Consideration
94The Applicant's judicial review proceedings challenge the characterisation of the use approved by the Council for the change of use of the site from tourist use to hospital in the development consent granted to the Salvation Army. The Applicant submitted, and the Salvation Army accepted, that the description in the DA is not determinative of the characterisation of a development, relying on Bentham , Pallas Newco and Sansom at [15] . The Council made a contrary submission that the character of the development is determined by the grant of consent. In this case development consent was granted for a hospital and that was submitted to be conclusive that the development is a hospital as recognised under the LEP. Mison was relied on for that submission. That case was concerned with, inter alia, whether a council's purported development consent had the effect of significantly altering the development for which the applicant requested consent, not with the characterisation of a use. The applicant requested consent to erect a building and provided detailed specifications but the council imposed a condition requiring that "Overall height of the dwelling-house" be "reduced to the satisfaction of Council's chief town planner". The Court of Appeal ( Priestley JA, Clarke and Meagher JJA agreeing) held that the purported consent was not a consent within the meaning of then s 91(1)(a) of the EPA Act which permitted the council to grant consent to an application "either unconditionally or subject to conditions".
95In Class 4 proceedings where an applicant, a recipient of many consents over the years, sought a declaration that its operation of a caravan park was lawful , Sheahan J observed that " the question of characterisation of use is quite separate from the question of construction of consents": Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [ 2010] NSWLEC 10 at [31]. The issue of the characterisation of a use has been considered in numerous judicial review cases as a possible error in the construction and application of the terms of the relevant planning instrument. The legal basis for doing so in judicial review proceedings was identified by the Applicant and the Salvation Army as a question of jurisdictional fact, as held by the Court of Appeal ( per Spigelman CJ at [86], [88], Mason P at [139], Handley JA at [141] - [142], Sheller JA at [181] - [182] and Cripps AJA at [207], [219]) in Pallas Newco . That case was an unsuccessful appeal from the decision of Talbot J exercising the Class 4 jurisdiction of the Court. Talbot J determined that the characterisation of the nominated permissible use of drive-in take-away establishment, for which development consent was given, was a jurisdictional fact. Having found that the proposed use was not a drive-in take-away establishment and was prohibited under the relevant LEP, his Honour declared the development consent void. In considering whether characterisation of a use is a jurisdictional fact, Spigelman CJ stated:
[36] A person who carries out prohibited development contravenes the Act. A consent does not turn prohibited development into permissible development. That would constitute an amendment to an environmental planning instrument, without satisfying the procedural requirements of Pt 3.
[37] The use of the land for a prohibited use constitutes a contravention of s 76B. Accordingly, the person who carries it out commits an offence under s 125 of the Act.
96In Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 this question was considered by Basten JA who expressed it as follows:
[130] In the present case, the challenge to the validity of the consent depended on whether the proposed use was one for which consent could be given: a question relating to the power of the public authority. That in turn depended on the characterisation of the proposed use, as identified in a development application which sought to engage a specific provision of the local environment plan. A preliminary question is to ask on whom the jurisdiction is conferred to decide this question authoritatively. No doubt the Council from whom consent is sought will need to satisfy itself that it has the power to grant the application. But if its opinion with respect to the application is challenged in a court, the question will be whether its opinion is reviewable only on the standard grounds on which judicial review is permitted, or whether the Court is required to decide the question of characterisation for itself, independently of any view formed by the Council.
[131] The answer to this question must depend upon the terms of the legislative instruments conferring power, in accordance with the principles set out in the authorities noted above and with special reference to the decision in Pallas Newco , dealing with a local environment plan under the EP&A Act.
97At [132] - [137] his Honour reviewed the elements identified in Pallas Newco by Spigelman CJ as relevant to determining that issue. His Honour considered the structure of the Liverpool LEP in the context of the EPA Act and concluded, relying on Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 and Pallas Newco , at [142] that the characterisation of the use should be treated as a jurisdictional fact in the absence of a provision which identifies that the characterisation depends on the opinion of the Council. Handley JA held similarly at [6] that in the context of the particular clause in the LEP imposing a condition precedent to the existence of the Council's power to grant consent to a DA, compliance with the clause is a jurisdictional fact. At [6] his Honour held that characterisation is required by both the text of the clause and the principles identified in Enfield and Pallas Newco .
98Given the structure and terms of the LEP in this matter, with the land use restrictions for each zone identifying prohibited uses in the table in cl 10 together with the definitions in cl 7, suggests a similar conclusion should be reached in this matter. This rebuts the Council's argument relying on Mison that the approval of a hospital use is conclusive of the purpose of the use. Further, the Council submitted at par 55 that no evidentiary basis for concluding that the development consent was not for a hospital was presented by the Applicant. This suggests it is necessary to determine the parties' arguments about characterisation. As the Applicant submitted, I am able to take into consideration the evidence before me and am not limited to what was before the Council: Pallas Newco per Spigelman CJ, Mason P, Handley and Sheller JJA, and Cripps AJA agreeing .
Characterisation principles
99The parties were not in disagreement with the principles relevant to characterisation extracted in Chamwell at [27] - [50] and adopted in Abret at [49] - [54] . Characterisation must be done in a commonsense and practical way: Chamwell at [45]. The principles were correctly summarised in the Salvation Army's submissions. Firstly, a use must be for a purpose, being the end to which the use of the land can be seen to be put : O'Keefe at 535. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 at 508. Secondly, t he nature of the use needs to be distinguished from the purpose of the use: O'Keefe at 534 - 535 and Warringah Shire Council v Raffles [1979] 2 NSWLR 299. Thirdly, in determining whether land was used for a particular purpose, an inquiry into how that purpose could be achieved is necessary : C ouncil of the City of Newcastle at 499 - 500 . Fourthly, the characterisation of the purpose should be done "at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on", not "in terms of the detailed activities or processes" but not so general as to "embrace activities, transactions or processes which differ in kind from the use which the activities etc, as a class have made of the land" : Royal Agricultural Society of New South Wales at 310. The construction is for town planning purposes: Boyts Radio and Electrical at 59 per Kirby P and Grace at [88] - [90].
100Where there is an ancillary land use to a dominant use (in relation to part or the whole of the land), the former is to be classified according to the purpose of the latter: Foodbarn . The question of whether the use for a particular purpose is subservient or incidental to another purpose, or whether it constitutes an independent use, is one of fact and degree: Lizzio at 216 - 217 and Peters at [21] . Whether the use should be considered in these terms is discussed further below (par 106).
Construction of the LEP
101I adopt the Salvation Army's submissions at par 81 above that the provisions of an environmental planning instrument should be construed as if they have work to do and that a purposive approach must be adopted ( Interpretation Act s 33).
102As submitted by the Salvation Army, relying on Kelly , definitions in the LEP must be construed within the context of the LEP as a whole. In Kelly at [103] McHugh J said that if a definition applies, the correct approach is to "read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome". His Honour warned that " [t]o construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment". In Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635 Barwick CJ, McTiernan and Taylor JJ stated:
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way ... the effect of the Act and its operation in relation to dividends as defined by the Act must ... be found in the substantive provisions of the Act which deal with 'dividends'.
103The Applicant in particular referred to dictionary definitions to assist in the construction of definitions in the LEP. Courts often use dictionaries to aid in construing statutory provisions, see for example, State Chamber of Commerce and Industry v Commonwealth [1987] HCA 38; (1987) 163 CLR 329 at 348 . However, in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1971) 25 NSWLR 541 at 560 - 561 Mahoney JA identified the limits on the use of dictionaries in searching for meaning and cautioned that "d ictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents". Mason P similarly cautioned in House of Peace at [28] that dictionaries may give the illusion of certainty whilst confounding the task at hand as they "do not speak with one voice even if published relatively concurrently... [and] can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose".
104His Honour explained at [30] that the task at hand was not "a philosophical, linguistic or etymological exercise probing the inner or outer limits" of a term in current Australian usage but "a search for the meaning of a particular document issued in a particular context". His Honour stated at [22] that the planning law context is concerned with the use of the land, not the identity of the user and at [24] that e nvironmental planning instruments and consents are concerned with physical use, environmental impact and amenity .
105Definitions are not self-contained and may operate interdependently: Abret at [33]. If the proposed use falls within a prohibited purpose, it is prohibited and it is irrelevant whether it also falls within a separate permissible purpose: Egan at 328 per Mahoney JA (Cripps JA agreeing in a separate judgment, Meagher JA dissenting); Sammut at [23], [34] - [38] per Mason P (Powell JA agreeing, Young JA in Eq agreeing with additional comments) and Abret at [67] - [68] per Beazley JA (Campbell JA and Handley AJA agreeing). The Respondents submitted and I agree that the definitions under consideration in the LEP are intended to be mutually exclusive, in other words there is likely to be one use of the site as defined in the LEP and consequently the principles identified in Abret , inter alia, in relation to overlapping purposes is unlikely to arise. This construction arises from the operation of the separate definitions together with the prohibitions on certain uses identified in the table in cl 10. While the Applicant made submissions that parts of the development might be severable and satisfy the definition of a prohibited use it is important to consider the use of the site as a whole. Breaking the use of the site into separate components offends the principle in Royal Agricultural Society of New South Wales of identifying a use at a sufficient level of generality to encompass relevant activities.
106The purpose of the use must also be identified, applying common sense in a town planning context. This issue will be considered in relation to each of the uses alleged to be the proper characterisation by the Applicant. T he Applicant submitted that the subjective intention of the proponent is not the purpose to be served relying on Woollahra Municipal Council at 714G per Gleeson CJ who stated:
In the context of planning law, a statement of the purpose for which land is being used is a description or characterisation of what is being done with, or upon, the land, not an account of the motives of the persons involved in that activity.
The Applicant also relied on Abret at [62] and [67] per Beazley JA who stated at [67] "even if the development is intended to be of dwellings for seniors, the purpose of the use is for dwellings as defined..." There is objective evidence identifying that the Salvation Army's purpose in using the site is to provide professional health care services to addicted persons: the SEE, the webpage annexed to Mr Dwyer's affidavit and Mr Byrne's evidence, see par 12 - 14, 18 - 19, 22 - 30. It is not appropriate to dismiss the stated purpose of the use in the DA, which must rely on being a permissible development under the LEP, as the Salvation Army's motive and subjective intention. The findings in Abret relied on by the Applicant to support such a statement do not suggest otherwise. As stated in Woollahra Municipal Council and CB Investments the purpose of the characterisation of the use is relevant. The stated intention of the Salvation Army to run a hospital is not conclusive of the characterisation of the use as a hospital but the intention to conduct activities directed to a certain outcome, here the treatment of people with addictions, is relevant to consider in relation to the purpose of the characterisation of the use under the LEP.