Amendment to the control on school sites and electricity substations
161There are five private school sites and four sites owned by Energy Australia that are the subject of the first of the amendments that I have identified as founding the applicant's present ground of challenge. In order to understand the competing submissions of the parties, it is necessary to recite further facts.
162At the time of preparing the draft Centres LEP each of the school sites was zoned "5. Special Uses A (School)" under the Ku-ring-gai Planning Scheme Ordinance ( the KPSO ). The land use table applicable to land so zoned effectively constrained its use to that of school and development that might be seen to be ancillary to that use. There were no constraints imposed in the form of minimum lot size upon subdivision, building height or floor space ratio of any new development.
163One of the electricity substations owned by Energy Australia was zoned residential 2(d)(3) under the KPSO while the remaining three sites were the subject of business zoning under the same instrument. A minimum lot size for subdivision of the residentially zoned land applied and all four sites were subject to height and floor space ratio controls.
164State Environmental Planning Policy (Infrastructure) 2007 ( the Infrastructure SEPP ) came into effect on 1 January 2008. It is a detailed planning instrument making provision for 25 types of infrastructure including schools ("educational establishments") and for electricity transmission and distribution facilities. Following the commencement of operation of the Infrastructure SEPP, the Department of Planning issued a Practice Note so as "to provide guidance to councils on zoning public infrastructure land in standard local environmental plans." One of the "principles" identified in the Practice Note was that in formulating new local environmental plans, land on which existing infrastructure was located should generally be zoned in the same manner as is the adjoining land, provided that zone is a "prescribed zone" within the meaning of the infrastructure SEPP that permits that type of infrastructure.
165It was in the context of this Practice Note that the draft Centres LEP as it relates to the school and substation sites came to be prepared. As exhibited, the draft Centres LEP showed each of the school and substation sites to be zoned in the same manner as the immediately adjoining land. Each of Ravenswood College, Corpus Christi College and Masada College were zoned "R4 High Density Residential" while Pymble Ladies College and Roseville College were each zoned "R2 Low Density Residential". The electricity substation at St Ives was zoned "R4 High Density Residential", the substation at Pymble zoned "R3 Medium Density Residential while the substation sites at Turramurra and Lindfield were each zoned "B2 Local Centre", a business zone. Clauses 4.1, 4.3 and 4.4 of the draft instrument imposed minimum subdivision lot size, height controls and floor space ratio control on each of these parcels of land. In each case the primary control was achieved by reference to the manner in which the individual lot or parcel was coloured on a map identified in the respective clauses as a "Lot Size Map", a "Height of Buildings Map" and a "Floor Space Ratio Map". Those maps form part of and were exhibited with the draft Centres LEP.
166Apart from the primary limitation imposed by reference to the respective maps, each of the clauses controlling lot size, height of building and floor space ratio imposed additional limitations which, in the case of building height and floor space ratio related to the site area upon which any proposed development was intended to be undertaken.
167Following exhibition of the draft Centres LEP, submissions were made to the Panel by or on behalf of each of the schools and Energy Australia. All of the schools objected to the proposed residential zonings and requested that their respective sites be the subject of the special purpose zone nominated in the planning instrument as "SP2 Infrastructure". They indicated acceptance of the limitations upon development imposed by the land use table applicable to the SP Infrastructure Zone but did not wish to be subject to the standards for development imposed by cll 4.1, 4.3 and 4.4 of the exhibited draft instrument.
168Energy Australia also sought imposition of the SP2 Infrastructure Zone upon its four sites. It submitted that as there was no present intention to use these sites other than for the purpose of electricity substations, there should be a clear indication given to local residents that these sites would continue to be so used.
169In their May 2009 Report to the Panel, the officers of the Council responsible for its preparation recommended that the zoning of each of the school and substation sites be changed to SP2 Infrastructure. This recommendation was accepted by the Panel and the draft instrument then provided to the Department of Planning reflected that amendment. As a result of the Panel's amendment the respective lot size, height of buildings and floor space ratio maps were amended so as to remove any colour over the SP2 sites indicating that the controls otherwise represented by those maps had been removed.
170Prior to the submission of a report to the Minister under s 69 of the EPA Act, representations were made to the Panel on behalf of the Department of Planning. The Department drew attention to the infrastructure SEPP and the Practice Note to which I have earlier referred. It was indicated on behalf of the Department that the Infrastructure SEPP and Standard Instrument, the latter being the template for all future planning instruments, "are to be implemented State-wide with the consequence that the zoning of school sites is intended to conform with the requirements of the practice note" in that school sites should generally be zoned conformably with the zoning on adjoining land.
171The panel acceded to this submission from the Department of Planning. The report prepared under s 69 by the Panel as delegate of the Director-General and submitted to the Minister in December 2009 attached the draft Centres LEP with the zoning of the school sites and substation sites showing the residential and business zoning that had applied to them at the time of exhibition of the draft instrument. While the land zoning map pertaining to each parcel of land maintained the exhibited zoning, the lot size, height of buildings and floor space ratio maps left each of the sites uncoloured.
172Relevant to all the sites in question, this is the form in which the Centres LEP was made by the Minister in May 2010. In the result, the controls on lot size, building height and floor space differed markedly from that which had been the subject of public exhibition. The extent of difference needs to be understood in the context of each of the three relevant controls.
173Part 4 of the Centres LEP is headed "Principal Development Standards". Clause 4.1 addresses minimum subdivision lot size. However 4.1(2) provides that the -
"clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan."
The Lot Size Map for each Town Centre area identifies different minimum lot sizes according to the manner in which land is coloured on the map. There is no minimum of size indicated for land that is uncoloured on the map. As a consequence, there is presently no specified control on the minimum lot size for subdivision of any of the school or substation sites.
174Under the exhibited draft Centres LEP the minimum lot size for subdivision of Ravenswood College, Corpus Christie College and Masada College at St Ives was 1200 square metres. The minimum lot size for Pymble Ladies College and Roseville College sites was 930 square metres.
175Clause 4.3 of the Centres LEP made provision for the height of buildings. By subclause (2) it was provided that -
"The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
176Again, the relevant map for each town centre area indicated by colours the maximum building height for land within that area. No maximum building height was identified for land that was uncoloured. While subclause (2A) identified a maximum height of building on land zoned R4 High Density residential, it did so in respect of land having an area of less than 2,400 square metres. It is accepted that with the exception of one of the electricity substation sites, all other sites in question exceed 2,400 square metres in area. The consequence is that there is no present height control on building on those sites.
177Under the exhibited draft Centres LEP the building height maps showed that the maximum building height for the Ravenswood College, Corpus Christi College and Masada College sites was 17.5 metres or 5 storeys while for the Pymble Ladies College and Roseville College sites it was 9.5 metres or 2 storeys.
178Clause 4.4 of the Centres LEP made provision for floor space ratio controls. By subclause (2) the maximum floor space ratio for a building was not to exceed the floor space ratio shown for the land on the floor space ratio map. Following the pattern of plan marking earlier described, ratios were expressed only for those lands coloured by distinctive colouring. No maximum was stipulated by reference to the legend on the map for uncoloured land. However, subclauses (2A) and (2B) have the potential to impose a floor space control in respect of some of the sites presently being considered. Subclause (2A) operates by way of exception to the limitations imposed by the map, indicating that in respect of land zoned R2 Low Density Residential, where a site exceeded 1700 square metres then the floor space ratio is 0.3:1. That floor space control 0.3:1 does apply to the Pymble Ladies College and Roseville College sites.
179Subclause (2B) of cl 4.4 of the Centres LEP imposed a maximum floor space ratio for development on land in the R4 High Density Residential zone. However, the restriction contained in that subclause only extended to sites that were less than 2,400 square metres in area. Each of the Ravenswood College, Corpus Christi College and Masada College sites exceeded that area so that although zoned R4 High Density Residential there was no floor space control imposed upon them.
180The floor space ratio map forming part of the exhibited draft Centres LEP then needs to be noticed. For the Pymble Ladies College and Roseville College sites, the map indicated a maximum floor space ratio of 0.3:1 with the result that the control is unchanged in the instrument as made. In respect of the Ravenswood College, Corpus Christi College and Masada College sites, the maximum floor space ratio indicated by the map was 1.3:1.
181In focusing upon the differences in the controls operating upon the private school sites, I do not overlook the impact upon the electricity substation sites. Development upon the latter sites is unconstrained by reason of their being uncoloured on the relevant maps and also because the qualifications expressed both as to height and floor space in Pt 4 of the Centres LEP does not operate in respect of two of the four sites that are zoned B2 Local Centre or the site that is zoned R3 Medium Density Residential. The evidence does not establish whether the fourth substation site at St Ives that is zoned R4 High Density Residential was of an area that would attract the floor space ratio limitation imposed by cl 4.4(2B).
182As will be apparent from the location indicated for each of the school and substation sites, they are spread among the six town centre areas that are the subject of the Centres LEP. Moreover, the sites, particularly the school sites, are large sites that, ownership aside, have potential for significantly increased development conformable with the land use and development controls, such as they are, presently applying to them.
183It is noteworthy that when making a submission to the Department of Planning, seeking to justify the imposition of the SP2 Infrastructure zone for all of these sites, the Council's Director of Strategy considered that the school sites were "large complexes or strategic sites" within the meaning of the description used in the Practice Note to which I have earlier referred. When responding to that submission, the author of the Department of Planning's representations took issue with the submission that the school sites were large complexes or strategic sites within the meaning of the Practice Note, although it was acknowledged that some of the sites covered "relatively large land areas and are important in the context of local economic activity". These statements give some force to the submission that the sites were important and therefore the amendment to planning controls in respect of them significant in the context of the Centres LEP.
184The Minister recognised the potential significance of the alterations between draft instrument and the instrument ultimately made by reason of the matters presently being considered. However, the submission made on his behalf is that the omission of the development controls I have identified from the school and substation sites is "so patently absurd" that it must manifest a mistake which would be apparent. Indeed, it is urged that because the Centres LEP, as made, fails to give effect to the intentions of those who prepared it that its literal meaning "should be departed from to give effect to that intention." Reliance is placed upon the judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation where their Honours said (at 321):
" ...when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."
185Reliance is also placed upon observations to similar effect by members of the High Court in Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 259 ALR 595. In the joint judgment of French CJ and Bell J, their Honours stated that an irrational result from the interpretation of legislation may be avoided by departure from the literal or natural and ordinary meaning of the text (at [9]). Their Honours continued:
"The limits of the judicial role, as pointed out by Lord Nicholls, require that the courts 'abstain from any course which might have the appearance of judicial legislation'. Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of 'crucial importance'. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation."
186While these statements of principle are relevant to the interpretation of legislative provisions, they must, in my opinion, be applied with some caution if, as the Minister seeks to do, reliance is to be placed on the history of amendment that I have recited. A consideration of the provisions of the Centres LEP, when applied to the subject sites, do not necessarily speak of irrationality. As the cases cited on behalf of the Minister state, the starting point for application of the principles to which they direct attention is the language of the statute or statutory instrument itself.
187It is to be remembered that the sites in question are all large sites. The Centres LEP is not a municipality wide local environmental plan but rather one confined to the environs of the six centres to which it applies. The school sites together with some of the substation sites are, in the context of the lands that are the subject of the Centres LEP, significant in size. It does not seem to me therefore to be wholly irrational to contemplate that a large parcel of land, identified by the fact that it is uncoloured on the development standards maps, should not have those controls imposed upon them, allowing, by reason of their size, greater latitude of allotment size, building height or floor space ratio than is applicable to other land holdings. While an endeavour is often made to give practical effect to a planning instrument when its operation is unclear ( Hecar Investments No 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322) that practical effect needs to be consistent with the language of the planning instrument. Also to be borne in mind, in the context of a submission that an absurd result is achieved by the manner in which the Centres LEP operates in respect of the subject sites, is the observation by Tobias JA in Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104 (at [25]) that "any attempt to always find planning logic in planning instruments is generally a barren exercise". His Honour's observation has since been embraced more than once (see, for example, Cranbrook School v Woollahra Council [2006] NSWCA 155; (2006) 66 NSWLR 379 per McColl JA at [62].
188The Minister submits that the failure to reinstate the control upon development on the school and substation sites should be apparent from the report prepared on behalf of the Panel pursuant to s 69. It requested the making of the instrument, indicating its desire to comply with the Practice Note as the reason for reverting to the exhibited zoning. No reason was given for failing to reapply the development controls by recolouring the relevant maps. He also contends that there were no submissions received by the Panel seeking to have the development controls removed. Their removal was only contemplated in the context of the land being rezoned to the SP2 Infrastructure zone.
189I accept that no submission was made to the Panel as to the imposition of development standards if residential and business zonings were to be maintained for the sites. However, it seems to me that the prime purpose of maintaining these zonings was to comply with the Practice Note. It was the submission from the Department of Planning which appears to have prevailed upon the Panel to maintain the advertised zones. As I read it, the Practice Note is directed to achieving land use controls upon existing infrastructure sites that are consistent with those land use controls applicable to adjoining land. It is, in general terms, land use to which a zoning is directed. Development controls or standards are ordinarily directed to the quantitative or qualitative aspects of land use that is otherwise permissible in a particular zone. The Practice Note is silent upon the imposition of those development controls.
190Indeed, it would usually be the case that sites used or intended to be used for schools would be larger in area than those allotments or parcels of land surrounding it, at least in an urban context. As I have earlier suggested, it would not appear to me to be "absurd" or to bespeak obvious error to contemplate the absence of such controls for large sites, affording greater discretion to the consent authority when contemplating the grant of consent for permissible development. An endeavour to achieve removal of building height and floor space constraints at a prescriptive level cannot be dismissed as matters informing the submission made to the Panel on behalf of the schools in the present case when seeking imposition of the SP1 Infrastructure zone. By way of example, submissions made to the Panel on behalf of both Pymble Ladies College and Ravenswood College indicated as much in terms.
191The Minister also submits that error is apparent having regard to the objects stated in cl 1.2 of the Centres LEP and the objectives of Pt 4 of the instrument which, as I have earlier indicated, identifies the "principal development standards". The aims of the Centres LEP are expressed in cl 1.2(2) in the following terms -
"(2) The particular aims of this Plan are as follows:
(a) to establish a hierarchy of centres for Ku-ring-gai,
(b) to facilitate the development of the centres to enhance Ku-ring-gai's economic role and cater to the retail and commercial needs of the local community,
(c) to provide a variety of housing choice within and adjacent to the centres,
(d) to protect, enhance and manage land having special aesthetic, ecological, social, cultural or conservation values for the benefit of present and future generations."
These aims are expressed at such a level of generality that, read objectively, they could not identify the error which the Minister claims is apparent from them.
192Each of the provisions of Pt 4 of the Centres LEP directed to subdivision lot size, height of buildings and floor space ratio commence with the expression of an objective that each provision is intended to achieve. I do not quote those objectives but suffice to note that a consideration of them again reveals that they are each expressed at a level of generality such that they would not identify to the objective reader apparent error by the omission of the controls upon the subject sites that they otherwise seek to impose.
193Contrary to the submission made on behalf of the Minister, for the reasons that I have indicated, the three matters identified in the passage earlier quoted from the joint judgment of French CJ and Bell J in SZHGV as necessary to be satisfied before interpreting the instrument in a way that does not reflect its terms have not been established. To do as the Minister seeks to do would, to my mind, give the appearance of imposing judicial legislation rather than embarking upon a course of interpretation.
194In the result, the Centres LEP should be interpreted according to the terms in which it was made. It should not be interpreted as if the omission is so potent that the standards imposed by Pt 4 of the instrument should be applied as if the relevant maps were coloured in the manner shown on the maps exhibited with the draft instrument. This has the consequence that there is a difference of significance between the draft Centres LEP as exhibited and the Centres LEP as made.
195Against the possibility that I determined this issue as I have, the Minister nonetheless submits that the Centres LEP should not be seen as "quite a different instrument" from the exhibited draft Centres LEP. He points to a number of matters that support this proposition. They are, in summary:
(i) some of the development controls may still apply to some of the sites;
(ii) other than for exempt or complying development, any development on the sites will require the grant of development consent thereby invoking those discretionary considerations applicable to the determination of such an application under the EPA Act;
(iii) the Ku-ring-gai Development Control Plan (Town Centres) 2010 ( the DCP ) will apply, pursuant to which a number of matters controlling development will need to be considered; and
(iv) the Centres LEP itself in cl 4.6 provided a discretion to impose heights different from those that were the subject of the specific controls.
196When considering the Minister's submission, it is necessary to keep firmly in mind that, in the context of the residential and business zones applicable to the subject sites, the identity of the present owners and the particular form of their present use is irrelevant. It is the manner in which each of the draft Centres LEP and the Centres LEP, as made, sought to regulate development upon the sites that is important to be noticed.
197A comprehensive response to the Minister's submission is, I believe, appropriate to be given. The reader of the exhibited draft Centres LEP would recognise that permissible development of the sites in accordance with the respective zoning tables was subject to the prescriptive controls expressed in Pt 4 of the draft instrument. So understood, those controls would inform any submission that the reader might seek to make to the Panel consequent upon exhibition. The interested reader may also have become aware that other discretionary considerations would apply in a given case but the primary prescriptive control remained central to the consideration of those provisions.
198The removal of that prescriptive control from the Centres LEP, as made, has a different legal and practical consequence from that which would flow from the draft. To apply the observations of Priestley JA in Leichhardt No 2 (at 88), "it made the planning law substantially different" from that which had been the subject of public exhibition (cf Bryan v Lane Cove Council at [22]). This substantial difference was not alleviated by the fact that other discretionary considerations may be invoked to achieve a result that mollifies the absence of those prescriptive controls.
199The DCP provides an example supporting this conclusion. It commenced, not at the time of making of the Centres LEP, but some two weeks later. The Centres LEP does not, in terms, identify any of its provisions as being dependent for their operation and effect upon a development control plan. The development control plan addresses aspects of particular forms of development but not those directly addressed in Pt 4 of the Centres LEP. Moreover, the matters to be addressed in accordance with the provisions of the DCP do not impose the same constraint upon development as do the prescriptive requirements of the statutory instrument itself ( Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [74] - [75]).
200Clause 4.6 of the Centres LEP does afford a discretion to the consent authority to vary the relevant prescriptive controls imposed by Pt 4. The provisions of that clause are expressed in terms almost identical to those found in State Environmental Planning Policy No 1- Development Standards a policy that is expressly excluded by cl 1.9 as operating in respect of the land to which the Centres LEP applies. The provisions of cl 4.6 impose a layer of control that considerably constrains the capacity to achieve any exceedance of the prescribed standard ( Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 at [36] ff). The existence of this provision in the draft Centres LEP does not, to my mind, detract from the significant difference between the exhibited draft instrument as proposed to apply to the subject sites and the manner in which the Centres LEP now operates in relation to permissible development on those same sites. I will consider in due course the consequence of this difference for the validity of the Centres LEP.