Reported Decision : (2007) 156 LGERA 351 Land and Environment Court of New South Wales CITATION : Sydney Catchment Authority v Bailey (No 2) [2007] NSWLEC 191 PROSECUTOR Sydney Catchment Authority PARTIES : DEFENDANT Barry Waldon Bailey FILE NUMBER(S) : 50066 of 2005 CORAM: Lloyd J Prosecution :- construction of a road - use of land as a road - whether development consent required - savings provision - public roads - Crown roads KEY ISSUES: Words and phrases :- "in connection with" Crown and Other Roads Act 1990 s3(1) Environmental Planning and Assessment Act 1979 s33, s76A(1)(a), s125(1) Environmental Planning and Assessment Model Provisions 1980 LEGISLATION CITED: Mining Act 1992 Roads Act 1993 Sydney Water Catchment Management Act 1998 s3 Water Board Act 1987 Wollondilly Local Environmental Plan 1991 Charteris v Leichhardt Municipal Council, NSWLEC, Pearlman J, 28 July 1998, unreported; Commissioner for Superannuation v Benham (1989) 22 FCR 413; Commissioner for Superannuation v Miller (1985) 8 FCR 153; Commonwealth Superannuation Scheme Board of Trustees v Kitching (2004) 139 FCR 272; Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Environment Protection Authority v Hardt (2006) 148 LGERA 61; Jim Rannard & Associates Pty Ltd v North Sydney Municipal Council (1992) 75 LGRA 274; Johnson v Roads & Traffic Authority, NSWLEC, Cripps J, 28 June 1991, unreported; Kembla Coal & Coke Pty Ltd v Wollondilly Council (1994) 84 LGERA 263; Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404; Lang v Hornsby Shire Council, NSWLEC, Talbot J, 16 March 1994, unreported; Lizzio v Ryde Municipal Council (1983) 155 CLR 211; McCarthy v Strathfield Municipal Council (1963) 10 LGRA 32; Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469; CASES CITED: Morris v Woollahra Municipal Council (1966) 116 CLR 23; North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465; Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979, NSWLEC, Sheahan J, 24 December 1998; Perrett v Commissioner for Superannuation (1991) 29 FCR 581; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Fisher (2002) 54 NSWLR 467; Roads and Traffic Authority of New South Wales v Shellharbour Municipal Council and Kiama Municipal Council NSWLEC Bannon J, 15 October 1992, unreported; Shoalhaven City Council v Interpacific Property Corporation Pty Ltd NSWLEC Bignold J, 18 December 1987, unreported; State Bank of New South Wales v Blacktown City Council, NSWLEC, Waddell AJ, 30 September 1994, unreported; Strathfield Council v State Rail Authority of New South Wales NSWLEC Waddell AJ, 29 July 1994, unreported; Sydney Catchment Authority v Bailey (2006) 149 LGERA 298; Tange v Drummoyne Municipal Council (1961) 7 LGRA 201; Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38; Wykanak v Director-General of the Department of Urban Affairs & Planning (1999) 105 LGERA 295 DATES OF HEARING: 20/02/07 and 21/02/07 DATE OF JUDGMENT: 17 April 2007 PROSECUTOR: Mr D A Buchanan SC and Mr T G Howard (barrister) SOLICITORS LEGAL REPRESENTATIVES: Sydney Catchment Authority DEFENDANT: Mr I S Lloyd QC SOLICITORS PricewaterhouseCoopers Legal JUDGMENT: - 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Tuesday, 17 April 2007 LEC No. 50066 of 2005 SYDNEY CATCHMENT AUTHORITY v BAILEY (No 2) [2007] NSWLEC 191 JUDGMENT 1 HIS HONOUR: The defendant, Barry Waldon Bailey, is charged with an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that he carried out development, namely, the construction of a road and/or the use of land as a road, without first having obtained the necessary development consent. 2 The defendant has pleaded not guilty to the charge. He admits that he carried out work in connection with the construction of a road and that no development consent was granted for the work, but he denies that it was necessary for him to obtain development consent to do so. That is, he denies that the work that he did was an offence against the EP&A Act. 3 In earlier proceedings the Court dismissed a motion by the defendant for summary dismissal of the prosecution, in which he alleged that the prosecutor did not have either the right or the authority to institute the proceeding: Sydney Catchment Authority v Bailey (2006) 149 LGERA 298. The relevant facts 4 The relevant facts are not in dispute and may be briefly described. In 1991 the defendant and his wife became the registered proprietors of lots 51 and 56 in deposited plan 7570557 at Yerrandene. These parcels are contiguous and were formerly known as portions 51 and 56, County of Westmoreland, Parish of Jooriland, portion 51 having an area of about 200 acres (80.94 hectares) and portion 56 having an area of about 120 acres (48.56 hectares). 5 The portions were created by a subdivision of Crown land and are shown on a parish map dated 23 May 1892. The same parish map shows the road corridor providing access to the land. Having been reserved on the parish map as a road and having remained at all times as Crown land, the road corridor was deemed to be a Crown road: Crown and Other Roads Act 1990 s 3(1), now repealed. Following the enactment of the Roads Act 1993, the road corridor was deemed to be dedicated as a public road and declared to be a Crown road under that Act: Sch 2, cl 56. 6 According to evidence the road was always described as a bridle track. In December 1997, during the fire season a fire containment line was carefully but hastily constructed by widening the track along the line of the road by bulldozer, which took a number of days. In April 1998, after the completion of back burning, the fire containment line was rehabilitated. This involved pulling back topsoil, dragging trees and vegetation for bush matting and seed banking. 7 On about 25 or 26 April 2004, the defendant engaged a bulldozer operator to clear and widen the track under his supervision for a length of between 2.5 and 3 kilometres. The area cleared was of regrowth that had occurred since the construction of the fire containment line resulting in a cleared area about 4 to 6 metres wide for the full length of 2.5 or 3 kilometres. The work that was done was wholly within the road reserve. 8 Both the track and lots 51 and 56 owned by the defendant are surrounded by national park land and are situated within a catchment area under the Sydney Water Catchment Management Act 1998 (s 3). The land is also a Special Area as described in the Act (s 44), in this case the catchment of the Warragamba dam. The concurrence of the prosecutor is required for any development consent within the area. The construction of the track has enabled direct unimpeded access to Special Area land and the Lake Burragorang foreshore. The relevant planning controls 9 Section 125(1) of the EP&A Act, under which the prosecution is brought, creates an offence if a person offends against any prohibition under the Act (inter alia). Section 76A(1)(a) states that if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applied unless such a consent has been obtained. 10 The land within which the road exists is subject to the Wollondilly Local Environmental Plan 1991 ("the LEP"). A number of provisions of the LEP are relevant. 11 Clause 2 sets out the aims of the LEP, which include: (h) To ensure that development does not compromise the protection and maintenance of water quality within water supply catchment areas . 12 Clause 7 states that the Environmental Planning and Assessment Model Provisions 1980 ("Model Provisions"), except for certain definitions are adopted for the purposes of the LEP. 13 Clause 10 contains the zoning table and specifies the purposes for which development may be carried out either without development consent, with development consent, or which is prohibited. 14 The land within which the road exists is within zone No. 5(c1) – Special uses "C1"(Water Catchment Zone). The stated objective of the zone is "to protect land which is designated as being part of a water catchment area from land uses which adversely affect, or are likely to adversely affect, the environmental quality of these areas". The only development which may be carried out without development consent is water catchment. Development which may be carried out with consent includes roads. 15 Clause 17 states that the council shall not consent to the carrying out of development on land within zone 5(c1), 5(c2) or 7(a), being land that is within a special area (within the meaning of the Water Board Act 1987) except with the concurrence of Sydney Water. 16 Section 33 of the EP&A Act (as it applied when the present summons was filed) provided that an environmental planning instrument may, by reference, adopt wholly or partially any set of model provisions made by the Minister by order published in the Gazette. Although s 33 has since been repealed, the defendant accepts that the Model Provisions apply in this case. They apply because of their adoption by cl 7 of the LEP, noted above. 17 It is cl 35 of the Model Provisions upon which the defendant relies to say that development consent was not required. Clause 35 relevantly states: 35 Savings Nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit: (a) the carrying out of development of any description specified in Schedule 1, (b) the use of existing buildings of the Crown by the Crown, or (c) home occupations carried on in dwelling-houses. 18 Schedule 1 sets out various kinds of development which are, mostly, but not exclusively, public utility undertakings. One category of development which is clearly not a public utility undertaking is in cl 7, which is the carrying out of mining activities by the owner or lessee of a mine. The defendant in the present case relies on cl 8: "The carrying out of any development required in connection with the construction, improvement, maintenance or repair of any road, except the widening, realignment or relocation of such road." 19 Shortly stated, the defendant submits that the combined effect of the Model Provisions, cl 35 and cl 8 of Schedule 1, provide a complete answer to the charge. The prosecutor's submissions 20 Mr D A Buchanan SC and Mr T G Howard, appearing for the prosecutor, rely upon the following submissions. (a) A purposive, rather than a literal construction should be applied to the whole of the LEP, and in particular, the zoning table and the Model Provisions ; including the apparent policy of the instruments (citing North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247 at 248-9; Jim Rannard & Associates Pty Ltd v North Sydney Municipal Council (1992) 75 LGRA 274; Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404 at 423; Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38 and Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 320). (b) The words " in connection with " in cl 8 of Sch 1 denote work which is not itself development for the purpose of a road although it must have a relationship with that road, which road must already exist, or has been approved, or is otherwise permitted to be constructed (citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]; R v Fisher (2002) 54 NSWLR 467 at [21], [40], [41]; Environment Protection Authority v Hardt (2006) 148 LGERA 61 at [76]; Wykanak v Director-General of the Department of Urban Affairs & Planning (1999) 105 LGERA 295; Commissioner for Superannuation v Miller (1985) 8 FCR 153 at 154-5; Commissioner for Superannuation v Benham (1989) 22 FCR 413 at 421; Perrett v Commissioner for Superannuation (1991) 29 FCR 581; Commonwealth Superannuation Scheme Board of Trustees v Kitching (2004) 139 FCR 272; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 479; and Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at [28]). (c) The exception in cl 8, namely " except the widening, realignment or relocation of such road ", which would require development consent, would lead to an irrational result if a local environmental planning instrument could not require a development application for the construction of a new road. (d) The context of cl 8 is that the subject matter of all the other clauses in Sch 1 (except for cl 7 – mining) all relate to public undertakings ( Kembla Coal & Coke Pty Ltd v Wollondilly Council (1994) 84 LGERA 263 at 271). (e) Other clauses in Schedule 1 use the phrase "required for the purpose of" rather than "in connection with", indicating a far larger class of subject matter to be free of development controls. The intention or purpose of cl 8 is to ensure that once a road has been approved under the Act or LEP (or is constructed without the need for development consent) then associated development which is not the construction etc. of the road itself may, with exceptions, proceed without the need for assessment – provided the development does not involve changing the footprint of the road. (f) An interpretation of cl 8 which could result in the construction of a road without development consent would be inconsistent with and contrary to the objectives zone 5(c1) and the zoning table itself, under which development for the purpose of roads requires development concept. (g) To except the construction of roads from the requirement to obtain development consent would produce an absurd result contrary to the express purpose of the zone. (Reference was made to the EP&A Act , s 25(3); Lang v Hornsby Shire Council , NSWLEC Talbot J, 16 March 1994, unreported; Johnson v Roads & Traffic Authority , NSWLEC, Cripps J, 28 June 1991, unreported; Shoalhaven City Council v Inter Pacific Property Corporation Pty Ltd , NSWLEC, Bignold J, 18 December 1987, unreported; Morris v Woollahra Municipal Council (1966) 116 CLR 23 at 32-33 and Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 218 – suggesting a limiting construction rather then a wide construction of the savings provisions of cl 35 and cl 8 of the Schedule of the Model Provisions ). (h) The predecessor provisions to cl 35, which are to a like effect, show that its purpose and effect is to save an activity or development of the Crown, not to save use by third parties (citing Tange v Drummoyne Municipal Council (1961) 7 LGRA 201 at 210; McCarthy v Strathfield Municipal Council (1963) 10 LGRA 32 at 34 and Wilcox: The Law of Land Development in New South Wales , 1967, The Law Book Co Ltd at 252). The re-making of the same provision in the Model Provisions and in the current instrument - the Standard Instrument (Local Environmental Plans) Order 2006 - leads to the conclusion that the intention was and is to "save" development in the nature of Crown development from the operation of planning controls in the LEP. (i) The land on which the defendant constructed the road was a Crown road ( Crown and Other Roads Act 1990 ) and thus a public road ( Roads Act 1993, Sch 3, cl 56) and it was an offence for a person to carry out a work in, on or over a public road ( Roads Act , s 138(1)), for which councils were historically responsible. (j) Clause 8 of the Schedule was intended to apply to recognisable roads rather than " paper " roads (citing Shoalhaven City Council v Interpacific Property Corporation Pty Ltd , NSWLEC, Bignold J, 18 December 1987, unreported). The word " road " is to be interpreted as a road which is constructed in compliance with the primary development control provisions of the instrument. Consideration of authorities 21 The scope of exclusionary provisions such as the present have been considered in a number of previous cases. 22 Tange v Drummoyne Municipal Council (1961) 7 LGRA 201 is a decision of the Full Court of the Supreme Court of New South Wales. Part III of the County of Cumberland Planning Scheme Ordinance contained the zoning provisions and provisions restricting building and the use of land. Clause 31 was a savings provision which stated that nothing in the foregoing provisions of Pt III shall be construed as restricting or prohibiting or enabling the responsible authority to restrict or prohibit "(i) the carrying out of development of any description specified in the Schedule to this Ordinance;…". The Schedule was in similar but not identical terms to Sch 1 of the Model Provisions in the present case. That case was about a prosecution for the unlawful use of land. Mr Tange relied upon, inter alia, cl 31 and cl 13 of the Schedule which "saved" the "use of land and the use of existing buildings of the Crown." Mr Tange was the proprietor of a boat shed in which he slipped and repaired boats. The business was on land comprising part freehold owned by Mr Tange and part below mean high water mark vested in the Maritime Services Board and leased to him. Manning J (Owen and Nagle JJ concurring) said (at 210): Clause 31 of the Planning Ordinance is found in Part III which deals with restrictions on the use of land. Its purpose and effect is to save an activity or development of the Crown, not to save the use by third parties of land of which the Crown holds the reversion. It is solely the Crown "use" to which the saving applies. 23 The prosecutor submits that this is a binding authority which applies in the present case: this means that Mr Bailey (like Mr Tange) cannot take advantage of the savings provision. 24 I find myself unable to agree. The Court was clearly concerned with cl 13 of the Schedule, which refers to "the use of land and the use of building of the Crown". Other clauses of the Schedule do not necessarily refer to an activity or development of the Crown. Whilst most clauses of the Schedule refer to the carrying out by persons of public utility undertakings, it is a fact that not all public utility undertakings are or were undertaken by or on behalf of the Crown. For, example, cl 2 refers to "the carrying out by persons carrying on public utility undertakings, being road transport undertakings…". Road transport undertakings are frequently undertaken by private corporations. Similarly, cl 3 refers to "the carrying out by persons carrying on public utility undertakings, being water transport undertakings…". Again, privately operated ferry services were and are undertaken on Sydney Harbour, Broken Bay, Port Hacking and elsewhere. Clause 5 refers to "the carrying out by persons carrying on public utility undertakings, being air transport undertakings…". It is mostly private operators who carry on air transport undertakings. Finally, cl 7 refers to "the carrying out by the owner or lessee of a mine, on the mine, of any development required for the purpose of the mine…". I make the same observations in respect of a mine. 25 It is clear that the Full Court in Tange was only addressing cl 13 of the Schedule and could only have been addressing that clause. The statement upon which the prosecutor relies must be seen in that context. The statement cannot apply to other provisions of the Schedule, some of which I have identified above, and which clearly are not restricted to activities or developments of the Crown. 26 In Shoalhaven City Council v Interpacific Property Corporation Pty Ltd, the respondent had commenced clearing operations on subdivisional roads in a subdivision shown in a deposited plan which had been approved by the council's predecessor. In resisting an application for an interlocutory injunction, the respondent relied upon cl 35 and Sch 1, cl 8, of the 1980 Model Provisions, which are to the same effect as the provisions presently under consideration. Bignold J said that "there is considerable force in [the applicant's] submission that the savings or exemption is intended to apply to "roads", that are recognisably roads and not merely "paper roads"." 27 Four things need to be said about this decision. First, it was an application for interlocutory relief and Bignold J acknowledged that it was "not appropriate in these interlocutory proceedings to finally determine the question posed by cl 35 of the Model Provisions". Second, as Bignold J also acknowledged, the lots fronting the roads had not been separately disposed of in subdivision. Third, by contrast in the present case the parish maps which are in evidence show the various portions and allotments fronting the road in different ownerships. Fourth, this decision is contrary to the later decision of Pearlman J on the same point in Charteris v Leichhardt Municipal Council, NSWLEC, 28 July 1998, unreported. 28 Johnson v Roads and Traffic Authority, is another decision on an application for interlocutory relief. The respondent raised cl 35 and Sch 1 cl 8 of the 1980 Model Provisions (inter alia) in resisting the claim for interlocutory relief. Bignold J followed his earlier decision in Interpacific Property Corporation in favouring a restrictive interpretation of the savings or exempting provision. Bignold J also said, however, that it was not appropriate to finally decide the question. 29 In Roads and Traffic Authority of New South Wales v Shellharbour Municipal Council and Kiama Municipal Council, NSWLEC, Bannon J, 15 October 1992, unreported, a number of declarations were sought by the Authority, including a declaration that part of the road known as the North Kiama By-pass, which was proposed to be constructed may lawfully be constructed without the consent of the council. The relevant local environmental plans had adopted the 1980 Model Provisions. Bannon J held that the combined effect of cl 35 and Sch 1, cl 8 permitted without consent the carrying out of work in, on, over or under the land, but not the use of that land for a road. Bannon J also referred to the two interlocutory judgments of Bignold J described above, and expressed agreement that the clause did not apply to mere "paper" roads left in a subdivision, although his Honour also said that the views expressed in those cases did not throw much light on the case before him. 30 In Lang v Hornsby Shire Council, NSWLEC, Talbot J, 16 March 1994, unreported, the relevant provision in issue was cl 96 of the Hornsby Planning Scheme Ordinance, which is to the same effect as cl 35 of the 1980 Model Provisions. The Schedule was in similar terms to Sch 1 of the Model Provisions, including a clause – cl 7 - which was in similar terms to cl 8 of the Model Provisions. Talbot J held that the words of cl 7 related to physical work rather than the mere use of land. Talbot J further held: (a) cl 96 should be strictly construed – it would be inconsistent with the general purpose of the ordinance that land may be used for a road without development consent; (b) the purpose was to remove any impediment to the actual construction of a road and to enable physical works to be done for the purpose of the road without restriction; and (c) the saving only operated where there was already a consent to use the land for a road or and approved road already existed. Talbot J also rejected an argument that the provision was limited to works of a public nature. 31 It is possible to make the following observations about this decision. Although Talbot J was not referred to Tange, his Honour rejected the notion that the provisions of the Schedule only applied to the Crown or to agencies of the Crown. His Honour also held that the relevant provision only applied to the actual construction of roads for which either a consent existed and to approved roads which already existed. In this respect it appears that Talbot J departed from the interlocutory views of Bignold J and the view of Bannon J that the provision did not apply to mere "paper" roads left in a subdivision. In the present case, as noted above, the road in question is an approved road in the sense that it is a road left in a Crown subdivision; it is shown as a road on the parish maps, and the various portions and allotments fronting the road are in a different ownerships. 32 In Strathfield Council v State Rail Authority of New South Wales, NSWLEC, Waddell AJ, 29 July 1994, unreported, the effect of cl 62 of the Strathfield Planning Scheme Ordinance (which is to the same effect as cl 35 of the Model Provisions) was considered. Waddell AJ noted that the clause has two operations: firstly, it provides that nothing in the ordinance shall be construed as "restricting or prohibiting… carrying out development of any description"; and secondly, it provides that nothing in the ordinance shall be construed as "enabling the responsible authority to restrict or prohibit…". His Honour held that, in the context of that case, the former provision was decisive. In response to a submission that the clause should be given a purposive construction, his Honour held that "the terms of cl 62 are explicit and there is no need to seek any aid to interpretation". 33 In Kembla Coal & Coke Pty Ltd v Wollondilly Council (1994) 84 LGERA 283, Talbot J expressed a different view to that which had previously expressed Lang, holding that the other descriptions contained in Schedule 1 (that is, other than mining) relate to development concerned with public undertakings. Despite the fact that Talbot J later cited Lang and the fact that this decision came some six months after Lang, his Honour does not explain why he had a change of view. For the reasons I have identified in par [24] above, I do not accept the proposition (at first rejected and later adopted by Talbot J) that the descriptions in Sch 1 only relate to public undertakings. Talbot J went on to hold that, in relation to mines, the objective of cl 35 is to remove the effect of restrictions and prohibitions by the planning instrument after the mine itself has been approved under either the EP&A Act or the Mining Act 1992. 34 In Charteris v Leichhardt Municipal Council, NSWLEC, Pearlman J, 28 July 1998, unreported, one of the questions to be determined was whether the applicant landowners could lawfully construct a driveway upon an existing unformed road for the purpose of providing access to their property. The relevant environmental planning instrument adopted the Model Provisions, including cl 35 and Sch 1. Pearlman J said: The effect of cl 35 of the Model provisions is that development consent is not required for any development required in connection with the construction of a road, and accordingly development consent is not required for the purpose of constructing vehicular access upon the unformed road. 35 Two things may be noted about this case. The first is that the road in question, like the road in the present case, was an existing unformed road. The second is her Honour's holding that the effect of cl 35 was that development consent was not required to construct the road itself. Her Honour did say, however, that whether the applicants could use the road once constructed in order to gain access to their land was another question which did not arise for determination. And although Pearlman J referred to the judgment of Bannon J in the Shellharbour case, it seems that her Honour was not referred to any of the other judgments which I have noted above since they are not mentioned. Conclusions 36 In the present case the road in question is an existing Crown road created by a subdivision no later than 1892. No further consents are required to create the road: as noted in par [5] above, it is deemed to be dedicated as a public road. 37 I now turn to the provisions of cl 35 of Sch 1 of the Model Provisions. I have noted the judgment of Waddell AJ in Strathfield Council v State Rail Authority, in which his Honour considered the operation of cl 62 of the Strathfield Planning Scheme Ordinance, which is in the same terms as cl 35 of the Model Provisions. In answer to a submission that cl 62 should be given a purposive construction, Waddell AJ held that the terms of cl 62 are explicit, leaving no need to seek any aid to interpretation. I agree. This conclusion is consistent with the well known statement of Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304: "It is an elementary and fundamental principle that the object of the court, in interpreting statute, "is to see what is the intention expressed by the words used": River Wear Comrs v Adamson (1877) 2 App Cas 743 at 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: …" 38 The effect of cl 35 is to take all development specified in the Schedule out of the provisions of the Wollondilly Local Environmental Plan which would otherwise restrict or prohibit such development. This follows from the words "Nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit: (a) the carrying out of development of any description…" This means that the objectives of the LEP and the objectives of the relevant zone and the restrictions upon development within the relevant zone have no application to the various kinds of development described in the Schedule. In the present case, although one of the general aims of the LEP is " to ensure that development does not compromise the protection and maintenance of water quality within the water supply catchment area", it is an aim that must be ignored if it restricts or prohibits a scheduled development. Similarly in the present case the objective of the zone – Zone 5(c1) Special Uses C1 (Water Catchment Zone) – "to protect land which is designated as being part of a water catchment area…" – must be ignored if the development is described in the Schedule. That is, the fact that the land is within zone 5(c1) does not influence the interpretation of the Schedule. I thus reject the prosecutor's submission which I have noted in par [20](g) above. Development of the kind described in the Schedule may be carried out even if it is contrary to the express purpose of the zone. 39 I reject the submission that the purpose of cl 35 and the Schedule is to save from development controls in a local environmental plan only an activity or development of the Crown. The reliance by the prosecutor on Tange is misplaced. I have set out in par [24] and [25] above why I reject the submission that Tange is a binding authority that only activities or development of the Crown are protected. As I have noted in par [38] above, a plain reading of the words in the Schedule demonstrates that this cannot be so. For the same reasons I reject the conclusion of Talbot J in Kembla Coal & Coke that the activities and developments in the Schedule (other than mining) are only concerned with public undertakings. 40 I reject the submission that the words "in connection with" in cl 8 of the Schedule are words of limitation which do not extent to the construction of the road itself. The submission flies in the face of the plain meaning of the words. 41 In State Bank of New South Wales v Blacktown City Council, NSWLEC, 30 September 1994, unreported, Waddell AJ held that there was no way of reading down the wide scope of the words "in connection with". In Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979, NSWLEC, 24 December 1998, Sheahan J adopted Waddell AJ's view of the scope of the words. As I noted in Wykanak v Director-General of the Department of Urban Affairs & Planning (1999) 105 LGERA 295 at [12] the words "in connection with" are words of wide import. A synonym of "in connection with" is "related to". They are words of inclusion or extension rather than exclusion. If the intention was to exclude the actual construction of a road from the clause then that could have been easily stated, in the same was that the widening, realignment or relocation of a road has been excluded. 42 I accept the prosecutor's submission that the construction of a road without consent is probably an offence against the Roads Act. This shows that such works are not free of some form of regulation or control. All that simply means is that it is not regulated by the EP&A Act or by the local environmental plan. The defendant has not been charged, however, with an offence against the Roads Act. 43 The cases of Interpacific Property Corporation and Johnson were, as I have noted, interlocutory judgments in which Bignold J expressed the view that the savings or exemption is intended to apply to roads that are recognisable road and not merely "paper" roads. In Johnson, in which Bignold J followed his earlier judgement in Interpacific, his Honour expressly said, however, that it was not appropriate in those proceedings to finally decide the question. I do not, therefore, regard those judgments as authoratively deciding the question. On the contrary, Bignold J expressly left the question open. As I have noted in par [30] above, Talbot J in Lang appears not to have followed the two interlocutory judgments of Bignold J. 44 I have also noted in par [33] above that in Kembla Coal & Coke, Talbot J held that, in relation to mining, the objective of cl 35 is to remove the effect of restrictions and prohibitions by the planning instrument after the mine itself has been approved. 45 The present case is not dissimilar to the situation thus described by Talbot J. The road in question is a Crown road left in a subdivision of Crown land and it is deemed to be a public road under the Roads Act. No further approval or consent is required to create the road. That is, no further consent or approval is required under the relevant environmental planning instrument to create the road. The effect of cl 35 and cl 8 of the Schedule is to alleviate the need for any further consent for the actual construction of the road. If, however, it is intended to widen, realign or relocate the road then the other provisions of the environmental planning instrument apply. Where, however, the construction work is contained or confined within the boundaries of the present Crown road as shown on the parish map, then the savings provisions of cl 35 and the Schedule apply. This conclusion is consistent with the judgment of Pearlman J in Charteris, which I have noted in pars [34] and [35] above. 46 I also find support for this conclusion by comparing the present savings provision with the savings provision under the County of Cumberland Planning Scheme Ordinance. Clause 31 of that instrument was the equivalent of cl 35 of the Model Provisions which apply in the present case. The Schedule relevantly stated: "10. The carrying out of any development required in connection with the reconstruction, maintenance or repair of roads…(emphasis added)". The substitution of the word "reconstruction" with the word "construction" in the present instrument must be regarded as deliberate. The word "construction" implies much more than "reconstruction" and would clearly include constructing a road where none physically exists at present. 47 I conclude, therefore, that the defendant has not committed any offence against s 125 of the EP&A Act. I find that the offence is not proved. I find that the defendant is not guilty as charged. The summons must be dismissed. I reserve the question of costs. I hereby certify that the preceding 47 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 17 April 2007 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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