"On the other hand, 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.
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
53 To similar effect, Gibbs J observed in Public Transport Commission v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350 that
"where two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust."
54 The present is not a case of supplying omitted words; nor is it a case in which words of general application are required to be read down: cf R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at 688-689 [16]-][22]. In that case Spigelman CJ observed (at 687-688 [15]) (omitting citations):
"15 Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. If a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction."
55 The intention of the draughtsperson in inserting cl 6(1) into the LEP is to be found in cl 3(g) which provides that the aims and objectives in cl 2 of the LEP are to be implemented by, inter alia,
"(g) suspending certain regulatory instruments where the operation of such instruments would prevent the carrying out of development in accordance with this plan."
56 Although Jessica as well as the primary judge fastened upon the fact that the draughtsperson of cl 6(1) had used the expression "a land use" rather than "development" which otherwise would have accorded literally with terms cl 3(g), nonetheless in my opinion that fact does not require the expression "a land use" cl 6(1) to be read down in the manner advocated. As cl 3(g) is the source of cl 6(1), the latter should take its meaning from the former if otherwise an ambiguity exists and the words used in cl 6(1) permit of a range of possible meanings including the erection of buildings for the purpose of a land use allowed by the LEP.
57 Accordingly, in my opinion cl 6(1) extends to the prohibition contained in para (k)(ii) of the Instrument which purports to prohibit the construction of a semi-detached duplex. Although the primary judge considered that that sub-paragraph dealt with building design rather than land use, I cannot with respect agree. The provision is concerned with the erection of a building of a particular type rather than a particular design but that type is related to the building's use, as a semi-detached duplex, that is, as two attached dwellings.
58 A similar observation may be made with respect to his Honour's adoption of Jessica's submission that para (k)(i) was concerned only with density rather than land use. It contended that this subparagraph was not in truth a restriction on the use to which Lot 122 could be put and, therefore, it was not a restriction or prohibition on "a land use". Rather it was a restriction on the number of dwellings that could be constructed on that lot and not on its use.
59 It is true that para (k)(i) prohibits the construction of more than one dwelling rather than more than one building. However, in my view it does not follow that that is not a restriction on the use of the land. The land may be used for the purpose of one dwelling or more than one dwelling. Its use for, say, two dwellings is in my opinion different to its use for one dwelling. If its use is restricted to the latter then the land cannot be used for the purpose of the former. That in my view is a restriction on its use.
60 It follows from the foregoing that in my opinion Austin J erred in holding that neither sub-paras (i) or (ii) of para (k) of the Instrument prohibited "a land use allowed by" the LEP.
61 The prohibition on subdivision contained in para (k)(v) is more problematic. The issue is whether "a land use allowed by" the LEP includes the subdivision of land for a particular purpose of use. It is true that in some contexts the cases have drawn a distinction between the subdivision of land on the one hand and the use of land as subdivided on the other. That distinction has been covered in the definition of "subdivision of land" in s 4B(1) of the EPA Act which contemplates the division of land into two or more parts anterior to the actual use or occupation of those parts. However, in my opinion the expression "a land use" in cl 6(1) of the LEP is capable of including the subdivision of land for the purpose of a use permitted by the LEP. Generally speaking, in the context of planning, land is not subdivided except for a particular purpose. Thus the Estate was subdivided for the purpose of creating residential lots i.e. lots intended to be used for residential purposes.
62 In the present case, the Council granted its consent to a strata plan of subdivision of the duplex to enable it to be separately used and occupied as two dwellings. In these circumstances I see no reason why the subdivision or strata subdivision of Lot 122 in the present case was not a subdivision for the purpose of enabling its use for two dwellings and so constituted "a land use" within the meaning of cl 6(1).
63 Such a construction accords with common sense and the language of cl 6(1) is not so intractable as to deny its adoption. It would in my opinion border on the irrational to exclude the strata subdivision of the duplex where otherwise the duplex may be constructed and used for the purpose of separate dwellings.