Arminella Pty Ltd v Ryde City Council

Land and Environment Court (NSW)|1999-12-10|Before: Lloyd J

The applicant relies upon two grounds of appeal: (a) The Commissioner erred in law in applying the incorrect purpose of SEPP 5 in respect to the reasonable or acceptable level of services required under clause 12.

(b) There was no evidence to support a finding of fact that the applicant selected a segment of the likely purchasers to occupy the development so that they would be older people in the active category. 4. Clause 12 of SEPP 5 relevantly provides: 12.(1) Location, facilities and support services

The consent authority must not consent to a development application made pursuant to this Part unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to: (a) shops, banks and other retail and commercial services that residents may reasonably require; and

(b) community services and recreation facilities; and

(h) on site communal meeting spaces (internal and/or external). (2) In deciding whether the level of access residents have to each facility and service listed in subclause (1) is reasonable (whether provided as a part of the development or by an external service provider) the consent authority must consider the following: (a) the type of housing proposed and the needs of the people who are most likely to occupy that type of housing;

(b) whether the type or scale of housing proposed could, or may reasonably be expected to, provide some facilities and services on site in a cost effective manner;

(c) whether any relevant facility or service is or will be convenient to residents of the proposed housing in view of the walking distance and availability of public transport to and from the facility;

(d) the affordability of any relevant facility or service.

.... 5. The relevant part of the Commissioner's decision criticised by the applicant is as follows: Finally the Court considered the locational factors and access to community facilities and services required under cl9 and cl12 of SEPP 5.

The Court was convinced that the proper interpretation of the legislation was that all residents of a SEPP 5 proposal must have reasonable access to the range of services and facilities enunciated therein.

The Court was also convinced that an Applicant cannot, under the legislation select a segment of the likely elderly purchasers to occupy the proposal, so that they are all in the " active " category. The purpose of the legislation is to provide for the elderly and frail and/or disabled. The latter category being regardless of age. The further purpose of the legislation is to create housing in a location and of a type which enables the elderly to make the transition from active, to frail, to disabled, without having to relocate.

With this in mind, the access from the site to those services, for that range of elderly persons cannot be considered reasonable or acceptable under cl12 of SEPP 5.

As I understand the applicant's submission, it is contended that the Commissioner adopted the wrong test in applying cl 12: the Commissioner adopted the proposition that reasonable access to facilities and services are mandatory not only for the frail and/or disabled, but for a wider group who are independent, mobile and active and those who are frailer. In the applicant's submission, the objectives of the provision show that it is intended to allow housing that is located and designed in a manner particularly suited to two categories of people; (1) those who are independent, mobile and active and (2) those who are frailer and other people with a disability regardless of age.

Clause 12 appears in Part 2 of SEPP 5. Clause 9 sets out the objectives of that Part: 9. The objective of this Part is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer, and other people with a disability regardless of their age.

As I understand it, the applicant submits that the words " as well as " require the two categories of people to be regarded disjunctively. This in turn calls for different standards of access to facilities and services depending upon the category of persons to be accommodated in the development.

I am unable to agree with the submission. The applicant accepts that a further purpose of the legislation is to create housing in a location and of a type which enables the elderly to make the transition from active to frail, without having to relocate. In that case, the standard of access to facilities and services should meet the needs of the frail as well as those persons who are independent, mobile and active. The Commissioner's decision discloses no error of law in his application of this principle.

Moreover, as noted in paragraph 2 above, the development application is for housing for both the aged and the disabled. I also refer to the description in the statement of environmental effects, that consent is being sought " to provide housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer, and other people with a disability regardless of their age. " It is clear that the Commissioner thought that access to services was not reasonable in this case having regard to the range of persons for whom the development is intended. Again the decision discloses no error of law in the application of clause 12 to the development for which consent was sought.

The second ground of appeal is a no evidence point. I am unable to agree with the submission that there was no evidence to support the Commissioner's finding of fact. The Commissioner summarised the evidence of the town planning consultant called by the applicant, Mr P A Mitchell. The Commissioner refers to a survey by Mr Mitchell of the potential market, which found that the majority of potential purchasers would come from the West Ryde area and were likely to be more mobile people; to the evidence by Mr Mitchell that small scale development units such as the proposal could select a target market within the grouping of over 55 year olds and select a site where that market would want to be and build accordingly; and to research by Mr Mitchell which indicated that only about 10% of the over 55 age bracket were disabled and therefore there was an ample market segment to which this location would appeal. In the light of this evidence it cannot be said, in my opinion, that there was no evidence to support the finding of fact that the applicant selected a segment of the likely elderly purchasers to occupy the development so that they were all in the active category.

It is worth repeating what was said by Pearlman J in David Crane & Associates Pty Ltd v Kogarah Municipal Council [1999] NSWLEC 27 at 7: 7. The mandatory nature of the obligation imposed by cl 12(2) is revealed, not just by the language used, but by the policy considerations which underlie SEPP 5. Kirby P dealt with this point in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 431 in considering cl 11 (the predecessor of cl 12). His Honour pointed out that SEPP 5 permits development for the purpose of housing for aged and disabled persons in places where otherwise land zoning would prohibit such development, but "... the price of relaxation ... is compliance with the requirements laid down..." by SEPP 5.

The Commissioner refers to this in his summary of the evidence of Mr Mitchell: It was pointed out in cross-examination that Pearlman CJ [in David Crane & Associates Pty Ltd v Kogarah Municipal Council ] said inter alia that SEPP 5 granted a concession for more intense development, and the price of that concession was that the development must suit the elderly, the frail and the disabled.

I therefore make the following orders: 1. The appeal is dismissed.

The applicant must pay the respondent's costs of the appeal.

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.

Land and Environment Court of New South Wales CITATION: Arminella Pty Ltd v Ryde City Council [1999] NSWLEC 237

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