6 According to the argument put by Mr Galasso SC on behalf of the Council, as a matter of planning usage there is a distinction between the notion of "uses" and "purposes" (see DEM (Australia) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 and Retirement by Design Pty Limited v Warringah Council (2007) NSWLEC 87 at [76]-[82]. Even if that argument is strictly correct it is nevertheless appropriate to adopt the interpretation of the LEP which leads to a reasonably practical and sensible result (Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323. Although the words "community purposes" are specifically used and quoted in clause 17, the intention is clear. A purposive approach should be taken to the interpretation of the LEP which should not be construed in an overly technical manner. I agree with Mr Johnson that the reference to "community purposes" in clause 17 when viewed in a technical legal sense is incorrect but the adoption of the words "community uses" on the map appears to be for the intended purpose of differentiating the use of the land so marked from the use of the land for other community purposes such as "drainage" and "telecom" which are separately identified on the map. I am prepared to accept that when the words "community uses" were endorsed on the plan, it was intended as an identification or indication of a particular purpose for which the land could be used in the manner foreshadowed in column III. The approach I have adopted in my opinion does not damage the intention of clause 17.
7 Therefore it is appropriate to construe the reference to "Zone No. 5(a) "Community purposes"" in clause 17 as including a reference to land in Zone (5) No. (5) a Special Uses where the purpose marked on the map is "Community Uses".
Whether clause 17 is prohibition or a development standard
8 There is consensus between the parties, and I agree, that to say the least clause 17 is inelegantly phrased. The debate between the Council and the applicant is whether the applicant can rely on the provisions of State Environmental Planning Policy No. 1 (SEPP1) in order to overcome the constraint on floor space area where the proposal has a total floor space of 1,692 m2 that clearly exceeds the 650 m2 referred to in clause 17.
9 Clause 17 has been inserted as an exception to the general prohibition on development for shops in the Special Uses (a) zone and operates as a concession within the limit imposed by reference to the aggregate floor space of all premises for which consent has been granted for the purpose of shops and professional suites within the designated part of the zone.
10 The argument necessitates yet another attempt to resolve the dilemma identified by the Court of Appeal in Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130. It is necessary to attempt to find yet another path through this enigmatic quagmire by deploying the twin concepts of "essential elements" and "aspects" or to distinguish between "requirements that are external to a development and those that are internal" or to apply the "Development Standard twostep" that is "no light fandango". (Ipp JA at pages 134 and 135 in Browning). Moreover, there is further the approach of identifying the development and deciding whether the particular requirement relating thereto is not a prohibition. In Browning Ipp JA at [20] found the zoning criterion test to be a "beacon of certainty and simplicity in the Wonderland of s 4(1), inhabited as it is by the shifting sands of words used contrary to their ordinary meaning, indeterminate abstract concepts and vague complex notions that are incapable of ready resolution".
11 Basten JA at [103] identified the question as "involving defining the elements of the proposed development which were essential elements in the context of the LEP".
12 After adopting the tests identified by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319, Tobias JA adopted the two-step approach and asked the question whether the relevant clause in that case defined an essential element of the permissibility of development of land. He came to the conclusion at [48] that the answer to the question so posed was in the affirmative as the requirement was a characteristic of the land and "which must be satisfied before any form of development is permissible with consent upon that land" (at [48]). Tobias JA was of the opinion that the relevant clause in that case constituted in effect a zoning requirement which, in a manner analogous to the definition the subject of decision of the Court of Appeal in Woollahra Municipal Council v Carr (1985) 62 LGERA 263, prohibited the erection of any development rather than a separately defined control to be imposed on permitted development. Although the other members of the Court did not wholly support the analysis by Tobias JA, they nevertheless reached the same result.
13 The so-called "beacon of certainty" referred to by Ipp JA and the reference to Carr by Tobias JA provide an introduction to the solution in this case. Clause 17 can be construed as a zoning subscript which permits development for the purposes of a shop or professional suites in particular circumstances where specific criteria in relation to the aggregate floor space of all premises described in the clause, does not exceed 650 m2. It is therefore a provision that despite its inelegant phrasing allows development of shops of a particular kind or in a particular circumstance that are not solely referable to the internal characteristics of the development itself. The referable essential elements of the proposed development necessarily contravened the zoning subscript as being the carrying out of development where the aggregate floor space of all premises for which consent would be granted exceeded 650 m2.
14 Clause 17 is a provision that controls development by reference to requirements external to the development itself. Namely the aggregate floor space of all premises to which consent has been granted in the zone. Although on a strict construction the issue of whether the development is permissible does not arise until a person with the consent of the Council attempts to carry out the development for the purposes of a shop or professional suite, nevertheless in substance the clause sets criteria against which permissibility is to be assessed. The criteria that is set to permit the carrying out of the development is referable to the aggregate floor space of all currently approved premises. Accordingly the specified floor area of 650 m2 cannot be varied by resort to SEPP 1 as it is not an aspect of the subject development.
15 Mr Johnson on behalf of the applicant seeks to develop an argument that at the moment when development consent is granted, there are no premises for which consent has been granted and which has not lapsed. For the purposes of shops and professional suites under the plan, the criterion of 650m2 is not relevant and accordingly, his client is not constrained in terms of floor space. With respect that can hardly be a logical or sensible approach to the operation of the clause.
16 On the one hand the drafter has made it clear that the intention is to limit the aggregate floor space to 650m2. The fact that on a strict reading of the clause that is not to be determined until such time as the development is carried out does not alter the inherent objective of the clause. There can be no point or utility in granting a consent that ultimately cannot be acted on. A development consent which does not permit the holder of the consent to carry out development in accordance with it is an exercise in futility. That consequence justifies a purposive approach to the interpretation of the clause which leads to a construction that limits the aggregate floor space for the purposes of shops and professional suites within the relevant parts of the zone to 650m2. This development itself will have a result contrary to the objective and accordingly, is prohibited.
17 Mr Galasso also made reference to the provisions of s 76B(b) of the Environmental Planning and Assessment Act 1979 (EPA Act) which relevantly provides as follows:-