20 The submission also refers to the following findings of Justice Bastens in Browning:
78 In other cases, statements are to be found as to the importance of preferring substance to form. However, those statements should be read in their context, which is usually concerned with the difficulty in distinguishing conditional prohibition from regulation. Thus in Poynting, at [93], Giles JA noted:
"Care must be taken lest form govern rather than substance. A provision in the form 'A building may be erected on land in a particular zone if the land has an area greater than a particular area' appears regulatory, whereas a provision in the form 'A building must not be erected on land if the land has an area less than a particular area' appears prohibitory, but the substance is the same."
79 This concern rests on attempts to distinguish a prohibition from regulation. However, in the abstract, that distinction is unhelpful in this, as in many other contexts, as recognised by Handley JA in Lowy at [32]-[33]. On the other hand, a particular result may be achieved in different ways and, for relevant legal purposes, the means adopted may be important. Thus, in the present context, it was not suggested that the principles espoused by McHugh JA in Carr were wrong, no doubt because they have been widely affirmed: see, eg, Poynting at [97] (Giles JA). Furthermore, those principles appear to underlie the broadly accepted distinction, not challenged by the parties in the present proceedings, that a zoning requirement was not a development standard: see Lowy at [58] and [62] where the term "a zoning function" was used by Handley JA. Thus, if an LEP prohibits a particular form of development in a particular zone, that provision will not generally be considered a development standard, whereas if a particular form of development is permitted with consent in the specified zone, but further and separately identified controls are imposed on such developments, the further controls may constitute development standards. Self-evidently, the drafter of an LEP may be able to achieve the desired result either by a zoning provision, or by a development standard: the way in which it is done will be important, because of the need to distinguish a development standard from other forms of prohibition. A legitimate concern about substance and form should not be allowed to blur the distinction between result and means…
81 The appropriate course is said to depend on what are the essential elements of a development. The use of the (non-statutory) phrase "essential element" seems to have gained acceptance as a reflection of the principle set out above: see Poynting at [36] (Giles JA). So understood, it is a convenient label. It is not disputed that classifications required for the purposes of zoning define essential elements of the development. However, it does not follow that only those elements which are included in the zoning table and map which form part of the usual LEP, are to be included as essential elements of the development. There may be other elements in a particular LEP which should properly be treated in the same way as the zoning table. Whether a particular requirement will so qualify in a particular case will depend not only on the nature of the requirement, but also on the drafting of the LEP. That proposition was expressly accepted by the majority in Lowy: see Mason P at [2] and by Giles JA at [123].