Land and Environment Court of New South Wales CITATION : Berowra RSL Community & Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 182 APPLICANT PARTIES : Berowra RSL Community & Bowling Club Limited RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10001 of 2000 CORAM: Sheahan J KEY ISSUES: Question of Law :- Permissibility - construction of LEP - context Environmental Planning & Assessment Act 1979 Registered Clubs Act 1976 LEGISLATION CITED: County of Cumberland Planning Scheme Ordinance Hornsby Planning Scheme Ordinance Hornsby Local Environmental Plan 1994 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; CASES CITED: Lee & Cormack v Pittwater Council (20 June 1996, 10677 of 1995, Talbot J); Project Blue Sky Inc v Australian Broadcasting Authority (19989) 194 CLR 355 DATES OF HEARING: 15/08/2000 DATE OF JUDGMENT: 08/16/2000 APPLICANT Barrister Mr James Johnson Solicitors Conway MacCallum LEGAL REPRESENTATIVES: RESPONDENT Barrister Mr Peter Tomasetti Solicitor Ian Woodward JUDGMENT: IN THE LAND AND Matter No: 10001 of 2000 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 16 August 2000 BEROWRA RSL COMMUNITY & BOWLING CLUB LIMITED Applicant v HORSNBY SHIRE COUNCIL Respondent JUDGMENT Introduction 1. This judgment concerns a preliminary point of law in a class 1 appeal which is listed for hearing over four days commencing next Monday, 21 August 2000. 2. The original hearing dates set by the court were, in fact, vacated, and next week's dates were set, on 25 May 2000. 3. On 7 August 2000 the Council filed a Notice of Motion seeking both the determination of the preliminary question and the vacation of next week's hearing. 4. Last Friday, 11 August, Talbot J, as List Judge, granted the parties leave to approach the Registrar for an urgent date for the hearing and determination of the relevant preliminary question of law, and it was listed before me for argument yesterday. 5. I announced that I would give a judgment at 2.30pm today, and send the matter back to the List Judge at 9.30am on Thursday 17 August, for further consideration of the motion to vacate the hearing dates. 6. In the meantime, the court was told, the parties would continue to prepare for next week's hearing on the merits. 7. In this respect, I note that Counsel for the applicant (Mr Johnson) raised, at the very end of the hearing, a possible question of existing use rights, but I make no comment on this last issue as it was not agitated before me. The Question of Law 8. The question as posed in par 1 of the respondent's Notice of Motion of 7 August is (omitting formal parts): … whether the development the subject of the development application is prohibited by the provisions of the Hornsby LEP 1994… 9. The Notice of Motion goes on to state the following " Grounds ": 1. The land the subject of the development application is zoned Open Space A (Public Recreation - Local) Zone pursuant to the provisions of the Hornsby LEP 1994. 2. The development application seeks consent to use the land for the purposes of a 'registered club'. 3. A 'registered club' is a purpose of land use which the respondent contends is prohibited under the LEP. 4. The applicant contends that the use is permissible with development consent pursuant to the provisions of clause 17(8) of the LEP. 5. The question of law is whether clause 17(8) permits with development consent: (a) any development at all; or, (b) only lawful development as prescribed by the land use table in the LEP. 6. The respondent contends that only lawful development is permitted. 10. The applicant contends that its proposed use is " lawful development " and " permitted ". The subject site 11. The subject site is a generally square block of land located on the eastern side of the intersection of High and Boundary Streets, Berowra, upon which there is currently located a development comprising two bowling greens, a brick and fibro single-storey Club building, a bitumen carpark, and various ancillary structures, comprising what has been known as Berowra Bowling Club. Mr Johnson told the court that this club was built in 1962. 12. In 1994 the Berowra Bowling Club amalgamated with the Berowra RSL Club, which owns and occupies premises at Pacific Highway, Berowra. 13. The amalgamated Club has continued to operate the two premises, but, in 1996, it proposed that the RSL Club site operations be relocated to the subject site, combining the facilities of the two existing clubs. 14. The Club negotiated the purchase of the subject site from the Department of Land & Water Conservation in 1997 and acquired a freehold title to it in September 1999. 15. On 23 November 1998, the Club submitted a rezoning application in which it sought to rezone the subject site from " Open Space A (Public Recreation - Local)" to " Open Space C (Private Recreation)" . 16. On 1 October 1999, a development application was lodged for development of a " RSL and Community Club " facility on the site. The amalgamated club requested the Council to proceed to consider that development application, without necessarily rezoning the land prior to its determination. 17. The amalgamated Club submitted to the Council, and now submits to the Court, that the development of the subject site for " registered club " is a use permitted pursuant to cl 17(8) of the Hornsby Shire Local Environmental Plan 1994 (" the LEP " - Exhibit H1 ). The Planning controls 18. From 1951 until 1977 the relevant area was governed by the County of Cumberland Planning Scheme Ordinance (" CCPSO "), and, from 1977 until 1994, by the Hornsby Planning Scheme Ordinance (" HPSO") ( Exhibit C1 ). 19. Pursuant to the requirements of the Environmental Planning & Assessment Act 1979, the Council prepared the LEP ( Exhibit H1 ), which was gazetted on 22 July 1994. The LEP repealed and replaced the HPSO, and has been amended on many occasions since its original gazettal. 20. None of those amendments has any specific relevance to the question now before the court, but many of them have been rezonings, relevantly including rezonings of land from/to " Open Space A (Public Recreation - Local) ". Construing the LEP 21. I accept the Council's submission that the meaning of the LEP must be deduced from the words used in the LEP itself, and not from reference to the former PSOs. 22. At the same time, however, I acknowledge that the court must not be quite so strict in construing the terms of a LEP as it would be in construing an Act of Parliament. Lee & Cormack v Pittwater Council (20 June 1996, 10677 of 1995, Talbot J). 23. In construing the key relevant provisions of an LEP regard must be had to the context in which they occur, and some weight must be given to the overall structure and internal interrelationships of the LEP document as a whole, in order to appreciate that context. Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 (at 304ff), and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 24. The LEP in this case comprises five parts (and also five schedules which are not immediately relevant) as follows: PART 1 - PRELIMINARY (Clauses 1-6) PART 2 - ZONING CONTROLS (Clause 7) PART 3 - GENERAL CONTROLS (Clauses 7A-13) PART 4 - SPECIAL CONTROLS (Clauses 14-22) PART 5 - dictionary (Clause 23) 25. Part 1 cl 2(3) provides: The matter appearing under the heading 'Objective of Provision' in each provision of Parts 3 and 4 is intended to explain the purpose of the provision concerned and does not form part of the provision. 26. Part 2 cl 7, under the heading " Zoning Control Table ", provides: (1) The zoning control table below describes the objectives for each zone, what development is permitted without development consent or only with development consent and what development is prohibited. The table also describes how the zone is shown on the map. The table relates to the following zones: … Open Space A (Public Recreation - Local) Zone Open Space B (Public Recreation - District) Zone Open Space C (Private Recreation) Zone … (2) The objectives of the zone listed under the zone title are required to be taken into account by the Council before development consent is given to the carrying out of development within that zone. 27. As the subject site remains zoned " Open Space A ", and the proposed rezoning of it to " Open Space C " has not been achieved, I set out for completeness the relevant provisions of the Zoning Table to cl 7, regarding the " Open Space A " zone, as follows: Objectives of Zone (a) to ensure there is provision of adequate open space to meet the needs of the community and to enhance the environmental quality of the Hornsby area. (b) to encourage a diversity of recreational settings and facilities. (c) to protect and preserve areas of urban bushland which are considered valuable in terms of their ecology. Without Development Consent Development for the purpose of: Bushfire hazard reduction (except ancillary buildings); gardening, landscaping Exempt development Only With Development Consent Development for the purpose of: Agricultural structures; agriculture; aquaculture; buildings ancillary to bushfire hazard reduction, gardening or landscaping; camp or caravan sites; car parks; cemeteries; child care centres; communication facilities; community facilities; dams; demolition; entertainment facilities; forestry; public buildings; recreation areas; recreation facilities; utility installations. Subdivision Prohibited Development that is not permitted without development consent or permitted only with development consent. … 28. I note that the " use " provisions for the " Open Space B (Public Recreation - District) " zone are exactly the same as for the " Open Space A " zone, but, in the case of the " Open Space C (Private Recreation )" Zone, the list of uses permissible " only with development consent " includes the use " registered clubs" . 29. Indeed " registered clubs " is the only use which is added for " Open Space C " to the lists in the sections concerning " Open Space A " and " Open Space B ". 30. I note also that objectives (a) and (b) of the " Open Space B" and " Open Space C " zones are the same as for " Open Space A ", but objective (c) of the " Open Space C " zone is: to sustain the use of privately owned land for sporting activities. 31. It is common ground in this matter that what is proposed by the applicant in the relevant development application is, indeed, a " registered club ", and Part 5 cl 23 includes the following definition of " registered club ": " registered club " means a building or place which is used by persons associated, or by a body incorporated, for a social, literary, political, sporting, athletic or other similar lawful purpose and which is, or is intended to be, registered under the Registered Clubs Act 1976. 32. In Part 4, " Special Controls ", one finds cl 17, which is headed " Land Acquisition" , and has the stated objective " to provide for the acquisition of land for community purposes ". Clause 17 (5) provides: The owner of land in the Open Space A (Public Recreation - Local) zone may request, in writing, the Council to acquire the land. On receipt of the request, the Council must acquire the land. 33. Under the sub-heading " Interim development " cl 17 (8) provides: The Council may, with the concurrence of the public authority responsible for acquisition of the land, consent to any development of land zoned Special Uses B (Transport Corridor), or Open Space A (Public Recreation - Local) or Open Space B (Public Recreation - District) if the land has not been acquired by the public authority responsible for acquisition of the land. In determining whether to grant concurrence, the public authority shall take into consideration the effect of the proposed development on the costs of acquisition, the imminence of acquisition and the costs of reinstatement of the land for the purposes for which the land is to be acquired. 34. I should note at this point that it is clear, and it is agreed between the parties, that the relevant " public authority " in respect of the (acquisition of) land zoned " Open Space A " is the Council itself. The drafting style of the LEP 35. In the course of the parties' submissions, the court's attention has been drawn particularly to several specific provisions of the LEP, or at least to parts of them. For convenience I will gather them together in this section of the judgment. They are drawn from Part 3 " General Controls", and from Part 4 " Special Controls ". 36. In Part 3 , cl 10 is headed " Services ", and has the stated objective " To ensure that all development has adequate water and sewerage services ". Clause 10 provides: The Council shall not grant consent to the carrying out of development on land to which this plan applies unless it is satisfied that… 37. Clause 11 deals with " Development near zone boundaries " and sub-clause (2) opens with the words: Regardless of any other provision of this plan, development may, with the consent of the Council, be carried out on land… 38. Clause 12 deals with " Temporary use of land " and opens with the words: Regardless of any other provision of this plan, a person may carry out development on any land with the consent of the Council … 39. The respondent also relies in its basic submission upon the opening words of the following provisions included in Part 4 " Special Controls ". 40. In Part 4 , Clause 14 deals with " Density ". Clause 14 (3) opens with the words: Regardless of subclause (2), the Council may consent to the development of land… and clause 14 (4B) opens with the words: Regardless of subclauses (2), (3) and (4), the Council may consent to the subdivision or other development … 41. Clause 15 deals with " Floorspace ratio ". Clause 15(2) opens with the words: Regardless of subclause (1), the Council may consent to development which results in ….. and clause 15(3) opens with the words: Despite subclause (1), the Council is not to consent to the erection … 42. Clause 16 deals with " Council land ", and sub-clause (2) opens with the words: Nothing in this clause prevents the classification …. 43. Clause 20 deals with " Waterways " and sub-clause (3) opens with the words: Regardless of the zoning control table in this plan, development is prohibited between the foreshore building line …. 44. Clause 22 deals with " Exceptions ". The objective of the provision is said to be to " provide exceptions that allow or prohibit land uses and other development in accordance with the overall objectives of this plan ". Sub-clause (1) opens with the words: Regardless of any other provision in this plan, the following land uses and other development are permitted with the consent … 45. Clause 22 (1) then sets out in a table a list of addresses or areas, a description of the land in each case, and a list of the " Permitted Land Use or Other Development " comprising the exception. That list is basically prescriptive and quite localised in focus. Particular uses are identified for particular addresses, but, for example, one broader entry contemplates for the relevant site: Business premises; office premises; restaurants; shops located on the ground floor . The contentions of the parties 46. As Counsel for the Council (Mr Tomasetti) points out, it would have been a simple matter, both originally or by later amendment, for the plan's author to have included the subject site in the list in clause 22(1), but the LEP does not do so. 47. Mr Tomasetti further contends that the purposes listed in the relevant open space sections of the table to cl 7 include many uses of a private character, but the clause and the table operate, in the case of land zoned " Open Space A " or " B ", to prohibit registered clubs, which are, in fact, permitted, with consent, in the other relevant open space zone (" Open Space C "). 48. As a registered club use is prohibited on lands zoned " Open Space A ", Mr Tomasetti submits that such a use cannot be included, and must not have been intended to be included, in the term " any development " in cl 17(8). 49. Mr Tomasetti submits that: (i) as cl 7 is not expressed to be subject to any other provisions of the LEP, and is not expressed in terms such as " nothing in this clause prevents … ", and, on the other hand, (ii) as cl 17(8) is not expressed as " regardless of …" or " despite … ", as are the provisions quoted above, cl 17(8) must be interpreted as having, as its clear purpose, the imposition of " an additional step in the development consent process ", requiring the Council, as the relevant " public authority … ", to take into consideration the matters set out in cl 17(8), before deciding whether or not to give its concurrence to a particular development, which is permitted on the face of the table to cl 7. 50. Mr Johnson, Counsel for the applicant, contends, on the other hand, that the words in cl 17(8) are clearly " permissive " in character - the Council may, with concurrence, grant consent to any development on " Open Space A " land which has not been acquired. 51. As the Council has raised none of the factors in cl 17(8) as issues in the merits appeal regarding the proposed development, the Council must have acknowledged the permissive nature of the provision. 52. Mr Johnson further submits that as cl 17 (8) is the only provision in the LEP which uses the term " any development ", that clause must apply beyond the uses specified in cl 7 and its table. 53. Mr Johnson argues that this interpretation of cl 17(8) is consistent with the provisions of the CCPSO and, later, the HPSO. Conclusion 54. The LEP must be construed by reference to its own provisions, and not those of the planning instruments it replaced. 55. The LEP clearly anticipates that not all " Open Space A " land will be owned by the Council or, in due course, acquired by it. It also envisages that a range of uses, both public and private in their character, should take place, with or without development consent, on such land. 56. In the event that the land is not acquired by the Council, the LEP provides that, before development on such land receives consent, it must have the concurrence of the Council, acting in its special capacity pursuant to cl 17(8). 57. Had it been the objective of the planning instrument to allow on the land, in certain circumstances, development which was otherwise prohibited, the court would expect a specific provision enabling such development to be in the plan. Several such specific provisions are included, but not one allowing a registered club on " Open Space A " land. 58. It is quite consistent with cl 7, and the stated objectives of the zones, that no registered club should be permitted in any circumstances on the subject site. One of the Open Space zones allows for such a use, and if cl 17(8) were intended to override the zoning control table provided in cl 7, the draftsman would be expected to have used words like those included in, for example, cl 20(3). 59. Against that background, I have come to the firm conclusion that the submissions on behalf of Council are to be preferred. 60. Accordingly, I answer the question in the affirmative - development of a registered club on land zoned " Open Space A " is prohibited . 61. The appeal will be listed before the List Judge on Thursday 17 August 2000 at 9.30am for further consideration as to whether or not the hearing scheduled to commence next Monday can/should proceed. 62. As requested by Mr Johnson, I reserve the question of costs. 63. The exhibits may be returned. 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