(c) assistance with housework."
38 These clauses each establish a condition precedent to the grant of consent by a consent authority. The condition precedent is the formation by the consent authority of an opinion of satisfaction, to be formed on the written evidence before it at the time, that the matters referred to in each of the clauses will be provided, namely:
· for cl 27(1), that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage; and
· for cl 74(1), that the residents of the proposed development will have reasonable access to home delivered meals, personal care and home nursing, and assistance with housework.
39 The condition precedent required by cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation is that the environmental planning instrument require arrangements for any matter to have been made before development consent may be granted.
40 Do each of the conditions precedent established by cll 27(1) and 74(1) of SEPP (SL) answer this description of a condition precedent in cl 2(1)(h)? I am of the opinion that they do not answer that description for a number of reasons.
41 First, cll 27(1) and 74(1) do not in terms require that any "arrangements" for the matters referred to in each clause have been made before development consent may be granted. The word "arrangements" does not appear in either clause.
42 The word "arrangements" in cl 2(1)(h) bears, in my opinion, the meaning given by the Court of Appeal in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370 at 378 [39] and [40]. That is to say, something in the nature of an understanding between two or more persons.
43 Clauses 27(1) and 74(1) of SEPP (SL) do not require any such understanding to have been made before development consent can be granted.
44 Secondly, the clauses do not require that "arrangements" have been made. Rather, the clauses require the consent authority to be satisfied that the matters referred to in the clauses "will" be provided. The clauses do not look to the past (namely that arrangements have been made) but to the future (that the matters referred to in the clauses will be provided).
45 Thirdly, the written evidence upon which the consent authority is to be satisfied as to the matters referred to in each clause, does not necessarily require proof of arrangements that have been made to provide for those matters. There may be a number of ways in which the written evidence may satisfy the consent authority that the matters referred to in the clauses will be provided.
46 Obviously, if an arrangement has actually been made to provide the matters referred to in the clauses, and written evidence of such arrangement is provided to the consent authority, that would be one way that the consent authority could be satisfied that the matters referred to in the clauses will be provided. However, that is not the only way the consent authority could be satisfied.
47 Another way would be for the written evidence that is supplied to the consent authority to state that, although arrangements in relation to the provision of the matters referred to in cll 27(1) and 74(1) have not yet been made, nevertheless such arrangements may be made in the future. This may be on some date specified or on or after the happening of some event, including the grant of development consent for the development.
48 Obviously, the more uncertain and contingent the making of arrangements in the future with external service providers for the provision of the matters referred to in cll 27(1) and 74(1) may be, the more difficult it may be for an applicant for development consent to satisfy the consent authority that the matters will be provided. This fact, however, does not remove the possibility that an applicant could satisfy a consent authority that the matters referred to in the clauses will be made, by providing written evidence that an arrangement in respect to matters will be made in the future, even though such an arrangement has not yet been made.
49 Yet another way of establishing that the matters referred to in cll 27(1) and 74(1) of SEPP (SL) will be provided may not involve the making of arrangements with external service providers at all, but instead may be for the development itself to provide the matters referred to in those clauses.
50 For example, in relation to cl 27(1), the proposed development may involve an onsite system for removal or disposal of sewage, or, perhaps less likely, a reticulated water system. Clause 27(2) contemplates such arrangements. The written evidence for such systems would be in the development application and accompanying documents. The consent authority could be satisfied by that written evidence that, if consent were to be granted, including with appropriate conditions requiring the ongoing provision and maintenance of the systems, the housing will be connected to a reticulated water system and have adequate facilities for the removal and disposal of sewage.
51 In relation to cl 74(1), the proposed development may involve provision to the residents of the proposed development of home delivered meals, personal care and home nursing, and assistance with housework by the management of the seniors living development. The written evidence would again be in the development application and accompanying documents. The consent authority could be satisfied by that written evidence that, if consent were to be granted including with appropriate conditions requiring the ongoing provision of such services, the services will be provided. Any arrangements for the provision of such services to residents would obviously have to be made with residents in the future after the development is carried out.
52 Accordingly, on a proper construction of cll 27(1) and 74(1) of SEPP (SL), the clauses do not, expressly or impliedly, require arrangements for the matters referred to in the clauses to have been made before development consent may be granted.
Applying the proper construction of SEPP (SL)
53 Clauses 27(1) and 74(1) of SEPP (SL) do not, therefore, fall within the description in cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation of being "an environmental planning instrument [that] requires arrangements for any matter to have been made before development consent may be granted." As a consequence, cl 2(1)(h) is not triggered by cll 27(1) and 74(1) of SEPP (SL) and documentary evidence of arrangements for any matters under cll 27(1) or 74(1) of SEPP (SL) is not required to accompany a development application for a seniors living development.
54 The Council was not, therefore, entitled under cl 51(1)(b) to reject the applicant's development application on the basis that the development application was not accompanied by documentary evidence of the kind referred to in cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation. The Council's purported exercise of the power under cl 51(1)(b) was ultra vires.
55 The applicant is entitled to the declaratory relief it has sought in its class 4 application. In addition, I would add a declaration that the Council's determination of 19 December 2005 to reject the applicant's development application is void and of no effect.
56 The above conclusion does not, and is not intended to, affect:
(a) the necessity for the applicant to provide to the consent authority written evidence to enable the consent authority to be satisfied as to the matters referred to in cll 27(1) and 74(1) of SEPP (SL); or
(b) the necessity for the Council, or the Court on appeal, as the consent authority, to form the requisite opinions of satisfaction on the written evidence provided by the applicant, that the matters referred to in cll 27(1) and 74(1) of SEPP (SL) will be provided.
57 I note that the Council in its letter of 19 December 2005 has expressed the view that the written evidence so far supplied by the applicant in the development application or in accompanying documents, is inadequate to establish, to the Council's satisfaction, the matters in cll 27(1) and 74(1) will be provided. The applicant will no doubt take this on board and decide whether it wishes to provide further written evidence to the Council on these matters.
58 The findings I have made above as to the construction of cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation and cll 27(1) and 74(1) of SEPP (SL) do not require that I express any view on whether the Council as the consent authority should or should not form an opinion of satisfaction in relation to the matters in cll 27(1) and 74(1) of SEPP (SL). I do not do so. It is for the Council or the Court on appeal, as the consent authority, to find at the time of determination of the applicant's development application, whether it is satisfied on the written evidence then available to it, whether the matters in cll 27(1) and 74(1) will be provided.