(a) identified "a building or place" having a specified use or purpose;
(b) specified an activity, or
(c) identified a particular "land use".
21 The significance of the various forms of definition must be assessed bearing in mind the purpose of the Hastings LEP, which is to give effect to planning controls in respect of "development" as defined in the EP&A Act, s 4(1) and (2). Planning control is undertaken by reference to specific parcels of land. The term "development" includes any use of land and any change in the use of land. Land includes a building erected on land: EP&A Act, s 4(1), land (d). If a shop were defined only by reference to a "building", it might not include all land used for retail sale of goods or merchandise. However, the inclusion of the word "place" in the definition would extend the definition to cover any land or part of the land on which the specified activity took place.
22 To the extent that another definition relates to a building or place as opposed to a defined land use, the first limb of the proviso would operate; to the extent that the other definition does not relate to a building or place, but otherwise specifically defines a land use, the second limb of the proviso would operate. Because the term "general store" is defined as "a shop" it picks up the definition of "shop" in the Dictionary which in turn refers to a building or place. To the extent that the definition of "general store" specifies a land use, it does so by reference to a shop "used for the sale by retail of general merchandise". Accordingly, a "general store" would appear, subject to what follows, to fall within both limbs of the proviso to the definition of "shop".
23 The final textual issue identified in respect of the definition of shop was the use of the term "specifically" in the proviso. It was noted in the course of argument that some defined terms had a proviso in similar form (commercial premises), whilst others omitted the word "specifically" in the provisos to their definitions (see community facility and depot).
24 Although variations in drafting must be acknowledged, there is no evident purpose to them. In particular, there is no practical reason why a general store should not fall within the concept of a building or place or a land use elsewhere "specifically" defined, merely because it uses the term "shop" in its own definition.
Contextual matters
25 The appellant relies not only on the issues of construction addressed above, but also on contextual matters, to contend that the definition of "shop" found in the Dictionary does not operate in the table to cl 9 because the context and subject-matter indicate otherwise.
26 The primary contextual matter relied upon by the appellant was that if general stores were not excluded as prohibited developments within zone 4(b), an anomaly would arise because all other "shops" were prohibited developments other than those identified in Schedule 2, namely delicatessens, newsagencies and take-away food shops. The existence of such an anomaly was said to give rise to a contextual indication that the standard definition of "shop" should not operate in relation to zone 4(b).
27 The construction of an environmental planning instrument, as with a statute, is not to be undertaken in isolation from the context "internal to the legislative scheme, in which the words must be construed": see Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; 48 NSWLR 548 at [106]-[107] (Spigelman CJ, Handley JA agreeing), relying, at [108] on the principles stated by Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315. No reference to extraneous general law principles is, in any event, required in the present case because the propriety of looking to context and subject matter to determine whether the definition in the Dictionary is to be applied is expressly mandated by cl 6(1). In this context, the appellant's reliance upon apparent anomalies should be understood as an indication of an intention that the definition not apply.
28 The appellant submitted that it was only where, as in the table for zone 4(b), a prohibition operated with respect to "shops (other than those referred to in Schedule 2)" that an indication was to be found excluding the definition of "shop" found in the Dictionary. The definition of "shop" had operation in relation to the table to cl 9 where it was used without qualification by reference to Schedule 2. Had the definition of shop no such operation in relation to the table, it would have been difficult to place reliance upon supposed anomalies in its operation, in circumstances where the proviso to the definition expressly operated only with respect to the table to cl 9.
29 There are four cumulative reasons for rejecting this interpretation. The first arises from the structure of the Hastings LEP and, in particular, the use of the Dictionary. Where the Dictionary identifies a genus, such as "shop" or "commercial premises" the proviso, in each case operating in relation to a use of the term in the table to cl 9, removes other defined buildings, places or uses from the generic definitions. It thus isolates the specific definitions and gives them a separate operation.
30 Secondly, the operation of the generic definitions, with their provisos, allows an understanding as to the purpose of Schedule 2: each of the uses which Schedule 2 identifies is undefined in the Dictionary. Arguably each of those uses may be seen as a minor departure from the overall objective of a particular zoning, and as promoting a facility which the public may expect to find in many zones.
31 Thirdly, the anomaly identified by the appellant should also have existed with respect to commercial premises. Prohibited development in zone 4(b) included "commercial premises (other than those referred to in Schedule 2)". Schedule 2 contained six items, of which all were properly identified as commercial premises, but three of which were also shops. If the table clearly included commercial premises otherwise specifically defined in the Dictionary, the appellant's argument in relation to shops was greatly undermined, unless it could distinguish the approach taken in the Dictionary in relation to shops from that in relation to commercial premises. Apart from the semantic point (discussed above) that the definition of general store was undertaken by reference to the genus of shop, a drafting device which appeared to have no distinguishing purpose, that distinction was hard to maintain. Furthermore, one of the prohibited developments in zone 4(b) was "neighbourhood centres", itself a term defined in the Dictionary, the substance of the definition being "an integrated development containing shops and commercial premises which served the local community and are limited in scale …". Other forms of anomaly would arise if the definitions of "shop" and "commercial premises" operated differentially within the table to one zone, which expressly identified as a prohibited development, neighbourhood centres.
32 Fourthly, the limited purpose of Schedule 2, noted above, and its intended operation in conjunction with the provisos to the definitions of generic uses, will be confirmed if the uses excluded by the provisos are also to be found expressly listed in the table to cl 9. In fact, that is confirmed by the table for zone 4(b). The definition of commercial premises is "a building or place used as an office or for other business or commercial purposes", followed by a proviso in similar terms to that in relation to the definition of shop. Commercial premises (like shops) are prohibited development in zone 4(b), other than those in Schedule 2. It seems likely, however, that hotels, junkyards, liquid fuel depots and neighbourhood centres would all fall within the broad definition of commercial premises. Nevertheless, each has a specific definition in the Dictionary and each is expressly identified amongst the prohibited developments in relation to zone 4(b). Further, roadside stalls, which are also specifically listed in the table to cl 9 for zone 4(b), would also appear to fall within the generic definitions of both commercial premises and shops, but are separately defined. The inclusion of each of these uses is only explicable if the provisos to the definitions of shops and commercial premises each operate despite the qualification in relation to Schedule 2. Indeed, shops themselves would appear to fall within the definition of commercial premises and should therefore not be separately listed (as they are) in the table for zone 4(b), were the proviso in respect of commercial premises not to operate.
33 These examples can be expanded by reference to other zones. The aforementioned are sufficient, however, to demonstrate that a reference to either shops or commercial premises in the table to cl 9, whether or not in combination with an exception referring to Schedule 2, involves the application of the proviso in each case. Thus, what is said to be an anomaly, is found to be no more than the reflection of a view that permitting a delicatessen, newsagency or take-away food shop, but prohibiting all other forms of shop, is inconsistent with allowing a general store to be a permissible use. That was a decision to be made by the Council: to abandon the proviso to the definition where reference is made to Schedule 2 in the table is to rewrite the Hastings LEP in order to give it a different operation from that which, in its terms, it has.
34 While it is not clear that any true anomaly has been identified in the operation of the Hastings LEP, if it had, the proper course would have been, as submitted by the respondent, to treat the anomaly as raising a reason for inquiry as to whether the definition applied or not. Even the existence of an anomaly would not necessarily demonstrate an intention that the definition not apply.
35 Furthermore, and despite the terms of cl 6(1), it is appropriate to exercise caution before identifying an intention that a definition not apply. The purpose of a Dictionary is to delineate the circumstances in which particular provisions operate, by the use of defined terms. A planning instrument is intended to apply to almost every conceivable proposed use and change in use of land within its boundaries. If possible, it should be construed in a way which renders it accessible to the general public, as well as members and officers of consent authorities. Generally speaking, that purpose will be promoted by giving effect to the definitions of defined terms. It is likely to be undermined by the finding of an intention that a definition not apply, not because of any express statement to that effect, but by a process of construction. Further, the more abstruse and complex the arguments in favour of such a construction, the greater the departure from the purpose of transparency and ease of application.
36 Next, it was submitted by the appellant that to allow general stores to be built in zone 4(b) areas would be inconsistent with one objective of such zones which was to allow light industrial and related service land uses "without unduly detracting from the retail strength of existing business districts": objective (b). It was submitted that to permit a supermarket in such a zone would inevitably detract from the retail strength of existing business districts and could not, therefore, have been intended.
37 Finally, it was noted that "neighbourhood centres" were prohibited in zone 4(b). A neighbourhood centre is defined as "an integrated development containing shops and commercial premises which serve the local community and are limited in scale …". In one sense, the exclusion of neighbourhood centres is consistent with the exclusion of shops. On the other hand, even a development containing shops and commercial premises which was limited in scale was prohibited, implying that the purpose of the prohibition would apply with added weight in the case of a large-scale development such as a supermarket.
38 The difficulty with each of these contextual propositions is that it seeks to identify a logical and coherent theme underlying various zoning provisions. Sometimes such an argument will have weight; in the present case, there is no clear or coherent policy which would provide a basis for the appellant's underlying proposition.
39 The importance of reading a definition in the context of the planning instrument, considered as a whole, may be conceded: see Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 at [36] (McColl JA, Beazley JA agreeing). However, it has also been said with some justification that a search for logic and consistency within planning instruments is often doomed to fail. As has been explained by Tobias JA, to seek "planning logic in planning instruments is generally a barren exercise": Calleja v Botany Bay City Council [2005] NSWCA 337; 142 LGERA 104 at [25]. Why one use is permissible and another similar use is prohibited will often be a matter of speculation. Where the language used has an identifiable meaning, that meaning should not be set aside by an attempt to impose logical consistency. Thus, the shops which are clearly not prohibited development include delicatessens, newsagencies and take-away food shops. (Each is identified in Schedule 2.) Separately, the zoning table prohibits roadside stalls, which might otherwise fall within the definition of "shop". It may be conceded that there is no obvious logic in permitting a general store, but not other forms of shop. Nevertheless, the promotion of logic and consistency provides no sound basis for a court to rewrite a planning instrument.