TC Punnett and Associates Pty Limited v Warringah Council

24. By analogy, in the present instance the use of dwelling-houses or residential flat buildings "by persons employed in connection with a purpose permissible under this heading" (viz those permissible under the land use table for zone 6(b)(Private Recreation "B")) necessarily remains a use for the purpose of a dwelling-house or a residential flat building.

25. It follows that the answer to question 2 is that development for the purpose of dwelling-houses and residential flat buildings within the meaning of clause 4(1)(b) of SEPP 5, in respect of the land subject of these proceedings, is permissible with consent.

26. Under clause 4(2) of SEPP 5, it is stated that the Policy does not apply to land, inter alia, described in Schedule 1. Schedule 1 is headed "Environmentally Sensitive Land", and relevantly reads: Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions: · coastal protection · conservation (but not land identified as a heritage conservation area in another environmental planning instrument) · critical habitat · environmental protection · open space · escarpment · floodway · natural hazard · scenic (but not land that is so identified if: (a) the land is within a residential zone in which development of two storeys or more in height is permitted, or (b) an adjacent residential zone, also identified as scenic, permits development of two storeys or more in height) · water catchment · natural wetland

27. Under Part II of WLEP 1985 "General Restrictions on Development of Land", the identity of the various zones for land use in the Shire are described as "zones indicated on the map". "Map" is defined (cl 5) as meaning "…the map which supports the local environmental plan".

For the purposes of this plan, land to which this plan applies shall be within a zone specified hereunder if the land is shown on the map in the manner specified hereunder in relation to that zone:

Zone No 6(b)(Private Recreation "B") - coloured dark green with yellow edging. 29. I have set out (par 5 above) the permissible uses under the 6(b)(Private Recreation "B") zoning. The qualification in cl 8 to the identification of the zoning of land in the Shire is that it be "…shown on the map in the manner specified hereunder in relation to that zone".

30. Mr Craig submits that the correct approach is to commence with the introductory words of cl 8 in WLEP 1985 to discover the land to which the relevantly described zone applies (see par 28 above). This, he says, is achieved by posing the question "what is the land specified hereunder as 6(b)(Private Recreation "B") which is shown on the map in the manner specified by that description, in relation to that zone" - and one obtains a straightforward and unembellished answer to that question without reference to the headings on the index to the map, simply by finding a similar description on the map. One does not need to have regard to the heading "6. Open Space" on the index to the map, to discover where in the Shire land zoned 6(b)(Private Recreation "B"), is to be found. The inquiry when applying the words of cl 8 of WLEP 1985 do not require or direct that any regard be, or weight given to any description other than "the manner specified hereunder…" - anything else is surplusage.

31. To the contrary, Mr Galasso on behalf of the Council contends that the subject lands are to be categorised as "open space" and hence falling within Schedule 1 to SEPP 5, by the following steps:

(i) Clause 8 of WLEP 1985 identifies the land which is to be the subject of different zonings, within the Council's jurisdiction. That land is shown on the map with the LEP, the map being defined in cl 5 of WLEP 1985 as "the map which supports the local environmental plan". (ii) The index to the map identifies nine separate headings of zoned land, the subject land being - zone 6(b)(Private Recreation "B") falls under the heading "6. Open Space". (iii) Of the four separate zones under "6. Open Space" on the index under the map, each are of the genus of "Open Space" - the other three being "Existing Recreation", "Proposed Recreation", and "National Park and State Recreation Area". (iv) The zoning map must be read together with WLEP 1985 and as the subject land is categorised as land falling within the descriptions in Schedule 1 to SEPP 5 (being "Open Space"), the exclusion in SEPP 5 against the operation of that policy to these lands runs, and the subject lands do not have the benefit of the policy. (v) The interpretation in cl 5 of WLEP 1985 of "map", meaning "the map which supports the local environmental plan", does not suggest that the map be "read down", but rather that it be read concomitantly with the written portion of the instrument, with its index having equal standing. 32. Mr Galasso referred to the decision of Stein J in Invergowrie Properties Pty Ltd v Willoughby City Council (1992) 78 LGERA 67. There his Honour was dealing with claimed permissibility of subdivision of land pursuant to SEPP 25 "residential allotment sizes and dual occupancy subdivision" (which SEPP has now been repealed).

33. The land under consideration by his Honour was zoned residential 2(a2) under Willoughby Local Environmental Plan ("WLEP 25"). The map which accompanied WLEP 25 marked the land, the subject of those proceedings, as "Foreshore Protection Area", whilst the plan itself otherwise made no reference to, or defined or identified "foreshore protection areas". Notwithstanding hatched markings on the map designated "Foreshore Protection Area", "…(there was) not one word in the plan itself (referring) in any way to a foreshore scenic protection area, the hatching or marking on the map or anything remotely relevant to it. In fact, the plan is totally silent on the subject". (at p 68)

34. This lead his Honour to conclude: While I accept that the map forms part of the local environmental plan, there must be some operable words in the text of the plan to give effect and meaning to the markings on the map. In the total absence of any such words, the effect of the hatching on the map must be neutral unless it can be given some effect by another planning instrument. (at p 68) Applying that approach here, in the absence of operable words in the text of the LEP giving effect and meaning to the description "open space" on the index to the map, those words would, and in my opinion should, be regarded as neutral. Without meaning attaching to the words "open space" , either in the map or the instrument proper, the description alone cannot work in a planning sense. There being no guidance as to what the purpose may mean, or what effect it may have, suggests that the description was an aberration (perhaps better described by Mr Craig as a cartographer's flourish) on the part of the draftsmen.
35. Mr Galasso submits that in the instant case a clear distinction can be drawn, factually - namely that here the key to the map forming part of WLEP 1985, designates four separate zones under the heading numbered 6 as "Open Space". Further, that the four categories of zoning under heading numbered 6 "Open Space", are each of the genus, kind or class, such as to be consistent with the ordinary concept of "open space". In my view such an approach is not open because there is a clear distinction between the permissible uses in the zoning attaching to the subject land, and the uses in the other three zones for recreation purposes.

"Open space" is not defined in either SEPP 5 nor in WLEP 1985. Although the phrase is used extensively in other planning instruments, that is of no present assistance. On one view it is irrelevant what the phrase means - the SEPP 5 prohibition in clause 4(2)(a) arising simply from the use of the words "open space", a like description or one which incorporates those words. Mr Galasso says that as the actual words "open space" are used in the index to the map to the LEP, as a heading of the category which the subject land is listed within, that is sufficient; and if the heading in the index cannot be availed of, that the words "private recreation", and the permitted uses under the 6(b)(Private Recreation "B") are such that the subject zoning is a like description to "open space".

"Open space" is not defined in the Macquarie Dictionary. In the Shorter Oxford English Dictionary the given meanings include "the part of country not enclosed; ground without buildings, trees etc"; "of a space: not shut in; unenclosed, unwalled, unconfined"; and "of a passage or space: unobstructed, clear. Of a country: free from wood, buildings etc".

In ordinary everyday language the phrase "open space" has a wide diversity of meaning. Notwithstanding its regular and wide spread use, what is meant by that phrase by a resident of Muttaburra, Queensland, would be significantly different from the meaning ascribed to it by a resident of Kings Cross, Sydney. If used in planning instruments one expects the words "open space" to be defined or explained, and then to be used and applied in a technical or special sense. Absent such a definition, as Tomlin J found in re Bradford City Premises [1928] CH 138 at 143 "…the essential quality which is connoted by "an open space of land" is the quality of being unbuilt upon". An Australian decision (Leahy v City of Camberwell (1983) 50 LGRA 397) opined (in obiter) that land used for recreational purposes could still fall within the description of land used for "open space", "notwithstanding that for its more efficient use and as incidental thereto part of the land is covered by buildings or other structures or other like amenities." (per Adam J at p 400). By way of example, the construction of toilet facilities in the Sydney Domain, or Centennial Park, would not detract from their being described as "open space".

The applicant points to the objective of the land in Schedule 1 to SEPP 5 being excluded from its operation because the variously described land uses or categories fall one way or the other within the category of "environmentally sensitive land". That description and objective is at loggerheads with the types of uses which are permissible under the 6(b)(Private Recreation "B") zoning in the WLEP 1985. Both residential and commercial premises, or industries, associated with the permissible objectives, are themselves permissible with consent. The examples of activities which may qualify are diverse - an institute of sport (like the Academy at Narrabeen), a music college, a religious seminary, a university, or perhaps even a leagues club - all with accommodation for those seeking or enjoying the benefit of the activity. Structures associated with those types of uses would be anathema to a description of "open space".

In support of the submission that the permissible activities on the subject land could result in it being substantially covered by buildings or structures, Mr Craig referred to the decision of Hemmings J in Wotton v Wingercarribee Shire Council (1989) 68 LGRA 38. There the Council had consented to the erection on land zoned "Open Space Recreation (existing)" of a complex which comprised an exhibition area, theatre, workshop, library, gallery, shop and refreshment room, amenities buildings and exhibition rooms, all associated with the Bradman Trust and Bradman Oval. His Honour found the approval acceptable in that it would "provide recreational facilities which (would) promote the physical culture and intellectual welfare of persons…" (at p 46). Mr Craig submitted that applying a similar approach to the instant case, the permissible uses could result in buildings being constructed for an acceptable purpose, which would result in direct conflict with the ordinary concept of "open space". For this reason he submitted that "open space" should be read down in favour of the permissible uses which demonstrate the subject land could not be so categorised.

The way by which land in the Shire of Warringah is categorised within, or given, a particular zoning is two fold - the description of the permissible or prohibited uses or purposes in the body of the LEP, coupled with identification in the map. To carry out this exercise highlights attention on the primary inquiry as to what meaning or effect can be given to the heading numbered 6 of the index to the map. The difficulty in the way of Mr Galasso's approach is that there is no meaning attached, or explanation given, as to the words "open space" either in the map or WLEP 1985. The description alone of "open space" does no work in a planning sense. There being no guidance, as to what it may mean, or what effect it may have, leads to the conclusion that the description "open space" is to play no role in the construction of the instrument, nor in the interpretation of the land uses it purportedly defines.

Regard can be had to lettering or descriptions on maps to planning instruments to divine the intention of the draftsmen and the purposes or uses which are permissible on particular land (Levingstone Posters v Leichhardt Council (McClleland CJ, NSWLEC No 20278 of 1981, unreported); Pacific Outdoor Advertising v Leichhardt Council (1982) 51 LGRA 25; Sydney Water Corporation v South Sydney City Council (Stein J, NSWLEC, 21 March 1996, unreported) (No 40009 of 1996)). However there needs to be some reference or nexus between such a reference on the map and the instrument for it to play a role, or part, in describing the permissible purpose or use. Without such a link, the map reference or statement, or heading, is without parentage. Its not as though it started life with some nexus or definition which it then lost, but rather it came into being without any such association, foundation, or origin.

WLEP 1985, as an environmental planning instrument, is amenable to the provisions of the Interpretation Act 1987 (via s 5). The effect of s 35 of that Act is that headings to parts, divisions and subdivisions of an Act become part of the Act; the index to the map is none of these. Section 34(2)(a) allows that material which does not form part of an Act in question can be used in ascertaining the meaning of the Act. That material includes "…all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the government printer". Here the index to the map does not "contain the text" of the LEP. Nor in my view does s 35(4) of the Interpretation Act 1987 assist. It provides (relevantly) "a heading to a provision of an …instrument… shall be taken to be part of the instrument if - …(b) it is a heading… to a table or form in the instrument". However the heading in the index of category numbered 6 is not a "heading to a provision"; nor is it a heading "to a table or form". It is simply a heading to an internal part of the index, itself not a table or form.

To allow the words "open space" in the index to the map to work or be applied in the manner in which the Council contends, would in my view work a nonsense and produce a result at odds with the intent of both WLEP 1985 and SEPP 5. The subject land can be developed in a way totally inconsistent with the ordinary concept of "open space" viz, unbuilt upon land. Yet the description of "open space" in Schedule 1 to SEPP 5 is but one of 11 categories of "environmentally sensitive land" (see par 26 above). In my opinion it is legitimate to have regard to the other 10 categories to discover the meaning of the phrase "open space" in SEPP 5 - ie to look to the context in which it is used or listed, (in accordance with the maximum noscitur a sociis). In the main those other 10 categories are aptly designated "environmentally sensitive land". It could not be argued that the subject land, with its potential for development (see par 5 above) could be so described or categorised.

The legislature has provided that State environmental planning policies are to prevail over a local environmental plan (the Environmental Planning and Assessment Act 1979 s 36(2)). Further, a construction which promotes the purpose or objective of an Act is to be preferred to one which does not do so (Interpretation Act, 1987 (NSW) s 33). Here the stated, and clear purpose of SEPP 5 is to "make efficient use of existing infrastructure and services", to achieve the objective of "increasing the supply and diversity of housing that meets the needs of older people or people with a disability" (SEPP 5 cl 3(1)(a), cl 3 (1)(b)). Given the conflict between the constructions here contended for, that which favours a beneficial promotion of the objectives of the Policy is to be preferred.

For these reasons I conclude that the subject land is not to be described as "open space" for the purpose of Schedule 1 to SEPP 5; and accordingly in respect of question 3, SEPP 5 by reference to cl 4(2)(a) does apply to the subject land.

1. Clause 9 of WLEP 1985 does act as a prohibition in respect of the proposed development on the subject land.
2. Development for the purposes of SEPP 5, by reference to cl 4(1)(b) does apply to the subject land as WLEP 1985 does permit development of the subject land for the purposes of dwelling-houses residential flat buildings hospitals or special uses.
3. SEPP 5 by reference to cl 4(2)(a) does apply to the subject land, as the subject land is not identified under WLEP 1985 as open space for the purpose of SEPP 5.
4. Costs are reserved; the exhibits to remain with the file for 28 days and then be returned to the parties.

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