Abret Pty Limited v Wingecarribee Shire Council

Central Coast Care v Wyong Shire Council [2003] NSWLEC 17; (2003) 124 LGERA 320 Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731 CASES CITED: Ku-ring-gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154 Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306 R v Young (1999) 46 NSWLR 681 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59; (2007) 161 LGERA 1 T & K Berry v Wollongong Council [2008] NSWLEC 210

APPLICANT Mr D Wilson, Barrister SOLICITORS Low Doherty & Stratford LEGAL REPRESENTATIVES: RESPONDENT Mr B Bilinsky, solicitor SOLICITORS B Bilinsky & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40128 of 2009 Abret Pty Limited v Wingecarribee Shire Council

JUDGMENT Introduction 1 His Honour: In this matter the applicant company seeks declarations that: " 1. 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 Plaintiff to the Defendant on or about 15 July 2008 is permissible with development consent from the Defendant as the consent authority first had and obtained pursuant to the provisions of the Environmental Planning and Assessment Act 1979.

2. on the true construction of s.39(2) of the Land and Environment Court Act 1979, this Court is empowered to alter, vary or modify a restriction as to user created by registration of Deposited Plan 873240." 2 The parties are agreed that the declaration in par 2 of the summons should be granted by consent. (See applicant's written submissions at par 15, and Council's at par 22. See also Tp16 LL21-36 and Tp23 LL16-21). 3 In respect of the first declaration sought, the Council's case is that the development is prohibited within Council's Zone No 1(a) (its Rural 'A' zone). The applicant contends that it is permissible as a "seniors housing" project, being an innominate development under the local LEP (see Tp3 L35, Tp19 LL25ff, Tp23 LL3-6, Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154, and Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59; (2007) 161 LGERA 1, at [22]). 4 The court has had regard to the following instruments - State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ('SEPP'); Wingecarribee Local Environmental Plan 1989, gazetted 12 January 1990 (Exhibit A1 - 'LEP'); Illawarra Regional Environmental Plan No.1 (also in Exhibit A1 - 'REP'), and the Environmental Planning and Assessment Model Provisions 1980 (also in Exhibit A1 - 'the Model Provisions'). The factual background 5 The hearing proceeded on the basis of an agreed Statement of Facts (Exhibit A2) in the following terms: "1. On 11 July 2008 INNOVATION PLANNING AUSTRALIA PTY LIMITED lodged a development application with the Respondent to develop land known as 'Thousand Oaks', Lot 3, in Deposited Plan 873240, Suttor Road, Moss Vale, (the 'Land') for the purpose of a Seniors Housing Development.

2. The Land is zoned in part 1(a)(Rural A) Zone and in part 7(b)(Environmental Protection)(Landscape Conservation) Zone pursuant to the provisions of Wingecarribee Local Environmental Plan 1989, being the relevant planning instrument. The Applicant proposes that the Seniors Housing development be constructed on that portion of the Land zoned 1(a)(Rural A) Zone. 3. The Land is identified as being of prime crop and pasture potential for the purposes of Illawarra Regional Environmental Plan No.1.

5. The Development Application specifically stated that State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 did not apply to the Land as the proposed development area was not zoned primarily for urban purposes nor did it adjoin Land zoned primarily for urban purposes.

6. The proposed development comprises of 138 dwellings and a number of community facilities.

7. The Respondent contends that the proposed development is prohibited within the 1(a)(Rural A) Zone of the planning instrument". 6 During the hearing it was further agreed, in respect of Agreed Facts 2 and 4, that the land the subject of the development proposal is in the northern area of the site, comprising about 7ha, out of 29.98ha, and, in respect of Agreed Fact 6, that the 138 dwellings are all self-contained, but they comprise a mixture of "attached" and "free-standing detached" dwellings (Tp17 LL3, 4, 29 and 30). The evidence makes clear that the dwellings will be a mix of two and three bedroom, single storey, on seven different floor plans, each with a single garage. The project is to be constructed in six stages of between 15 and 26 lots. 7 The subject site was formerly occupied by SCEGGS Moss Vale School and lies within the "green belt" area separating Moss Vale from Burradoo. Since the closure of the school the site has been used for grazing. The existing driveway and avenue of trees from Suttor Road would comprise the formal entrance to the housing project, and some of the school buildings of heritage significance will be converted to become its community and administrative centres. 8 The development application, an accompanying submission, and Council's determination are before the court (Exhibit C1). The proponent relied on the facts that the development is contained wholly within the 1(a) land and that the SEPP does not apply. A letter of advice from solicitors Gadens was also attached, suggesting that the proposal is permissible under the LEP. 9 The Council issued a determination on 19 November 2008 (also in Exhibit C1), refusing the application on eleven grounds, saying it was prohibited by the LEP as contrary to the objectives of the 1(a) zone, and noting that medium density housing is not an objective of the 1(a) zone and is contrary to cl 2(2)(b)(e) and (f) of the LEP (set out below). 10 Council's assessment report is in evidence as an annexure to the affidavit of Gary Doherty, the solicitor currently retained by the applicant. The report draws attention to the prime crop and pasture potential of the subject land and the significance of that for the provisions of the REP. The report notes an apparent drafting mistake which failed to carry forward into the LEP a specific prohibition on seniors housing in the 1(a) zone, leaving it as permissible with consent. The Council officers assessed the proposal in terms of planning merit and recommended refusal of consent. The report concludes (p22): " The application has been assessed in terms of Section 79C Environmental Planning and Assessment Act 1979, and is recommended for refusal. The site is not considered to be suitable for the purpose of seniors housing due to it's (sic) dislocation from the town centre and the services that should be readily available to seniors. This dislocation will be exacerbated by the construction of the Suttor road bypass proposed to service the Moss Vale Enterprise zone. … There is uncertainty over the permissibility of the proposal which has been caused by the unintended consequences of the Renwick LEP. Therefore the assessment has focused on the merits of the proposal, which have been found to be lacking. If Council refuses the application and is required to defend that position, then the question of permissibility will need to be clarified." 11 Following the Notice of Refusal, Mr Doherty wrote to the Council contesting its findings on permissibility, and suggested that the issue be tested by bringing these Class 4 proceedings. The relevant instruments and provisions 12 By virtue of cl 6 of the LEP and cl 7 of the REP, the following definitions in cl 4 of the Model Provisions apply to this case: "dwelling" means a room or suite 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." 13 Clause 5 of the LEP contains the following relevant definition: "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." 14 The SEPP does not apply to the subject proposal, because, although it identifies the context for retirement village developments (Tp15, LL42-48), it specifically does not apply to land zoned primarily for rural and non-urban purposes, such as the subject site. See Central Coast Care v Wyong Shire Council [2003] NSWLEC 17; (2003) 124 LGERA 320. 15 Relevant aims and objectives of the LEP itself (clause 2(2)) include: "(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. … (n) provide for multiple occupancy development on rural land which is not of prime crop and pasture classification." 16 Clause 9 sets out Zone Objectives and the development control table. Subclauses 9(2) and 9(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." 17 The first zone in the table is "Zone No.1(a) (Rural 'A' Zone)". The objectives of the zone include the following, upon which Council relied in refusing the application: "(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 … (e) to ensure subdivision is designed to maximise the retention of natural vegetation and to minimise the potential for significant alterations to the natural landform by way of construction of access driveways, excavations, filling and the like… (f) to enable development for the purposes of tourism and recreation to occur in an environmentally acceptable manner, … (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." 18 The uses in the (1)(a) zone are categorised 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 Advertising structures; automotive businesses; boarding-houses; bulk stores; car repair stations; cluster housing; commercial premises; gas holders; generating works; industries (other than rural industries, local rural industries, extractive industries, offensive or hazardous industries or home industries); junk yards; liquid fuel depots; motor showrooms; recreation facilities; residential flat buildings containing more than 2 dwellings (other than single storey units for aged persons); road transport terminals; rural workers' dwellings; sale of bulky goods; service stations; shops (other than general stores having a floor area no greater than 100 square metres); showrooms; transport terminals; warehouses." 19 Clause 12 applies to the subdivision of land within the 1(a) zone, among others. Subclause 12(2) provides: "The council may consent to the subdivision of land to which this clause applies only if each allotment of land to be created by the subdivision will have: (a) an area of not less than 40 hectares, and (b) where the allotment has a frontage to a main or arterial road, a frontage to that road of not less than 200 metres." 20 Clause 13 deals with dwelling-houses within the 1(a) zone, among others. Relevantly it provides in subclause 13(3) that: " 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, or (b) comprises the whole of an existing parcel, or (c) comprises the residue of an existing parcel, the area of which is less than 40 hectares and on which no dwelling-house is erected and is affected only by a subdivision made (whether before or after the appointed day) in accordance with a consent granted pursuant to a former planning instrument, …" 21 Clause 16 deals with multiple occupancy and provides 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 … " as to various listed matters . 22 Clause 31B relevantly provides as follows: "The consent authority may grant consent to the use for any purpose of a building that is a heritage item, or of the land on which such a building is erected, even though the use would otherwise not be allowed by this plan, if: (a) it is satisfied that the retention of the heritage item depends on the granting of consent, and (b) the proposed use is in accordance with a conservation management plan which has been endorsed by the consent authority, and (c) the granting of consent to the proposed use would ensure that all necessary conservation work identified in the conservation management plan is carried out, and (d) the proposed use would not adversely affect the heritage significance of the heritage item or its setting, and (e) the proposed use would not adversely affect the amenity of the surrounding area otherwise than to an insignificant extent."

23 Clause 5 of the REP provides that in the event of any inconsistency the REP is to prevail over a LEP, and cl 11 defines the following objectives for rural lands: " (a) to retain the productive capacity of prime crop and pasture lands, (b) to protect valuable natural environments, as identified …, (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." Consideration 24 The Interpretation Act 1987 s 33 provides: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." 25 As a species of delegated legislation, statutory instruments such as LEPs and REPs fall for interpretation in accordance with the general principles of statutory interpretation, looking at the language, context, policy, intention and purpose of all the instrument's provisions. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69] and [78]; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379, at [36], [46], and [63]; Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731, at [35]-[36]. 26 The court must look to the intention of the draftsman, and avoid irrationality and injustice in its construction of the instrument. 27 In Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336, at 350, Gibbs J said: "... where two meanings are open ... it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust".

28 In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297, at 320, Mason & Wilson JJ said:

"On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended." 29 In R v Young (1999) 46 NSWLR 681, at 687-688, Spigelman CJ observed (citations omitted):

"[15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction." 30 In Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306, Tobias JA said, at [52]: It is well established that the rules of statutory construction permit the avoidance of an irrational result of a particular construction unless the language of the provision in question is intractable or where, although the language is not intractable, the operation of the provision, read literally, is such as to indicate that it could not have been intended by the draughtsperson". 31 The principles to be applied when the court is characterising a use, or the purpose of a development proposal, are also well known. They were conveniently collected and summarised by the learned Chief Judge, Preston J, in Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114; (2007) 151 LGERA 400, at [27]-[50], and have been frequently applied in this court since. See, e.g., T & K Berry v Wollongong Council ("Berry") [2008] NSWLEC 210, per Jagot J. 32 As Jagot J observed in Berry (at [34]), "whether a place is being used as a manager's residence or not, as with all questions of the purpose of a use, will depend on a commonsense assessment of the character, extent, and features of the various uses and the ends they apparently serve". 33 Considering all that emerged from the competing written submissions, and from the oral argument, what is proposed in this case is clearly not a "residential flat building", "cluster housing", or a "subdivision". The relevant lot of land is not a "concessional allotment", the applicant is not an "eligible organisation", and the proposed housing is not designed for "rural workers" (see Tpp7-8). 34 The subject land is acknowledged to be rural land "of prime crop and pasture potential", so cl 16 of the LEP concerning "multiple occupancy" does not facilitate the project, even though it is for multiple occupancy (see Council's submissions par 19, and Tp13). 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" (see Tp12 LL27-28). 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 (Tp14 L49-p15 L4, p15 LL19-32 and p16 LL5-10). Conclusion 37 The applicant's proposal is clearly for a prohibited development, and its summons, in so far as it deals with the question of permissibility, should be dismissed with costs. Orders 38 The orders of the court are:

1. By consent the court declares that, on the true construction of s.39(2) of the Land and Environment Court Act 1979, this Court is empowered to alter, vary or modify a restriction as to user created by registration of Deposited Plan 873240. 2. The applicant's summons is in all other respects dismissed. 3. The applicant is ordered to pay the respondent's costs on a party-party basis, as agreed, or as assessed according to law. 4. The exhibits are returned.

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