Bankstown City Council v Bennett & Anor

Wilson v State Rail Authority (NSW) [2010] NSWCA 198 Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; (2010) 178 LGERA 445 Category: Principal judgment Parties: Bankstown City Council (Applicant) Mr Brendan Bennett (First Respondent) Al Noori Muslim School Ltd (Second Respondent) Representation: Mr A Galasso SC (Applicant) Mr J E Robson SC (First Respondent) Mr T Alexis SC with Ms H P Irish (Second Respondent) Marsdens Law Group (Applicant) Colin Biggers & Paisley (First Respondent) Rosier Partners Lawyers (Second Respondent) File Number(s): 40340 of 2011

Mr Bennett Issues a Complying Development Certificate to a School 1On 15 September 2010, Mr Brendan Bennett, the first respondent and an experienced and accredited certifier, issued a complying development certificate ("the certificate") to Al Noori Muslim School Limited, the second respondent ("the school"), in Greenacre, under the State Environmental Planning Policy (Infrastructure) 2007 ("the SEPP"). 2By summons filed 27 April 2011, Bankstown City Council ("the council") seeks a declaration that the certificate is invalid. It also seeks a consequential order restraining the school from undertaking any development pursuant to the certificate. 3For the reasons that follow in this judgment, I have determined that the certificate is invalid but that no restraint is warranted.

The School is Granted Development Consent to Build an Educational Facility 4Much of the factual background to these proceedings is uncontroversial and was contained in three affidavits of Mr Barry Burke, the Coordinator of Development/Building Compliance for the council (sworn 19 April, 27 July and 30 August 2011 respectively), and an affidavit of Mr Mohammed Lazki, affirmed 6 July 2011. 5Mr Burke's evidence was unchallenged, whereas Mr Lazki was cross-examined on the contents of his affidavit. 6The land the subject of these proceedings is zoned 2(a) - Residential A under the Bankstown Local Environmental Plan 2001. Pursuant to the land use table relevant to that zone, an "educational establishment" is permissible within the zone with consent. 7The school commenced in 1983 as a small educational facility based on Islamic principles. Initially it only operated as a primary school from a parcel of land known as 75 Greenacre Rd, Greenacre. 8Over a period of time, the school acquired a number of properties for further use as a primary school at Noble St, Mimosa Rd and Greenacre Rd, in order to expand the school's facilities. Demountable structures were built on these properties to house the primary school. During the 2009/2010 school holidays, a permanent two-storey building was constructed on land acquired adjacent to 75 Greenacre Rd, Greenacre to be used permanently as the primary school. 9It was the school's intention to provide an educational institution for students from primary through to secondary school by 2015. Accordingly, in 2006 the school commenced acquiring further land in order to establish the secondary school. The first property to be acquired was 93 Greenacre Rd, Greenacre. 10The school applied to the council for consent to use the residential dwelling on the land as a school for 60 children. The application was initially refused by the council, but was subsequently granted by the Court on 16 October 2008 ("the 2008 consent"). 11Meanwhile, the school had acquired additional parcels of land. Specifically, 95 and 95A Greenacre Rd (Lots 1 and 2 of DP 1000489); 89, 91 and 93 Greenacre Rd (Lots 3,4 and 5 of DP 14587); and 80 and 82 Mimosa Rd (Lots A and B of DP 395320). This land, together with 93 Greenacre Rd, was consolidated into a single lot known as Lot 893 in DP 1129232 ("Lot 893"), which was registered on 22 September 2008. 12Apart from the 2008 consent to use the dwelling at 93 Greenacre Rd as a school, no other consent was obtained to use any of the dwellings located on Lot 893 as a school. 13On 18 February 2009, the school applied for development consent for the construction on Lot 893 of a secondary school for 310 pupils. The application related to all of the land in Lot 893. 14On 14 July 2009 the council granted development consent for a "replacement educational facility" in respect of the development application for the purposes of an educational facility on Lot 893 DP 1129232, 89 Greenacre Rd, Greenacre ("the 2009 consent") for: Demolition of existing structures and tree removal. Construction of a secondary educational facility for 310 students, including an indoor multi purpose centre, library, administrative offices, carparking, internal roadworks, landscaping, and boundary fencing. 15Condition 2 of the notice of determination of the consent confirmed that the development was to take place in accordance with plans affixed with the council's approval stamp. These plans covered the entirety of Lot 893. 16The school had been granted funding under the Commonwealth's Building the Education Revolution Programme and it was to use this funding to construct the approved development. 17On 16 October 2009, a development application was lodged with the council by the school and Mr Lazki, seeking consent to "extend the area of the land classified as a school (change of use to school)" for land identified as 89-97 Greenacre Rd (Lot 893 and Lot 1 of DP 14587 and Lot A of DP 355427). 18On 26 March 2010, the land the subject of the 2009 consent was consolidated, with two additional allotments comprising Lot 1 of DP 14587 (97 Greenacre Rd, Greenacre) and Lot A in DP 355427 (94 Mimosa Rd, Greenacre) to form a consolidated lot, namely, Lot 894 DP 1147092 ("Lot 894"). The plan of consolidation was registered with the Land and Property Information Office of New South Wales. Thus Lot 893, the subject of the 2009 consent, was expanded by its consolidation with the two additional lots. 19According to the evidence of Mr Ian Woodward, the Manager of Development Services for the council (contained in his affidavit sworn 27 July 2011), on 30 June 2010, Mr Lazki withdrew the development application lodged by him and the school on 16 October 2009. 20Meanwhile, the Minister for Education had granted the school "initial registration" for the period 1 January to 31 December 2010 to teach year 7 students on "the premises at 93 Greenacre Rd" under Pt 7 of the Education Act 1990. 21The Minister subsequently granted the school unqualified registration to teach year 7 classes for the period 1 January 2011 to 31 December 2015 and "initial registration" to teach year 8 classes for the period 1 January to 31 December 2011. Again, both approvals were granted under Pt 7 of the Education Act . 22During the 2009/2010 school holidays, the school developed facilities on 91, 95 and 95A Greenacre Rd, which included the erection of: a temporary demountable science laboratory; a temporary computer laboratory; a temporary prayer room; a temporary technology and science laboratory and temporary music room in a former residence; and the creation of a uniform storage and distribution facility in another residence. It was intended that these temporary facilities would be replaced with new buildings following approval of the facilities by the 2009 consent. 23Subsequently, in 2010 the school used the former residence at 97 Greenacre Rd for storage purposes while the backyard was utilised as a playground; used the rear of 93 Greenacre Rd as a softball area and established a basketball court; used the land formerly known as 89 Greenacre Rd as a car park and pick up/drop off area; used the land to the rear of 82 Mimosa Rd as a playground and lunch area; and used the former residence at 84 Mimosa Rd for secure storage. These facilities were all located on Lot 894. 24According to two affidavits sworn by Mr Bennett (on 15 July and 25 August 2011 respectively), on 15 September 2010, following receipt of an application by the school's architect, a s 149 certificate, a set of architectural plans, including a site plan, and after attending the secondary school in March 2010 for an assessment, Mr Bennett issued the school with the complying development certificate for the purpose of a "new secondary school building" pursuant to the SEPP. The certificate purportedly authorised the erection of a school on Lot 894. 25At the time of his inspection of the secondary school, Mr Bennett observed the school as shown on the site plans, within the boundaries of which there were four or five houses. He noted that two or three of the houses were being used as classrooms. Mr Bennett also observed the whole of the secondary school area surrounding the houses, namely, Lot 894, was fenced, and within this fenced area were located students in school uniforms. There were no internal fences. He noted the presence of the usual indicia of an operational school, such as the presence of school bags, the presence of teachers, and the presence of students playing in the outdoor areas, including the basketball court. 26During cross-examination, however, Mr Bennett admitted that he had not ascertained prior to issuing the certificate whether the dwellings that he observed being used as classrooms had consent to be used as a school. Equally, he acknowledged that the plan for the secondary school approved by the council related to an area of land that was less in area than the land the subject of the certificate insofar as it did not include the land known as 84 Mimosa Rd or 97 Greenacre Rd. 27But it was Mr Bennett's evidence that these two parcels of land were, at the time of his inspection in March 2010, part of Lot 894 and he observed that they were included as part of the physical use of the secondary school. It was also Mr Bennett's evidence that he was provided with a survey plan prior to the issue of the certificate and was satisfied that the site plan and the survey plan were consistent. 28Mr Bennett conceded, however, that, other than part of the car parking area at Mimosa Rd being used, none of the built form observed by him during his inspection of the school in March 2010 was included in the certificate that he had issued. 29At the time the certificate was issued, the development the subject of the 2009 consent had not been constructed but preparatory works pursuant to that consent had commenced: some trees had been removed, as notified in the development application, and some temporary facilities required for the 2011 and 2012 school years had been erected in December 2009 and December 2010 respectively, on land previously known as 82 Mimosa Rd. 30On 10 December 2010 the council, through its solicitors, wrote to the school to advise it that, in the council's view, the certificate was invalid. The council sought an undertaking that no works would be carried out in reliance upon it. The school did not give this undertaking. 31On 25 March 2011 Mr Burke attended Lot 894 and observed from the road reserve adjoining the land and its frontage to Greenacre Rd that buildings previously constructed on the land had been demolished. He also observed the Lot from the road reserve adjoining the land at the Mimosa Rd frontage and noted that two demountable buildings had been constructed on the land and that an awning had been built between the two structures. It was Mr Burke's evidence that no development consent had been given to erect the demountables. 32Similar observations were made on 11 April 2011 from the road reserve adjoining the land at its frontage to Greenacre Rd and Mimosa Rd. 33According to Mr Lazki, relying on the certificate, the school had completed the erection of temporary demountable classrooms and other facilities on Lot 894; commenced demolition of the residential premises from which the secondary school had been operating during 2010; and commenced preparatory ground works for the erection of the secondary school the subject of the certificate. 34Under cross-examination, however, Mr Lazki admitted that the contract to erect the school the subject of the certificate was not signed with the builder until April 2011, which was after the school had become aware that the council had an issue with the validity of the certificate. 35Mr Lazki also accepted, under cross-examination, that the demolition work had been undertaken pursuant to both the certificate and the 2009 consent granted by the council. 36Mr Lazki gave evidence of the detrimental effect any successful injunctive relief sought by the council would have upon the school and the secondary students currently enrolled at it. In particular, the school would be liable to pay $100,000 in damages to the builder per calendar month for any delay in the completion of the project caused by the school and the secondary students would have to be relocated elsewhere.

Complying Development and the SEPP 37Under s 76A of the EPAA development that requires consent under an environmental planning instrument, such as a SEPP, may not be carried out absent such approval. However, development consent may be provided by issuing a "complying development certificate" (s 76A(2)). A certificate may be issued by an accredited certifier, such as Mr Bennett (s 85A(6) of the EPAA). Once issued, the certificate authorises the recipient to carry out the development. 38The SEPP was made on 21 December 2007, commencing on 1 January 2008. The aim of the SEPP as set out in cl 2 is: 2 Aim of Policy The aim of this Policy is to facilitate the effective delivery of infrastructure across the State by: (a) improving regulatory certainty and efficiency through a consistent planning regime for infrastructure and the provision of services, and (b) providing greater flexibility in the location of infrastructure and service facilities, and (c) allowing for the efficient development, redevelopment or disposal of surplus government owned land, and (d) identifying the environmental assessment category into which different types of infrastructure and services development fall (including identifying certain development of minimal environmental impact as exempt development), and (e) dentifying matters to be considered in the assessment of development adjacent to particular types of infrastructure development, and (f) providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing. 39Division 3 of Pt 3 of the SEPP is concerned with "educational establishments", a term that is prescribed to have the same meaning as it has in the Standard Instrument (cl 27 of the SEPP). This provides as follows: 27 Definitions In this Division: "educational establishment" has the same meaning as it has in the Standard Instrument. Note: The term "educational establishment" is defined by the Standard Instrument as follows: "educational establishment" means a building or place used for education (including teaching), being: (a) a school, or (b) a tertiary institution, including a university or a TAFE establishment, that provides formal education and is constituted by or under an Act. 40Similarly, the definition for the term "school" is found by reference to the Standard Instrument (cl 27), namely: school means a government school or non-government school within the meaning of the Education Act 1990 . 41Section 3(1) of the Education Act provides the following definitions: non-government school means a registered non-government school. registered non-government school means a school, other than a government school , for the time being registered under Part 7. 42The council accepts that these proceedings concern a "school" as defined by cl 27 of the SEPP and s 3(1) of the Education Act . 43Clause 28(2) in Div 3 states as follows: 28 Development permitted with consent (2) Development for any of the following purposes may be carried out by any person with consent on any of the following land: (a) development for the purpose of educational establishments - on land on which there is an existing educational establishment, (b) development for the purpose of the expansion of existing educational establishments - on land adjacent to the existing educational establishment. 44Accordingly, where there is an existing educational establishment, development for the purposes of an educational establishment, which includes a school, may be carried out with consent on the land. 45Further, where there is an existing educational establishment, any expansion of it on land adjacent to the existing educational establishment may be carried out with consent. 46The power to issue a certificate is addressed by cl 31A of the SEPP, which relevantly provides as follows: 31A Complying development-existing schools and TAFE establishments (1) Development carried out by or on behalf of any person on land within the boundaries of an existing school or TAFE establishment is complying development if: (a) it is carried out for the purpose of the construction of, or alterations or additions to, any of the following: (i) a library or an administration building, (ii) a gym, indoor sporting facility or hall, (iii) a classroom, lecture theatre, laboratory, trade or training facility, (iv) a tuckshop, cafeteria, bookshop or child care facility to provide for students or staff (or both), (v) a hall with associated covered outdoor learning area or tuck shop, (vi) if the development is not on bush fire prone land or if the educational establishment is not, or does not contain, a heritage item - an outdoor learning or play area and associated awnings or canopies, (vii) a car park, and (b) it complies with the requirements of this clause. (1A) Development carried out by or on behalf of any person on land within the boundaries of an existing school or TAFE establishment is complying development if the development is an alteration or addition referred to in subclause (1) and is carried out for the purposes of a change of use from an existing use to another use specified in that subclause. (2) To be complying development, the development must: (a) be permissible, with consent, in the zone in which it is carried out, and (b) meet the relevant deemed-to-satisfy provisions of the Building Code of Australia , and (c) not be carried out within 1m of any public sewer except with the written approval of the authority that has management or control of the main. 47Thus, when read with s 76A(2) of the EPAA, the effect of cl 31A of the SEPP is that development of the kind described in that clause can be carried out in conformity with the certificate provided the development satisfies the requirements of that clause. 48It was accepted by the council that cl 31A(2) of the SEPP was satisfied.

The Council Claims that the Development is Not Complying Development and the Certificate is Invalid 49The council contends that, as at the date the certificate was issued, the development was not complying development, in breach of ss 85 and 85A of the EPAA, and that, therefore, the certificate is invalid. The basis of the alleged invalidity is four-fold: (a) first, there was no "existing school" as required by cl 31A(1) of the SEPP; (b) second, even if there was, the certificate authorised development outside the boundaries of the existing school in breach of cl 31A(1) of the SEPP; (c) third, contrary to cl 31A(1) of the SEPP, the certificate authorised the construction of a new school rather than building works comprising alterations or additions supplementing an existing school; and (d) fourth, if, contrary to the contention above, the certificate authorised the carrying out of development consisting of the construction of a new school rather than the expansion of an existing school, was this development that could only be carried out with development consent pursuant to cl 28(2)(b) of the SEPP, and which had not been obtained.

Issues for Determination 50The grounds of invalidity give rise to the following issues for determination: (a) what is the proper construction of the term "existing school" within cl 31A(1) of the SEPP; (b) was the development "on land within the boundaries of an existing school" for the purposes of cl 31A(1) of the SEPP; (d) what is the proper construction of the term "construction of, or alterations or additions to," a school in cl 31A(1)(a); (c) whether consent was a required for the development pursuant to cl 28(2) of the SEPP; and (e) were there any discretionary considerations that would prevent the injunctive relief sought from being granted?

There Was No Development "On Land Within the Boundaries of an Existing School" for the Purposes of cl 31A(1) of the SEPP 51It is convenient to deal with the first two issues together given their inextricable intertwining. 52The council submitted that, properly construed, the various elements of cl 31A(1) of the SEPP were directed to elements of an "existing school", and not development for the purpose of creating a new school, to which cl 28(2)(a) is more appropriately directed. While there was a grant of development consent for the establishment of a new school on Lot 893 by the 2009 consent, that school was never built and all that occurred was that the school used, with the exception of the house located on 93 Greenacre Rd, existing dwelling houses as classrooms and educational facilities absent consent and permitted students to engage in recreational activities in the backyards of these dwellings. Such use was, for the purposes of cl 31A(1), not use as an "existing school" sufficient to enliven the jurisdiction contained in that clause to enable the certificate to be issued. 53The term "existing school" as a phrase, or the singular adjective "existing", is not defined in the SEPP. According to the council, the term can only mean one of two things: either, it means a school that physically exists in fact, and not, for example, a parcel of land serving a different use but for which there is approval for use as a school, the latter scenario governed by cl 19 of the SEPP dealing with site compatibility certificates; or it means, as the council contends, an existing school for which development consent has been granted to use the land for that purpose. To construe the phrase otherwise would derogate from the mischief that s 76A of the EPAA aims to protect against, namely, the unauthorised use of land, and would permit the creation of a factual circumstance which, by the device of the issuing of a complying development certificate, would immunise illegal conduct from sanction, or alternatively, retrospectively ratify any unlawful use of the land. 54Further, to the extent that the 2009 consent approved the construction of a new secondary school, the council argued that this consent did not give approval for the existing use of the dwellings, other than the dwelling located on the parcel of land formerly known as 93 Greenacre Rd, Greenacre, as a school, and moreover, the consent did not include the two additional parcels of land that had been consolidated with Lot 893 to become Lot 894. Therefore, there was no existing consent to operate the secondary school, and even if there was, excluded from its ambit was the use of Lots 1 and A (the additional lots) for the purpose of use as a school. Because there was no consent issued to use the land for the purpose of a school, at the very least outside the boundary of Lot 893, the addition and consolidation of Lots A and 1 and Lot 893 to create Lot 894 resulted in a school that was operating outside the boundaries of the school as approved, assuming, of course, that as at 2011, the school constituted "an existing school" for the purposes of cl 31A(1). 55There can be no serious dispute that the educational facility that was in operation on Lot 894 at the time Mr Bennett inspected the land and issued the certificate was a "school" for the purposes of cl 31A(1) of the SEPP. 56There is also no real contest on the evidence that at the time the certificate was issued, the school was being lawfully operated pursuant to the Education Act . Plainly it was. The school was a "registered non-government school" within the meaning of that term under the Education Act (s 3(1)) and had been granted approval by the Minister for Education to teach year 7 classes. 57In addition, that there was a school physically present and operating on the land inspected by Mr Bennett is incontrovertible. The term "school" is a species of the genus "educational establishment" which is defined in cl 27 of the SEPP to mean "a building or place used for education (including teaching)". Plainly, the dwellings, play areas and demountables all fit this description. That these buildings or places were "existing" is a matter of, in the absence of any express definition in the planning instrument, common sense given the natural and ordinary meaning of that word as something "that exists or has existence; that exists at any implied or specified time" ( Oxford English Dictionary , online ed), "to have actual being; be", "to continue to be", or "to have being in a specified place or under certain conditions; be found; occur" ( Macquarie Dictionary , online ed). At the time Mr Bennett issued the certificate, there was, on any view, a school that existed, in the sense that it was currently present and operational on the land. 58But this is not, in my view, and contrary to the submissions of the respondents, the end of the matter. Does the requirement that there be "an existing school" implicitly mean a school that has been lawfully using the land for that purpose? That is to say, ought the term be read down to include only an "existing school" for which development consent has been given to operate as a school on the land upon which it is located? 59The meaning of a provision in an environmental planning instrument must be determined having regard to it scope and purpose, the latter of which is referable to the language of the instrument considered in its statutory context and when measured against its objects ( Wilson v State Rail Authority (NSW) [2010] NSWCA 198 at [12]-[14], Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 at [45], Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; (2010) 178 LGERA 445 at [39] and Olsson v Goulburn Mulwaree Council & Minister Administering the Crown Land Act 1989, Olsson v Minister Administering the Crown Land Act 1989 [2010] NSWLEC 169; (2010) 176 LGERA 71 at [22]-[23]). 60The school devoted a considerable amount of effort to detailing the legislative history of the SEPP, the insertion of Div 3 into it and the promulgation of cl 31A. 61The Court's aim, however, in construing cl 31A(1) of the SEPP is to interpret the text of that clause in the context of the SEPP as it existed at the date the certificate was issued. While a court may have occasion to examine the statutory evolution of a piece of legislation as a mechanism for informing the contemporary objective intention of Parliament (for example, where an amendment seeks specifically to remedy a perceived deficit in an existing enactment), recourse to historical iterations of delegated legislation such as a SEPP is apt to obfuscate the court's primary interpretative task. Thus, while I have had regard to this material, I have accorded it very limited weight. 62The school also sought to rely on a number of extrinsic materials including NSW Department of Planning Planning Circulars , explanatory material taken from the NSW Department of Planning's website and a departmental document entitled Planning for Infrastructure, a Community Guide to the State Environmental Planning Policy (Infrastructure) 2007 (January 2008) in support of its construction of cl 31A(1) of the SEPP. I did not find this material to be of assistance. 63The school relied on this material as an aid to ascertaining the legislative intention embodied in Div 3, and hence cl 31A(1) of the SEPP, which was, it submitted, to promote the efficient response by State educational establishments to the Commonwealth's economic stimulus funding package to encourage and facilitate additional infrastructure roll-out to both government and non-government schools and TAFEs. 64There are several reasons why the Court largely disregarded this material. First, and albeit at a high level of generality, the objective relied upon by the school in support of its interpretation of s 31A(1) is already embodied in the aims of the SEPP described in cl 2 and it may be presumed that, if the legislature required greater specificity in articulating the objects of the SEPP, it would have done so expressly. 65Second, although certain extrinsic material may be used if it is capable of assisting in ascertaining the meaning of a provision (s 34 of the Interpretation Act 1987), statements as to legislative intention made in such material, even if clear and emphatic, can never supplant the need to consider the text of the legislation. Ascertaining the objective legislative intention underlying a particular provision involves determining the intention manifested by that statute, and not some other document ( Saaed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [31]-[33] and Jemena Asset Management (3) Pty Ltd v Coinvest Limited [2011] HCA 33; (2011) 280 ALR 206 at [50]). The subjective intention of the drafters is irrelevant to the construction of an enactment, including statutory instruments such as the SEPP in question ( Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at [17], [94] and [97]-[98]). 66Third, the material the school sought to reply upon was no more than a subjective expression of what the Department of Planning, a third party, understood at the time to be the operation of the SEPP. It is of no assistance in ascertaining the objective meaning of cl 31A(1) of the SEPP ( Stannic Securities Pty Ltd v Wyong Shire Council [2010] NSWLEC 249 at [20] and Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; (2011) 182 LGERA 370 at [212]). 67I do not resile from this view notwithstanding the decision in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 where the High Court used a departmental manual to construe discrete provisions of the Migration Act 1958. I agree with the observations expressed by Biscoe J in Australians for Sustainable Development Inc that the unusual features of that case render it distinguishable and I note that several decisions since Plaintiff M61 have repeated the caution against the use of extrinsic materials in interpreting statutes (see, for example, Jemena and Commissioner of Taxation v BHP Billiton Limited [2011] HCA 17; (2011) 277 ALR 224 at [47]). 68Fourth, even assuming the intention attributed to the legislation by the respondents is accurate, the materials do not, in my view, assist the school for the reasons expanded upon below. In short, nowhere in any of the extrinsic material put before the Court is there manifested a clear intention that the delivery of the additional infrastructure should completely circumvent the planning controls regulating land use that are contained in the EPAA. In this regard it must be remembered that the SEPP is a statutory planning instrument made under the EPAA. 69In support of its submission that the concept of lawful use is inherent in the interpretation to be afforded to cl 31A(1) of the SEPP, the council relied, by analogy, upon the decision in Vic Vellar Nominees . In that case the council granted a development consent and building approval to a developer to construct two dwellings. The buildings were not wholly completed and were later discovered to have been built on land with a zoning different than that for which the developer had been granted consent. The council refused the developer's application to subdivide the land and to modify the development consent and building approval because cl 13(2) of the Wollongong Local Environmental Plan 1990 stated that the council could not consent to a subdivision of land within the relevant zone unless each allotment of land to be created by the subdivision had an "existing dwelling-house on it". By reason of the failure to complete one of the dwellings (it lacked, amongst other things, a kitchen, bathroom, toilet, laundry facilities, external windows and doors, internal doors, cabling and down-pipes), Biscoe J held that the proposed subdivision would not result in each allotment having an "existing dwelling-house on it" (at [63]-[66]). His Honour also held that the composite term "existing dwelling-house" in cl 13(2) should be construed as meaning a dwelling-house that had been lawfully constructed (at [77]). Because the buildings had been erected on land that was not zoned for that use, the dwellings were constructed absent consent and were therefore unlawful. 70His Honour relied on several authorities in arriving at this conclusion. The first was the Court of Appeal's decision in Allen v Bega Valley Council (1994) 85 LGERA 364. That case concerned a clause of a State Environmental Planning Policy that stated that development consent was not required for the placement or use of moveable dwellings at a caravan park or camping ground that was "in existence" on the day the policy was promulgated. The council obtained a declaration, upheld on appeal, that the use by the appellants of one section of their land as a caravan park where no development consent had been granted was unlawful. The Court construed the relevant clause to permit the placement of moveable dwellings without development consent only in lawfully operating caravan parks as at the date the policy came into effect (at 369-370 per Clark JA, Kirby P and Meagher JA agreeing). 71The second was Stephen Bowers Architects Pty Ltd v Waverly Council [2003] NSWLEC 16; (2003) 125 LGERA 292, where Lloyd J held that a building that was used as a separate domicile, and therefore, should have constituted a "dwelling" for the purpose of an exemption to the application of a mechanism for the retention of low cost rental accommodation, was not the subject of the exemption because the use of the building as a separate domicile was unlawful. The use was deemed unlawful because development consent had not been obtained as required (at [25]). 72Finally, Biscoe J referred to a number of decisions that have held, for the purposes of s 95(4) of the EPAA and its earlier equivalents, that in order for a development consent to remain extant where specified work commences before its lapsing date, that work must be lawful (see the authorities collected at Vic Vellar Nominees at [79]). 73Although not directly applicable, the decision in Vic Vellar Nominees and the cases it discusses, nevertheless demonstrate that, where appropriate, courts will readily incorporate the concept of lawful use into the interpretation of environmental planning instrument and statutes. 74Of course great caution must be exercised in the implication of any term into, or the reading down of, a statutory provision. 75In so doing the construction must be reasonably open, not only because it promotes the purpose or object of the instrument, but because it can be accommodated within the range of possible meanings permissible by the text of the provision when read in its surrounding context. 76Thus, and albeit in a different context, in Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 184 LGERA 104 the Court of Appeal identified three possible preconditions to the implication of a limitation into a legislative instrument (at [54]): ...The case-law suggests three possible preconditions to the implication of a limitation on the express words adopted by the legislature: (1) first, the apparent omission must be one which requires a remedy in order for the apparent statutory purpose to be achieved: Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292 at 299 (Hope JA) and 302 (McHugh JA, referring to the principles stated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106); (2) the words actually used in the statute must be reasonably open to the proposed construction: R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [11] (Spigelman CJ), and (3) the Court must be able to state with certainty the solution which the legislature would have adopted, absent inadvertence to the particular problem: Bermingham at 302E-F; Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 at [55] (Beazley JA) and [103]. 77Having regard to these preconditions, in my view, affording a literal interpretation to the term "existing school" that encompasses both the unlawful and lawful use of land as a school pursuant to the EPAA is to facilitate a mischief that I do not believe the legislature envisaged or countenanced by the promulgation of cl 31A(1) ( CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 and Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40; (2009) 238 CLR 642 at [62] and [63]), namely, the retrospective approbation, by the mechanism of a complying development certificate, of the unlawful use of land. 78On the contrary, having regard to the aims of the SEPP, as stated in cl 2, and when read in the context of Div 3 as a whole, it appears that cl 31A(1) is directed towards, by the use of complying development certificates, the efficient facilitation of prospective development that delivers infrastructure to schools and TAFEs, that is complimentary to existing educational establishments that already have approval to use the land for such purposes. It is not directed to regularising a prior use of land for the establishment of a school or TAFE for the first time. If it were, the word "existing" would be superfluous. 79To permit a certificate to be issued for development on land that has never been authorised to be used for educational purposes, but for which consent to use the land for some other purpose had been given (for example, for residential or agricultural purposes), would neither improve regulatory certainty and efficiency (cl 2(a) of the SEPP), nor would it provide for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing (cl 2(f) of the SEPP). 80The fallacy of the respondents' position that a certificate may issue in respect of an existing school that is unlawfully using the land upon which it is located is amplified when regard is had to the facts of this application. Leaving aside whatever consents may have been granted to use any or all of the parcels of land contained in Lot 893, it is not in dispute that prior to the amalgamation of Lots 1 and A with Lot 893 to create Lot 894, there was no consent to use either or Lots 1 or A for the purpose of a school. Thus, it may be asked, how is it that by the mere act of registering the plan of consolidation, is it now possible to construct a classroom on those allotments irrespective of the fact that the use of that land for that purpose prior to consolidation would not have been permitted absent consent? The answer is, that it is not. 81Plainly, on any purposive approach to the construction of cl 31A(1), the power contained in the sub-clause to issue a certificate may only be exercised in respect of development carried out on land in respect of which there is consent to use the land for the purpose of a school, and which is in fact being used, at that time, for that specified purpose. 82Contextually, such a construction is, contrary to the submissions of the respondents, harmonious with cl 31A(2) of the SEPP which mandates that the development "must be" permissible "with consent" in the zone in which it is carried out. This sub-clause is directed to the development the subject of the certificate and not, as suggested by the arguments advanced by the respondents, to the development already present on the land, viz , the existing school. Sub-clause (2) ensures that development that is intended to be prohibited in the zone in which it is to occur cannot be authorised by issuing a certificate that otherwise satisfies the criteria in sub-clause (1). 83It is conceivable, for example, for a school to occupy a single allotment that permits, by its zoning, the use of the land for educational purposes in one portion of the land, but in another prohibits, either because the land is subject to dual zoning or is subject to a particular state environmental planning policy, any use that would impinge upon nearby environmentally sensitive land. In such circumstances, sub-clause (2) would prevent, as complying development, the construction of a gym in the zone where it was prohibited. Sub-clause (2) is not, therefore, rendered otiose by the importation of the concept of lawful use in cl 31A(1) and retains a separate sphere of operation ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] and Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 280 ALR 18 at [97]). 84The respondents further submitted that any construction of cl 31A(1) that purported to import an element of lawfulness of use of the land into it would adversely result in a multiplicity of development consents attaching to the land: the first required by the "existing school" necessary to enliven the power to issue a complying development certificate; and the second consequential upon the issuing of a certificate for the development. 85But the fact that there is more than one consent applying to a single parcel of land is an uncontroversial and unremarkable concept within planning law, and the consent that cl 31A(1) is directed to is, as I discussed above, clearly intended to be an adjunct to that which is already operative on the land. 86The importation of a concept of lawful use into cl 31A(1) also compliments, rather than derogates from, cl 28, and in particular cl 28(2), of the SEPP. 87Clause 28 is concerned with the circumstances in which development for the purpose of educational establishments may be carried out. The clause makes it tolerably clear that such development is permitted, but only with consent, and in the case of cl 28(2), there must exist a nexus with an "existing educational establishment". Accordingly, where there is an existing educational establishment, development for the purpose of educational establishments, which includes the erection of a school, may be carried out on that land, but only with consent (cl 28(2)(a)). And development on land adjacent to an existing educational establishment for the purposes of expanding the establishment may be carried out, but again, only with development consent (cl 28(2)(b)). A planning absurdity would result if consent was mandated for this type development, but no consent was required for the "existing educational establishment" to which the development was connected. Yet this is the logical corollary of the respondents' argument. It cannot be correct. 88The difficulty presented by the respondents' position can be illustrated in the following ways. First, it would permit the use of land for which no consent has been given by the act of registering a plan of consolidation. By buying adjoining lots upon which there is no consent to operate a school (or any other activity, for that matter) and consolidating these lots with a parcel of land for which there is consent to lawfully engage in a designated activity or use, the consent attaching to one lot is, by virtue of registration, transferred to all other allotments within the consolidated lot. This would take place absent the participation of any consent authority or, importantly, the local community that may be affected by the new expanded use. Second, a parcel of land that was being used unlawfully, in the sense that consent had not been granted to conduct the activities undertaken upon it, could have the unlawful use sanctioned by the dual devices of registering the plan of consolidation and issuing a certificate. Third, a plan of consolidation of land containing adjoining lots, one of which had the benefit of a development consent, would authorise the use of the entirety of the consolidated land for the same purpose as the land the subject of the consent, irrespective of whatever consents had previously been issued to the adjoining lots, and possibly, irrespective of the zoning of those adjoining lots. 89In my opinion, these outcomes, none of which are desirable and all of which have the capacity to undermine the orderly operation of the regulatory planning regime in this State, were not within the objective contemplation of Parliament when enacting cl 31A(1). The extrinsic and other statutory material to which the Court was taken by the second respondent does not militate against this conclusion. 90Turning, therefore, to the criteria enunciated in Hoxton Park , as the above scenarios demonstrate, the implication into cl 31A(1) of a requirement that the "existing school" be an educational establishment that was lawfully being used for this purpose is necessary in order for the statutory purpose underpinning cl 31A(1) to be achieved. Moreover, the words actually used in cl 31A(1) are not only reasonably open to this construction, they all but compel it in order to avoid the planning perversities envisaged above that would otherwise result. On this basis, the Court does not hesitate in finding that the above interpretation is the construction that most readily correlates with the intended legislative operation of cl 31A(1). 91The respondents submitted that, in any event, the "existing school" was lawful under the EPAA because in 2008 consent had been given to use the land at 93 Greenacre Rd, Greenacre as a school, and by reason of its consolidation into, first, Lot 893, and later, Lot 894, the development was complying development insofar as it was within the boundaries of an existing school and hence the certificate, issued as it was in respect of Lot 894, was valid. 92But I do not accept this submission because, as stated above, I do not agree that the 2008 consent granted to use the land at 93 Greenacre Rd, Greenacre as a school, travelled, by the act of consolidating that parcel of land with adjoining lots to form either Lot 893, or Lot 894, to the land upon which it is now proposed that the secondary school is to be built. 93Alternatively, the respondents argued that the 2009 consent granted for the construction of a "replacement educational facility" on Lot 893 meant that there was a lawfully "existing school" for the purpose of cl 31A(1) and that therefore the certificate was valid. 94There are, however, three reasons why the 2009 consent cannot render the certificate valid. First, no replacement educational facility has been built pursuant to it. 95Second, in its terms that consent did not authorise the existing use of the entirety of the land comprised of Lot 893 as a school. Accordingly, the only extant development consent was the 2008 consent for the use of the land at 93 Greenacre Rd, Greenacre as a school. 96Third, I accept the submissions of the council that, even if the 2009 consent was sufficient to meet the pre-condition of a present "existing school" for the purposes of cl 31A(1), it was nevertheless geographically confined, by parity of reasoning to that expressed above, to Lot 893, whereas the certificate purported to authorise development for Lot 894, which comprised two additional allotments to the land. Thus even if there was "an existing school" on Lot 893, the development, extending as it did beyond the geographical boundary of Lot 893 to Lot 894, was not "development within the boundaries of an existing school". 97While the term 'boundary' is not defined in the SEPP or elsewhere, the natural and ordinary meaning of the word as "something that indicates bounds or limits; a limiting or bounding line" ( Macquarie Dictionary , online ed) or "that which serves to indicate the bounds or limits of anything whether material or immaterial; also the limit of itself" ( Oxford English Dictionary , online ed) reinforces, in my opinion, the above reasoning. If the 'boundary' of the existing school, in the sense of the limits of the land which had consent (the 2008 consent) for its use as a school, was not restricted to the lot comprising 93 Greenacre Rd, then it was most definitely the limit of the land described in the 2009 consent, namely, Lot 893. Either way it did not extend to Lot 894. This interpretation is consistent with the ordinary grammatical meaning of not only the term 'boundary', but also with the phrase "development within the boundaries of an existing school" having regard to its contextual and legislative purpose as described above ( Australian Educational Union v Department of Education and Children's Services [2012] HCA 3 at [94]). 98In short, the certificate purported to authorise works outside the boundary of the land the subject of the existing 2008 development consent to use it as a school, namely, 93 Greenacre Rd, Greenacre, and the 2009 consent. Put another way, the certificate impermissibly sought to authorise development not in relation to the boundary of the lawfully existing school on 93 Greenacre Rd, Greenacre, or even the consolidated Lot 893, but rather beyond it. The Works Do Not Comprise Alterations or Additions to an Existing School, But Create a New School Which is Permissible With Consent 99Irrespective of whether or not cl 31A(1) can be construed to permit expansion beyond the boundaries of land the subject of an existing development consent to be used as a school, the council submitted that, utilising as a starting point the term "existing school", properly construed each of the elements of constructing, altering or adding to, contained in cl 31A(1)(a), were components that could only supplement an existing school. By contrast, it argued, the proposed development the subject of the certificate would in fact create an entirely new school or, at the very least, supplant any school the subject of an existing development consent, thereby falling outside the scope of the power contained in cl 31A(1)(a). 100I do not agree. The council's interpretation of the chapeau of cl 31A(1)(a) ignores the unambiguous words of the subordinate clause " or alterations or additions to" (emphasis added). The presence of the conjunction "or" at the start of the clause signifies that the activities that follow are in the alternative to that of the "construction" of the development listed in (i)-(vii). Provided the development conforms to any of the descriptions of works contained in those sub-paras, it does not matter if it is a completely original stand alone construction or if the building works simply replace or update existing structures and areas. The interpretation posited by the council does not accord with the plain text of cl 31A(1)(a) and should be rejected. 101Support for the above conclusion may be derived from reading cl 31A(1)(a) in the context of cl 28(2) of the SEPP. That clause makes it clear, in my opinion, that development that would plainly include the concept of "construction" in cl 31A(1)(a) can be to either establish a new or separate educational facility (cl 28(2)(a)) or to expand an existing school, thereby incorporating the elements "alterations or additions" in cl 31A(1)(a). Consent is Otherwise Required Pursuant to Clause 28(2) of the SEPP 102Because of the conclusion I have reached above concerning the proper construction of cl 31A(1) and the need for there to be a lawfully established school with development consent to operate as such on the land in order to engage the power to issue a certificate, and because of my finding that there was no such school in existence, cl 28(2) requires that consent be obtained in order to build the secondary school the subject of the certificate. The School Currently Being Built is Unlawful and the Certificate is Invalid 103The legal consequence of the above finding, when coupled with the undisputed fact that the school relied on the validity of the certificate to provide legitimacy to the construction currently underway, is that the current building works are unlawful. A declaration that the certificate is invalid should therefore be made. 104This is so notwithstanding that, for the reasons given below, the Court is disinclined to exercise its discretion to grant the injunctive relief the council seeks in its summons consequent upon a finding of invalidity in relation to the certificate. 105The circumstances of this case are distinguishable in this regard from those in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 where a declaration of a breach of statute was not made. Rather, in my view, they are more closely aligned to those decisions referred to in, and including, Director-General, Department of Climate Change and Water v Venn [2011] NSWLEC 118 (at [276]). 106The reasons why I consider it appropriate to make the declaration are, first, that in the present case the school has persistently denied any wrongdoing by it. Second, notwithstanding the council's position that the certificate was invalid, expressed to the school prior to the building works the subject of the certificate having been commenced, the school proceeded to construct the secondary school in reliance upon the certificate. Third, there is a demonstrable purpose in making the declaration insofar as it serves to declare the law and advances the regulatory objects of both the SEPP and the EPAA ( Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [20] and Venn at [281]-[282]). In this way, other organisations contemplating the establishment of educational facilities are discouraged from conducting themselves in a similar manner ( Hill Top at [20] and Venn at [281]). The Council is Not Entitled to All of the Relief Sought as a Matter of Discretion 107However, in my opinion, the considerations that give rise to the making of the declaration are not sufficient to compel the restraint of any further erection of the secondary school. 108The principles to be applied by the Court in the exercise of its wide discretion to grant relief pursuant to s 124 of the EPAA are well settled ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341, ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82, both of which were recently endorsed in Botany Bay City Council v SAAB Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 at [149]). 109Applying these principles, in my opinion no injunction should be granted because: (a) first, while the council put the school on notice on 16 December 2010 of its belief that the certificate had not been validly issued, that is to say, prior to building contracts being signed by the school in April 2011, it then proceeded to do nothing to stop the unlawful land use which it had been aware of for some time or to halt the construction works for the new secondary school once they were underway. Further, the council waited approximately five months before it commenced these proceedings. Accordingly, the council engaged in conduct that may be characterised, at least initially, by acquiescence and delay. Having said this, the Court notes that the council acts in a representative capacity in the public interest and delay alone, even if excessive, would not ordinarily disentitle it to relief vindicating or protecting this interest ( Liverpool City Council v Main Homes Pty Ltd [2011] NSWLEC 174 at [49] and the authorities cited thereat); (b) second, while the enforcement of planning laws by the council undoubtedly constitutes action for public benefit and is in the public interest ( Main Homes at [49] and the authorities cited thereat), the school is also acting in the public interest insofar as it is seeking to construct an educational establishment, for which it has approval under the Education Act . Furthermore, to the extent that it engaged in unlawful conduct, it did so for an entirely beneficial purpose and not to advance any private commercial interest that others could not enjoy; (c) third, the damage done to the environment by the unlawful development is limited to the undermining of the planning regime. That is to say, there are no known adverse amenity impacts on any adjoining properties by the building works that would warrant their immediate cessation. It should also be remembered that the development is permissible with consent in the zone; (d) fourth, it was Mr Bennett, and not the school, who issued the certificate. Mr Bennett was a qualified and experienced certifier, upon whose expertise the school had relied upon previously and upon whose expertise the school did not unreasonably rely on this occasion. To the extent that the breach of the SEPP rendering the certificate invalid was much more than technical, the breach was caused by differing legal constructions of cl 31A(1), each of which were defensible. Other than failing to comply with cl 31A(1) insofar as there was no "existing school", the certificate met the remaining criteria in that clause and there can be no suggestion that the school was not acting in good faith by relying on the certificate; (d) fifth, the relief is sought against a "static" development; the erection of buildings for which, at the time of the hearing, according to the evidence of Mr Lazki, considerable preparatory work had been undertaken and which now, it may be inferred, have been substantially completed. As Mr Lazki deposed, the detrimental effect caused by the granting of injunctive relief would be dramatic. The school would be liable to pay a substantial sum to the builder for each calendar month of delay in the completion of the project, and the secondary students currently enrolled at it would have to be relocated elsewhere causing considerable disruption to them and the school; and (e) sixth, the unlawful building works can be regularised by the school lodging a development application with the council or, possibly, by application to the Co-ordinator General under s 23 of the Nation Building and Jobs Plan (State Infrastructure Delivery) Act 2009 for a declaration that the construction is "exempt from all or any specified development control legislation". Costs 110Although the council has not been successful in obtaining an injunction against the school, it has, for the most part, been successful in the litigation. Overwhelmingly, the majority of the evidence and arguments addressed issues germane to the validity of the certificate and the consequential declaratory relief. 111In these circumstances, and because costs generally follow the event in Class 4 applications, it is appropriate to order costs against the respondents. However, the parties may have a different view and on this basis I shall permit seven days for any party to file a notice of motion, supported by appropriate evidence, seeking an alternative costs order. Orders 112The orders of the Court are therefore as follows: (1) a declaration that the complying development certificate issued to Al Noori Muslim School Limited on 15 September 2010 is invalid and of no effect; (2) the respondents are to pay Bankstown City Council's costs of the proceedings, unless within seven days any party files a notice of motion seeking some alternate costs order; and (3) the exhibits are to be returned.

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