No error in characterisation as only "commercial premises"
47I also reject the Council's alternative argument that the proposed development should be characterised as being for two independent purposes, one the permissible purpose of "commercial premises" and the other the prohibited purpose of "airport-related land use" or "air freight forwarder".
48Having regard to the structure and language of the land use table for Zone 4(b), the manner in which the terms of "commercial premises", "airport-related land use" and "air freight forwarder" are defined, and the nature, extent and other features of the proposed development, once the proposed development is properly characterised as being for the permissible purpose of "commercial premises" in item 3, it cannot be characterised as being for the purposes that are prohibited under item 4 of "airport-related land use" or "air freight forwarder".
49The structure of the land use table is to nominate the purposes of development that may be carried out without development consent (item 2) and with development consent (item 3) but to leave as innominate development which is prohibited (item 4). The mechanism by which the innominate purposes of development are prohibited is by way of prohibiting "Any development other than development included in item 2 or 3".
50Because the category of prohibited development is formulated as being "any development other than development included in item 2 or 3", it necessarily does not and cannot include any purpose of development that is specifically nominated in item 2 or 3: Friends of Pryor Park Inc v Ryde Council (Unreported, Land and Environment Court of NSW, Bignold J, 25 September 1995) at 6.
51The terms "commercial premises", "airport-related land use" and "air freight forwarder" overlap, although not entirely. They each deal with a building or place used for certain business or commercial purposes. The purpose of "commercial premises", which is "a building or place used as an office or for other business or commercial purposes", would include a building or place used as an office or for other business or commercial purposes related to Sydney Airport, which would fall within "airport-related land use", as well as "a building or place used for the assembly, storage or land transport of air freight", which would fall within "air freight forwarder".
52The consequence is that if, having regard to the character, extent and other features of Pet Carriers' proposed development, it can be characterised as being for "commercial premises" in item 3, it is not for a purpose of development "other than" development included in item 3.
53The activities involved in the carrying out of the proposed development, having regard to their character, extent and other features, wholly fall within the general purpose of "commercial premises"; there is no activity which can be regarded as falling outside that purpose and for the different and independent purpose of "airport-related land use" or "air freight forwarder". The fact that Pet Carriers' use of its building as an office or for other business or commercial purposes may be related to Sydney Airport (if that be established) does not cause the development to be for a purpose independent of the purpose of commercial premises. Use of the building as an office or for other business or commercial purposes related to Sydney Airport is a subset of the broader use of the building as an office or for other business or commercial purposes. Similarly, use of the building for the assembly, storage or land transport of air freight (if that be established) is a subset of the broader use of the building as an office or for other business or commercial premises.
54The judicial decisions relied on by the Council are not authority to the contrary. Each case turns on the terms of its own facts and the relevant environmental planning instrument and land use table.
55The decisions fall roughly into two categories. First, there are decisions which involve a purpose which is a genus and one or more species of purposes falling within that genus. If the genus is a nominate prohibited purpose, development for that purpose will be prohibited even if it could also come within one or more species of purposes that are innominate permissible purposes. Conversely, if the genus is a nominate permissible purpose, development for that purpose will be permissible even if it could also come within one or more species of purposes that are innominate prohibited purposes. Decisions in this first category include Egan v Hawkesbury City Council (1993) 79 LGERA 321; Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171; Abret v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343; and Friends of Pryor Park Inc v Ryde City Council.
56In Egan v Hawkesbury City Council, the issue was whether a quarry with a crushing plant was prohibited. The relevant local environmental plan provided in item 4 of the land use table that "industries" were nominate prohibited purposes and in item 3 that development for a purpose other than one included in item 2 (development permissible without development consent) and item 4 (prohibited development) was permissible with development consent. The Court of Appeal (by majority) held that "industries" included all kinds of industries, including "extractive industry". Even if the proposed development could be said to be for an "extractive industry", it would still be prohibited. Mahoney JA (with whom Cripps JA agreed) rejected the respondents' submission that if a proposed development is within the definition of an activity which is proscribed (such as "industries"), it would yet not be proscribed if it fell also within a definition or class of activity not so proscribed (such as "extractive industry"). That was not 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 (at 328).
57Mahoney JA also rejected the respondents' alternative submission that the terms of the land use table indicated an intention that consent could be given for a use which is an "extractive industry", even though the use was also an "industry" within the proscription. The argument was that consent could be given for "any purpose other than a purpose included in Item 2 or 4", that "extractive industry" was such a purpose, and accordingly consent could be given for it. Mahoney JA held:
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. This objection can be met only if "industry" as used in item 4 is constructed to exclude uses otherwise defined and so to exclude a use which is an "extractive industry". But to do that raises the difficulties to which I have referred (at 328).
58The land use table in that case is the converse to the land use table in the present case. There, the prohibited purposes were nominated and the permissible purposes were purposes other than the prohibited purposes. Here, the permissible purposes are nominated and the prohibited purposes are purposes other than the permissible purposes. However, the same logic applied by the Court of Appeal applies here. There, "extractive industry" was one kind of industry falling within the prohibited purposes of "industries" in item 4 of the land use table. "Extractive industry" could not therefore be for a purpose "other than a purpose included in item 4". Here, the proposed activities fall within the permissible purpose of "commercial premises" in item 3 of the land use table and hence could not be a development "other than development included in item 3".
59Furthermore, the Court of Appeal's reasoning for rejecting the argument that the prohibition was not intended to apply to something which, though falling within the nominate prohibited purpose of "industry", also falls within another kind of activity separately defined, is also applicable in the present case. LEP 1995 and the land use table in the present case intended to permit with development consent all of the kinds of activities falling within the definition of "commercial premises". The fact that some of the permitted activities might also fall within another kind of development that is prohibited was not intended to have the effect that the permitted activities could not be carried out with consent.
60In Hawkesbury City Council v Sammut, development for the purpose of "industries" was nominated as prohibited. The proposed development was alleged to be for the purpose of "rural industry". "Rural industry" was not a nominate prohibited development and therefore was alleged to be an innominate permissible development. The Court of Appeal held that Egan v Hawkesbury City Council was indistinguishable and its correctness should not be revisited. The environmental planning instrument proscribed all industries, including a rural industry. The proposed development was properly characterised as an "industry" which was prohibited and it mattered not that it could also be characterised as a "rural industry": it was still prohibited (at [23], [24], [34]).
61In Abret v Wingecarribee Shire Council, development for the purpose of "residential flat buildings containing more than 2 dwellings (other than single storey units for aged persons)" was nominated as prohibited. The proposed development was alleged to be a seniors housing project. "Seniors housing" was not a nominate prohibited development and was therefore alleged to be an innominate permissible development. The Court of Appeal again applied the reasoning in Egan v Hawkesbury City Council. The proposed development was for the prohibited purpose of "residential flat buildings" (at [64]). There was no evidence that the development was to be limited to seniors housing, and hence could be characterised as being for the purpose of "seniors housing" (at [65], [66]). But even on the assumption that it was to be for the purpose of seniors housing, the proposed development was still for the prohibited purpose of residential flat buildings. That purpose was not independent of, and did not serve or was not incidental to, the purpose of seniors housing. The proposed development was therefore prohibited (at [67], [68]).
62Each of these cases is distinguishable from the present case in the same way that I have said Egan v Hawkesbury City Council is distinguishable. In Hawkesbury City Council v Sammut, the specific use of "rural industry" fell within the general use of "industries" which was prohibited. In Abret v Wingecarribee Shire Council, the specific use of residential flat buildings for seniors housing fell within the general use of "residential flat buildings" which was prohibited. Conversely, in the circumstances of the present case, Pet Carriers' use for the specific purposes of "airport-related land use" and "air freight forwarder" fell within use for the general purpose of "commercial premises" which is permissible.
63Although not relied on by the Council, the decision in Friends of Pryor Park Inc v Ryde City Council is also relevant. In that case, the issue was whether the approved development was for the prohibited purpose of a "child care centre" and not for the permissible purpose of "community facilities". The land use table in the applicable planning scheme ordinance nominated in Column IV the permissible purposes of development, including "community facilities", and prohibited development for "Any purpose other than those referred to in Column ... IV". "Community facilities" and "child care centre" were defined in the ordinance in such a way that a child care centre was one kind of community facility.
64Bignold J held that the purpose of "child care centre" was a species of the genus "community facilities" (at 7 and 10). Once this was acknowledged, "it would be an extraordinary result to conclude that although the genus is a permissible purpose one of its species is nonetheless a prohibited purpose. Such a conclusion would do extreme and unjustified 'violence to the logical structure of the definition' ('of community facilities')" (at 10).
65Instead, Bignold J held (at 6) that consent could validly be granted to a development for the purposes of "community facilities", notwithstanding that the development also fell within the purpose of "child care centre":
Properly construed, cl 22 of the Ryde PSO stipulates that "community facilities" is a permissible purpose of development. Accordingly, development consent for that purpose may legally be granted. That is what the First Respondent did in the present case. The fact that the approved development also falls within the definition of "child care centre" does not affect (i) the legal effect of cl 22 stipulating "community facilities" as a permissible purpose, and (ii) the competence and capacity for the First Respondent to grant development consent for that permissible purpose. This conclusion flows from the proper interpretation of cl 22 of the Ryde PSO because the category of prohibited "purposes" (formulated in the Land Use Table as "any purpose other than those referred to in Column II or IV)" necessarily does not, and cannot, include the purpose "community facilities" referred to in Column IV of the Table. This construction is consistent with the construction adopted by Mahoney JA of a similarly worded "Land Use Table" in Egan v Hawkesbury City Council (1993) 79 LGERA 325 at 328.
66The same logic applies to the present case. The activities involved in Pet Carriers' proposed development that might cause the development to be for the purpose of "airport-related land use" or "air freight forwarder" make the development be for the purpose of "commercial premises". In the circumstances of the proposed development, any specific use for "airport-related land use" or "air freight forwarder" would come within the general use for "commercial premises". Just as Bignold J held in that case, it would be an extraordinary result in this case, that although the genus of "commercial premises" is a permissible purpose, two of its species are nonetheless prohibited purposes.
67Bignold J's reasons for distinguishing the judgments in C B Investments Pty Ltd v Colo Shire Council and Egan v Hawkesbury City Council are also applicable to the present case.
68The second category of decisions relied on by the Council involve development that could be seen to be for two or more different purposes, one being permissible and the others being prohibited. The inquiry is whether the prohibited purposes are subsumed in the permissible purpose so that it is legitimate to disregard the prohibited purposes and treat the permissible purpose as that for which the land is being used, or whether they are independent of each other so that the land is being used for both prohibited and permissible purposes. Decisions in this category include Foodbarn Pty Ltd v Solicitor-General; C B Investments Pty Ltd v Colo Shire Council; Lizzio v Ryde Municipal Council; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2001] NSWLEC 243; (2001) 114 LGERA 345; and Bardsley-Smith v Penrith City Council.
69In Foodbarn Pty Ltd v Solicitor-General, the issue was whether buildings were used for the nominate prohibited purpose of "shops". The trial judge and the Court of Appeal unanimously found on the evidence that the buildings were used as shops (at 159). Foodbarn sought to overcome this finding by different arguments of construction. One was that the definition of "shop" should be construed so as to mean for the dominant purpose of selling. Glass JA (with whom Samuels and Hutley JJA agreed) rejected the proposition that where premises are used for two purposes, that which is not dominant is for planning purposes to be disregarded (at 160). Glass JA held that:
It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts ... Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed (at 161).
70Glass JA held that sales by retail in that case were not ancillary to other purposes, and hence use for the prohibited purpose of shops was not subsumed by other permissible purposes (at 161).
71Glass JA also rejected another argument of construction that warehouse was an exclusion from the definition of "shop" in the ordinance. The definition of "shop" excluded a building or place elsewhere specifically defined in the definitions clause of the ordinance. "Warehouse" was one such specific definition. Glass JA interpreted the definition of "shop" to include all shops except shops specially defined. The definition of "warehouse" involved sale to retailers and hence could not fall within "shop" which involved sales by retailers. Warehouse was, therefore, not a shop and could not be excluded from the definition of shop by the proviso (at 161).
72This case differs from the present case. Here, Pet Carriers' use of its building is not for two or more conflicting purposes, such as "shops" and "warehouse". The activities of Pet Carriers which could be said to fall within the definitions of the specific purposes of "airport-related land use" and "air freight forwarder" are the very same activities that fall within the definition of the general purpose of "commercial premises". The purposes of "airport-related land use" or "air freight forwarder" cannot be regarded as operating in a way which is independent of the purpose of "commercial premises". It is therefore legitimate, in the circumstances of this case, to ignore the former purposes and treat the latter purpose as the purpose for which the building is being used.
73In Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates, the issue involved the characterisation of a planned retirement village. Under the relevant planning scheme ordinance, "boardinghouses" and "residential flat buildings" were nominated prohibited purposes in column V of the land use table for the relevant zone. The innominate permissible purposes were purposes not prohibited by column V. Hospital was one such innominate purpose. "Hospital" was defined to include a building used as a "home for aged ... persons". The Court of Appeal unanimously held the proposed development was not properly to be characterised as a home for aged persons, and hence a hospital, and therefore was not for a permissible purpose: at 159 per Glass JA, at 161, 162-163 per Samuels JA, and 163, 166-167 per Mahoney JA.
74Glass JA further considered whether, if the proposed development could have been said to be for the permissible purposes of building a home for the aged, it was also for the prohibited purposes of residential flat buildings or boardinghouses. Glass JA observed that:
When two or more purposes co-exist one of which is prohibited and one permitted (with or without consent), it is necessary as a matter of construction to determine which of the two shall prevail. It is proper in my view to discern a legislative intention in the ordinance that if one of two conflicting purposes is dominant and the other servient, it is the former which lends its character to the development. On the other hand, if neither subserves the other, the ordinance on its proper construction treats the development as actuated by two independent purposes one of which is allowed and one disallowed: Foodbarn Pty Ltd v Solicitor-General (at 160).
75Glass JA found that the purposes of "residential flat buildings" and "boardinghouses" were ancillary to the dominant purpose of "hospital" and in accordance with principle and authority it was legitimate to disregard the prohibited purposes and treat the dominant purpose as being the permissible purpose (at 160).
76Again, this case differs from the present case. There is not a use for conflicting purposes. Any use by Pet Carriers that could be said to be for the purposes of "airport-related land use" or "air freight forwarder" is not independent of the use for the purpose of "commercial premises".
77In C B Investments Pty Ltd v Colo Shire Council, the relevant interim development order provided that the land "shall be developed only for the purposes of agriculture", amongst other purposes. The land owner proposed to permit a contractor to remove sand and silt from the land in consideration for payment of royalties to the land owner based on the volume of extractive material removed. The land owner contended that the effect of the removal of the extractive material would be to improve its suitability for agricultural use. Hence, the land owner contended that what was proposed was development "only for the purposes of agriculture", but not otherwise.
78The Supreme Court of NSW at first instance and the Court of Appeal (by majority) on appeal found that the proposed development constituted the carrying on of an extractive industry, which was not a purpose nominated as permissible with consent, and hence was prohibited (at 276 per Reynolds JA and 272 per Hope JA). The character, extent and other features of the activities which involve the removal of extractive material from the agricultural land were such that it was proper to regard them as constituting a use of land in themselves, not subsumed in any agricultural use of the land, and thus a use for the purpose of extractive industry. However, even if the development could properly have been characterised as also being for the permissible purpose of agriculture, the development would still have been prohibited. This circumstance would not have entitled the consent authority to give consent to the activities if, as well as having an agricultural character, it was also a use for a non-agricultural purpose (extractive industry). Hence, the development could not be said to be "only for the purposes of agriculture" (at 271-272 per Hope JA).
79The case turned, therefore, on the proposed activities, having regard to their particular character, extent and other features, falling within the definition of "extractive industry" and not being able to be characterised as being "only for the purposes of agriculture". The use for extractive industry was not subsumed in the use for agriculture.
80This is different to the present case. The character, extent and other features of Pet Carriers' development are not such that it is proper to regard them as constituting a use of land in themselves for the purposes of "airport-related land use" or "air freight forwarder", not subsumed in the use for the purpose of "commercial premises".
81In Lizzio v Ryde Municipal Council, the issue was whether the landowners' selling of flowers from a roadside stall in front of their dwelling was prohibited, which it would be unless it was incidental to the use of the dwelling or was protected as a lawful existing use. The High Court held that the use of the land for the sale of flowers could not in the circumstances be regarded as incidental to the use for the purpose of a dwelling house, but that it was an existing use. The regularity and extent of the activities involved in selling the flowers and the fact that some of the flowers were grown on other land, meant that the use could not be regarded as merely incidental to the use for the purpose of a dwelling house, but rather represented a separate or additional use of the land (at 217, 223-224).
82Again, this case is factually distinguishable from the present case. There, the flower-selling activities were distinct from the activities involved with use of a dwelling house and represented different uses of the land. Here, the activities involved are one and the same - the activities involved with use for the purposes of "airport-related land use" or "air freight forwarder" are the same activities involved with use for the purpose of "commercial premises". In any event, the former uses are subsumed in the latter use.
83In Baulkham Hills Shire Council v O'Donnell, the land was used for the purpose of extraction of soil and sand (extractive industry). Under the then in force interim development order, it was permissible with development consent. The land owner did not have a current development consent. The Council sought to enjoin the carrying on of the use. The landowner relied on existing use rights, having started the use before development consent was required to be obtained. The Council argued that, for a period of nine years, the use for extractive industry was in pursuance of, and ancillary to, the use of land as a riding school and hence the use for extractive industry could be disregarded during this period. If so, there was not the necessary continuation of the existing use.
84The Court of Appeal rejected the Council's argument, finding that both uses could and did physically co-exist on the same land at the same time. Neither use could be said to be either dominant or ancillary (at 409). Meagher JA (with whom Samuels and Clarke JJA agreed) stated:
Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not ... But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use (at 409-410).
85This is a different case to the present. Here, there are not two different uses physically co-existing on the same land at the same time. The nature and extent of Pet Carriers' use of the land do not support a conclusion that there are two or more independent uses of the land.
86In Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council, the issue was whether an existing RSL and bowling club that was proposed to be redeveloped had existing use rights. Resolution of that issue involved characterisation of the existing use. Under the applicable local environmental plan, development for the nominate purposes of "recreation areas" and "recreation facilities" were permissible with consent and, except for a limited number of specified purposes, development for all other purposes, including "registered clubs", was prohibited. That is to say, the land use table nominated the permissible purposes and provided that development other than for the nominate permissible purposes was prohibited. Pearlman CJ held that the existing use fell within the definition of "recreation area" and "registered club". The land had areas used for a sporting activity or sporting facilities (there were bowling greens), which use fell within "recreation area". The land also had built upon it a building (the clubhouse) used by a body incorporated for a sporting purpose and registered under the Registered Clubs Act 1976 (the RSL Club), which use fell within "registered club" (at [27]). As the latter use was prohibited, notwithstanding that the former use was permissible with consent, the use of the land remained prohibited and consequently was an existing use (at [31]).
87This case is different from the present. Although the use of the land was found to be for the nominate permissible purpose of "recreation area", that purpose did not include all of the activities being carried out on the land. It only included the areas used for sporting activities or sporting facilities - the bowling greens. It did not include the building or place used by the RSL Club (the clubhouse) and the activities carried on in the clubhouse.
88Hence, the finding of the Court was that the land was used for both of the purposes of "recreation area" and "registered club". This was not a case, therefore, where all of the activities being carried on could be characterised as being for the permissible purpose but rather some of the activities could be said to be for a purpose other than the nominate permissible purpose and hence prohibited.
89In contrast, in the present case, all of the activities proposed to be carried on in the building can be characterised as being for the permissible purpose of "commercial premises" and none for a purpose "other than" that purpose.
90In Bardsley-Smith v Penrith City Council, development for the purpose of shops (other than specifically listed kinds of shops) were nominated under the applicable local environment plan as prohibited development. The development in question had been approved as a "Chemist Warehouse". Development for the purpose of a "warehouse or distribution centre" was an innominate permissible purpose (being a land use other than those included in the prohibited uses). The Court of Appeal found the use of the premises as an ePharmacy was for the purpose of a distribution centre and that a retail pharmacy confined to selling certain items was subordinate to the primary use as a distribution centre (at [92], [93]). Hence, the consent was not granted for the prohibited purpose of "shops" (at [94]).
91In the present case, any use by Pet Carriers of its building for "airport-related land use" or "air freight forwarder" can be regarded as subordinate to the primary use for "commercial premises" which is permissible.
92For these reasons, the Commissioner did not err in characterising the proposed development as being for the permissible purpose of "commercial premises" and not also for the prohibited purposes of "airport-related land use" or "air freight forwarder".
93The Council's second ground of appeal against the development consent decision, and its only ground of appeal against the Council order decision, have not been established.