"[15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. If a court can construe the words actually used by the parliament to carry into effect the
parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction."
30 In Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306, Tobias JA said, at [52]:
It is well established that the rules of statutory construction permit the
avoidance of an irrational result of a particular construction unless the
language of the provision in question is intractable or where, although the language is not intractable, the operation of the provision, read literally, is such as to indicate that it could not have been intended by the draughtsperson".
31 The principles to be applied when the court is characterising a use, or the purpose of a development proposal, are also well known. They were conveniently collected and summarised by the learned Chief Judge, Preston J, in Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114; (2007) 151 LGERA 400, at [27]-[50], and have been frequently applied in this court since. See, e.g., T & K Berry v Wollongong Council ("Berry") [2008] NSWLEC 210, per Jagot J.
32 As Jagot J observed in Berry (at [34]), "whether a place is being used as a manager's residence or not, as with all questions of the purpose of a use, will depend on a commonsense assessment of the character, extent, and features of the various uses and the ends they apparently serve".
33 Considering all that emerged from the competing written submissions, and from the oral argument, what is proposed in this case is clearly not a
"residential flat building", "cluster housing", or a "subdivision". The relevant lot of land is not a "concessional allotment", the applicant is not an "eligible organisation", and the proposed housing is not designed for "rural workers" (see Tpp7-8).
34 The subject land is acknowledged to be rural land "of prime crop and pasture potential", so cl 16 of the LEP concerning "multiple occupancy" does not facilitate the project, even though it is for multiple occupancy (see Council's submissions par 19, and Tp13).
35 When one looks at the relevant provisions of the applicable instruments, the inference simply must be drawn that, while seniors housing is to be encouraged, it is not to be approved at the expense of what is clearly the primary focus of the instruments, read together, namely preserving prime rural land, such as the subject site, and cl 13(3) of the LEP clearly "defines the conditions under which [it] can be erected" (see Tp12 LL27-28).
36 The fact that "seniors housing" is defined in the LEP cannot and does not make seniors housing generally permissible. One discerns a major intention of the draftsman as the preservation of prime rural land. One house per 40ha covers all housing development on such land, and you cannot overcome it by classifying the project as seniors housing. I accept the Council's submissions in this respect (Tp14 L49-p15 L4, p15 LL19-32 and p16 LL5-10).
Conclusion
37 The applicant's proposal is clearly for a prohibited development, and its summons, in so far as it deals with the question of permissibility, should be dismissed with costs.
Orders
38 The orders of the court are: