20 The Council also submits that the uses identified in paras (a) and (b) of the definition of "community facility" are intended, as a matter of construction, to enumerate exhaustively those uses which constitute a community facility. The Council says the word "include", although usually indicative of a non-exhaustive list, may in the context of a specific statute be intended to define comprehensively the intended meaning. The Council relies upon Y Z Finance Company Pty Limited v Cummings (1964) 109 CLR 395 at 398-9. The Council submits that in the present case the statutory context indicates that paras (a) and (b) were intended be exhaustive of the permitted uses.
21 The Council points to the words "may include" which it says are equivalent to "means" or "includes only". Further, the Council says that if Cranbrook's interpretation were adopted, paras (a) and (b) would have no work to do. The Court should reject an interpretation which would make these paragraphs superfluous.
22 In addition, the Council submits that paras (a) and (b) are themselves broad and flexible, which indicates that they were intended to be exhaustive of the permissible uses, not mere examples of permissible uses. The Council refers to the words "or any similar building, place or activity" contained in para (a). Further, the Council submits that the words "whether or not that building or place is also used for another purpose" in the definition of "community facility" would have no work to do if paras (a) and (b) were merely intended as examples of permitted uses.
23 The Council says that since Cranbrook does not claim that its proposal falls within para (a) or (b) of the definition, it accordingly does not come within the definition of "community facility" in the LEP.
24 Additionally, the Council also says that if Cranbrook's construction of the definition of "community facility" be correct, the only restraint on zone 6 land would be the identity of the developer. Any building or place could be approved regardless of the actual use to be undertaken therein, provided it were operated by a body of persons associated for one of the listed purposes. Such a construction of the definition could not have been intended and should be rejected since, if adopted, there would be no meaningful use constraints on the Open Space Zone land.
25 The Council submits that a purposive approach to construction of the LEP should be used in accordance with s 33 of the Interpretation Act 1987. The structure of the LEP as a whole, and in particular the objectives of the Open Space Zone show that the uses of that zone are intended to be more restricted than development in other zones, and are justified in order to preserve the environmental characteristics of land in the Open Space Zone. Such Zone plays a significant part in achieving the objectives (g) and (h) of the LEP since it is the mechanism by which certain areas are to be used to:
(g) conserve the environmental heritage of the area of Woollahra, and
(h) to protect the amenity and natural environment of the area of Woollahra.
The Council submits that the type of buildings and places referred to in para (a) of the definition of "community facilities" are generally less intensive uses which could be developed in Open Space areas without detracting from the scenic qualities and the availability of such lands for public recreation. A school does not accord with such objectives.
26 The Council says that the proposed school is properly defined under the LEP as an "educational establishment" and should not be simultaneously defined as a "community facility". There is nothing in Cranbrook's proposal which extends beyond activities as a school or as an "educational establishment".
27 In response to the reliance placed by Cranbrook on cl 13 of the LEP, the Council submits that such clause results from a statutory requirement as contained in s 117 of the EP&A Act. Clause 13 provides added support for the proposition that the use as a school and the use as a community facility are separate and distinct uses. Clause 13 supports an interpretation that "community facilities" are intended to represent a lower impact type of use which may co-exist easily with other uses of land where the use of the school or use of land for Open Space purposes. Such clause reinforces a hierarchy wherein community facilities are permissible wherever schools are permissible. However schools, being a higher impact use, are constrained to only those areas where an "educational establishment" is permissible.
Findings
Is Cranbrook an eligible party to operate a "community facility"?
28 The Council submits that Cranbrook is not an entity which may operate a "community facility" as defined in the LEP. There are two bases to this submission. Firstly, the Council says that the definition contained in the LEP does not extend to bodies incorporated, and since Cranbrook is a company limited by guarantee it is thereby excluded from the definition. Secondly, the Council submits that Cranbrook is not associated for the relevant purposes under the definition.
Whether Cranbrook is a "body of persons associated"
29 Cranbrook is a company limited by guarantee, incorporated under s 14 of the Companies Act 1961, which relevantly provided:
14 (1) Subject to this Act any five or more persons or, where the company to be formed will be a proprietary company, any two or more persons associated for any lawful purpose may by subscribing their names to a memorandum and complying with the requirements as to registration form an incorporated company.
(2) A company may be:
…
(b) a company limited by guarantee.
…
30 In Smith v Anderson (1880) 15 Ch D 247, CA, James LJ, at pp 273-4 said:
I cannot understand what the difference is between a company and an association. The word 'association', in the sense in which it is now commonly used, is etymologically inaccurate, for 'association' does not properly describe the thing formed, but properly and etymologically describes the act of associating together, from which act of associating there is formed a company or partnership.
James LJ continued:
A company or association (which I take to be synonymous terms) is the result of an arrangement by which parties intend to form a partnership which is constantly changing, a partnership today consisting of certain members and tomorrow consisting of some only of those members along with others who have come in, so that there will be a constant shifting of the partnership, a determination of the old and a creation of a new partnership, and with the intention that, so far as the partners can by agreement between themselves bring about such a result, the new partnership shall succeed to the assets and liabilities of the old partnership.
31 It is clear from the above that a company is properly understood as an association of persons. The Memorandum and Articles of Cranbrook themselves refer to the company as "the Association". The Court cannot accept that the term "body of persons associated" does not include a company limited by guarantee such as Cranbrook.
32 The Council submits that it is significant that the term "body incorporated" is used in the definition of "club" in the LEP but not in the definition of "community facility". However the Court notes that the definition of club refers only to "persons associated" not to a "body of persons associated" as contained in the definition of "community facility". In these circumstances there is no basis on which an inference should be drawn on the basis that the words "body incorporated" are omitted.
Whether Cranbrook was associated for a relevant purpose
33 To qualify as a "community facility" within the meaning of the LEP, Cranbrook must be associated for the "physical, social, cultural, economic, intellectual or religious welfare of the community". These words raise for the question of what is meant by "the community".
34 There are several meanings for the word "community": see the definition contained in the Macquarie Dictionary, set out in [22] above. In Hollow and Kaye v State Planning Authority (1980) 45 LGRA 39 the Full Court of South Australia observed (at 50) that "the community" could relate to a geographic area. The High Court of Australia in Attorney-General for the Northern Territory v Hand and Others (1991) 172 CLR 185 at 191 observed of the terms "group" and "community":
Both terms indicate a cohesiveness in the persons said to constitute the community or group.
35 The Memorandum and Articles of Association of the Cranbrook show that "Cranbrook School" was incorporated pursuant to the Companies Act 1961 as an association not for gain and limited by guarantee. The word "Limited" was not included in the name of the company so incorporated. Section 24(1) of the Companies Act 1961 authorised the omission of the word "Limited" (otherwise required by s 22(3)) from a company's registered name in certain circumstances. It provided:
(1) Where it is proved to the satisfaction of the Minister that a proposed limited company is being formed for the purpose of providing recreation or amusement or promoting commerce, industry, art, science, religion, charity, pension or superannuation schemes or any other object useful to the community, and will apply its profits (if any) or other income in promoting its objects and will prohibit the payment of any dividend to its members, the Minister may (after requiring, if he thinks fit, the proposal to be advertised in such manner as he directs either generally or in a particular case) by license direct that it be registered as a company with limited liability without the addition of the word "Limited" to its name, and the company may be registered accordingly.
36 Since the word "Limited" was omitted from Cranbrook's registered name the Court concludes that the company was created for the purposes referred to in s 24(1) of the Act. It is clear from the Memorandum and Articles of Association that Cranbrook was a company incorporated on a non-profit basis: see object 7 of the Memorandum of Association.
37 The first three objects for which Cranbrook was incorporated are contained in objects 3(a) to (c) as follows:
3. The Objects for which the Association is established are:
(a) To establish and carry on at Sydney (and/or elsewhere) in the State of New South Wales a school for boys and/or girls in which they may obtain a sound classical mathematical and general education of the highest order including (except in those cases in which the parent or guardian of the pupil shall object) such religious instruction in conformity with the principles of the Church of England as may be approved of by the Council of the School.
(b) To provide for the delivery and holding of lectures games exhibitions public meetings classes and conferences calculated directly or indirectly to advance the cause of education whether general professional or technical.
(c) To provide board lodging and attendance and all necessaries and conveniences to pupils whether boarders or otherwise.
38 The Court is satisfied that Cranbrook is a body of persons associated for a relevant purpose under the definition of "community purpose". The fact that enrolments at the school are discretionary, and that the school is available only a fee-paying basis, does not alter the fact that Cranbrook provides an educational establishment to the community as a whole. Cranbrook is registered as a non-government school under Pt 7 of the Education Act 1990. Its prime purpose is that of education based upon a religious foundation. The fact that some members of the community may not have use of its facilities does not mean that Cranbrook is not associated for the welfare of the community. Whilst no school can offer its services to every citizen, the object of providing education is nonetheless clearly an object aimed at improving the welfare of the community.
Does the proposed use conform to the definition of "community facility"?
39 The Court accepts that the Junior School Redevelopment is not excluded from the definition of "community facility" merely because it also satisfies the definition of "educational establishment" under the LEP. This is so even though development for the purpose of an educational establishment would be prohibited on the subject land. The question which must be answered is whether the use as a school falls within the definition of "community facility" contained in the LEP.
40 The interpretation of the word "include" has been the subject of much judicial debate: see Pearce, Statutory Interpretation in Australia, 5th ed,at 6.56ff. In Dilworth and Others v The Commissioner of Stamps, Dilworth and Others v The Commissioner for Land and Income Tax [1899] AC 99 at 105-6, the Court said:
The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.
41 In this instance, the definition of "community facility" preceding paras (a) and (b) contains no reference to the uses of a building or place which will constitute uses as a "community facility". If the applicant's interpretation of the word "include" were accepted, it would have the result that a building or place used for any purpose would constitute a "community facility", provided it were owned or controlled by a relevant body. The Court does not accept that this interpretation is correct. The definition is clearly intended to define a community facility by reference to both its ownership and the use to which it is put. Paragraphs (a) and (b) itemise the uses which qualify a building or place as a "community facility", and provide the only indication of such uses in the definition. As such, paras (a) and (b) must be treated as the exhaustive list of the uses which constitute authorised uses of a building or place as a "community facility".
42 Such construction is reinforced by the terms of paras (a) and (b). Paragraph (a) is expansive on its own terms, providing a list of uses as well as "any other similar building, place or activity". These words would be entirely unnecessary if, as the applicant suggests, the uses contained in para (a) were merely examples of acceptable uses.
43 Similarly, para (b) suggests that a community club is allowed but specifically states that a registered club is not. If the applicant's definition were accepted, this paragraph would have the effect that any building or place owned or controlled by a relevant body was a "community facility", with the exception of a registered club. This would produce an absurd result.
44 Furthermore, the words "whether or not that building or place is also used for another purpose" which appear at the end of the definition of "community facility" would be rendered otiose if (a) and (b) were merely examples of appropriate buildings or places. If there were no relevant restrictions on the uses which qualified a building or place as a "community facility", then no question of whether a building or place with multiple uses was a "community facility" would arise. These words are clearly intended to indicate that a building may still be a community facility if it has a multiplicity of uses, of which one is a use as a "community facility". Accordingly, it gives tacit acknowledgment to the fact that only certain uses of a building or place qualify as uses as a community facility. Paragraphs (a) and (b) are the only portions of the definition which make any reference to the nature of permissible uses. Such paragraphs exhaustively define the range of uses which qualify as uses as a community facility.
45 The Junior School Redevelopment can only constitute a "community facility" if the use of a school falls within either para (a) or para (b) of the definition of "community facility". The Court is of the opinion that such as use does not. Paragraph (b) is clearly inapplicable, and the range of uses contained in para (a) do not extend to a school.
Conclusion
46 It follows from the above that the Junior School Redevelopment is not development of a "community facility" because it does not comply with the categories of permissible development in the 6 - Open Space zoning. The Junior School Redevelopment is accordingly prohibited on the subject land.
Costs
47 Costs were not argued before the Court. Accordingly, the Court will make the usual order for costs (see Latoudis v Casey (1990) 170 CLR 534), but allow Cranbrook 21 days to seek a different order if it so wishes.
Orders
48 The Court makes the following orders:
1. The applicant's proposed development comprising the erection of school buildings and associated facilities on land at 6 Kent Road, Rose Bay is not development comprising a " community facility " under the provisions of the Woollahra Local Environmental Plan 1995.
2. The applicant pay the respondent's costs, unless within 21 days an application is made for a different order.
3. Liberty to apply in respect of costs on two days notice.
4. The exhibits be returned.