Jeffrey v Canterbury Bankstown Council

The proposed development and the planning law framework

1. Ms Jeffrey proposes to carry out minor internal building works to and change the use of a former shop in an existing building at 605 Canterbury Road, Belmore (the land). The land is zoned R4 - High Density Residential under the Canterbury Local Environmental Plan 2012 (CLEP). The objectives of Zone R4 are threefold, but only the third objective is of relevance to the proposed funeral home: "To enable other land uses that provide facilities or services to meet the day to day needs of residents".
2. The Land Use Table for Zone R4 specifies that development for the purpose of "business premises" is permitted with consent: cl 2.3(1) and the Land Use Table. "Business premises" is defined in the Dictionary to CLEP to include a "funeral home". On this appeal, there is no challenge to the proposed development being classified as a funeral home.
3. Clause 2.3(1) and the Land Use Table are subject to the other provisions of CLEP: cl 2.3(4). One such provision is cl 6.5 of CLEP. That clause restricts the grant of development consent for certain commercial premises in residential zones. It is the clause that fixes the development standard that the proposed development contravenes. Clause 6.5 applies to three residential zones, including Zone R4: cl 6.5(2).
4. The objective of the clause as a whole is stated in subclause (1): "The objective of this clause is to provide for the adaptive reuse of existing buildings and sites for business premises, office premises, restaurants or cafes and shops in certain residential zones."
5. Subclause (3) restricts the grant of development consent to certain development unless three requirements are met: "Development consent must not be granted to development for the purposes of business premises, office premises, restaurants or cafes, or shops on land to which this clause applies unless - (a) the development is in, or will replace, a building that was, at the time of its erection, designed, constructed and used for the purpose of a shop (with or without a dwelling), and (b) the gross floor area of the development will not exceed 100 square metres, and (c) the consent authority has considered the following - (i) whether the development will adversely affect the amenity of the surrounding locality, (ii) the suitability of the building or land for adaptive reuse, (iii) the degree of any modification of the footprint or façade of the building."
6. The Acting Commissioner found that paragraph (b) fixes a development standard regulating the carrying out of development, rather than imposing a prohibition on the carrying out of development: at [87]. The Council did not cross appeal or file a notice of contention against this finding. This appeal proceeds on the basis that cl 6.5(3)(b) does fix a development standard.
7. The proposed development contravenes the development standard. The gross floor area of the proposed funeral home, excluding carparking areas, is 365.5sqm. This exceeds the maximum gross floor area fixed by the development standard of 100sqm by 265.5sqm.
8. Development consent cannot be granted to development that contravenes a development standard unless the consent authority considers and is satisfied about a written request from the applicant that seeks to justify the contravention of the development standard, in accordance with cl 4.6 of CLEP.
9. Ms Jeffrey provided, immediately before and again at the hearing of the appeal, a written request under cl 4.6 of CLEP that sought to justify the contravention of the development standard. This was the written request entitled "Clause 4.6 Variation Statement" dated 7 October 2020 prepared by Planning Ingenuity. This written request: 1. described the proposed variation of the development standard (section 2); 2. set out the objectives and provisions of cl 4.6 (section 3); 3. sought to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as required by cl 4.6(3)(a) (section 4); 4. sought to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard, as required by cl 4.6(3)(b) (section 5); 5. sought to satisfy the Court that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), as required by cl 4.6(4)(a)(i) (section 6); 6. sought to satisfy the Court that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, as required by cl 4.6(4)(a)(ii) (section 7); and 7. explained why the concurrence of the Planning Secretary can be assumed to have been obtained, as required by cl 4.6(4)(b) (section 8).

The first ground: misconstruction of the objective of the development standard

1. The objective of the development standard in cl 6.5(3)(b) of CLEP needed to be ascertained for two reasons. First, the written request seeking to justify the contravention of the development standard needed to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: cl 4.6(3)(a). The written request sought to do this, in section 4, in only one way. This was the first way identified in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) at [42]-[43] and confirmed in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [17], of establishing that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding noncompliance with the development standard.
2. Whilst cl 6.5(1) does specify "the objective of this clause", it does not expressly specify an objective of the development standard fixed in cl 6.5(3)(b). The objective of the development standard therefore needs to be discerned from a proper construction of the text of the provision fixing the development standard and the context of that provision.
3. The applicant's written request undertook this exercise, suggesting that: "The assumed objective of this development standard is to limit the scale of commercial premises in certain residential zones (including Zone R4), to promote higher density - mainly - residential land uses" (p 9).
4. The written request used this "assumed objective of this development standard" to demonstrate that, first, compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because this assumed objective of the development standard is achieved notwithstanding noncompliance with the development standard (the requirement in cl 4.6(3)(a)) and, secondly, the proposed development would be in the public interest because it is consistent with the assumed objective of the development standard (the requirement in cl 4.6(4)(a)(ii)).
5. Ms Jeffrey's counsel, in closing submissions at the hearing before the Acting Commissioner, advanced an alternative objective of the development standard, of minimising the adverse effect of certain commercial development, such as business premises, on the amenity of the surrounding locality: see summary in [94] of the Acting Commissioner's judgment. This objective was not one advanced in the applicant's written request, but only in closing submissions at the hearing of the appeal.
6. The Acting Commissioner addressed both of the objectives of the development standard advanced by Ms Jeffrey, accepting the assumed objective advanced in the written request (see [92]-[93], [95]) and rejecting the alternative objective advanced in closing submissions (at [95], [96]). The Acting Commissioner found, however, that the written request did not adequately address this assumed objective of the development standard, neither establishing that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the proposed development would achieve this assumed objective nor establishing that the proposed development is consistent with this assumed objective (at [97]-[101]).
7. Ms Jeffrey contends that the Acing Commissioner erred in accepting as the objective of the development standard the assumed objective that had been advanced in the applicant's written request. She argued that the objective of the development standard is simply that stated as the objective of the clause in cl 6.5(1) or, alternatively, is that advanced in closing submissions of minimising the adverse effect of development on the amenity of the surrounding locality.
8. The Council rejected Ms Jeffrey's argument, submitting that the Acting Commissioner was correct in his construction of the objective of the development standard.
9. I reject Ms Jeffrey's argument. The objective of the clause, stated in cl 6.5(1), is not the objective of the development standard fixed by cl 6.5(3)(b), for three reasons.
10. First, in its terms, cl 6.5(1) states only that it is "the objective of this clause", not that it is the objective of the particular provision, cl 6.5(3)(b), fixing the development standard.
11. Secondly, cl 6.5 does more work than only fix the development standard. The clause specifies the residential zones to which it applies (cl 6.5(2)) and the purposes of development for which the clause specifies development consent must not be granted unless certain requirements are met (cl 6.5(3)). The clause requires that development consent must not be granted to such development unless: that development "is in, or will replace, a building that was, at the time of its erection, designed, constructed and used for the purposes of a shop (with or without a dwelling)" (cl 6.(3)(a)); the development meets the development standard in respect of an aspect of that development, being that "the gross floor area of the development will not exceed 100 square metres" (cl 6.5(3)(b)); and the consent authority has considered the three matters in cl 6.5(3)(c)(i) to (iii).
12. Once it is understood that the clause does all of these different types of work, the statement of the objective of the clause at a high level of generality makes sense. The objective needs to be expressed in overarching terms in order to bring within its ambit all of the different matters that the clause provides for.
13. Thirdly, the stated objective of the clause is uninformative regarding the objective of the development standard fixed by cl 6.5(3)(b). The objective of the clause only refers to the type of development, "the adaptive reuse of existing buildings for business premises…", not how that type of development is to be carried out, which is what a development standard does. A development standard is defined in s 1.4(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) to be a provision of an environmental planning instrument, such as CLEP, "in relation to the carrying out of development, being provisions by or under which requirements are specified or requirements are fixed in respect of any aspect of that development", including requirements or standards in respect of the "cubic content or floorspace of a building". The development standard in cl 6.5(3)(b) is in respect of this aspect of development of the gross floor area of the development. To say, as cl 6.5(1) says, that the clause provides for a particular type of development does not assist in understanding what is the objective of the particular development standard fixed by cl 6.5(3)(b) in relation to the carrying out of that type of development.
14. The Acting Commissioner did not err, therefore, in finding that the objective of the development standard fixed by cl 6.5(3)(b) is not the objective of the clause stated in cl 6.5(1).
15. The Acting Commissioner also did not err in rejecting Ms Jeffrey's submission that the implied objective of the development standard was not the assumed objective advanced in the applicant's written request seeking to justify the contravention of the development standard, but instead was the objective advanced by her counsel in closing submissions of minimising the adverse effect of a development on the amenity of the surrounding locality. My reasons differ depending on how the Acting Commissioner needed to consider the objective of the development standard.
16. The objective of the development standard was firstly relevant because the written request sought to demonstrate the matter in cl 4.6(3)(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the development would achieve the objective of the development standard. The Acting Commissioner was required by cl 4.6(4)(a)(i) to be satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), one of which is that in cl 4.6(3)(a). To do this, the Acting Commissioner had to consider the applicant's written request that sought to justify the contravention of the development standard (cl 4.6(3)(a)) and evaluate whether the applicant's written request has not only adequately addressed the matters required to be demonstrated by cl 4.6(3) but also "demonstrated" these matters (cl 4.6(4)(a)(i)): RebelMH Neutral Bay Ltd v North Sydney Council [2019] NSWCA 130 at [50], [51].
17. As I have noted, the applicant's written request in this case sought to demonstrate the matter in cl 4.6(3)(a) by arguing that the development would achieve the assumed objective of the development standard advanced in the written request. The Acting Commissioner was required to consider that written request and evaluate whether it adequately addressed and demonstrated the matter in cl 4.6(3)(a). The Acting Commissioner found that he was not satisfied that the written request had done so; the written request did not demonstrate that the assumed objective of the development standard would be achieved by the development notwithstanding that the development contravened the development standard.
18. There can be no error on a question of law in the Acting Commissioner so considering the applicant's written request and finding that he was not satisfied that it adequately addressed one of the matters required to be demonstrated by cl 4.6(3). It matters not whether the applicant's written request was correct or incorrect in identifying the objective of the development standard as the assumed objective advanced in the applicant's written request. That was the way in which the written request sought to justify the contravention of the development standard by demonstrating that compliance with the development standard was unreasonable or unnecessary in the circumstances of the case. The Acting Commissioner was obliged to consider the applicant's written request as made.
19. The objective of the development standard was secondly relevant because the Acting Commissioner was required by cl 4.6(4)(a)(ii) to be satisfied that the proposed development will be in the public interest because it is consistent with the objective of the development standard. In terms, cl 4.6(4)(a)(ii) does not require the consent authority, in deciding whether or not it is satisfied, to consider the applicant's written request. Nevertheless, consideration of the applicant's written request is required by cl 4.6(3) and that consideration will inform the consent authority's decision on whether or not it is satisfied of the matter in cl 4.6(4)(a)(ii). Put the other way around, it cannot be said that the applicant's written request is an irrelevant matter that the consent authority is bound to ignore in deciding whether or not it is satisfied of the matter in cl 4.6(4)(a)(ii).
20. In this circumstance, the Acting Commissioner did not err on a question of law in considering the applicant's written request that had identified as the objective of the development standard fixed by cl 6.5(3)(b) the assumed objective advanced in the written request. The Acting Commissioner accepted this assumed objective to be the objective of the development standard in deciding that the proposed development would not be in the public interest because it is not consistent with the assumed objective of the development standard. The Acting Commissioner did not err on a question of law in doing so.
21. In any event, I do not consider that the Acting Commissioner erred in rejecting the applicant's closing submission that the objective of the development standard was to minimise the adverse effect of the development on the amenity of the surrounding locality, for the reasons given by the Acting Commissioner in [95] and [96] of his judgment. Any adverse effect that the development will have on the amenity of the surrounding locality is a relevant matter that the consent authority is bound to consider before granting development consent to the development, by cl 6.5(3)(c)(i). That is a separate requirement to the development standard fixed by cl 6.5(3)(b). The two provisions have different work to do. The former provision (cl 6.5(3)(c)(i)) is neither expressed to be, nor can be implied to be, the objective of the latter provision (cl 6.5(3)(b)).
22. For these reasons, I reject the first ground. The Acting Commissioner did not err on a question of law in his construction and application of the objective of the development standard.

The second ground: misconstruction of the objective of the zone

1. Clause 4.6(4)(a)(ii) of CLEP requires the consent authority to be satisfied that the proposed development will be in the public interest not only because it is consistent with the objective of the particular development standard but also because it is consistent with the objectives for development within the zone in which the development is proposed to be carried out. In this case, the proposed development is to be carried out in Zone R4. The relevant objective of this zone is "to enable other land uses that provide facilities or services to meet the day to day needs of residents." The proposed funeral home, being one type of business premises, is one of the "other land uses" and will "provide facilities or services" to meet the "needs of residents". That much was accepted by the parties before the Acting Commissioner. What was in contest was whether the facilities and services that the proposed funeral home will provide will meet "the day to day needs of residents".
2. The Acting Commissioner construed this phrase restrictively. He found that "day to day needs" are "those needs which arise for the majority of persons on a regular basis. To insert that definition into the objective of the zone here, the objective refers to a land use that provides facilities or services which the majority of the persons in the R4 zone will need on a regular basis": at [121]. The Acting Commissioner adopted this construction of the objective of Zone R4 by following the construction that had been given by a Commissioner of the definition of "neighbourhood shop" in Altz Pty Ltd v Shellharbour City Council [2014] NSWLEC 1228 (Altz).
3. "Neighbourhood shop" was defined to mean "premises used for the purposes of selling general merchandise such as foodstuffs, personal care products, newspapers and the like to provide for the day-to-day needs of people who live or work in the local area, and may include ancillary services such as a post office, bank or dry cleaning, but does not include neighbourhood supermarkets or restricted premises". The Commissioner in Altz said at [52] and [53]: "The second component of the definition is the requirement that the general merchandise be sold to provide for the day-to-day needs of people. Based on the definition, foodstuffs, personal care products and newspapers are all examples of merchandise that are sold to meet day-to-day needs. The vast majority of the merchandise on the indicative list of products to be sold is merchandise that is sold to meet day-to-day needs. I agree with Ms Duggan that it is necessary to be careful in the use of dictionary definitions (House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498). If the meaning of "day-to-day" adopted by Ms Irish is used, that is "happening every day", then some confusion could exist. In the context of the definition, the words must mean that general merchandise does not have to be purchased and consumed every day by every person but that it is general merchandise that could be purchased and consumed by the majority of persons on a regular basis. For example, bread and milk must be regarded as "day-to-day" merchandise but it does not mean that these products need to be purchased or consumed every day by everyone. I accept the submission of Ms Duggan that prescription drugs (and other merchandise in par 14) are merchandise that are sold to meet day-to-day needs."
4. The Acting Commissioner in this case, following this construction of "day-to-day needs", held: "In my opinion the learned Commissioner is correct. 'Day to day' does not mean 'happening every day' but the meaning the learned Commissioner appears to apply is that it is goods or merchandise that could be purchased or consumed by the majority of persons on a regular basis. The example of bread and milk is apt, as are prescription drugs. One would not approach the provision of services in any different way." (at [120]).
5. The Acting Commissioner rejected the submission of Ms Jeffrey's counsel that any land use identified in the Land Use Table as being permitted with consent in Zone R4 must be assumed to be a land use that provides facilities or services to meet "the day to day needs of residents" (the applicant's argument is summarised at [112]). The Acting Commissioner applied, "by parity of reasoning", the statement of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 (BGP Properties) at [117], to find that "it could not be said that simply because a development is characterised as permissible by virtue of cl 6.5 and the zoning table, it does not mean that by virtue of the particular activities, their nature and extent it will necessarily achieve an objective of meeting the day to day needs of residents": at [114]. The Acting Commissioner concluded that, "I do not accept the proposition that simply by the characterisation of the present development application as for business premises means that it is consistent with the objective of providing a service that meets the day to day needs of residents in the zone": at [117].
6. Ms Jeffrey contends that the Acting Commissioner erred in the construction of this phrase "day to day needs of residents" in the third objective of Zone R4. She advanced three reasons.
7. First, the Acting Commissioner read into the phrase "day to day needs of residents" two requirements that are not there: first, that the needs must be of "the majority of" residents and, secondly, that the needs of this majority of residents must "arise on a regular basis".
8. Secondly, the Acting Commissioner erred in following the construction given by the Commissioner in Altz to the definition of "neighbourhood shop". Whether that construction in Altz was correct or not is not to the point; that construction turned on the meaning of the phrase in the particular definition, which is a materially different context to the context in which the phrase is used in the objective of Zone R4. The question in Altz was about the characterisation of the particular development there proposed (whether it was a neighbourhood shop), which required a determination of whether the general merchandise proposed to be sold could be classified as being to provide for the day to day needs of the people who live or work in the local area. That is a substantially different question to the question before the Acting Commissioner of whether the proposed development is consistent with the objective of Zone R4 of enabling other land uses that provide facilities or services to meet the day to day needs of residents.
9. Thirdly, the Acting Commissioner was in error in rejecting the applicant's submission that the fact that the proposed development is a land use permitted with consent in Zone R4 is relevant to construing and applying the objective of Zone R4 to determine whether the proposed development is consistent with the objective of the zone.
10. The Council disputed that the Acting Commissioner erred on a question of law in these ways. First, the Council submitted that the Acting Commissioner, in saying that "day to day needs are those which arise for the majority of persons", was doing no more than articulate what the phrase "day to day needs of residents" meant. His construction was correct.
11. Secondly, the Acting Commissioner's reference to the decision in Altz was "unexceptional". He was not applying that decision, as it was not binding on him, but merely referring to it as a decision that involves a similar expression by way of comparison. The fact that the decision in Altz involved a question of characterisation of development, while the question before the Acting Commissioner was a question of the consistency of the development with an objective of the zone, is beside the point.
12. Thirdly, once the Acting Commissioner determined the meaning of the phrase "day to day needs of residents" in the objective of Zone R4, his decision that the proposed development was not consistent with the objective so understood was correct: a funeral home is not a service needed by a majority of persons on a regular basis.
13. Fourthly, even if the Acting Commissioner was in error, that error was not material. The applicant bore the onus of showing that there was a realistic possibility that the decision in fact made could have been different, citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [3].
14. Furthermore, the applicant must establish not only error in the construction of the objective of Zone R4 (this ground) but also error in the construction of the development standard (the first ground) in order to establish that the Acting Commissioner's decisions that he was not satisfied of the matters in cl 6.4(4)(a)(i) and (ii) were vitiated. Even if the Acting Commissioner's decision that he was not satisfied that the development was consistent with the objective of the zone were to be shown to be in error, if the Acting Commissioner's decision that he was not satisfied that the proposed development is consistent with the objective of the development standard is not shown to be in error, the Acting Commissioner's decisions, first, that the applicant's written request has not adequately addressed the matters required to be demonstrated by subclause (3) and, secondly, that he was not satisfied that the proposed development would be in the public interest, would be unaffected.
15. I find that the Acting Commissioner did misconstrue the third objective of Zone R4. His construction of the phrase "day to day needs of residents" in the objective as meaning "needs which arise for the majority of persons on a regular basis" is incorrect.
16. No assistance could be gained in the construction of the phrase in the objective of Zone R4 from the construction given to the phrase in the definition of "neighbourhood shop" in Altz. It is well settled that words and phrases need to be construed in context. Context is provided by not only "the primary unit for conveying meaning, namely the sentence, but also the place of the concept in question within the framework of the statute": Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240 at [92]. The context of the phrase "day to day needs" in the definition of "neighbourhood shop" is very different to the context of the phrase in the objective of Zone R4, in both of these senses of context.
17. For the first sense of context, the phrase is used in the definition of "neighbourhood shop" to describe the purpose or end of the action of the use of the premises for selling general merchandise, and takes meaning from that action. It is the selling of a particular category of goods, "general merchandise", that is to provide for the day to day needs of people who live or work in the local area. The context of that particular category of "general merchandise" is illustrated by the examples of goods given, "foodstuffs, personal care products, newspapers and the like". These examples are readily categorised as goods that do provide for the day to day needs of people who live or work in the local area. In this way, the phrase "day to day needs" takes meaning from the category of general merchandise that is sold to provide for those needs.
18. For the second sense of context, the phrase is used in a definition of a particular type of development, neighbourhood shop. The definition is of relevance in determining the characterisation of a proposed development for the purpose of determining whether the proposed development is permitted without consent, permitted with consent or prohibited. This question of characterisation of a development is a different question to the question which the Acting Commissioner was required to answer of the consistency of the proposed development with a zone objective.
19. These contexts of the phrase "day to day needs" in the definition of neighbourhood shop are quite different to the contexts of the phrase in the objective of Zone R4. In the first sense of context, the phrase "the day to day needs of residents" is used in the sentence stating the objective of the zone to describe the purpose or end of the action of the use of land to provide facilities or services. That action is very broadly described, effectively referring to any facilities or services. The phrase "the day to day needs of residents" takes meaning from this very broad description of the action, so that it too will bear a very broad meaning.
20. Starting with the words "needs of residents" in the phrase, these refers to the needs of a class of people described as "residents" in order to distinguish these needs from the needs of other classes of people, such as workers or visitors. The word "residents" does not refer to any particular group of residents, such as the people who reside in the area that is Zoned R4 under CLEP. The word "residents" is without the definite article "the", denoting that the word is used as a generic description of persons (residents) rather than the particular people who actually reside in any particular area, such as the area of land zoned R4. The Acting Commissioner was in error in finding to the contrary: at [121]. This error lead to him adding the gloss "majority of" in order to define how many people in the R4 zone are to have the needs.
21. Turning to the words "day to day", whilst they do modify the later words "needs of residents", meaning is also provided by the preceding words "facilities or services", referring to the facilities or services that are provided to meet the "needs of residents". That is to say, the needs of residents are to be "day to day" but it is to meet these needs that the land use is to provide facilities and services.
22. In this context, the words "day to day" connote "on any day", so that the objective is to be understood as enabling other land uses that provide facilities or services to meet the needs of residents on any day. This does not mean "daily" or "everyday", only that on any day that residents need the facilities or services provided by the land use they can access them.
23. The Acting Commissioner was in error in finding that the words "day to day" connote "on a regular basis". This error flowed from his earlier finding that the word "residents" refers to the particular people actually residing in the area zoned R4, and led him to finding that the majority of these people must have a need for the facilities or services on a regular basis. His focus was on ascertaining the needs of these people residing in the area zoned R4 for the facilities or services. This focus was in error. As I have noted, the word "residents" refers to a generic category of persons (residents), not the particular people who reside in any area, and hence the needs are those of this generic category of residents, not the needs of the particular people residing in any area. This means that it is inappropriate not only to search for any particular number of people who have a need for the facilities or services provided by the land use, such as a majority, but also to ascertain how often that number of people have a need for the facilities or services, such as on a regular basis.
24. Applying this meaning of the objective of the zone, the proposed funeral home, being one type of business premises, can be seen to be a land use that does provide facilities or services to meet the day to day needs of residents. The proposed funeral home stands ready to provide the facilities and services that a funeral home provides in order to meet the needs of residents on any day such facilities or services are needed by residents, understood as being the generic category of residents and not any particular resident. In this way, the needs of residents would be met day to day.
25. This construction of the objective of Zone R4 promotes the purpose of the zoning and classification of the permissibility of development under cl 2.3(1)(a) and (2) and the Land Use Table. A construction of a statutory provision that would promote the purpose of the provision is to be preferred to a construction that would not promote that purpose: s 33 of the Interpretation Act 1987.
26. The EPA Act controls the carrying out of development on land by means of the threefold classification of development as being permitted without consent, permitted with consent or prohibited. This classification is performed by the Land Use Table for each zone. The objectives of each zone inform the decision as to which land uses should be placed into which classifications. Land uses that are compatible with the objectives of the zone, no matter how they are carried out, can be permitted without consent. Land uses that may be compatible with the objectives of the zone, depending on how they are carried out, can be permitted with consent. Land uses that are incompatible with the objectives of the zone, irrespective of how they are carried out, can be prohibited. The result of this classification of development for any zone will be to create a presumption that development for a purpose that is permitted without consent, permitted with consent or prohibited respectively will be, may be or will not be compatible with the objectives of the zone.
27. In this context, the objective of Zone R4 should be construed so as to promote the purpose of this threefold classification of development and the presumption that development for a purpose that is classified as being permitted with consent in the zone will be compatible with the objectives of the zone. This presumption applies to development for a purpose as a type of development, not to any proposed development for a particular purpose. This is a different point to what was said by McClellan CJ in BGP Properties at [117]-[118]. The points there being made were twofold. First, where by its zoning land is identified as generally suitable for a particular purpose, by development for that purpose being permitted with consent in the Land Use Table for the zone, weight must be given to that zoning. Planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted: [117].
28. This leads to an expectation, in most cases, that development consent will be granted to an application to use a site for a purpose for which it is zoned. But this general expectation is subject to the circumstances of the particular development for which consent is sought. This is the second point made in BGP Properties. The design of the particular development for that purpose should result in acceptable environmental impacts: at [118]. If it does not, there can be no expectation that consent will be granted to the development, notwithstanding that it is for a purpose that is permitted and consistent with the zoning.
29. The point I am making with respect to the construction of the objectives of a zone accords with the first point in BGP Properties and the second point does not arise. The classification in the Land Use Table for a zone of the purposes of development that are permitted with consent creates a presumption that development for any of those purposes is consistent with the objectives of the zone. If development for any of those purposes inherently is inconsistent with the objectives of the zone, it would not have been classified as being permitted with consent. For this inquiry, there is no warrant to look at the particular features of any proposed development for that purpose to ascertain whether the development is consistent with the objectives of the zone - the second point made in BGP Properties - because the inquiry is only concerned with the consistency of development for a purpose permitted with consent with the objectives of the zone.
30. The construction I have given of the objective of Zone R4 does promote this purpose of the zoning and classification of the permissibility of development: it results in development for a purpose that has been classified as being permitted with consent in Zone R4, the type of business premises of a funeral home, being consistent with the objectives of the zone. This construction is to be preferred to the construction of the objective of Zone R4 given by the Acting Commissioner, which does not promote this purpose. The Acting Commissioner's construction results in development for a purpose that has been classified as being permitted with consent in Zone R4, the type of business premises of a funeral home, never being consistent with the objectives of the zone. Under the Acting Commissioner's construction, development for the purpose of a funeral home is inherently inconsistent with the objectives of the zone in which it is permitted with consent, because it can never provide facilities or services to meet the day to day needs of residents. This is not a result of the particular way in which a proposed funeral home might be carried out, the second point made in BGP Properties, but rather a result of the inherent nature of the development of a funeral home. That construction does not promote the purpose of the zoning and the classification of permissibility of development in the zone, and hence is not to be preferred.
31. For these reasons, the Acting Commissioner misconstrued the objective of Zone R4, which error affected his finding that the proposed development was not consistent with the objective of the zone.
32. Nevertheless, this error is not vitiating in two respects. First, the Acting Commissioner's finding that the proposed development was not consistent with the objective of Zone R4 was one of two findings that he needed to make in order to decide whether he was satisfied under cl 4.6(4)(a)(ii) that the proposed development will be in the public interest. In order for the Acting Commissioner to be able to grant development consent for the proposed development, which contravened the development standard in cl 6.5(3)(b), the Acting Commissioner had to be satisfied that the proposed development will be in the public interest and this required him to be satisfied that the proposed development is consistent with both the objectives of the development standard and the objectives of the zone in which the development is proposed to be carried out. The Acting Commissioner was not satisfied that the proposed development would be consistent with either the objective of the development standard or the objective of the zone.
33. Whilst I have found that the Acting Commissioner's decision that the proposed development was not consistent with the objective of the zone was in error, I have rejected the applicant's challenge to the Acting Commissioner's decision that the proposed development was not consistent with the objective of the development standard. As a result, the Acting Commissioner's overall decision that he was not satisfied that the proposed development would be in the public interest is not vitiated by the error in his decision that the proposed development is not consistent with the objective of the zone.
34. Second, the Acting Commissioner's error in construing the objective of Zone R4 left unaffected the Acting Commissioner's decision under cl 4.6(4)(a)(i) that the applicant's written request has not adequately addressed the matters required to be demonstrated by subclause (3). The Acting Commissioner's non-satisfaction of the matter in cl 4.6(4)(a)(i) meant that development consent could not be granted to the proposed development, irrespective of his decision under cl 46(4)(a)(ii).
35. For these reasons, whilst I uphold ground 1(b), that error does not vitiate the Acting Commissioner's decision.

The third ground: constructive failure to decide applicant's written request

1. The third ground is confined. It contends that the applicant's written request sought to justify the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case in more than one way, but the Acting Commissioner only dealt with one of the ways.
2. The written request advanced in section 4 that compliance with the development standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding noncompliance with the standard (at p 5). This was the first of the ways identified in Wehbe of establishing that compliance with a development standard is unreasonable or unnecessary. The written request recorded the other four ways identified in Wehbe (at p 5), but did not seek to demonstrate that compliance with the development standard is unreasonable or unnecessary by reference to these other ways. The only way the written request sought to demonstrate compliance with the development standard is unreasonable or unnecessary was the first way. The written request stated (at p 6): "Compliance with the maximum commercial gross floor area development standard is considered to be unreasonable or unnecessary as the objectives of that standard are achieved for the reasons set out in Section 7 of this statement. For the same reasons, the objection is considered to be well-founded as per the first method underlined above."
3. The reference to the "first method underlined above" was a reference to the first way identified in Wehbe, that "the objectives of the standard are achieved notwithstanding the noncompliance with the standard" (p 5).
4. In section 7(a), the written request identified what it said was the "assumed objective" of the development standard and sought to demonstrate how the proposed development achieved this assumed objective (at p 9). This demonstration only addressed the first way and not any other way of establishing that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
5. Ms Jeffrey nevertheless contended that the written request impliedly should be considered to have addressed the other ways of demonstrating that compliance with the development standard is unreasonable or unnecessary. She referred to section 5 of the written request. That section in terms stated that it was addressing "sufficient environmental planning grounds (clause 4.3(3)(b))". This was a reference to the matter in cl 4.6(3)(b) that "there are sufficient environmental planning grounds to justify contravening the development standard". This is a different matter that a written request is required to demonstrate to the matter required by cl 4.6(3)(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. In this section dealing with sufficient environmental planning grounds, the written request stated: "3. The internal layout of the premises could be redesigned to comply with the gross floor area limit by reducing the area dedicated to the commercial activities and allowing a larger area for car parking and other areas that are not counted as gross floor area. Reducing the area for commercial activities would be an inefficient use of the premises. Furthermore, this would not change the external aspects of the building and accordingly would not improve the amenity of the surrounding locality. In fact, it could lead to increased impacts as compared to the proposed development due to the increased car parking available." (p 7).
6. Ms Jeffrey contends that this environmental planning ground also addressed "other ways in which the proposed development justified variation to cl 6.5(3)(b) due to strict compliance being unreasonable or unnecessary" (applicant's written submissions at [34]). She submits that the Acting Commissioner should have, but failed to, consider whether this ground did provide another way of demonstrating that compliance with the development standard is unreasonable or unnecessary. Not to do so was a constructive failure to exercise jurisdiction.
7. The Council submitted that this argument fails for the simple reason that the matter Ms Jeffrey argues should have been considered by the Acting Commissioner related to the "sufficient environmental planning grounds" in cl 4.6(3)(b), not whether compliance with the development standard was unreasonable or unnecessary in cl 4.6(3)(a). Ms Jeffrey does not challenge the Acting Commissioner's consideration of the matter in cl 4.6(3)(b).
8. I reject Ms Jeffrey's argument. The Acting Commissioner was required to consider "a written request from the applicant that seeks to justify the contravention of the development standard" (by cl 4.6(3)) and to decide whether he was satisfied that "the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3) (by cl 4.6(4)(a)(i)). One of the matters required to be demonstrated by subclause (3) is "that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case" (in paragraph (a)) while the other matter is "that there are sufficient environmental grounds to justify contravening the development standard" (in paragraph (b)). The two matters are different and the written request is required to address each of them.
9. The applicant's written request did address each matter, addressing the matter in paragraph (a) in section 4 and by reference in section 7(a) and the matter in paragraph (b) in section 5. There was no cross reference between the sections addressing the matter in paragraph (a) and the section addressing the matter in paragraph (b). The only way the written request sought to demonstrate the matter in paragraph (a) was the first way identified in Wehbe that compliance with the development standard is unreasonable or unnecessary because the proposed development will achieve the objective of the development standard notwithstanding that it contravenes the development standard. The written request did not seek to demonstrate the matter in paragraph (a) by reference to any of the other ways identified in Wehbe.
10. The environmental planning grounds identified in section 5 of the written request, including ground 3 on which Ms Jeffrey relied, were advanced only for the purpose of demonstrating the matter in paragraph (b) that there are sufficient environmental planning grounds to justify contravening the development standard. At no point did the written request suggest that these grounds demonstrate the matter in paragraph (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The written request could have done so; indeed the written request was amended at the hearing and could have been amended to add these grounds as other ways to justify that compliance with the development standard is unreasonable or unnecessary, but no such amendment was made.
11. In these circumstances, the Acting Commissioner correctly dealt with the Applicant's written request in the terms that the written request was written. This required him to deal with the only way in which the written request sought to demonstrate the matter in paragraph (a), which was that the proposed development achieved the objective of the development standard, and he did so. He was not required by the written request to deal with any other way that the matter in paragraph (a) could be demonstrated. Thus, there can be no constructive failure to exercise jurisdiction. I reject the third ground.

The fourth ground: denial of procedural fairness

1. The final ground is that the Acting Commissioner denied Ms Jeffrey procedural fairness by not warning her that the applicant's written request seeking to justify the contravention of the development standard might be regarded as insufficient in establishing that the development achieves the objective of the development standard so as to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
2. Ms Jeffrey contended that the issue of the sufficiency of the written request was not a principal contested issue, and had not been ventilated as a principal contested issue on the evidence. In these circumstances, if the Acting Commissioner considered that the written request might be insufficient, he was required by considerations of procedural fairness to give her notice of that fact.
3. The Council disputed that Ms Jeffrey was denied procedural fairness. It contended that the sufficiency of the applicant's written request was raised in the Council's statement of issues dated 2 October 2020, which had been filed pursuant to directions made by the Acting Commissioner at a directions hearing shortly before the hearing. This statement of issues referred to the written request the applicant provided on 1 October 2020. The applicant amended and filed in court the written request on the second day of the hearing. The sufficiency of the amended written request remained an issue, The Council submitted that the Acting Commissioner asked Ms Jeffrey's counsel at the hearing how the written request met the objective of the development standard, putting the applicant on notice that the written request might not be sufficient and giving the applicant the opportunity to explain how it was sufficient.
4. I reject this ground of denial of procedural fairness. The issue of whether the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), including that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, is necessarily a principal contested issue in any case in which a proposed development contravenes a development standard. It is a principal contested issue because the statutory provisions make it so. Clause 4.6(3) and (4) preclude the Court, exercising the function of the consent authority on appeal, from granting development consent unless the Court considers the written request and is satisfied that the written request has adequately addressed the matters required to demonstrated by subclause (3). It is not necessary, in order to become a principal contested issue, that these statutory requirements be raised by the respondent, usually the local council, as an issue in the statement of facts and contentions. The matters raised by the statutory provisions of cl 4.6(3) and (4) are jurisdictional: the Court cannot grant development consent for development that contravenes a development standard unless the matters raised by the statutory provisions are satisfied. Such matters will be principal contested issues regardless of whether the parties raise them: see AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 at [180].
5. Secondly, the Council did in fact raise the issue. The Council contended that the proposed development was prohibited because it contravened cl 6.5(3)(b). Before the Acting Commissioner, the Council had argued that cl 6.5(3)(b) was a prohibition, not a development standard. The Acting Commissioner rejected that argument. The Council contended in the alternative, if it was a development standard, that the "clause 4.6 objection attached to the applicant's bundle dealing with clause 6.5 is not satisfactory and does not support setting aside the control" (Council's statement of issues, dated 2 October 2020, filed pursuant to order 3 of the Acting Commissioner made on 30 September 2020, particular (e) to issue 1). This pleading of the issue was sufficient to identify the sufficiency of the applicant's written request as a principal contested issue.
6. Thirdly, the applicant bore the onus of establishing that the preconditions to the grant of development consent in cl 4.6(3) and (4) can be and were met. To that end, the applicant needed to make a written request that seeks to justify the contravention of the development standard by demonstrating the matters required to be demonstrated by cl 4.6(3) and that otherwise enables the Court, exercising the function of the consent authority, to be satisfied of the matters in cl 4.6(4)(a). This is but an illustration of the general proposition that "the party asserting the factual basis for the issue raised bears the responsibility for adducing the necessary evidence": Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [112].
7. Ms Jeffrey had the responsibility to adduce such evidence and make such submissions concerning the matters in cl 4.6(3) and (4), which needed to be considered and demonstrated to the satisfaction of the Acting Commissioner before development consent could be granted to the proposed development that contravened the development standard, as she thought best advanced her case and would persuade the Acting Commissioner to grant development consent: Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 at [124]; Forgall Pty Ltd v Greater Taree City Council (2015) 209 LGERA 160; [2015] NSWLEC 61 at [78], upheld on appeal in Forgall Pty Ltd v Greater Taree City Council [2015] NSWCA 340 at [7].
8. Fourthly, Ms Jeffrey had every opportunity to make a written request, in whatever terms she wished, that seeks to justify the contravention of the development standard and to lead other evidence and make submissions on the adequacy of the written request in addressing the matters required to be demonstrated by cl 4.6(3) and to otherwise satisfy the Acting Commissioner of the matters in cl 4.6(4)(a). Ms Jeffrey availed herself of this opportunity. She amended and filed at the hearing the written request, presumably to address more adequately the matters required to be demonstrated by cl 4.6(3) or the other matters in cl 4.6(4)(a). The Acting Commissioner was under no obligation to warn Ms Jeffrey that he might not be satisfied that the amended written request did in fact adequately address the matters required to be demonstrated by cl 4.6(3) or the other matters in cl 4.6(4)(a), or that he might not accept the arguments advanced by her counsel. In short, the Acting Commissioner was not under an obligation to give Ms Jeffery advance notice of how he might decide the issues required to be decided by cl 4.6(3) and (4): The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 at [156]-[157].
9. I reject the fourth ground.

Conclusion and orders

1. Ms Jeffrey has not established the first, third and fourth grounds of appeal. She has established that the Acting Commissioner erred on a question of law, as articulated in the second ground, but that error is not vitiating of the Acting Commissioner's decision. Accordingly, the appeal should be dismissed. Costs should follow the event.
2. The Court orders: 1. The appeal is dismissed. 2. The applicant is to pay the respondent's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2021