Association for Better Living and Education Inc v Wyong Shire Council

Mr I Hemmings SC with Ms B Charlton (Respondent) Brock Partners (Applicant)

Wyong Shire Council (Respondent) File Number(s): 10302 of 2014

Judgment 1This judgment deals with the determination of a preliminary issue as to whether a proposed development is prohibited in a particular zone under a planning instrument. The determination of this issue, before any other, was ordered by Biscoe J in Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96. The parties 2The applicant, the Association for Better Living Inc., is a non-profit charitable organization. It has commenced an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979, against the Wyong Shire Council's refusal of its development application for drug and alcohol rehabilitation services being carried out from existing buildings on land at Yarramalong. The separate question 3The Court has ordered the preliminary determination of the following contentions: (a)the contentions set out in paragraph B1(1) of Part B of the Statement of Facts and Contentions filed by the respondent on 12 June 2014; and (b)the contentions set out in paragraph 1 of Part B of the Statement of Facts and Contentions in reply filed by the applicant on 23 June 2014. 4Paragraph B1(1) of Part B of Council's Statement of Facts and Contentions states: B1 - Contentions that warrant the refusal of the application 1. The proposed development is prohibited and so there is no jurisdiction for the granting of consent to the subject development application. PARTICULARS 1.1 On 23 December 2013 the Wyong Local Environmental Plan 2013 ("WLEP 2013") commenced and the Wyong Local Environmental Plan 1991 ("WLEP 1991") was repealed. 1.2 The subject development application was submitted to the Respondent on 8 October 2013. Clause 1.8A of WLEP2013 requires that the subject development application be determined as if WLEP 2013 has not commenced. 1.3 Part of the site to which the subject development application relates was within the "Zone 7(a) Conservation Zone" under the WLEP1991, 1.4 Clause 10 of the WLEP1991 sets out a development control table for each of the zones prescribed in the WLEP1991. The development control table for the 7(a) zone provides that: 1.4.1 Development for the purpose of "home occupations" is permissible without consent; and 1.4.2 Development for any of the following purposes is permissible only with consent: Agriculture; bushfire hazard reduction; communications facilities; community facilities; dams; drainage; dual occupancy buildings; dwelling-houses; home businesses; nutrient control facilities; recreation areas; utility installations; and 1.4.3 Development for all other purposes is prohibited. 1.5 The proposed development is not for any of the following permissible purposes: Agriculture; bushfire hazard reduction; communications facilities; community facilities; dams; drainage; dual occupancy buildings; dwelling-houses; home businesses; home occupations, nutrient control facilities; recreation areas; utility installations. 1.6 The proposed development is prohibited. 5Paragraph 1 of Part B of the applicant's Statement of Facts and Contentions in Reply is as follows: Permissibility The Applicant contends that the application is permissible with consent. Particulars a) The development is capable of being characterised as a "community facility" under Wyong Shire LEP 1991, which is a permissible use of the land in the 1(a) and the 7(a) zones. b) Alternatively, the use can be characterised as a "transitional group home" which is permissible in the 1(a) zone with consent pursuant to Wyong Shire LEP 1991 and permissible with consent under SEPP (Affordable Rental Housing) 2009 in the 7(a) zone; see McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125. 6In order to appreciate the competing submissions in respect of the issues raised by the separate question it is convenient to set out the facts as agreed by the parties (Exhibit A). The site 7The site is known as at Lot 95 DP 1101803. It is accessed via a private road known as "Rose Hill Lane" and has an area of approximately 15.01 hectares. It is located about 2km north of the rural village of Yarramalong and located approximately 27km west of Wyong. 8The site contains 8 existing buildings, two swimming pools (one with water slide) and a tennis court. Zoning 9The Wyong Local Environmental Plan 2013 ("LEP 2013") applies to the site. 10The site is partly within the "E3 - Environmental Management" zone and partly within the "RU1 -Primary production" zone under LEP 2013. 11Clause 1.8A of the LEP 2013 is a saving clause that requires the subject development application be determined as if LEP 2013 had not commenced. Accordingly, the Wyong Local Environmental Plan 1991 (LEP 1991) applies to this development application. 12Part of the site lies in the 1(a) "Rural Zone" and part in the 7(a) "Conservation Zone" under LEP 1991. 13As a result, some of the buildings are in the 1(a) zone and the rest are in the adjoining 7(a) zone. Annexed and marked "A" is a plan that identifies the location of the 8 buildings on the site and the location of the boundary between the 1(a) and 7(a) zones under the LEP 1991. Buildings 1, 2 and 3 are located within the 7(a) zone, and buildings numbered 4, 5, 6, 7 and 8 are located within the 1(a) zone. The Proposal 14The proposal, as described in the development application, is for the use of the premises as a "community facility" to provide drug and alcohol rehabilitation services for up to 21 participating residents living on the site for 3 to 5 months with a maximum of 20 staff, up to 13 of whom will reside on site. 15The proposed drug and rehabilitation services are provided by way of a supervised program called Narconon Program, being an addiction recovery and life skills program. The Narconon Program involves the following steps: + Communications skills training; + Body cleansing by gym, sauna and exercise routines; + Learning improvement course; + Communication and perception course; + Understanding ups and downs course; + Personal values and integrity; + Life skills training to avoid relapse; + Way to happiness course. 16Residents of the program will pay a fee for residing at the facility and participating in the Narconon Program. 17The application involves the use of existing buildings and no new buildings are proposed to be erected on the site. The configuration of the rooms is shown on the amended plans submitted to the Council on 14 March 2014, at pp. 258 to 263 (inclusive) of the agreed bundle (Exhibit B). 18Residents of the program will be encouraged to participate in domestic activities of cooking, cleaning, gardening and property maintenance and will be required to clean their own bedrooms. 19Medical assistance is limited to a nurse providing assistance with residents experiencing withdrawal symptoms, but no medication or medical treatment will be administered on site. 20Residents undergoing the program will reside on site and all meals are to be provided at fixed times in the communal dining room on site. It is expected that outings outside the facility will be occasional and limited to residents in the closing stages of the program. 21Residents of the program are to be drawn from around NSW, including the Wyong Local Government Area. 22Residents will be transported to and from the site and transport hubs such as train stations, bus stations or airports by vehicles owned and operated by the applicant or its staff. 23As set out in Exhibit A, the buildings will be used for the following purposes: BUILDING NUMBER PROPER USE 1 Reception (intake), common laundry, 4 x resident bedrooms (12 beds) 4 x ensuite bathrooms, main communal kitchen, dining room, communal lounge/reception room 2 Garage 3 Staff bedrooms x 3 (7 beds), 2 x resident "withdraw" bedrooms (4 beds), 1 x "withdraw" lounge room, nurse room, secondary kitchen, lounge/dining, cool room 4 4 x staff offices, staff kitchenette, 4 x staff toilets, 2 x communal toilets, laundry 5 3 x resident bedrooms (11 beds), 1 x bathroom, coffee/tea making facility 6 2 x offices, course room, 2 x toilets 7 2 x course rooms 8 1 x course room, office, sauna and gym