Land and Environment Court of New South Wales CITATION : Marzouk Sam v Penrith City Council [2007] NSWLEC 415 APPLICANT Marzouk Sam PARTIES : RESPONDENT Penrith City Council FILE NUMBER(S) : 10550 of 2006 CORAM: Talbot J KEY ISSUES: Development Application :- Whether clause in LEP is development standard or prohibition. Development standard - whether clause referable to essential elements of the development - amounts to prohibition. Environmental Planning and Assessment Act, 1979 s 76B LEGISLATION CITED: Penrith Local Environmental Plan No. 52 State Environmental Planning Policy No. 1 Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130; DEM (Australia) Pty Ltd v Pittwater Council (2004) 136 LGERA 187; CASES CITED: Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322; Retirement by Design Pty Limited v Warringah Council (2007) NSWLEC 87 ; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Woollahra Municipal Council v Carr (1985) 62 LGERA 263 DATES OF HEARING: 04/07/07 DATE OF JUDGMENT: 11 July 2007 APPLICANT Mr Johnson (Barrister) SOLICITORS Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT Mr Galasso SC SOLICITORS DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 11 July 2007 10550 of 2006 Marzouk Sam v Penrith City Council JUDGMENT 1 Talbot J: The applicant seeks development consent to construct a shopping centre on land situated at St Clair known as 33-37 Cook Parade St Clair. 2 Penrith Local Environmental Plan No. 52 (LEP 52) controls the development on the land. The land is within zone 5 Special Uses (a) Special Uses "A" pursuant to the table to clause 9 of the LEP. Purposes for which the development may be carried out only with development consent are specified in column III as follows. Any purpose authorised by Division 2 or 3 of Part XIII of the Local Government Act, 1919; drainage; parking; roads; the particular purpose indicated by the scarlet lettering on the map and any purpose incidental or subsidiary thereto; utility installations (other than gas holders or generating works). 3 The subject land is endorsed with the words "community uses" by scarlet lettering on the map. Clause 9 is expressed to be subject to any other provision in the plan. Clause 17 provides: - (1) Nothing in clause 9 prevents a person, with the consent of the council, from carrying out development for the purposes of a shop or professional suites on land within Zone No. 5 (a) "Community Purposes" where the aggregate floor space of all premises for which consent has been granted and which has not lapsed for the purposes of shops and professional suites under this plan does not exceed 650 square metres. (2) The council shall not grant consent to the carrying out of development referred to in subclause (1) unless and until a development control plan showing the location and purposes for which the land may be developed is in force. 4 The site area is 6,000m2. Amended plans show that the floor space of the development will be 1,690 m2. Whether Clause 17 applies 5 Apart from the provisions of clause 17, shops are a purpose for which development is prohibited pursuant to column IV of the table as being a purpose other than that included in column III. Because the description of "community uses" is used by the scarlet lettering on the map, the Council submits that it does not fit the description explicitly identified in Clause 17 as "community purposes" and therefore the provisions of clause 17 are of no assistance to the applicant. 6 According to the argument put by Mr Galasso SC on behalf of the Council, as a matter of planning usage there is a distinction between the notion of "uses" and "purposes" (see DEM (Australia) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 and Retirement by Design Pty Limited v Warringah Council (2007) NSWLEC 87 at [76]-[82]. Even if that argument is strictly correct it is nevertheless appropriate to adopt the interpretation of the LEP which leads to a reasonably practical and sensible result (Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323. Although the words "community purposes" are specifically used and quoted in clause 17, the intention is clear. A purposive approach should be taken to the interpretation of the LEP which should not be construed in an overly technical manner. I agree with Mr Johnson that the reference to "community purposes" in clause 17 when viewed in a technical legal sense is incorrect but the adoption of the words "community uses" on the map appears to be for the intended purpose of differentiating the use of the land so marked from the use of the land for other community purposes such as "drainage" and "telecom" which are separately identified on the map. I am prepared to accept that when the words "community uses" were endorsed on the plan, it was intended as an identification or indication of a particular purpose for which the land could be used in the manner foreshadowed in column III. The approach I have adopted in my opinion does not damage the intention of clause 17. 7 Therefore it is appropriate to construe the reference to "Zone No. 5(a) "Community purposes"" in clause 17 as including a reference to land in Zone (5) No. (5) a Special Uses where the purpose marked on the map is "Community Uses". Whether clause 17 is prohibition or a development standard 8 There is consensus between the parties, and I agree, that to say the least clause 17 is inelegantly phrased. The debate between the Council and the applicant is whether the applicant can rely on the provisions of State Environmental Planning Policy No. 1 (SEPP1) in order to overcome the constraint on floor space area where the proposal has a total floor space of 1,692 m2 that clearly exceeds the 650 m2 referred to in clause 17. 9 Clause 17 has been inserted as an exception to the general prohibition on development for shops in the Special Uses (a) zone and operates as a concession within the limit imposed by reference to the aggregate floor space of all premises for which consent has been granted for the purpose of shops and professional suites within the designated part of the zone. 10 The argument necessitates yet another attempt to resolve the dilemma identified by the Court of Appeal in Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130. It is necessary to attempt to find yet another path through this enigmatic quagmire by deploying the twin concepts of "essential elements" and "aspects" or to distinguish between "requirements that are external to a development and those that are internal" or to apply the "Development Standard twostep" that is "no light fandango". (Ipp JA at pages 134 and 135 in Browning). Moreover, there is further the approach of identifying the development and deciding whether the particular requirement relating thereto is not a prohibition. In Browning Ipp JA at [20] found the zoning criterion test to be a "beacon of certainty and simplicity in the Wonderland of s 4(1), inhabited as it is by the shifting sands of words used contrary to their ordinary meaning, indeterminate abstract concepts and vague complex notions that are incapable of ready resolution". 11 Basten JA at [103] identified the question as "involving defining the elements of the proposed development which were essential elements in the context of the LEP". 12 After adopting the tests identified by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319, Tobias JA adopted the two-step approach and asked the question whether the relevant clause in that case defined an essential element of the permissibility of development of land. He came to the conclusion at [48] that the answer to the question so posed was in the affirmative as the requirement was a characteristic of the land and "which must be satisfied before any form of development is permissible with consent upon that land" (at [48]). Tobias JA was of the opinion that the relevant clause in that case constituted in effect a zoning requirement which, in a manner analogous to the definition the subject of decision of the Court of Appeal in Woollahra Municipal Council v Carr (1985) 62 LGERA 263, prohibited the erection of any development rather than a separately defined control to be imposed on permitted development. Although the other members of the Court did not wholly support the analysis by Tobias JA, they nevertheless reached the same result. 13 The so-called "beacon of certainty" referred to by Ipp JA and the reference to Carr by Tobias JA provide an introduction to the solution in this case. Clause 17 can be construed as a zoning subscript which permits development for the purposes of a shop or professional suites in particular circumstances where specific criteria in relation to the aggregate floor space of all premises described in the clause, does not exceed 650 m2. It is therefore a provision that despite its inelegant phrasing allows development of shops of a particular kind or in a particular circumstance that are not solely referable to the internal characteristics of the development itself. The referable essential elements of the proposed development necessarily contravened the zoning subscript as being the carrying out of development where the aggregate floor space of all premises for which consent would be granted exceeded 650 m2. 14 Clause 17 is a provision that controls development by reference to requirements external to the development itself. Namely the aggregate floor space of all premises to which consent has been granted in the zone. Although on a strict construction the issue of whether the development is permissible does not arise until a person with the consent of the Council attempts to carry out the development for the purposes of a shop or professional suite, nevertheless in substance the clause sets criteria against which permissibility is to be assessed. The criteria that is set to permit the carrying out of the development is referable to the aggregate floor space of all currently approved premises. Accordingly the specified floor area of 650 m2 cannot be varied by resort to SEPP 1 as it is not an aspect of the subject development. 15 Mr Johnson on behalf of the applicant seeks to develop an argument that at the moment when development consent is granted, there are no premises for which consent has been granted and which has not lapsed. For the purposes of shops and professional suites under the plan, the criterion of 650m2 is not relevant and accordingly, his client is not constrained in terms of floor space. With respect that can hardly be a logical or sensible approach to the operation of the clause. 16 On the one hand the drafter has made it clear that the intention is to limit the aggregate floor space to 650m2. The fact that on a strict reading of the clause that is not to be determined until such time as the development is carried out does not alter the inherent objective of the clause. There can be no point or utility in granting a consent that ultimately cannot be acted on. A development consent which does not permit the holder of the consent to carry out development in accordance with it is an exercise in futility. That consequence justifies a purposive approach to the interpretation of the clause which leads to a construction that limits the aggregate floor space for the purposes of shops and professional suites within the relevant parts of the zone to 650m2. This development itself will have a result contrary to the objective and accordingly, is prohibited. 17 Mr Galasso also made reference to the provisions of s 76B(b) of the Environmental Planning and Assessment Act 1979 (EPA Act) which relevantly provides as follows:- 76B Development that is prohibited If an environmental planning instrument provides that: (a) … (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. 18 The submission on behalf of the Council is that as clause 17 has the effect that the development cannot be carried out on the land, even with development consent, the owner of the land must not carry out the development on the land contrary to s 76B(b). Effectively that is a prohibition. Although the submission is novel, it should be noted that s 76B was introduced by an amendment that repealed the original s 76 of the Act that was in different terms and spoke of provisions in an environmental planning instrument whereby development specified therein is prohibited. Section 76B addresses a different issue and that is whether development can be carried out rather than, as the original s 76 did, address whether consent can be granted. 19 However, it is not necessary for me to resolve any questions that may arise pursuant to s 76B as I am satisfied for the reasons that I have explained above that as clause 17 is in effect a subscript of the zoning, then it bespeaks of a prohibited development. Secondly, the criteria set by clause 17 does not refer to an aspect of the development and is external to it. Accordingly it is not a development standard and cannot be varied. Moreover, I am not prepared to construe clause 17 in the way that Mr Johnson suggests, which would permit the grant of development consent to development that is uncontrolled in respect of the floor area, while ever no other consent exists. 20 The appeal cannot succeed and the application must be refused. 21 The formal orders are: - 1. Application for development consent refused. 2. The Class 1 application is dismissed. 3. Exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.