Consideration
45 SEPP No. 5 was made pursuant to s 39 of the Environmental Planning and Assessment Act 1979 (NSW). In interpreting cl 4(1)(b) of SEPP No. 5, it is necessary, if it is genuinely capable of different interpretations, to prefer that interpretation which best meets its stated aims, objectives, policies and strategies: s 25 of the Environmental Planning and Assessment Act 1979 (NSW).
46 SEPP No. 5 is a species of delegated legislation - it is a statutory instrument. It should be interpreted in accordance with the general principles of statutory interpretation: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398. Accordingly, cl 4(1)(b)(i) must be construed so that it is consistent with the language and purpose of all the provisions of SEPP No. 5: see generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, 384 [69], [78] per McHugh, Gummow, Kirby and Hayne JJ.
47 SEPP No. 5 is also in the category of remedial or beneficial provisions which should be construed to afford "the fullest relief which the fair meaning of its language will allow": Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384 per Isaacs J; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 98 per Dawson J; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at 528 per Gummow J; ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18; (2004) 1 DDCR 259 at [349].
48 Where a beneficial statute is expressed in general terms, so far as possible within the text, decision-makers will construe the legislation to advance and achieve those beneficial purposes - not to frustrate and defeat their attainment: Marks v GIO Australia Holdings Ltd at [124] per Kirby J; Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623 per Kirby J at [384]. This approach is reinforced in this case by the requirements of s 25 of the Environmental Planning and Assessment Act 1979 (NSW) to which I have earlier referred.
49 Thus the process of construction must begin by examining the context in which cl 4(1)(b)(i) is found.
50 SEPP No. 5 is intended to encourage the provision of housing for the elderly and disabled. It achieves that aim in the first instance by applying both to land which is zoned for urban purposes where housing would clearly be permissible and also to land which adjoins such land. Once cl 4(1)(a) is satisfied, the only additional requirement for SEPP No. 5 to apply to the relevant land is that development for any of the purposes which appear in cl 4(1)(b) is permitted on the land.
51 SEPP No. 5 starts from the premise that obstacles to its aims may be found in local environmental planning instruments and that it is to prevail notwithstanding. This is made clear in the aims (cl 3(2)(a)), the fact that it prevails where it is inconsistent with any other environmental planning instrument (cl 5(2)) and the fact that it allows development despite the provision of any other environmental planning instrument in certain circumstances (cl 10).
52 Thus, in the present context, the object of cl 4(1)(b) is to search for land on which the developments nominated in sub-cll 4(1)(b)(i) - (iv) are permitted, but on which it might be presumed, ordinarily, that development of the sort of housing required for the elderly and disabled would not be permitted. This is not least because development for the purposes of dwelling-houses would, as in the present case, generally be limited to the erection of a building containing "1 but not more than 1 dwelling": see [16] above.
53 Clause 4(1)(b) requires the identification of land on which development for any of the purposes in sub-cll (i) - (iv) is permitted. The expression "dwelling-houses" in cl 4(1)(b)(i) is not qualified in any manner; nor are the other purposes set out in sub-cll 4(b)(ii) - (iv).
54 It clearly cannot be the case that SEPP No. 5 only applies to land on which one of the purposes set out in sub-cll 4(b)(i) - (iv) is permitted without qualification. Rather, in my view cl 4(1)(b) assumes that land to which it applies will have a zoning permitting one of the purposes set out in sub-cll 4(1)(b)(i) - (iv) albeit that that permitted purpose may be qualified or limited in some manner peculiar to the applicable local environmental planning instrument. Such qualifications do not detract from the conclusion that once the land can be developed for the purpose of dwelling-houses, even on a qualified or limited basis, SEPP No. 5 applies. It is still land on which development for the purposes of dwelling-houses is permitted.
55 Where land is not zoned primarily for urban purposes it might be expected that the construction of dwelling-houses would only be permitted in limited circumstances and usually for a use associated with the zoning. Thus, as in this case, Zone No 3(e) (Office Business "'E") permits the construction of dwelling-houses "used in conjunction with commercial premises or industry". In T C Punnett and Associates Pty Ltd v Warringah Council, zone 6(b) (Private Recreation "B") of the Warringah Local Environment Plan 1985 permitted dwelling-houses and residential buildings when "required for use or occupation by persons employed in connection with a purpose permissible under this heading". In Q & R Developments Pty Ltd v Sutherland Shire Council the Sutherland Shire Local Environment Plan 1993 permitted "dwelling-houses ancillary to a permissible use" on land zoned 4(a) General Industrial.
56 The proposition that the cl 4(1)(b) purpose requirements can be satisfied notwithstanding the presence of qualifying words in the local environmental planning was fundamental to the decisions in T C Punnett and Q & R Developments.
57 The respondent initially accepted that the approach taken in T C Punnett and Q & R Developments was correct.
58 In argument, however, Dr Flick SC retreated from his original position and contended that, as McEwen AJ had not considered an argument about the overriding effect of a clause in the same terms as cl 9 of the Pittwater LEP (which he accepted was common to every local environmental plan), T C Punnett was distinguishable.
59 That submission is, in my view, untenable. As I have already noted, the Warringah LEP contained a clause in substantially the same terms as cl 9 of the Pittwater LEP to which McEwen AJ referred. Although McEwen AJ's decision did not expressly rely upon cl 9, it is clear that he did not regard it as creating a composite purpose in the manner for which the respondent here contends and which could not be unbundled in determining the application of cl 4(1)(b)(i) of SEPP No. 5.
60 I also accept the distinction, for which the appellant contends, between the purpose of development and use for a purpose. As the appellant submitted, the drafter of cl 2 in zone 3(e) has identified the purpose for which development can be permitted in that zone as including a dwelling-house as long as it is used in conjunction with another purpose with both being situated on the same land. However, the coupling of the purpose of a dwelling-house with another purpose or use does not cause the land to be any less land on which development for the purpose of a dwelling-house is permitted, thus satisfying cl 4(1)(b). This is, as I understand it, essentially the reasoning in T C Punnett and Q & R Developments. This approach allows SEPP No. 5 to do its work of identifying land to which the policy of increasing the supply of housing for the elderly and disabled can be applied.
61 The primary judge did not elaborate on the distinction he drew between the location requirement in cl 2 in Zone 3(e) and the qualifying words considered in T C Punnett and Q & R Developments. Apart from the fact that it was of a different nature (location as opposed to a use requirement) the location requirement was nevertheless a qualification or limitation on the dwelling-house purpose, as too were the words considered by McEwen AJ and Pearlman J.
62 I do not accept that the location requirement in cl 2 of Zone 3(e) was relevantly distinguishable from the qualifying words considered in T C Punnett and Q & R Developments.
63 The respondent's submission that cl 4(1)(b)(i) was not satisfied because cl 9 of the Pittwater LEP identified the purposes for which development may be carried out in zone 3(e) as being the composite phrase "dwelling-houses used in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted", would give primacy to the Pittwater LEP at the expense of SEPP No. 5.
64 I cannot accept that the respondent's approach is warranted. It would frustrate and defeat the attainment of SEPP No. 5's aims and would be inconsistent with its language and purpose. It would enable the Pittwater LEP to prevail over the plain language of cl 4(1)(b)(i). Rather than allowing SEPP No. 5 to operate so that it set aside local planning controls that would prevent the development of housing for older people or people with a disability, it would allow the terms of a local environmental plan to prevail over SEPP No. 5 by words qualifying or limiting the manner or circumstances in which the dwelling-house purpose was permitted.
65 This conclusion does not involve recasting the zoning table in the Pittwater LEP. It enables the respondent to determine where "dwelling-houses" whether alone or in conjunction with other purposes may be permitted. It does, however, involve setting aside the zone 3(e) purpose to permit the land to be developed to provide housing for the elderly or disabled. That is precisely how SEPP No. 5 is intended to operate. Such an interpretation best meets its stated aims. It is consistent with the language and purpose of all its provisions.
66 In my view, Lloyd J erred in concluding that the location requirement in cl 2 of zone 3(e) relevantly distinguished this case from T C Punnett and Q & R Developments.
67 The appellant should succeed on its first and third grounds of appeal. It is unnecessary to consider the second ground of appeal.