be recalled that in the definition of “mixed use development”, use of the dwellings in conjunction with the non-residential purpose also situate on the same land is a non-essential quality or condition in the sense that it may occur or exist but it need not occur or exist.

34. Where there is no use of the dwellings in conjunction with the non-residential purpose situate on the same land, the conditions of the exclusion clause to the compound expression of prohibited purpose appearing in Column V are not satisfied. Hence, the exclusion clause does not operate and the prohibited purpose “dwellings, dwelling-houses, medium density housing and residential flat buildings” has full effect.

35. Thus, purely as a matter of interpretation, the prohibited purpose in Column V is capable of comprehending within its prohibition a purpose of development that falls within the defined term “mixed use development” where the use of the dwellings is not in conjunction with the non-residential purpose and is capable of comprehending within the exclusion clause (and hence not being a prohibited purpose) a purpose of development that falls within the defined term ‘mixed use development”, where the use of the dwellings is in conjunction with the non-residential purpose etc.

36. Thus, as a matter of interpretation, the prohibited purpose is capable of comprehending or embracing the purpose of “mixed use development” but only where the use of the dwellings is not in conjunction with the non-residential purpose situate on the same land.

37. However, the interpretation just discussed is merely one that the prohibited purpose is capable of yielding. Before it can be confirmed as the proper interpretation, it is necessary to consider the Applicant’s reliance upon the fact that “mixed use development” is another form or type of residential development that is separately defined by the LEP and which is not expressly referred to in the compound expression contained in Column V of the “prohibited purpose”.

38. In my judgment, the Applicant’s argument must be rejected for the following reasons:
(i.) it fails to give full effect to the breadth of compound expression contained in Column V;
(ii.) in particular, it fails to recognise that that expression, by dint of the presence of the exclusion clause, is obviously intended to apply to residential development which co-exists with a non-residential purpose situate on the same land;

(iii.) it fails to give effect to the breadth of the prohibited purpose extending to “dwellings”, that being an essential component of the definition of “mixed use development”;
(iv.) in particular, it overlooks the fact that there are many other types of residential development defined by the LEP (in addition to the term “mixed use development”) that are not expressly referred to in the compound expression in Column V, but which clearly are intended to be embraced by the reference therein to “dwellings” namely—(i) attached dual occupancy; (ii) detached dual occupancy; (iii) granny flat development; (iv) guest house

39. For the foregoing reasons, I am of the opinion that the compound expression in Column V, properly construed applies to a purpose falling within the defined term “mixed use development” in the differential manner that I have earlier indicated, namely that it—
(i.) prohibits that purpose where the dwelling use is not in conjunction with the non-residential purpose; and
(ii.) excludes from the prohibition that purpose where the dwelling use is in conjunction with the non-residential purpose.

40. In so concluding, I have been content to adopt the premise fundamental to the Applicant’s argument that “mixed use development” is relevantly a “purpose” for which buildings or works may be erected, carried out or used for the purpose of cl 22 of the LEP (and the accompanying Land Use Tables) generally.

41. However, a consideration of the legislative history of the existence in the LEP of the defined term “mixed use development” suggests that there must be some serious doubt concerning the validity of the premise.

42. Although the term “mixed use development” was inserted into the LEP as recently as 2 October 1998 by Rockdale Local Environmental Plan No 127—Urban Consolidation, the term replaced a similarly defined term “mixed development” which itself had been introduced into the LEP on 18 July 1986 by Rockdale Local Environmental Plan No 29. That earlier Plan defined the new term and made reference to it in the Land Use Tables to cl 22 of the LEP but only in respect of the Business Zones (Nos 3(a), 3(b) and 3(c)) designated by the LEP.

43. The express aim of the Plan was “to allow and promote the development of separate dwellings and residential flat buildings above and behind shops and other business premises in Business Zone No 3(a), 3(b) or 3(c)”: vide cl 2.

44. Clause 3 of the Plan stated the land to which the Plan applied. It is apparent from the terms of the Plan that the defined term “mixed development” only applied to land within the designated Business Zones.

45. Under the planning regime in force after the Plan (No 29) came into force, there can be no doubt that “mixed development” was a defined term that only operated in respect of the Business Zones designated by the LEP. In other words, it did not operate generally as a “purpose” within the meaning of the LEP, cl 22.

46. When in 1998 the current term “mixed use development” was substituted for the earlier similar term, it is apparent from the terms of LEP No 127 that the only reference to the defined term was confined to the Business Zones designated under the LEP. The amendments made by LEP No 127 to the existing LEP in respect of the new term were confined to references to the new term in the Business Zones, in substitution for the references to the earlier term “mixed development”: vide cl 5(o), (p) and (q).

47. The amendments so made by LEP 127 in respect of the new term “mixed use development” remain in the LEP as currently in force, as the only references in the LEP to that term.

48. Having regard to the foregoing legislative history, it must be, at the very least, doubtful whether under the LEP as currently in force the defined term “mixed use development” has any work to do other than in relation to the designated Business Zones. If this is correct, it would follow that the defined term is not relevantly a “purpose” for which buildings or works may be erected, carried out or used in terms of cl 22 of the LEP and the Land Use Tables to that clause except in relation to the content of the Columns of the Tables applying to the Business Zones, where the term is specifically referenced.

49. Although the result of my consideration of the legislative history of the term “mixed use development” in the LEP suggests that it is not a term having any application to the “purposes” specified in Columns IV and V of the Land Use Tables to the LEP, cl 22 as they apply to the Industrial Light Zone No 4(b) and to that extent, confirms the result of the interpretive task I have undertaken, I should make it clear that that result does not have any influence on that interpretive task or that interpretive result.

Question (iv) “ Mixed use development ” and the content of Column IV.

50. Having regard to my conclusions in respect of question (iii), it follows, in my opinion, that the only form of “ mixed use development ’ that is relevantly comprehended or embraced by the content of Column IV is precisely the same as that which is relevantly comprehended by the exclusion clause in the compound expression contained in Column V.

51. It follows that the only permissible form of mixed use development is that where the dwelling use is in conjunction with the non-residential purpose situate on the same land.

Question V - Is there conflict in Columns IV and V in respect of mixed use development?

52. In view of my answers to questions (iii) and (iv), I am of the opinion that there is no relevant conflict between the content of Column V and Column IV.

E. CONCLUSIONS AND ORDERS

53. Having interpreted the relevant content of Columns IV and V of the Land Use Tables applicable to the Industrial No 4(b) Zone, it remains to apply that interpretation to the facts of the present case, the determinative fact being that it is intended that the use of the proposed dwellings is not to be in conjunction with the permissible non-residential purpose situate on the same land.

54. It follows from this single fact that the proposed development must be regarded as being comprehended or embraced by the prohibited purpose contained in the compound expression in Column V of the Land Use Table to the LEP, cl 22.

55. Accordingly, I would answer the preliminary question of law in the affirmative.

56. This conclusion renders it unnecessary for me to consider the Council’s subsidiary argument in support of an affirmative answer to the preliminary question of law based upon the fact that the appeal site is currently comprised of two lots, and hence does not satisfy the requirement of the definition of “mixed use development” that the dwellings be erected “on the same parcel” as the non-residential purpose is situate.

57. However, during the argument, the Council readily conceded that this particular argument could be readily overcome by the ready consolidation of the existing two lots (as the Applicant has indicated it proposes in due course to do).

58. For all the foregoing reasons, I make the following orders:
1. The question of law whether the proposed development is prohibited development be answered in the affirmative.
2. The proceedings be stood over for one week with a view to the making of final orders disposing of the proceedings in consequence of the answer now provided to the preliminary question of law.