WARRINGAH SHIRE COUNCIL v PUNNETT & ASSOCIATES PTY LTD

Court of Appeal (NSW)|2001-12-12|Before: Mason P, Beazley JA, McEwen AJ

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 [sic] 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" …. 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.

22 Before addressing the Council's submissions and the developer's responses to them it is appropriate to record that it was common ground that the Composite Zoning Map is incorporated into the LEP. This flows from (a) the textual cross references to "map" and "the map" in cl 5 of WLEP 1985; and (b) the necessity to go to the map in order to determine the zoning of particular land (see also s34(9) of the Act and Invergowrie Properties Pty Ltd v Willoughby City Council (1992) 78 LGERA 67 at 68. Cf also De Leuil v Jeremy (1964) 65 SR(NSW) 137 at 151-2). 23 The Council challenges the judgment below by advancing two mutually inconsistent attacks. The first, which I shall dub textual, argues with bland simplicity that the cartographer's assignation of the heading "6. OPEN SPACE" identifies land within the 6(b) zone by an "open space" description sufficiently to engage Schedule 1 of SEPP 5. 24 The second, which I shall dub rhetorical, presents an argumentum ab inconvenienti that seeks to conjure up horrendous consequences for environmentally sensitive land if none of zones 6(a), 6(b), 6(c) and 6(d) are afforded Schedule 1's protection from the harsh rays of SEPP 5. The second approach offends the higher calls of logic on several fronts, as well as overlooking the impact of cl 4(1) of SEPP 5. It has the unfortunate consequence of conceding the propriety of massive buildings for the young and fit while castigating the erection of homes for the elderly or disabled. It is also contradicted by the textual attack with which it is necessarily inconsistent, whether or not the textual attack carries the Council home. I therefore turn away from (mere) rhetoric and back to the text. 25 The textual approach seeks to do no more than follow the verbal signposts. But it gains additional force from two considerations. First, it proceeds on the compelling assumption that land can be identified by more than one indicator. Thus, a single site could be designated both "5 Smith Street" and "the Harbord fire station"; or, to take an example based on the categories in Schedule 1, a single site could be labelled both "critical habitat" and "high bushfire hazard". Once this is accepted, it must be acknowledged that one part of an environmental planning instrument can pick up that which another misses. The textual approach is secondly reinforced by the constant reiteration of verbal markers in the phrase "by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions". 26 It is clear that Schedule 1 is concerned with more than zonings, because the third last item in the list specifically excludes land identified by its "scenic" aspects if the land is within a residential zone. This is a further pointer to the potential width of Schedule 1's application and to its capacity to have a blunt application if any of its identifying words are found in a planning instrument. 27 If it is accepted that the map forms part of the LEP, what then does the developer advance against the conclusion that the subject land is relevantly identified by an "open space" description? 28 The developer urges that the task of identifying must be focussed through the lens of the WLEP. The map has no function other than to serve the purposes of the LEP. The only presently relevant purpose is that assigned by cl 8 which commences:

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: and then lists numerous zones, without headings, including:

Zone No 6(b) (Private Recreation "B") - coloured dark green with yellow edging.

29 According to the developer, this alone is the key which the reader takes when he or she turns to the incorporated map. That key is sufficient to identify the subject land as falling within the zone, thus attracting the planning attributes assigned by the LEP to the particular zone. 30 On this approach, nothing turns upon the heading "6. OPEN SPACE" that introduces the four No 6 zones. The heading has no operative force. It is no more than a catographer's flourish or the product of the mapmaker's sense of taxonomy. 31 The non-essentiality of the heading may be conceded. But, in my opinion, this does not rob the heading of its descriptive capacity. The heading serves to group the four zones as a genus. Whether this reflects perceivable commonalities among them and/or town planning practice does not matter. The developer does not suggest that the grouping is perverse, only that it is unnecessary. To my mind this is not enough to escape the reinforced textualism of Schedule 1. 32 I cannot read into Schedule 1 the idea that the only verbal descriptions capable of attracting the Schedule are those to which the environmental planning instrument assigns some discrete operative effect. Identification by description is sufficient; and the incorporation of the map into the LEP means that the identification is made "in" the LEP. 33 McEwen AJ correctly observed (at [42]) that lettering and descriptions on maps to planning instruments may explain the purposes or uses which are permissible on particular land. He added:

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 [sic] 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. Earlier (at [41] he had observed of the Council's submission that:

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.

34 The same approach to the matter at hand led his Honour to draw assistance from the reasoning of Stein J in Invergowrie. McEwen AJ concluded (at [34]) that 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 meant that those words 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 This, in essence, was the point being pressed by the developer in the appeal. I have endeavoured to explain that Schedule 1 does not require the words to be operable or functional in the sense of explicating the zoning parameters, or indeed any other operative part of the LEP. It is sufficient, in my view, that they are used descriptively with reference to the subject land. 36 The passage from Invergowrie cited by the primary judge is:

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.

37 The concluding words are critical. Schedule 1 to SEPP 5 gives effect to the otherwise neutral heading "6. OPEN SPACE" if, as I conclude, Schedule 1 engages those words as one of the descriptions in WLEP 1985 that identifies inter alia the subject land. 38 I therefore propose the following orders: 1. Grant leave to appeal 2. Subject to the filing of a notice of appeal, appeal allowed. 3. Set aside the answer to Question 3 and in lieu thereof answer: "SEPP 5 does not apply to the subject land." 4. Respondent to pay appellant's costs of the proceedings in the Court of Appeal. 39 BEAZLEY JA: I agree with Mason P. 40 IPP AJA: I agree with Mason P. ****************

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CITATION : WARRINGAH SHIRE COUNCIL v PUNNETT & ASSOCIATES PTY LTD [2001] NSWCA 480 FILE NUMBER(S) : CA 40604/01 HEARING DATE(S) : 12 December 2001 JUDGMENT DATE : 19 December 2001

• whether the development was permitted because the subject land was not located within a zone identified as open space (cl 4(2)(a) and Schedule 1 of SEPP 5) [Question 3]. Both questions were determined in the affirmative by McEwen AJ (see T C Punnett & Associates Pty Ltd v Warringah Council [2001] NSWLEC 152). 4 In this Court the Council presses its challenge with respect to Question 3. 5 The Development Application was lodged on 28 August 2000 and refused by the Council on 14 November 2000. On 5 December 2000 the Warringah LEP 2000 (WLEP 2000) was made. Clause 5 of that instrument saved both the Warringah LEP 1985 (WLEP 1985) and SEPP 5 with respect to development applications submitted but not finally determined immediately prior to the making of WLEP 2000. It is common ground that the pendency of appeal rights stemming from the Council's refusal on 14 November 2000 meant that the Development Application is to be regarded, for the purposes of the Environmental Planning and Assessment Act 1979 (the Act), as having not been finally determined. Accordingly, the relevant provisions are those contained in WLEP 1985. 6 The right of appeal to this Court is on a question of law (Land and Environment Court Act 1979, s57). 7 The developer accepts that it needs to invoke SEPP 5 in order to overcome the prohibition stemming from the development control table in WLEP 1985. 8 SEPP 5 deals with housing for older people or people with a disability. Clause 3 states that the Policy aims to encourage the provision of housing that will: (a) increase the supply and diversity of housing that meets the needs of older people or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of a good design. 9 Clause 4 defines where the Policy applies, in the following terms: (1) This policy applies to land within New South Wales: (a) that is zoned primarily for urban purposes, or that adjoins land zoned primarily for urban purposes, and

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