Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Abret Pty Limited v Wingecarribee Shire Council [2011] NSWCA 107 Hearing dates: 27 July, 9 November 2010 Decision date: 05 May 2011 Before: Beazley JA at [1]; Campbell JA at [70]; Handley AJA at [71] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: INJUNCTIONS AND DECLARATIONS - permissibility of a seniors housing development on land zoned rural - construction of instruments and characterisation of use LOCAL GOVERNMENT - powers, functions and duties - town planning - development application - whether the proposed development is a prohibited development under the Local Environmental Plan or whether it is permissible with consent - prohibited development Legislation Cited: Environmental Planning and Assessment Act 1979 Wingecarribee Local Environmental Plan 1989 Cases Cited: Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 CB Investments Pty Limited v Colo Shire Council (1980) 41 LGRA 270 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; 96 CLR 493 Cranbrook School v Woollahra Council [2006] NSWCA 155; 66 NSWLR 379 Cranbrook School v Woollahra Council [2006] NSWCA 155; 66 NSWLR 379 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157 Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731 Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates & Anor (1979) 39 LGRA 154 Lizzio v Ryde Municipal Council [1983] HCA 22; 155 CLR 211 Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2003) 123 LGERA 179 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106; 80 LGERA 173 Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 Peters & Anor v Manly Council & Anor [2007] NSWCA 343 Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529 at 534-535 T & K Berry v Wollongong Council [2008] NSWLEC 210 Vanderwolf & Anor v Warringah Shire Council & Anor [1975] 2 NSWLR 272 Warringah Shire Council v Raffles [1979] 2 NSWLR 299; (1978) 38 LGRA 306 Category: Principal judgment Parties: Abret Pty Limited (Appellant) Wingecarribee Shire Council (Respondent) Representation: I Hemmings; Nash (Appellant) J Griffiths SC; NCT Bilinsky (Respondent) Constantine G Pavlis & Co (Appellant) B Bilinsky & Co (Respondent) File Number(s): 2009/00298484 Decision under appeal Citation: Abret Pty Limited v Wingecarribee Shire Council [2009] NSWLEC 132 Date of Decision: 2009-08-10 00:00:00 Before: Sheahan J File Number(s): 40128/2009 HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, Wingecarribee Shire Council (the Council), refused to grant development consent to a development application lodged by the appellant for a Seniors Living Development upon land at Moss Vale, which was zoned in part No 1(a) (zone 1(a)) and in part No 7(b) (zone 7(b)) pursuant to the provisions of the Wingecarribee Local Environmental Plan 1989 (the LEP). The appellant brought proceedings in the Land and Environment Court by way of a class 4 application seeking a declaration that the development was permissible with consent under the LEP. Sheahan J refused to make the declaration on the basis that the proposal was a prohibited development under the LEP. The appellant appealed against that decision. The sole issue on the appeal was whether the proposed development is a prohibited development under the LEP or whether it is permissible with consent. This raised the following sub-issues for determination: 1. Whether his Honour failed to determine the issue raised in the proceedings. 2. Whether, as a matter of construction of the LEP, cl 9(3) which sets out the zone objectives, was relevant to the determination of what uses were prohibited. 3. Whether the proposed development is for an innominate use for the purpose of item 3 of the zoning table and thus permissible with consent. 4. Whether, having regard to its component parts, the development proposal included a residential flat building within item 4 of the zoning table and was thus prohibited development under the LEP. The question as to whether cl 13(3) of the LEP was a development standard was raised. However, the Court determined not to deal with that issue. Held per Beazley JA (Campbell JA and Handley AJA agreeing) dismissing the appeal: (1) The trial judge's conclusion that seniors housing is not to be approved at the expense of the primary focus of the LEP was erroneous. His Honour's reasoning was directed to the objectives of the zoning table. (2) The objectives are not provisions that control development, but rather set the framework in which the LEP operates. The objectives themselves are not necessarily consistent, but reflect the conflicting demands upon development within the particular Local Government Area. (3) It was not suggested by the Council that there is a priority of objectives in the clause. Accordingly, there was no basis for the trial judge to rely upon the objective in para (d) rather than the objective in para (i): [42]. Given that the objectives do not dictate permissibility, his Honour erroneously engaged in a merits consideration of the application: [43]. (4) A provision of the LEP is to be construed within the statutory instrument as a whole: [45] Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 (applied). (5) Accordingly, a construction of a provision which was more conducive to the achievement of the objectives of the LEP is to be preferred to a construction that does not achieve those aims. (6) The trial judge's finding that cl 13(3) applies to all housing development was erroneous: [31], [43]. (7) The fact that seniors housing is a defined term within the LEP and is not listed as a prohibited use in the planning table does not mean it is permissible with consent. Rather, it is necessary to characterise the use, so that, if the purpose of the use is otherwise controlled under the LEP, the proposed use is controlled by that provision: [62] Egan v Hawkesbury City Council (1993) 79 LGERA 321 (applied); Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 (applied). (8) There is nothing that identifies the development as for seniors housing other than the label: [65]. Even if the development is intended to be dwellings for seniors, the purpose of the use is for rooms or suites of rooms capable of being used as a separate domicile in either residential flat buildings or dwelling houses. There are overlapping purposes: [67] Egan v Hawkesbury City Council (1993) 79 LGERA 321 (applied); Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 (applied). (9) Even if seniors housing was an innominate use falling within item 3 of the zoning table, residential flat buildings and dwelling houses are each independently controlled by the LEP: [67]. Accordingly, it is not necessary to find a predominant use. (10) The purpose of the use is for domiciles in different types of buildings. Residential flat buildings are prohibited: [67], [68]. Where premises are used for two or more purposes, none of which subserves the others, if any one purpose which is independent and is not incidental to the other purpose is prohibited, the planning ordinance is being disobeyed: [68] Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157 (applied); Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 (applied). Judgment 1BEAZLEY JA : On 19 November 2008, the respondent Council (the Council) refused to grant development consent to a development application lodged by the appellant for a Seniors Living Development upon land at Moss Vale. The appellant brought proceedings in the Land and Environment Court by way of a class 4 application seeking a declaration that the development was permissible with consent under the Wingecarribee Local Environmental Plan 1989 (the LEP). The terms of the declaration sought by the appellant were as follows: "[That] development of the land in Lot 3, Deposited Plan 873240 known as Lot 3 Suttor Road, Moss Vale, for a Seniors Living Development in accordance with a development application made by the [appellant] to the [respondent] on or about 15 July 2008 is permissible with development consent from the [respondent] as the consent authority first had and obtained pursuant to the provisions of the Environmental Planning and Assessment Act 1979." 2On 10 August 2009, Sheahan J refused to make the declaration on the basis that the proposal was a prohibited development under the LEP. The appellant appealed against that decision. The sole issue on the appeal is whether the proposed development is prohibited development under the LEP or whether it is permissible with consent. The Court is not concerned with the merits of the proposed development. The proposed development 3The proposed development comprises 138 dwellings and a number of community facilities. The dwellings are self-contained and are a mix of attached and freestanding detached two and three-bedroom single storey dwellings, each with a single garage. There are seven different floor plans and it is proposed that the project be constructed in six stages of between 15 and 26 lots. 4The land upon which the development is proposed to be built (the land) is zoned in part No 1(a) (Rural "A" Zone) (zone 1(a)) and in part No 7(b) (Environmental Protection (Landscape Conservation) Zone) (zone 7(b)) pursuant to the provisions of the LEP. The land, which lies within the 'green belt' area separating Moss Vale from Burradoo, has an area of 29.98 hectares and is identified as being of prime crop and pasture potential for the purposes of the Illawarra Regional Environmental Plan No 1 (the REP). The protection of prime crop and pasture land is also a particular aim of the LEP: see cl 2(2)(d) set out below. The appellant proposes that the development be constructed on an area of about seven hectares in the northern area of the site on that portion of the land zoned 1(a). State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 does not apply to the land. 5The REP, cl 11 defines the following objectives for rural land: "(a) to retain the productive capacity of prime crop and pasture lands, (b) to protect valuable natural environments ... (c) to provide for wildlife movement between major protected wildlife habitats, (d) to effectively manage the development of rural lands having regard to flood potential, bushfire risks, salinisation, soil degradation, erosion and weed infestation, (e) to allow for the development of small rural holdings in appropriate locations, (f) to prevent uneconomic demand for State Government services, (g) to allow for future urban expansion, (h) to retain the scenic attributes of rural areas, and (i) to provide for developments which by virtue of their character require siting away from urban areas." Relevant provisions of the LEP 6The principal aim of the LEP is to provide planning controls for the Shire of Wingecarribee and to update and consolidate into one instrument the various planning controls that applied to the area. 7The particular aims of the LEP are specified in cl 2(2) and include the following: "(a) divide land into the zones referred to in clause 8 and to achieve in respect of land within each of those zones the objectives specified for that land in the Table to clause 9, ... (d) protect the agricultural production potential of rural land and prevent fragmentation of viable agricultural holdings, particularly where land is designated as being of prime crop and pasture potential, ... (i) provide a variety of residential environments to cater for differing lifestyles and income levels, ... (n) provide for multiple occupancy development on rural land which is not of prime crop and pasture classification ..." 8Clause 5 is the definition provision of the LEP and, relevantly, includes the following definitions: " hostel means premises that are generally staffed by social workers or support providers and at which: (a) residential accommodation is provided in dormitories, or on a single or shared basis, or by a combination of them ... seniors housing means residential accommodation that consists of: (a) a residential care facility, or (b) a hostel, or (c) a group of self-contained dwellings, or (d) a combination of these, and that is, or is intended to be, used permanently for: (e) seniors or people who have a disability, or (f) people who live in the same household with seniors or people who have a disability, or (g) staff employed to assist in the administration of the residential accommodation or in the provision of services to persons living in the accommodation, but does not include a hospital." 9Pursuant to cl 6 and the REP, cl 7, the Environmental Planning and Assessment Model Provisions 1980 (other than specified exceptions) are adopted for the purposes of the LEP. Pursuant to the Model Provisions, cl 4, the following definitions are relevant to the matter before the Court: " dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. dwelling house means a building containing 1 but not more than 1 dwelling. residential flat building means a building containing 2 or more dwellings. units for aged persons means a residential flat building used to house aged persons as defined in the Aged or Disabled Persons Homes Act 1954, as amended of the Parliament of the Commonwealth, erected or to be erected by an eligible organisation as defined in that Act, the Department of Housing or any other Department or instrumentality of the Crown." The proposed development does not fall within the definition of units for aged persons as the appellant is not an " eligible organisation " as defined. 10The Council is the consent authority for the purposes of the LEP, cl 7. Clause 8 provides that land to which the LEP applies shall be within a zone as specified on the zoning map. 11Clause 9 provides the zone objectives and the development control table. Clause 9(2) and (3) provide: "(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which: (a) development may be carried out without development consent, (b) development may be carried out only with development consent, and (c) development is prohibited, are specified under the headings 'Without development consent', 'Only with development consent' and 'Prohibited', respectively, appearing in the matter relating to the zone. (3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out." 12The table for zone 1(a) provides: " 1 Objectives of zone The objectives of this zone are: (a) to provide suitable land for agricultural use, (b) to regulate the subdivision of rural land to ensure that actual or potentially productive land is not withdrawn from production and to prevent the fragmentation of viable rural holdings, particularly in those areas designated as having prime crop and pasture potential, ... (g) to ensure development is carried out in a manner that minimises risks from natural hazards, particularly bushfires and flooding, (h) to recognise that rural localities cannot be economically provided with the level of services that apply in urban locations, and (i) to recognise the value of the rural scenic landscape to the local tourist economy and to protect these areas from small holding rural subdivision." 13Items 2, 3 and 4 of the table identifies those developments that are permissible, permissible with consent and prohibited, as follows: " 2 Without development consent Agriculture (other than dog breeding or boarding, lot feeding of livestock, pig keeping and poultry farming and, in the hydrological catchment, dairies and animal boarding and breeding establishments); dams; exempt development as defined in clause 6A; recreation gardens. 3 Only with development consent Any purpose other than a purpose included in Item 2 or 4. 4 Prohibited ... residential flat buildings containing more than 2 dwellings (other than single storey units for aged persons) ..." The other prohibited developments specified in clause 4 of the table are a miscellany of uses ranging from advertising structures, to liquid fuel depots, to warehouses. Dwelling houses are not included in the table of prohibited uses, but are the subject of a planning control pursuant to cl 13(3). The nature and effect of the planning control in cl 13(3) is a matter in issue in the proceedings. 14The LEP, cl 12 provides that in respect of land within zone 1(a), the Council may only consent to the subdivision of land if, relevantly, each allotment created by the subdivision will have an area of not less than 40 hectares. 15Clause 13 makes provision for dwelling houses within zone 1(a). Relevantly, cl 13(3) provides: "A dwelling-house may, with the consent of the council, be erected on land to which this clause applies, but only if the land: (a) has an area of not less than 40 hectares ..." 16Clause 16 deals with multiple occupancy as follows: "(1) This clause applies to land within Zone No 1 (a) or 1 (b) other than land identified as being of prime crop and pasture potential for the purposes of Illawarra Regional Environmental Plan No.1. (2) Nothing in this plan prevents the erection, with the consent of the council, of more than one dwelling-house on an allotment, portion or parcel of land having an area of 40 hectares or greater if the dwelling-houses form part of a multiple occupancy development. (3) The council shall not grant consent to a multiple occupancy development referred to in subclause (2) unless it is satisfied ..." 17An issue arose in the case as to whether cl 13(3) was a " development standard " within the meaning of the Environmental Planning and Assessment Act 1979. As I have otherwise concluded that the appeal should be dismissed, it is unnecessary to deal with that question. The trial judge's reasons 18The trial judge identified the issue between the parties as being whether the proposed development was permissible as a 'seniors housing' project, being an innominate development under the LEP and thus permissible with consent pursuant to cl 9(2)(b) and cl 3 of the zoning table as the appellant contended, or whether the proposed development was prohibited within zone 1(a), which was the position of the Council. 19His Honour noted, at [25], that statutory instruments such as LEPs and REPs the subject of his consideration fell for interpretation in accordance with general principles of statutory construction. This included looking at the language, context, policy, intention and purpose of all the instrument's provisions: see Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 at [69] and [78]; Cranbrook School v Woollahra Council [2006] NSWCA 155; 66 NSWLR 379 at [36], [46], and [63]; Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731 at [35]-[36]. 20His Honour then referred to the principles relevant to the characterisation of the use or purpose of a particular development: see Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400; T & K Berry v Wollongong Council [2008] NSWLEC 210 per Jagot J. 21His Honour, at [33], rejected a submission that the proposed development was, relevantly, characterised as a " residential flat building ". Nor was it " cluster housing " or a " subdivision ". His Honour then concluded: "35 When one looks at the relevant provisions of the applicable instruments, the inference simply must be drawn that, while seniors housing is to be encouraged, it is not to be approved at the expense of what is clearly the primary focus of the instruments, read together, namely preserving prime rural land, such as the subject site, and cl 13(3) of the LEP clearly ' defines the conditions under which [it] can be erected ' ... 36 The fact that ' seniors housing ' is defined in the LEP cannot and does not make seniors housing generally permissible. One discerns a major intention of the draftsman as the preservation of prime rural land. One house per 40ha covers all housing development on such land, and you cannot overcome it by classifying the project as seniors housing. I accept the Council's submissions in this respect ..." (transcript references omitted) Issues on the appeal 22In its notice of appeal, the appellant alleged that the trial judge erred in failing to hold that the proposed development for a seniors living development was permissible with consent. By an amended notice of contention, the Council contended that the proposed development was not permissible with consent, but rather, was prohibited on one or other of two bases: either by cl 13(3), which, it contended, operated as a prohibition on development and was therefore not a " development standard " within the meaning of the Environmental Planning and Assessment Act , or because the proposed development comprised in part a residential flat building within item 4 of the zoning table and did not fall within the specified exception to that provision in item 4. 23The appeal and amended notice of contention raised the following issues for determination: 1. Whether his Honour failed to determine the issue raised in the proceedings. 2. Whether, as a matter of construction of the LEP, cl 9(3) was relevant to the determination of what uses were prohibited. 3. Whether the proposed development is for an innominate use for the purpose of item 3 of the zoning table and is thus permissible with consent. 4. Whether, independently of the zoning table, the proposed development was prohibited by cl 13(3). This raised the specific issue whether cl 13(3) was a development standard. As I have indicated, I have found it unnecessary to decide this question. 5. Whether, having regard to its component parts, the development proposal included a residential flat building within item 4 of the zoning table and was thus prohibited development under the LEP. 24It is convenient to deal with the first and second issues together. First issue: did the trial judge fail to determine the issue raised in the proceedings? Second issue: does cl 9.3 operate as a prohibition on development? 25Subject to the introductory words " Except as otherwise provided ", LEP, cl 9(2) specifies development that may be carried out: (a) without development consent, being those uses specified in item 2 of the zoning table; or (b) with consent: see item 3 of the zoning table; or (c) which is prohibited by reference to the uses specified in item 4 of the zoning table. Uses permissible with consent are innominate in the sense that no specific uses are specified in item 3. Rather, uses that neither fall within item 2 nor item 4, are permissible with consent. 26The proposed development does not fall within item 2 and so is not permissible without development consent. Subject to the question whether 'use' can be characterised by reference to the component parts of a development, so as, in this case, to comprise in part " residential flat building ", it was accepted that the proposed development of seniors housing did not fall within the prohibited uses specified in item 4. 27The effect of the introductory words to cl 9(2), " Except as otherwise provided ", is that the zoning table is not the sole determinant of whether a use is permitted without consent, permitted with consent, or prohibited. That follows as a matter of construction of the clause and was not in controversy. Such construction is well supported by the authorities: see in particular Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2003) 123 LGERA 179. 28The appellant submitted that although Sheahan J correctly identified the issue for determination at [3] of his judgment, namely, whether the use in the proposed application was permissible with consent or prohibited under the LEP, he failed to answer that question, but rather had rejected the application on its merits. The appellant submitted that it was apparent that his Honour made a 'merits determination', given the following statements at [35] and [36] of the judgment: At [35]: (i) "... seniors housing ... is not to be approved at the expense of ... the primary focus of [the LEP and REP] ... namely preserving prime rural land, such as the subject site ". (ii) "... cl 13(3) of the LEP clearly 'defines the conditions under which [it] can be erected' ". (There was some debate on the appeal as to whether " [it] " in the judgment referred to " seniors housing " or " dwelling house ". The transcript at trial (12, lines 27-29) records counsel as saying " seniors housing ", which was clearly the intended reference.) At [36]: (iii) " The fact that 'seniors housing' is defined in the LEP cannot and does not make seniors housing generally permissible ". (iv) " One discerns a major intention of the draftsman as the preservation of prime rural land ". 29The appellant submitted that the statement in (i) above was clearly a matter that involved a consideration of the merits and did not go to the question whether the proposed development was permissible under the LEP. The appellant further submitted that his Honour's statement in the first sentence of [36] (see (iii) above) was erroneous. It submitted that the fact that " seniors housing " was defined in the LEP meant it was permissible development, subject to the specific provisions of the LEP and any merit considerations that might follow. In this case, the appellant pointed out that " seniors housing " did not fall within item 4 of the zoning table. Clause 13(3), to which his Honour had regard in [35] (see (ii) above), did not apply, as it related to " dwelling houses ", not " seniors housing ". 30The appellant also submitted that the trial judge was wrong in the penultimate sentence of [36], where he said: "One house per 40ha covers all housing development on such land, and you cannot overcome it by classifying the project as seniors housing." The reference to " One house per 40ha " is obviously a reference to cl 13(3). The error was said to be twofold. First, cl 13(3) on its terms did not cover " all housing ". It related only to dwelling houses. Secondly, the appellant contended that the proposed development was permissible as an innominate use under cl 3 of the zoning table, as it was not a prohibited use within cl 4 of the table. 31The submission as to the first error must be accepted. Clause 13(3) only governs dwelling houses. It does not govern " all housing ". Whether or not the proposed development is for dwelling houses is a separate question. 32The elemental proposition advanced in respect of the second alleged error was that " seniors housing " was defined in the LEP, was not in the itemised list of prohibited uses subject to the terms of the LEP and was permissible as an innominate use within item 3 of the zoning table. The subtext of the argument was that definitions are self-contained, so that " seniors housing " is not a " dwelling house ", or a " residential flat building ", or any other type of defined use. Accordingly, as " seniors housing " was not expressly prohibited by any provision of the LEP, it was permissible development with consent. 33The shortcoming in the appellant's argument as to the second alleged error is that it seeks to place each definition in the LEP in a silo and fails to appreciate that in given circumstances, the definitions may operate interdependently. That this is so is apparent from the definition of " seniors housing " itself, which is defined to mean " residential accommodation consisting of ", relevantly for present purposes, a " group of self contained dwellings ". " Dwelling " is separately defined, as is " dwelling house ": see at [9] above. 34The rejection of the appellant's argument that the development is permissible with consent because it is seniors housing does not determine the purpose of the proposed development. 35The Council submitted that it was appropriate and indeed essential in determining whether a particular use was prohibited, to have regard to the objectives of the planning scheme. It was not sufficient, on the Council's submission, to merely have regard to the zoning table in isolation from the other provisions of the LEP which, it was contended, necessarily bore upon its proper construction and application. The 'objectives', on this submission, were not only relevant to the determination of the merits of a development application. 36The Council also submitted that having regard to the terms of the declaration sought, it was necessary for the trial judge to turn his mind to the objectives of the LEP to determine whether the declaration sought by the appellant should be made. 37On the Council's case the question whether the development was permissible with consent, which was the essence of the declaration sought by the appellant, involved a determination whether the determination complied with the objectives of the zone. 38The Council submitted that this approach to the construction of the LEP flowed from the provisions of the Environmental Planning and Assessment Act . Section 26(1)(b) of the Act provides that an LEP may make provision for " controlling (whether by the imposing of development standards or otherwise) development ". Section 31 provides: "Without limiting the generality of section 26(1)(b), an environmental planning instrument may provide that development specified therein is prohibited." The Council pointed out that by its terms, s 31 did not only limit the prohibition of development by reference to a zoning table. I have already indicated that there was no dispute that prohibition on development may be found in provisions of the LEP outside the zoning table. 39The Council next relied upon s 76B in support of the same proposition, namely, that prohibitions on development are not limited to those specified in a zoning table. Section 76B provides: "If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land." 40Again, the proposition was not in dispute. What was in dispute was whether the objectives applied as prohibitions on development, rather than as planning objectives which were benchmarks or checks, against which a proposed development should be assessed. 41The Council also relied upon LEP, cl 2(2)(a) which provides that one of the particular aims of the LEP is to achieve the objectives specified for land in the table to cl 9. The Council also referred to the aim in cl 2(2)(d), pointing out that the proposed development was on land which had prime crop and pasture potential. The Council submitted that having regard to the particular aims of cl 2 and the specific objectives of land zoned 1(a), the trial judge was correct in not being satisfied that the proposed development could not be subject of a grant of consent because it was inconsistent with various objectives that were prohibitory of development. 42I do not agree with the Council's submissions on this point. In my opinion, the trial judge erred in his approach and conclusions at [35] and [36]. Dealing first with [35], it is apparent that his Honour's reasoning is directed to the objectives of the zoning table. They are not provisions of the LEP that control development. Rather, they set the framework in which the LEP operates. The objectives themselves are not necessarily consistent, but reflect the conflicting demands upon development within the particular Local Government Area. For example, there is an apparent conflict between paras (d) and (i) of the objectives. One aims for the protection of the agricultural production of prime crop and pastoral land: para (d). The other aims to provide a variety of residential environments: para (i). There is no provision in para (i), as there is in para (n), which promotes multiple occupancy, but not on prime and crop and pasture land. It was not suggested by Council that there is a priority of objectives in the clause. Accordingly, there was no basis for the trial judge to rely upon the objective in para (d) rather than the objective in para (i). 43As the objectives themselves do not dictate permissibility, it does seem that his Honour engaged in a merits consideration of the application. I say that with some hesitation, as his Honour related the objectives to cl 13(3). In doing so, he may have been intending to find that, properly construed, cl 13(3) prohibited this development. This is a possible understanding of his Honour's reasons, given his finding at [36], that cl 13(3) applies to all housing development and that cl 13(3) prohibited more than one dwelling on less than 40 hectares. However, I have already indicated (at [31] above) that that finding is an error. 44It is necessary, therefore, to determine the use to which the land is to be put under the proposed development to determine whether it falls within item 3 of the zoning table or whether the development is prohibited by some other provision of the LEP. This involves the characterisation of the use, a task which his Honour may have undertaken, that is, use as housing, but with the error to which I have referred. 45It follows from what I have said that I reject the argument advanced by the Council on the first and second issue. Having said that, I am not to be taken as saying that the objectives are not relevant to the construction of other provisions in the LEP. A provision is to be construed within the statutory instrument as a whole: see Project Blue Sky (discussed further below). Thus a construction of a provision which was more conducive to the achievement of the objectives of the LEP is to be preferred to a construction that does not achieve those aims. That said, however, the difficulty to which I have referred about conflicting aims remains. Characterisation of a use 46As stated earlier, the appellant contended that the proposed development was for use as seniors housing, although the development application itself identified the details of the proposal in terms: Seniors' Living Development (138 dwellings). According to the plans accompanying the development application, what is proposed includes 33 residential flat buildings, containing more than two dwellings; 27 individual dwelling houses. The remaining accommodation is intended to comprise two or more semi-detached dwellings. 47The Council contended in its amended notice of contention that the development was prohibited by cl 13(3). Although this contention was directed to the question whether cl 13(3) was a development standard, it also involved a characterisation question as to the purpose of the proposed development. If it is for dwelling houses, as the Council contended on this argument, the development will be controlled by cl 13(3). It is at that point that the question whether cl 13(3) is a development standard would otherwise have become relevant. 48The Council also contended in its amended notice of contention that the development was prohibited because it comprised, in part, residential flat buildings containing more than two dwellings which were not single storey units for aged persons, and therefore fell within item 4 of the table. The appellant accepted that some of the buildings in the proposed development met the description of a residential flat building. However, it submitted that it was not correct to isolate some buildings in a development and characterise the use or purpose by reference to those buildings. Rather, the characterisation task was concerned with the end to be served by the use of the premises. 49The proper approach to characterisation has been the subject of much judicial consideration. The appellant referred the Court to much of it: see Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529 at 534-535; Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157; Vanderwolf & Anor v Warringah Shire Council & Anor [1975] 2 NSWLR 272; Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates & Anor (1979) 39 LGRA 154; CB Investments Pty Limited v Colo Shire Council (1980) 41 LGRA 270; Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376; Egan v Hawkesbury City Council (1993) 79 LGERA 321; Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202; Cranbrook School v Woollahra Council [2006] NSWCA 155; 66 NSWLR 379 ; Peters & Anor v Manly Council & Anor [2007] NSWCA 343 . 50The case law was extensively reviewed by Preston CJ of the LEC in Chamwell Pty Ltd v Strathfield Municipal Council and it is unnecessary to repeat it. His Honour's review enables me to deal more economically with the arguments advanced by the parties than otherwise would have been the case. 51The appellant, in its argument that the proposed development was for seniors housing and not for dwelling houses or residential flat buildings, emphasised two principles. First, in planning law, use must be for a purpose. The use of land involves no more than the " physical acts by which the land is made to serve some purpose ": Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; 96 CLR 493 at 508; Chamwell at [28]. Put another way, 'purpose' is the end to which the use of the land can be seen to be put. It describes the character which is imparted to the land at which the use is pursued: see Shire of Perth v O'Keefe at 534-535; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106; 80 LGERA 173 at 188; Chamwell at [27]. 52Secondly, in planning law, 'purpose' is not concerned with the nature of the buildings that will be used to serve that purpose. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe at 534-535; Warringah Shire Council v Raffles [1979] 2 NSWLR 299; (1978) 38 LGRA 306 at 308; Chamwell at [34]. The characterisation of the purpose of a use of land is done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on. The characterisation process is not carried out by reference to the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310 (at [36]). 53This second proposition is well illustrated by the facts in Chamwell , where the proposed development comprised a mixed use building containing residential units, a supermarket and a basement car park with associated driveways, travelators, pedestrian ramps and a forecourt. Shops were a prohibited use in the 2(b) (Residential) zone. Roads were a permissible use. That part of the development proposal (being Lot D) that fell within zone 2(b) included the residential units as well as the basement car park and the driveways and circulation aisles to access the car park. Preston CJ of the LEC held that the use of the car park and associated activities were subordinate to the purpose of the supermarket and were not capable of being for an independent use of a road. Accordingly, they were properly to be characterised as for the use of a shop, namely the supermarket and thus the development was prohibited in the 2(b) zone. 54Thirdly, w here part of the premises is used for a purpose which is subordinate to the purpose of the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used: see Foodbarn . Chamwell was also an example of this proposition. The same principle applies where the dominant and servient purposes both relate to the whole and not to separate parts. In Foodbarn Glass JA also noted that where premises are used for two or more purposes, none of which subserves the others, if any one purpose which is independent and is not incidental to the other purpose is prohibited, the planning ordinance is being disobeyed. 55The appellant resisted an argument that this development had a dual character, that is, as seniors housing and as residential flat buildings: see Foodbarn per Glass JA at 161; Chamwell at [43]. The appellant submitted that the proposed development was for seniors housing. That was the end to be served. In other words, that was the purpose of the development. It did not matter, on the appellant's argument, that the nature of the buildings which were to be constructed to serve that end were also residential flat buildings or dwelling houses. The appellant cited Vanderwolf v Warringah Shire Council , amongst other authorities as supporting this argument. In that case, Bowen CJ rejected an argument that an aged persons home, which was permissible, became prohibited because some of the buildings were within the definition of residential flat building. His Honour held the development was permissible as an aged persons home and considered it was necessary to characterise the use of the development as a whole. His Honour concluded that the dominant purpose of the development, determined as a whole, was for an aged persons home, notwithstanding that the predominant building type, that is, the nature of the buildings, were townhouses and therefore within the definition of residential flat building. 56Vanderwolf was a decision that was dependent upon its own facts, having regard to the particular terms of the planning scheme in question. In particular, an aged persons home fell within the definition of 'hospital' in the relevant LEP. " Hospital " was not defined by reference to a dwelling, as is the case with seniors housing in the LEP subject of these proceedings. 57The Council submitted that it was necessary to ask whether or not the appellant's development fell within the definition of " residential flat building ". The Council submitted that question should be answered affirmatively and that that result could not be avoided by applying the label " seniors living ", being the description given to the development in the development application, or " seniors housing ", as was argued in the proceedings. Accordingly, even if the development proposal was for seniors housing and thus an innominate use permissible with consent, that did not overcome the fact that the development, at least in part, was for residential flat buildings which were prohibited under item 4 of the planning table. 58In this regard, the Council placed particular reliance upon this Court's decision in Egan v Hawkesbury City Council. The planning scheme in that case was in the same form as in this case, with specified uses being either permitted without consent (item 2 in the planning table) or prohibited (item 4 in the planning table). Uses not so specified were permissible with consent under item 3 of the planning table. Under the planning scheme, " industry " was a prohibited use. The appellant argued that use of land for an " extractive industry ", was permissible with consent, as it was not a specified use expressly prohibited under item 4. 59The Court of Appeal rejected the appellant's argument that the prohibition against " industry " under the planning instrument was not intended to apply to something which, though falling within that term, also fell within another kind of activity separately defined. Mahoney JA stated, at 328: "[This] submission ... would involve that, if an activity for which development approval is sought is within a definition of an activity which is proscribed, it would yet not be proscribed if it fell also within a definition or class of activity not so proscribed. I do not think that that is how the local environmental plan was intended to operate ... the fact that a proscribed activity might fall within another definition was not intended to have effect that it could be carried on or carried on with consent." His Honour further stated, at 329: "In the end, [this] submission is to be accepted only if this Court is to infer the intention that, despite the meanings assigned in the definitions, consent can be given to a use which is proscribed because it also falls within another use which it defined by the local environmental plan." His Honour rejected the submission that that was how the LEP was intended to operate. 60Cripps JA agreed, noting in his separate judgment, at 332, that if the intent of the legislature was to exclude " extractive industries " from the definition of " industry " it would have been expected that that would be done in express terms. His Honour also stated that once it was accepted that the proposed activity of " extractive industry " fell within the definition of industry, it was a prohibited use under the planning table, regardless of whether or not it was permissible elsewhere. 61The reasoning in Egan was approved in Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171, Mason P accepting that planning instruments may define development purposes in ways that overlap. Powell JA and Young CJ at Eq (as his Honour then was) agreed with Mason P's reasons. Mason P further observed , at [23], in response to a submission that Egan was to be confined to its own facts: "[ Egan ] establishes a more general interpretative template for construing 'industries' where shown as prohibited uses in the various land use tables of the instrument; and it rejects the application of expressio unius reasoning in this context." 62On this approach, which in my opinion is correct, the appellant's argument that because " seniors housing " is a defined term within the LEP and is not listed as a prohibited use in the planning table, it is permissible with consent, must be rejected. The matter cannot be approached so simply. Rather, it is necessary to characterise the use, so that, if the purpose of the use is otherwise controlled under the LEP, the proposed use is controlled by that provision. However, the rejection of that argument does not conclude the matter in the respondent's favour. It is still necessary to characterise the use by reference to the purpose of the development. 63It is necessary at this point to return to the relevant provisions of the LEP. The first is the definition of " seniors housing ". Insofar as that is relevant, " seniors housing " is a " group of self-contained dwellings ... that is, or is intended to be, used permanently for ... seniors ". " Seniors " is not a separately defined term in the LEP or the REP. However, it is parenthetically defined within the definition of " residential care facility ", as being people aged 55 years or more, and it should be accepted that that definition applies to seniors housing. 64" Dwelling " is relevantly defined to mean rooms " capable of being occupied or used as a separate domicile ". A " dwelling house " is a building that contains one dwelling only. In this proposal, there are 27 such buildings. " Residential flat building " is a building which contains " 2 or more dwellings ". In this case, the development application stated that there are 33 residential flat buildings containing more than two dwellings. The remainder of the residential accommodation is semi-detached houses, of which there is no separate definition but which must fall within the definition of " residential flat building ". 65Given that the proposed development is for a mixture of dwellings, that is, residential flat buildings and dwelling houses, with no other distinguishing feature other than community facilities, there is nothing that directs attention to the development as being one for seniors housing other than the label. There was evidence that were to be community facilities in the development. However, community facilities are a feature of many developments that are not seniors housing. 66There was no evidence that the development was to be limited by the requirement in the definition of " seniors housing " that is, it was intended to be used permanently for seniors or persons with a disability or persons living with such persons. At one level, that would be sufficient to dispose of the appeal. However, that point was not taken by the Council against the appellant other than in a most tangential fashion. Accordingly, the matter ought to be considered on the assumption that the proposed development is for people over 55 years or people with a disability or for those who live in the same household as such people. 67On the assumption that the development is for seniors housing, the development also comprises a combination of dwellings. It does not comprise any other kind of residential accommodation that falls within the definition of " seniors housing ". Nor is there anything in the proposed development that directs attention to a predominant use either of residential flat buildings or dwelling houses, other than a numerical approach which favours residential flat buildings. What is clear, however, is that even if the development is intended to be of dwellings for seniors, the purpose of the use is for dwellings as defined, that is, rooms or suites of rooms capable of being used as a separate domicile in either residential flat buildings or dwelling houses. This case falls to be governed, therefore, by the principles stated by this Court in Egan and in Sammut. That is, there are overlapping purposes. Even if seniors housing was an innominate use falling within item 3 of the zoning table, residential flat buildings and dwelling houses are each independently controlled by the LEP. 68It is not necessary, therefore, where all uses of the development proposal are controlled by provisions of the LEP, to find a predominant use. As I have said, the purpose of the use is for domiciles in different types of buildings. Residential flat buildings are prohibited. To that extent, the principle stated by Glass JA applies, at least analogously. That is, if any one purpose is independent and does not serve the other, or is not incidental to the other, and the other purpose is prohibited, the planning ordinance is being disobeyed. 69It follows, in my opinion, that the appeal should be dismissed with costs. 70CAMPBELL JA : I agree with Beazley JA. 71HANDLEY AJA : I agree with Beazley JA. ********** 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. Decision last updated: 05 May 2011