Baker v Gosford City Council

The express aim of the LEP is stated in cl 2 as follows:

The aim of this plan is to specify particular matters that must be considered by the Council of the City of Gosford when determining development applications for the development of land to which this plan applies for purposes other than caravan parks, camping grounds, manufactured home estates or public utility undertakings.

The LEP applies to the land described in cl 3 which includes the subject land.

Clause 49DJ provides as follows: (1) This clause applies to the land described in the following table:

Tingari Village, Duffys Road, Terrigal Lot 4 DP 855688 Tingari Village South, Duffys Road, Terrigal Lot 5 DP 858444 Broadlands, Milpera Road, Green Point Lot 102 DP 1004383 Erina Gardens, Karalta Road, Erina Lot 71 DP 565112 Karalta Court, Karalta Road, Erina Lot 2 DP 1030621 Avoca Beach, The round Drive, Avoca Part of Lot 6 DP 826812, as shown distinctively coloured on Sheet 1 of the map marked Gosford Local Environmental Plan No 443

The Palms, Carolina Park Road, Avoca Part of Lot 1 DP 1007206, as shown distinctively coloured on Sheet 1 of the map marked Gosford Local Environmental Plan No 443 and Lot 2 DP 235499

(2) The objectives of this clause are to: (a) ensure the social and economic wellbeing of residents of caravan parks and manufactured home estates at risk of displacement due to redevelopment of caravan parks and manufactured home estates, and (b) encourage the retention of caravan parks and other forms of low-cost accommodation on certain land in the Gosford local government area, and (c) prevent development which would result in a loss of low-cost accommodation on that land unless sufficient comparable accommodation is available elsewhere in the Gosford local government area. (3) This clause applies to a development application for the carrying out of development on land to which this clause applies for a purpose other than: (a) a caravan park; or (b) a camping ground, or (c) a manufactured home estate, or (d) a public utility undertaking, or (e) development that is ancillary to a caravan park, camping ground, manufactured home estate or public utility undertaking. (4) Notwithstanding any other provision of this Ordinance, the consent authority must not grant consent to a development application to which this clause applies unless it has taken into account the following matters in deciding whether or not to grant consent to the application: (a) whether the proposed development is likely to reduce the availability of low-cost accommodation on the land to which the development application relates, (b) whether there is sufficient available comparable accommodation in the Gosford local government area to satisfy demand for such accommodation in that local government area, (c) whether the development, if carried out, is likely to cause adverse social and economic effects on the people who live on the land the subject of the application (if any), or on the general community, (d) whether adequate arrangements have been made to assist people who live on the land the subject of application (if any), to find alternative comparable accommodation in the Gosford local government area, (e) whether the cumulative impact of the loss of low-cost accommodation in the Gosford local government area will result in a significant reduction in the stock of that accommodation. (5) The consent authority must not grant consent to a development application to which this clause applies unless satisfied that accommodation is available in the Gosford local government area that: (a) is sufficient to accommodate the maximum number of people capable of being accommodated by existing development on the land the subject of the development application at any point in the 12 months preceding the commencement of Gosford Local Environmental Plan No 443, and (b) is comparable to the accommodation that was provided on that land in relation to price, facilities, services and type of tenure. (6) This clause ceases to have effect two years from the date on which it commenced. (7) In this clause: manufactures home means a self-contained dwelling (that is, a dwelling that includes at least 1 kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling: (a) that comprises 1 or more major sections that are each constructed, and assembled, away from the manufactured home estate and transported to the estate for installation on the estate, and (b) that is not capable of being registered under the Road Transport (Vehicle Registration) Act 1997, and includes an associated structures that form part of the dwelling. Manufactured home estate means land on which manufactures homes are, or are to be, erected.

Although SEPP No 5 was repealed by State Environmental Planning Policy (Seniors Living) 2004, cl 5(1) which came into force on 31 March 2004 (vide Government Gazette No 67 of 31 March 2004), the following transitional provision is included in the latter instrument:

6 Transitional provisions relating to certain development applications and development

(1) Despite clause 5(1), State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability as in force immediately before its repeal continues to apply to and in respect of the following as if it had not been repealed:

(a) any development application made under that Policy on or before 18 February 2004, but not finally determined before the commencement of this Policy, and

(b) any development application, whether made before or after the commencement of this Policy, that relates to development for which a development consent was granted under the Policy as referred to in section 80(4) of the Act, and

(c) the carrying out of any development for which development consent was granted under the Policy before its repeal or that is granted under the Policy (as continued in force by this subclause).

SEPP No 5 which came into force 14 February 1998 (cl 2) expresses the following aims (cl 3):

3 (1) This Policy aims to encourage the provision of housing that will:

(a) increase the supply and diversity of housing that meets the needs of older people or people with a disability; and

(b) make efficient use of existing infrastructure and services; and

(a) setting aside local planning controls that would prevent the development of housing for older people or people with a disability that meets the development standards specified in this Policy; and

(b) ensuring that applicants and councils take into consideration the level of additional demand for support services for older people or people with a disability in the council's area to be generated by the development when preparing and assessing development applications that are affected by this Policy; and

(c) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and location.

SEPP No 5 applies to lands described in cl 4 as follows:

4 (1) This Policy applies to land within New South Wales:

(a) that is zoned primarily for urban purposes, or that adjoins land zoned primarily for urban purposes; and

(b) on which development for the purpose of any of the following is permitted:

(iv) development of a kind identified in respect of land zoned for special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries.

(a) land described in Schedule 1 (Environmentally sensitive land); or

(b) the land to which Sydney Regional Environmental Plan No 17 -- Kurnell Peninsula applies.

The relationship between SEPP No 5 and other environmental planning instruments is expressed by cl 5 as follows:

5 (1) This Policy repeals State Environmental Planning Policy No 5 -- Housing for Aged or Disabled Persons.

(2) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.

(3) This Policy does not affect a provision in another environmental planning instrument that relates to the demolition of a heritage item.

Part 2 of SEPP No 5 which is headed "Development Criteria" include the following provisions:

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.

10 This Part allows development for the purpose of any form of housing for older people or people with a disability, despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with this Policy.

11 Development allowed by this Part may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.

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 access that complies with subclause (2) to:

(a) shops, banks and other retail and commercial services that residents may reasonably require; and

(b) community services and recreation facilities; and

(c) the practice of a general medical practitioner.

(a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development; or

(b) there is a transport service available to the residents who will occupy the proposed development:

(i) that is located at a distance of not more than 400metres from the site of the proposed development; and

(ii) that will take those residents to a place that is located at a distance of not more than 400metres from the relevant facilities or services; and

(iii) that is available both to and from the proposed development during daylight hours at least once per day from Monday to Friday (both days inclusive).

(2A) The consent authority must not consent to a development application made pursuant to this Part to carry out development on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:

(2B) The consent authority must not consent to a development application made pursuant to this Part to carry out development on land identified on a bush fire prone land map certified under section 146 of the Act as Bush fire prone land -- vegetation category 2'' or Bush fire prone land -- vegetation buffer'' unless the consent authority is satisfied that the development complies with the requirements of the document titled Planning for Bushfire Protection , ISBN 0 9585987 8 9, published by Planning & Environment Services, NSW Rural Fire Service in co-operation with the Department of Planning, dated December 2001.

(2C) The consent authority, in determining a development application made pursuant to this Part to carry out development on land in the vicinity of land identified on a bush fire prone land map certified under section 146 of the Act as Bush fire prone land -- vegetation category 1'', Bush fire prone land -- vegetation category 2'' or ``Bush fire prone land -- vegetation buffer'', must take into consideration the general location of the proposed development, the means of access to and egress from the general location and other relevant matters, including the following:

(a) the size of the existing population within the locality,

(b) age groups within that population and the number of persons within those age groups,

(c) the number of hospitals and other facilities providing care to the residents of the facilities within the locality, and the number of beds within those hospitals and facilities,

(d) the number of schools within the locality and the number of students at those schools,

(e) existing development within the locality that has been carried out under this Policy,

(f) the road network within the locality and the capacity of the road network to cater for traffic to and from existing development if there were a need to evacuate persons from the locality in the event of a bush fire,

(g) the adequacy of access to and from the site of the proposed development for emergency response vehicles,

(h) the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site,

(i) the requirements of New South Wales Fire Brigades.

(2D) In exercising its functions under subclause (2C), the consent authority must consult with the NSW Rural Fire Service and have regard to its comments.

The consent authority must be satisfied that any facility or service provided as a part of the development will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionately according to the number of residents in each stage.

(a) 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 the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.

(b) Where the water and sewerage services referred to in subclause (4)(a) will be provided by a person other than the consent authority, the consent authority must consider the suitability of the site with regard to the availability of reticulated water and sewerage infrastructure. In locations where reticulated services cannot be made available, the consent authority must satisfy all relevant regulators that the provision of water and sewerage infrastructure, including environmental and operational considerations, are satisfactory for the proposed development.

A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause.

(2) Height in zones where residential flat buildings are not permitted

If the development is proposed in a residential zone where residential flat buildings are not permitted:

(a) the height of all buildings in the proposed development must be 8 metres or less; and

(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height.

A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause.

(i) if the whole of the site has a gradient of less than 1:10, 100% of the hostel or residential care facility beds and 100% of the dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents; or

(ii) if the whole of the site does not have a gradient of less than 1:10, a percentage (which is not less than the proportion of the site that has a gradient of less than 1:10, or 50%, whichever is the greater, and which in this subparagraph is called the specified minimum percentage) of any hostel or residential care facility beds and the specified minimum percentage of any dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents; and

(b) road access: at least 10% of any hostel or residential care facility beds and at least 10% of any dwellings which meet the requirements of paragraph (a) must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road; and

(c) common areas: access must be provided so that a person using a wheelchair can use common areas and common facilities associated with the development; and

(d) adaptability: 10% of any hostel or residential care facility beds and 10% of any dwellings which meet the requirements of paragraph (a) must also have, or be capable of being modified so that they have, wheelchair access by a continuous path of travel (within the meaning of AS 1428) to all essential areas and facilities inside the hostel, residential care facility or dwellings, including a toilet, bathroom, bedroom and a living area.

If the site includes more than one street, street signage incorporating house numbers must be provided at each intersection.

(a) must be positioned at low height to avoid glare; and

(b) must be located together in a central location adjacent to the street entry; and

(c) must be situated on a hard standing area and have wheelchair access by a continuous path of travel (within the meaning of AS 1428).

If car parking (not being car parking for employees) is provided:

(a) each car parking space must be not less than 6 metres X 3.2 metres or the design of the development must be such as to enable the size of the car parking space to be increased to an area of not less than 6 metres X 3.2 metres; and

(b) any garage or carport must have an internal clearance of at least 2.5 metres as measured from the finished floor level of the garage or carport; and

(c) any garage must have a power-operated roller door, or there must be a power point and an area for motor or control rods to enable a power-operated door to be installed at a later date.

Every entry (whether a front entry or not) to a hostel, residential care facility or dwelling, not being an entry for employees:

(b) must comply with clauses 4.3.1 and 4.3.2 of AS 4299; and

(c) must have an entry door handle and other hardware that complies with AS 1428.

All external doors to any one dwelling must be keyed alike.

Internal doors must have a clearance of at least 820 millimetres.

Internal corridors must have a width of at least 1 000 millimetres.

The width at internal door approaches must be at least 1 200 millimetres.

A living room in a self-contained dwelling must have:

(b) a telephone adjacent to a general power outlet.

A living room and dining room must have a potential illumination level of at least 300 lux.

(a) a width of at least 2.7 metres and a clear space between benches of at least 1 450 millimetres; and

(b) a width at door approaches of at least 1 200 millimetres; and

(c) benches that include at least one work surface:

(ii) the height of which can be adjusted from 750millimetres to 850millimetres; and

(i) that is located within 300millimetres of the front of the sink; and

(ii) that is a capstan tap set or that comprises lever handles or a lever mixer; and

(e) a thermostatic mixing valve for the hot water outlet; and

(ii) with controls that have raised cross bars for ease of grip; and

(g) a worksurface adjacent to the cook top and at the same height and that is at least 800 millimetres in length; and

(h) an oven that is located adjacent to a worksurface the height of which can be adjusted; and

(i) ``D'' pull cupboard handles that are located towards the top of below-bench cupboards and towards the bottom of overhead cupboards; and

(i) at least one of which is a double general power outlet within 300millimetres of the front of a worksurface; and

(ii) one of which is provided for a refrigerator in such a position as to be easily accessible after the refrigerator is installed.

At least one bedroom within a self-contained dwelling must have:

(a) an area sufficient to accommodate a wardrobe and a queen-size bed with a clear area at least 1 200 millimetres wide at the foot of the bed; and

(b) 2 double general power outlets on the wall where the head of the bed is likely to be; and

(c) at least one general power outlet on the wall opposite the wall where the head of the bed is likely to be; and

(d) a telephone outlet next to the bed on the side closest to the door and a general power outlet beside the telephone outlet; and

(e) a potential illumination level of at least 300 lux.

(i) the recess of which is at least 1160millimetres X 1100millimetres, or that complies with AS1428, or that complies with clause4.4.4 and Figures4.6 and 4.7 of AS4299; and

(iii) that is waterproofed in accordance with AS3740; and

(iv) the floor of which falls to a floor waste; and

(v) that can accommodate a grab rail that complies with Figure4.6 of AS4299 and AS1428; and

(vi) that has a tap set that is a capstan tap set or that comprises lever handles and that has a single outlet; and

(vii) that has the tap set positioned so as to be easily reached from the entry to the shower; and

(viii) that can accommodate an adjustable, detachable hand-held shower rose mounted on a slider grab rail or a fixed hook; and

(ix) that can accommodate a folding seat that complies with Figure4.6 of AS4299; and

(d) thermostatic mixing valves for all hot water outlets; and

(e) a washbasin with clearances that comply with Figure 4.4 of AS 4299; and

(f) a wall cabinet that is sufficiently illuminated to be able to read the labels of items stored in it; and

(h) a double general power outlet beside the mirror.

(a) that is a visitable toilet within the meaning of clause 1.4.12 of AS 4299; and

(b) that is installed in compliance with AS 1428; and

(d) the WC pan of which is located from fixed walls in accordance with AS 1428; and

(e) that can accommodate a grab rail that complies with Figure 4.5 of AS 4299 and AS 1428.

(15) Access to kitchen, main bedroom, bathroom and toilet

(a) the kitchen, main bedroom, bathroom and toilet must be located on the ground floor; or

(b) if the kitchen, main bedroom, bathroom and toilet are not located on the ground floor, the ground floor living space must be able to be altered so as to accommodate them; or

(c) if the kitchen, main bedroom, bathroom and toilet are located on a floor above the ground floor, the stairs to the higher floor:

(i) must be equipped with a stair climber that is capable of being used by a person in a wheelchair; or

(ii) must be sufficiently wide to enable the installation of a stair climber that is capable of being used by a person in a wheelchair.

(a) that has provision for the installation of an automatic washing machine; and

(b) that has provision for the installation of a clothes dryer; and

(c) that has a clear space in front of appliances of at least 1 300 millimetres, and

(d) that has thermostatic mixing valves for all hot water outlets; and

(f) that has an accessible path of travel to any clothes line provided in relation to the dwelling.

A self-contained dwelling must be provided with a linen cupboard:

Door hardware provided as the means for opening doors must be:

(b) located between 900 millimetres and 1 100 millimetres above floor level.

Balconies and external paved areas must have slip-resistant surfaces.

Switches must be located between 900 millimetres and 1 100 millimetres above floor level.

General purpose outlets must be located at least 600 millimetres above floor level.

An outside garbage storage area must be provided in an accessible location.

Despite the provisions of subclauses (2) and (9)-(20), a dwelling, or part of a dwelling, that is located above the ground floor in a multi-storey building does not have to comply with the requirements of those subclauses if the development application is made by, or by a person jointly with, the Department of Housing or a local government or community housing provider.

Standards which cannot be used as grounds for refusal

14 The consent authority must not refuse consent to a development application under this Part on the grounds of:

(a) building height: if all proposed buildings are 8 metres or less in height; or

(b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is:

(i) 0.5:1 or less, except as provided by subparagraph(ii); or

(ii) 0.75:1 or less for hostels and residential care facilities located within 400metres walking distance of a public transport node (being a public transport facility such as a railway station, bus stop, or ferry wharf, that operates from Monday to Friday (both days inclusive) in daylight hours); or

(c) landscaped area: if a minimum of 35m2 of landscaped area per dwelling and 25m2 of landscaped area per hostel or residential care facility bed is provided; or

(d) parking: if at least the following is provided:

(i) in the case of a hostel or residential care facility, at least:

1 parking space for each 10 beds in the hostel or residential care facility; and

1 parking space for each 2 persons to be employed in connection with the development and on duty at any one time; and

0.5 car spaces for each bedroom where the development application is made by a person other than the Department of Housing or a local government or community housing provider; or

1 car space for each 5 dwellings where the development application is made by, or is made by a person jointly with, the Department of Housing or a local government or community housing provider; or

(e) visitor parking: if, in the case of development that comprises less than 8 dwellings and is not situated on a clearway, no visitor parking is provided within the development; or

(f) landscaped areas: if, in relation to that part of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed, there is soil of a sufficient depth to support the growth of trees and shrubs on an area (preferably located at the rear of the site) of not less than the width of the site multiplied by 15% of the length of the site; or

(i) in the case of a single storey dwelling or a dwelling that is located, wholly or in part, on the ground floor of a multi-storey building, not less than 15square metres of private open space per dwelling is provided and, of this open space, one area is not less than 3metres wide and 3metres long and is accessible from a living area located on the ground floor; and

(ii) in the case of any other dwelling, there is a balcony with an area of not less than 6square metres, that is not less than 1.8metres in length and that is accessible from a living area.

Part 3 of SEPP No 5 which is headed "Design Requirements" contains the following provisions:

20 The objective of this Part is to establish a process that encourages good design in residential development allowed by this Policy.

21 This Part applies to development that is allowed to be carried out with development consent by this Policy.

22 This Part applies when a consent authority is determining an application for consent to the carrying out of development to which this Part applies.

23 This Part requires certain design aspects to be taken into account when a consent authority considers an application for consent for the carrying out of development to which this Part applies.

24 (1) Consent must not be granted for development to which this Part applies unless the consent authority has taken into account a site analysis prepared by the applicant in accordance with this clause.

(a) contain information, where appropriate, about the site and its surrounds as described in Schedule 2 (Site analysis); and

(b) be accompanied by a written statement (that may be supported by drawings):

(i) explaining how the design of the proposed development has regard to the site analysis; and

(ii) explaining how the design of the proposed development has regard to the principles set out in clause25.

25 Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:

(a) Neighbourhood amenity and streetscape: The proposed development should:

(i) contribute to an attractive residential environment with clear character and identity; and

(ii) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan; and

(iii) where possible, maintain reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing; and

(iv) where possible, maintain reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site's land form; and

(v) where possible, maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible in scale with adjacent development; and

(vi) where possible, maintain reasonable neighbour amenity and appropriate residential character by considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours; and

(vii) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line; and

(viii) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape.

(b) Visual and acoustic privacy: The proposed development should, where possible, consider the visual and acoustic privacy of neighbours in the vicinity and residents by:

(i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping; and

(ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings by locating the living and sleeping areas away from driveways, parking areas and paths.

(c) Solar access and design for climate: The proposed development should, where possible:

(i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space; and

(ii) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.

(d) Stormwater: The proposed development should, where possible:

(i) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas; and

(ii) include, where practical, on-site stormwater detention or re-use for second quality water uses; and

(iii) be designed with regard to the scope for on-site infiltration of water by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas.

(e) Crime prevention: The proposed development should, where possible, provide personal property security for residents and visitors and encourage crime prevention by:

(i) site planning that allows, from inside each dwelling, general observation of the street, the site and the approaches to the dwelling's entry; and

(ii) providing shared entries that serve a small number of dwellings and are able to be locked; and

(iii) providing dwellings designed to allow residents to see who approaches their dwellings without the need to open the front door.

(f) Accessibility: The proposed development should, where appropriate:

(i) have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities; and

(ii) provide attractive, yet safe, environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors; and

(iii) where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site.

(g) Waste management: The proposed development should, where possible, be provided with waste facilities that maximise recycling by the provision of appropriate facilities. C. THE COMPETING ARGUMENTS

The Applicant's principal argument is that there is a relevant inconsistency between SEPP No 5 and the LEP which is to be resolved in favour of SEPP No 5 prevailing over the LEP to the extent of the inconsistency by virtue of the operation of cl 5(2) of SEPP No 5 and s 36(2) of the EP&A Act.

The Council's competing principal argument is that there is no relevant inconsistency between SEPP No 5 and the LEP inasmuch as both instruments can stand together. Accordingly, no question of the operation of cl 5(2) of SEPP No 5 and the EP&A Act,. s 36(2) arises in the present case.

These competing arguments, which address Questions 1 and 2, will need to be further explored but before doing so I should note that the Applicant only pressed Question 3 to the extent of advancing the formal submission that the EP&A Act, s 34(4) preserved the "right or privilege" of the Applicant to have his appeal determined by this Court as if the LEP had not been made.

This formal submission was advanced simply to maintain the Applicant's opportunity to mount a challenge to the correctness of several decisions by this Court which have rejected a similar argument based upon the EP&A Act, s 34(4) as that advanced by the Applicant in the present case.

As I noted, during the course of argument not only is there a consistent stream of authority in this Court denying the EP&A Act, s 34(4) the effect contended for by the Applicant in this case, but there are earlier Court of Appeal decisions to similar effect - see Randwick Council v Janlz (1976) 35 LGRA 70; Mekol Pty Ltd v Baulkham Hills Council (No 2) (1971) 23 LGRA 330.

Accordingly, I should immediately dispose of Question 3 conformably to long established authority by answering the question posed in the affirmative for the reason that the EP&A Act, s 34(4) does not exclude the effect or operation of the LEP applying to the determination of the Applicant's development application, the subject of the present appeal.

Returning to my consideration of the competing arguments addressing Question 1, the Applicant argued that there was relevant inconsistency between SEPP No 5 and the LEP because the LEP imposed limitations upon the capacity of a consent authority to grant development consent for purposes of development that would otherwise be permissible purposes of development (including "housing" development that may be permitted under SEPP No 5) in circumstances where those limitations (i) were not found in SEPP No 5; (ii) were inconsistent with the enabling provisions of SEPP No 5 (in particular cll 3 and 10); and (iii) exceeded the established boundaries of the consideration required by the EP&A Act, s 79C(1)(b) of the "social and economic impacts in the locality" of a proposed development.

In particular, the Applicant's argument focussing on cl 49DJ(5) of the LEP noted that the outworking of that provision in a given case (including the present case) might result in the consent authority being precluded from granting consent to a housing development which otherwise could be carried out in accordance with SEPP No 5.

Finally, it is to be noted that the Applicant argued that SEPP No 5 provided a "code" for the carrying out of housing for older people or people with a disability.

In support of his argument that there was relevant "inconsistency" between SEPP No 5 and the LEP, the Applicant relied upon the following exposition of the word "inconsistency" in the context of the EP&A Act, s 36 found in the judgment of Kirby P in Coff's Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 331:

The term inconsistency in s 36 of the Act is to be construed having regard to the ordinary meaning of the word. It was suggested during argument that the term ought be approached in a manner similar to that adopted when considering the operation of s 109 of the Australian Constitution. It is not necessary to pursue that suggestion in order to resolve the dispute now before the Court. In any event, it is, in my view, inappropriate to apply the law governing the operation of s 109 of the Australian Constitution to s 36 of the Act. In general terms, s 109 of the Australian Constitution concerns, to the extent of any inconsistency, which law prevails and which law is made invalid as between the laws of at least two organs of the Federation purporting to make laws dealing with the same subject matter. Here the dispute concerns, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature is to prevail. The resolution of this dispute requires only that the word inconsistency be given its ordinary and natural meaning without the gloss which has necessarily developed around the meaning of the word in a constitutional setting. Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is want of consistency or congruity ; lack of accordance or harmony or incompatibility, contrariety, or opposition with another environmental planning instrument.

The meaning(s) of the word "inconsistency" adopted by the President accord with the first definition of the word provided by the Oxford English Dictionary:

Want of consistency or congruity; lack of accordance or harmony ( with something, or between things); incompatibility, contrariety, or opposition.

The Council's competing argument was also content to adopt the meanings given in the President's judgment, but for the sake of simplicity proffered "incompatibility" as the most apt meaning of the word in the context of SEPP No 5.

From that base, the Council's principal argument was there is only a relevant inconsistency between the planning instruments when they cannot mutually co-exist. In this respect, particular reliance was placed upon the following observations of Lloyd J in Rothwell v North Sydney Council (2000) 108 LGERA 361 at 368/9 (which occur immediately following his Honour's reference to Kirby P's approach to "inconsistency" in the passage recited from his judgment in Coffs Harbour Environment Centre):

There are other statements of general principle which apply. There is a general reluctance by the courts to find that there is an inconsistency between two statutory provisions if both provisions can be given effect. For example, in Hume Steel Ltd v Attorney-General (Vic) (1927) 39 CLR 455, Higgins J, referring to the rules for resolving an inconsistency within an instrument said (at 465):

But such rules are only to be applied as a matter of last resort, when the words used cannot be fairly reconciled; and it is our duty to find whether the words are not capable of reconciliation, so as to give to each set of words full and equal weight, and yet give a consistent effect to the instrument as a whole .

In Butler v Attorney-General (Vic) (1961) 106 CLR 268, Windeyer J, although dissenting in the result, in a case involving an inconsistency between two statutes, adopted (at 290) the following statement of principle from Maxwell n the Interpretation of Statutes (8th ed, 1937):

It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the Statute-book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention.

In the same case Windeyer J adopted (at 290-291) what was said b Lord Selborne LC in Seward v Owner of the Vera Cruz (1884)) 10 App Cas 59:

Now if anything be certain it si this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.

One of the questions requiring decision in Rothwell was whether there was relevant inconsistency between two planning instruments, a regional environmental plan and a local environmental plan where the former instrument contained a provision to similar effect as cl 5(2) of SEPP No 5 in the present case. In that case, the suggested source of inconsistency was the absolute prohibition contained in the local environmental plan on the erection of a residential flat building within a designated zone and the permissibility in terms of the regional environmental plan, of development for "innominate" purposes (which included the purposes of a residential flat building) within a designated zone under that plan (in circumstances where the two relevantly designated zones overlapped) - see especially at pars 24 and 25.

In holding that there was no relevant inconsistency between the two environmental planning instruments, Lloyd J held that the permissibility in terms of the regional environmental plan of a development for the innominate purposes (including the purpose of a residential flat building) was qualified by the operation of cl 10(3) of that instrument which provided as follows:

(3) Except as otherwise provided by this plan, the consent authority shall not grant consent to an application to carry out development on land to which this plan applies unless it is of the opinion that the carrying out of the development is generally consistent with the aims and objectives of this plan and the zone within which the development is proposed to be carried out.

Having considered the relevant objectives referred to in cl 10(3) Lloyd J held at 370/371 that the absolute prohibition by the local environmental plan on the carrying out of development for the purposes of a residential flat building was not inconsistent within those objectives, expressing his ultimate conclusion in the following passage at 371 by employing the meanings given to the word "inconsistency" by Kirby P in Coffs Harbour Environment Centre:

That is to say, a prohibition on residential flat buildings in cl 14A(1) of the LEP does not give rise to any want of consistency or congruity or lack of accordance or harmony , or incompatibility, contrariety, or opposition with either the general aims of the REP, the specific aims of the REP or the specific objectives of Zone No W1 under the REP. There being no disharmony between the prohibition under the LEP on the one hand and the relevant aims and objectives of the REP on the other hand, there is then no inconsistency between them. On the contrary, subcl 14A(1) of the LEP is complementary to the W1 zoning of the land under REP.

Next, the Council argued that there was no relevant inconsistency between the LEP and SEPP No 5 because the latter instrument did not contain any provision similar to, or concerning the subject matter of, cl 49DJ of the LEP and that that clause did not operate "to prevent the development of housing for older people etc" (see cll 3 and 10 of SEPP No 5) but rather was exclusively directed to the function of a consent authority in determining a development application by granting or refusing development consent to such an application by (i) requiring the consent authority to consider specified matters (cl 49DJ(4)) and (ii) precluding the grant of consent unless satisfied of certain matters (cl 49DJ(5)). So understood, the Council argued that the LEP provisions "supplemented, complemented and were in addition to" the provisions of SEPP No 5 by virtue of which outcome, the two environmental planning instruments could stand together and each be given effect to.

Finally, the Council argued that SEPP No 5 did not contain a comprehensive "code" for development for housing for older people etc to the exclusion of all other planning instruments operating under the EP&A Act. D. DETERMINATION OF THE QUESTIONS OF LAW

In my judgment, the arguments advanced on behalf of the Council are generally to be preferred to the competing arguments advanced on behalf of the Applicant.

In particular, I am satisfied that there is no relevant inconsistency between the two planning instruments. In so concluding, I (in common with the parties) am content to adopt the Dictionary meanings of "inconsistency" that were adopted by Kirby P in Coffs Harbour Environmental Centre eg "incompatibility, contrariety or opposition" noting that these and similar words (eg "repugnancy") are the conventional language employed by Courts when determining whether a later enacted law has impliedly repealed an earlier enacted law, a result against which there is a strong presumption: per Fullagar J in Butler v Attorney General (Victoria) 1961 106 CLR 268 at 276. (The statements of general principle that were recited by Lloyd J in Rothwell are all cases involving the question of implied repeal).

My reference to the case law on implied repeal is not intended as an incidental or passing reference. Rather, in my judgment, that established judicial approach of first seeking to reconcile apparent inconsistencies in different enactments before concluding, as a last resort, that the inconsistencies are irreconcilable with the consequence that the latter enactment must be taken to have impliedly repealed an earlier enactment, should definitively inform the Court's understanding of "inconsistency" between environmental planning instruments and the Court's interpretive function in respect of such instruments.

The essential reason for my conclusion that there is no relevant inconsistency between the LEP and SEPP No 5 is that the LEP (and more particularly cl 49DJ) is entirely directed to the function of the consent authority of determining a development application for the development of the particular parcels of land to which the LEP applies (vide cl 2 of the LEP) by imposing particular obligations on the consent authority of a nature and kind that are not found in SEPP No 5, but that are not inconsistent with anything provided by SEPP No 5 in respect of the function of the consent authority to determine development applications made under SEPP No 5, in circumstances where SEPP No 5 does not provide an exclusive code governing the exercise of the consent authority's function to determine such development applications. The emphasised words are a crucial conclusion to my reasoning.

The existence of cl 11 in SEPP No 5 requiring the grant of development consent "for the carrying out of development allowed by this Part" provides an obvious reason why SEPP No 5 does not provide an exclusive code for the carrying out of development for housing for older persons etc. A less obvious, but nonetheless additional and potent reason, is derived from an analysis of the different foci of SEPP No 5 and the LEP. The focus of SEPP No 5 is the stipulation of appropriate development standards and design requirements for housing permitted under the Policy so as to particularly meet the needs of older people and people with a disability (vide cl 3). These stipulations are exclusively prospective in the sense that they are concerned with the design and suitability of the proposed housing development for older people or people with a disability who are likely to reside in such development. They have no concern with the existing development on the land to be redeveloped or the social and economic impacts of the prospective development on the existing development. On the other hand, the focus of the LEP (and in particular cl 49DJ)is exclusively on the existing development of caravan parks and manufactured home estates situate on the various parcels of land to which the LEP applies and in particular, on the social and economic well-being of the residents of those existing developments (vide cl 49DJ(2)) in the context of the consideration of a development application to re-develop those parcels for different purposes from their existing developments.

Given these radically different foci of SEPP No 5 and the LEP and given my conclusion (for the reasons given), that SEPP No 5 does not operate as an exclusive code for housing development for older or disabled people, no question of inconsistency (incompatibility, contrariety, opposition or repugnancy) between the two planning instruments arises In a true sense, both instruments provide complementary sets of relevant planning considerations for the determination of a development application made under SEPP No 5 - considerations of housing design that are particularly suitable for older or disabled persons who will be the prospective users of the prospective development being provided by SEPP No 5, and considerations of the social and economic well-being of the residents of existing caravan parks and manufactured home estates situate on the land proposed to be redeveloped being provided by the LEP.

Together with other relevant considerations that are mandated by the EP&A Act¸ s 79C, these identified considerations (separately sourced in SEPP No 5 and the LEP) are complementary integers or factors to be taken into consideration by the consent authority in its overall planning evaluation in the course of determining a development application (such as is now before the Court where both planning instruments are relevant and applicable to the required evaluation).

In the course of argument for the Applicant, it was emphasised that it was possible that in a given case (including the present case) the outworking of cl 49DJ(5) of the LEP might preclude the consent authority from granting development consent to a housing development for older or disabled people in terms of SEPP No 5 in circumstances where such development could otherwise be carried out "in accordance with SEPP No 5". It was argued that such a result would involve direct contrariety with cl 10 of SEPP No 5 which allows such development to be carried out "despite the provisions of any other environmental planing instrument".

I would respectfully disagree that such an outcome (or the potentiality for there being such an outcome) establishes relevant contrariety. This is because the postulated outcome would not, in my opinion, be caused by "a provision of any other environmental instrument" (in this case the LEP), rather, it would be caused by the manner in which the consent authority had discharged its function of determining the development application in accordance with the EP&A Act, s 79C in circumstances where cl 11 of SEPP No 5 expressly requires the grant of development consent for the carrying out of "development allowed by this Part".

In so concluding, cll 10 and 11 of SEPP No 5 obviously must be read together in the sense that cl 11 qualifies (by requiring the grant of development consent under the EP&A Act) that development which cl 10 allows. The proper harmonisation of cll 10 and 11 requires an interpretation of the phrase appearing in cl 10 "despite the provisions of another environmental planning instrument" as embracing "provisions" that of their own force deny or forbid that development which cl 10 "allows". Such provisions would not include a provision like cl 49DJ of the LEP which is not of that character, but rather stipulates specific requirements that are relevant to the discharge of the consent authority's function under the EP&A Act, s 79C to determine certain development applications.

For the foregoing reasons, I would hold that there is no relevant inconsistency between SEPP No 5 and the LEP. Accordingly, Question 1 should be answered in the negative.

My answer to Question 1 means that Question 2 does not arise in the present case.

However, in leaving Question 2 I should note that cl 5(2) of SEPP No 5 in apparent reliance upon the EP&A Act, s 36(2) appears to have the effect of "entrenching a provision in an environmental planning instrument so as to inhibit the operation of later inconsistent planning instruments" being a legal outcome that was in Coffs Harbour Environment Centre held (by Sheller JA expressly at 348/349 and it seems also by Kirby P at 333) to be not achievable in terms of the EP&A Act, s 36 as originally enacted (and then in force).

However, following the decision in Coffs Harbour Environment Centre, s 36 was repealed and re-enacted in the following terms:

36 (1) In the event of an inconsistency between environmental planning instruments, then, to the extent of the inconsistency and unless otherwise provided:

(a) there is no general presumption that an environmental planning instrument of one kind prevails over an environmental planning instrument of another kind, and

(b) the provisions of a later environmental planning instrument prevail over those of an earlier environmental planning instrument, whether of the same or a different kind.

(2) A State environmental planning policy prevails over a regional environmental plan or a local environmental plan made before or after the policy to the extent of any inconsistency, if the policy expressly so provides.

(3) A regional environmental plan prevails over a local environmental plan made before or after the regional environmental plan to the extent of any inconsistency, if the regional environmental plan expressly so provides.

(4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.

It will be for another case to decide whether a provision like cl 5(2) of SEPP No 5 supported by the EP&A Act, s 36(2), will to be effective to prevent an implied repeal by a later inconsistent environmental planning instrument (cf South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 and Rose v Hvric (1963) 108 CLR 353).

Accordingly, I determine that Question 2 does not arise in view of my answer to Question 1.

As earlier noted, Question 3 was ultimately pressed by the Applicant only by way of formal submission.

(4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect:

(a) the previous operation of the instrument or anything duly suffered, done or commenced under the instrument,

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument, or

(c) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation or liability,

and any such investigation, legal proceedings or remedy may be instituted, continued and enforced as if the amendment, alteration, variation or repeal had not occurred.

42. In my judgment, s 34(4) does not avail the Applicant's case to have his pending development appeal determined as if the LEP had not been made. There are two reasons for so concluding.

43. Firstly, and fundamentally because the Applicant's argument is concededly contrary to established authority in this Court which can be traced back to its origins when McClelland CJ on 27 October 1980 decided in Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630 that the Court's jurisdiction to determine a subdivision appeal was "original" rather than "appellate" with one legal consequence being that the Court's decision must be based upon the law as it stood at the date of the Court hearing (rather than in its different state when the Council had determined the application).

44. The second reason (which need not be developed) is the Applicant's argument appears to have overlooked the fact that the LEP did not amend SEPP No 5 which latter source provides the sole foundation for the Applicant's development application.

45. For the foregoing reasons, Question 3 is answered in the affirmative. E. CONCLUSIONS AND ORDERS

46. For all of the foregoing reasons, I make the following orders -

1. The three questions of law raised by the Applicant are determined as follows:

Question 1: Is, on its proper construction, Gosford Local Environmental Plan No. 443 ( the LEP ) inconsistent with State Environmental Planning Policy No. 5 ( SEPP 5 )?

Question 2: Does clause 5 of SEPP 5 render the LEP inapplicable in the determination of the subject development application?

Answer: In view of the answer to Question 1, this question does not arise.

Question 3: Are the provisions of the LEP to be applied when determining the subject development application, having regard to section 34(4) of the Environmental Planning and Assessment Act 1979?

Answer: Yes. 2. My determinations of the questions of law are remitted to the Commissioner pursuant to the Land and Environment Court Act 1979, s 36(6)(b).

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