Marscon Pty Limited v Holroyd City Council

As I pointed out during the course of argument, the manner that the LEP formulates development controls by reference to "the purposes for which development may or may not be carried out" in the various zones created by the LEP reflects conventional town planning practice for the past 50 years. The County of Cumberland Planning Scheme which came into force in 1951 formulated controls on the erection and use of buildings and the use of land by reference to specified "purposes": vide cll 26 and 29.

Speaking of such provisions in 1956, Sugerman J said in Baker v Cumberland County Council 1 LGRA 321 at 333/334: The relevant provision of fasciculus of provisions, also makes provision by way of regulating the purposes for which buildings may be erected in Green Belt Area Zones. Buildings may be erected for specified purposes with the consent of the responsible authority and shall be erected for no other purposes. The enumeration of purposes , which is common to both the erection of buildings and the use of buildings, has certain peculiarities. The statement of a purpose is sometimes a statement of a kind of building and sometimes a statement of a kind of activity. Reading the enumeration of purposes in conjunction with the relevant definitions in cll. 3 and 24, the kind of building may be found to be described by reference to the uses for which it is required, or designed, or in fact used, and the statements both of kinds of buildings and of kinds of activities may be found to be accompanied by what are in substance, if not in form, conditions. These complexities, and other difficulties associated with a classification of buildings by reference to purpose, may lead to difficulties in the construction of the Ordinance and in its application in particular cases. But such cases are of an exceptional character and, subject to them, it may in general be said that a requirement of consent for the erection of buildings for the purposes of, for example, dwelling-houses, is, in its ordinary operation and application, a requirement of consent for the erection of buildings of the kind ordinarily designed for those purposes - in short, a requirement of consent for the erection of dwelling-houses; and that a requirement of consent for the erection of buildings for the purposes of, for example, rural industries is, in its ordinary operation and application, a requirement of consent for the erection of buildings of the kinds which are customarily designed and used for the industries which fall within the definition of rural industries.

To similar effect, and addressing a similar statutory town planning context is the following passage from the judgment of Kitto J in Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534: Each purpose in the prohibitory by-laws is indicated by means of a description of a character which a purpose imparts to premises in which it is pursued; and while for the most part the purposes that are thus pointed to are such that they may be pursued in a wide variety of ways (in the case of a church, for example), in some instances they connote a narrow range of choice (for example, in the case of a blacksmith's shop or a woodyard). All that may usefully be noted is that in each case the description employed, be it of wide of narrow connotation, has an evident relevance to town-planning considerations.

I have referred to these long standing decisions and to the fact that the LEP is entirely conventional in the manner that it imposes controls on development within the various zones it created to emphasise the novelty of the Council's argument. That feature of itself, of course does not diminish the argument, but it is significant that in more than 50 years experience with similar planning controls, it has never been held that the innominate purposes of development (ie purposes that are expressed, as in the present case, by way of the expression "any purpose other than a nominated purpose of prohibited development") are confined to those purposes which are embraced by the defined categories of development, but no other.

The extract quoted from Baker indicates the relationship between the term "the purposes of" and the definitions of various types of development employed by the planning instrument. But it has never been held that the defined types or classes of development employed in town planning instruments from the time that the County of Cumberland Planning Scheme came into force in 1951 provided or were intended to provide an exhaustive or closed list of the purposes for which "buildings may or may not be erected or used or land used" (in the case of the County Scheme) or for which "development may or may not be carried out" (in the case of the LEP and other environmental planning instruments made in pursuance of the EP&A Act). A moment's reflection suggests that the maker of an environmental planning instrument operating like the LEP to impose development controls throughout an entire local government area by reference to designated zones, would hardly conceive of even the possibility of attempting to provide exhaustive definitions of every conceivable or possible form of development that may be carried out.

The mind boggles when confronted by the idea of the imposition of development controls on the basis of an exhaustive and closed system of definitions of the purposes of development. Indeed, experience has long shown the great utility of employing the concept of the "innominate" category of purposes of development, either for specifying permissible or prohibited purposes of development The LEP employs that concept in imposing the various development controls by virtue of the operation of cl 9 as I have earlier indicated.

The decided cases have addressed a different, though related, question, namely the meaning to be given to the purpose of an "existing use' in the context of a planning instrument that imposes prohibitory controls on the carrying out of development by reference to defined purposes.

That was the key question that arose in O'Keefe where it was held that the proper particularisation of the purpose of an "existing use" did not require or depend upon the application of the defined purposes of development (ie defined for the purpose of imposing controls on development) but rather was to be concluded "by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date": per Kitto J at 535.

In my judgment, there is no justification for reading down the innominate "any purpose" (other than a nominated purpose prohibited development) appearing in the Table to cl 9 of the LEP so that it means only a purpose that is defined or recognised by the LEP. Properly construed, the innominate "any purpose" (other than a nominated purpose of prohibited development) in the context of cl 9(2)(b) specifying "the purposes for which development may be carried out in Zone No 3(a) only with development consent" is the object or end to which the development is carried out. This understanding of the meaning of the expression "purpose" reflecting the ordinary and natural meaning of the word accords with the judicial decisions in respect of the same or similar statutory planning controls operating under town planning delegated legislation for the past 50 years in NSW.

In rejecting the Council's interpretation of the expression "any purpose" (other than a nominated purpose of prohibited development) I should in passing note what would have been the extraordinary consequence in the present case if the Council's interpretation had been adopted. The consequence would have been that the proposed development (or at least the residential component thereof comprising four of the five floor levels above the two levels of basement carparking) would be neither prohibited development (as conceded by the Council's argument) nor development that may be carried out only with development consent. Accordingly, neither s 76B nor s 76A of the EP&A Act would apply to the development with the consequence that the development would stand beyond the reach or ambit of the EP&A Act (not only in terms of the controls on development imposed by Part 4 but also in terms of the operation of Part 5).

In other words, the Council's argument would produce the unintended result of the residential component of the development being simply untouched by the operation of the EP&A Act.

The Council's argument postulated that because the LEP had adopted six definitions of residential type development any residential development falling outside of the defined six categories was not to be recognised because the six definitions were intended to cover the field or to exhaust the range of residential development contemplated by the LEP. However, this argument is seriously flawed. Firstly, it is erroneous in fact since another form of residential development expressly recognised by the LEP is "boarding house" development, being a purpose that is specifically included in the nominated particular purposes of prohibited development within the Residential 2(a) Zone.

More relevantly for present purposes "boarding houses" are not included in the nominated particular purposes of prohibited development within Zone No 3(a) and accordingly the Council's argument that the six definitions of residential development are prohibited development within Zone No 3(a) is factually incorrect.

However, a greater problem with the Council's argument is that the defined categories of residential development operate in an exhaustive fashion to cover the field. But how can this be especially in the light of the obvious fact that the definition of "residential flat building" adopted by the LEP in substitution for the definition of the same term in the Model Provisions, does not purport to close the class of residential development.

In my judgment, the Council's argument must be rejected and affords no justification for the Council's proffered interpretation of the term "any purpose" etc. appearing in cl 9(2)(b) of the LEP in respect of Zone No 3(a).

Similarly, I am unconvinced by the Council's argument based upon the suggested absurdity or unreasonable effect upon the development controls imposed in respect of Zone No 2(a) or upon the operation of cl 10 or cl 32 flowing from the consequence of recognising the possibility of a residential development being permitted under the LEP that falls outside the defined term "residential flat building". These suggested difficulties are not insuperable, but in any event, they do not provide any justification for departing from the ordinary and long established meaning of the expression "any purpose" where employed as the relevant innominate category of permissible development, as in the present case.

The suggested difficulties in truth arise from the combined effect in the LEP of the artificially defined term "residential flat building" and the innominate category of development (being purposes other than a purpose of prohibited development) specifying the permissible purposes for which development may be carried out only with development consent. These are not difficulties that can be legitimately resolved by the process of interpretation.

For all the foregoing reasons, the Council's preliminary question of law is determined by holding that the proposed development is not prohibited development in terms of the Holroyd Local Environmental Plan 1991 or the Environmental Planning and Assessment Act.

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