DEM (Aust) Pty Limited v Pittwater Council

JUDGMENT:

• 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11268 of 2003

4 February 2004 DEM (AUST) PTY LIMITED Applicant v PITTWATER COUNCIL Respondent EX TEMPORE JUDGMENT HIS HONOUR: 1 The applicant has appealed against the deemed refusal of a development application to demolish existing structures and construct a development comprising 106 units and an associated basement car park, community centre and a "healthy living pavilion" on land at No. 18 Jubilee Avenue, Warriewood, pursuant to State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability ("SEPP No. 5"). 2 This is the determination of three separate questions before the hearing of the appeal as permitted by Pt 31 r 2 of the Supreme Court Rules 1970, which applies in this Court by dint of Pt 6 r 1 of the Land and Environment Court Rules 1996. The three questions are as follows: (1) Whether on a proper construction of 4(1)(b) of SEPP No. 5 the land is land upon which development for the purpose of dwelling-houses is permitted? (2) Whether on a proper construction of sub-cll (1) and (2) of cl 12 of SEPP No. 5, the measurement required to be undertaken of the distance between transport services to the facilities and services specified in cl 12(1) and the site of the proposed development is required to be undertaken in relation to each of the residential buildings in the proposed development and found to be no more than 400 metres in each case? (3) Whether the requirement for access in cl 12(1) of SEPP No. 5 is a development standard capable of variation by means of and objection under State Environmental Planning Policy No. 1 - Development Standards? 3 The parties have agreed that it is not necessary for me to determine the third question today. I turn now to the first question. 4 Clause 4(1) of SEPP No. 5 is relevantly as follows: 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: (i) dwelling-houses; ….. 5 The subject land is within Zone 3(e) under the Pittwater Local Environmental Plan 1993. In that zone the following use is permissible with consent: 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. 6 Mr J J Bingham, appearing for the applicant, relies upon two previous decisions in this Court, namely T C Punnett and Associates Pty Ltd v Warringah Council (2001) 115 LGERA 314 and Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438, in support of a submission that in the circumstances of this case clause 4(1)(b)(i) is satisfied. 7 In T C Punnett and Associates v Warringah Council the relevant zoning permitted dwelling-houses and residential buildings when "required for use or occupation by persons employed in connection with a purpose permissible under this heading". McEwen AJ said (at 320): By analogy, in the present instance the use of dwelling-houses or residential flat buildings "by persons employed in connection with a purpose permissible under this heading" (viz those permissible under the land use table for zone 6(b) (private recreation B)) necessarily remains a use for the purpose of a dwelling-house or a residential flat building. 8 His Honour went on to hold that development in such a zone was permissible within the meaning of cl 4(1)(b) of SEPP No. 5. 9 That decision was followed by Pearlman J in Q & R Developments Pty Ltd v Sutherland Shire Council. In that case the planning instrument permitted "dwelling-houses ancillary to a permissible use". Her Honour said after referring to T C Punnett v Warringah Council (at 446): In this case, development for the purpose of dwelling-houses is permissible on the site under the 4(a) General Industrial zone, so long as the dwelling-house is ancillary to a permissible use. The ancillary requirement does not make the development any less a development for the purpose of a dwelling-house. 10 It can be seen that the permissible use in the present case is not the same as those that were considered in the two authorities relied upon by Mr Bingham. 11 In the present case there are two conjunctions in the provision that allows dwelling houses to be erected. Firstly, the dwelling house must be used in conjunction with commercial premises or industry. If the provision stopped there then I would have no difficulty and I would apply the two authorities upon which Mr Bingham relies. The difficulty here is that it goes on to impose a second requirement, namely, that the dwelling house used in conjunction with commercial premises or industry must also be situated on the land on which the commercial premises or industry are or is conducted. 12 It is an agreed fact in the present case that the development for which consent is sought does not include any commercial premises or industry and on which no commercial premises or industry is situated. 13 It seems to me that the additional conjunction or requirement under the zoning table is such as to take it outside the description in cl 4(1)(b) of SEPP No. 5. That is to say, the land is not land on which development for the purpose of dwelling-houses is permissible. It is land upon which dwelling-houses are only permissible if the dwelling house is situated on the same land on which the associated commercial premises or industry are or is conducted. That, I think, is sufficient to distinguish the facts in the present case from both Punnett and Q & R Developments, and must lead to the conclusion that the proposed development in the present case does not satisfy cl 4(1)(b) of SEPP No. 5. It follows that, as a question of statutory construction, the answer to question 1 is in the negative. 14 The next question is one which turns upon cl 12 of SEPP No. 5. Sub-clauses (1) and (2) of cl 12 are as follows: (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 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. (2) Access complies with this subclause if: (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 400 metres 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 400 metres 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). 15 The argument has turned upon the phrase "located at a distance of not more than 400 metres from the site of the proposed development" in sub-cl (2)(b)(i) of cl 12 of SEPP No. 5. The proposed development comprises a number of buildings on a single allotment of land. Four of the buildings are residential buildings and two are common or community buildings. Only one of the residential buildings is within the distance of 400 metres from a transport service. Mr Bingham relies upon what he says are the plain words of the sub-clause, that is to say, the transport service in the present case is located at a distance of no more than 400 metres from "the site of the proposed development". 16 Dr G A Flick, who with Ms J M Jagot appears for the council, relies upon the principle of construction that the purpose or object underlying the Act or statutory rule must be applied in construing that Act or statutory rule. There is no doubt that SEPP No. 5 is a statutory rule to which s 33 of the Interpretation Act 1987 applies: see Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 447 and Porfiri v Ku-ring-gai Council (2003) 124 LGERA 340 at 346. 17 I have to say that I find the competing arguments nicely balanced. In particular, Dr Flick draws a distinction between the words "the site of the proposed development" and other phrases such as "from the site's boundary" or "from the boundary of the land". In his submission there are four sites of the proposed development in this application, and for the purpose of cl 12 of SEPP No. 5 the sites are the boundaries or footprints of each individual residential building. That is the construction which in his submission best meets the legislative purpose; the object or purpose of SEPP No. 5 of ensuring that the elderly or disabled have practical rather than theoretical access to facilities and services - a development that meets the needs of older people or people with a disability. Development for aged and disabled persons is not to be carried out on land which is too far away from essential services or from transport to essential services; and it is against that clear legislative purpose that "the site of the proposed development" must necessarily mean in each and every case the whole of an allotment on which the development is located. 18 In my opinion, this question is properly a question of fact rather than a question of law. That is, the question of what is "the site of the proposed development" is a question of fact to be determined in each case. The site of a building would clearly include its curtilage. As Mr Bingham conceded during argument, however, one would not regard the handle of a "battle-axe" allotment as being part of the site of a proposed development for the purpose of cl 12. In my opinion, this is not a matter which I can answer affirmatively in favour of council. Each case turns upon its own facts and I therefore determine the second question in this way: namely, that the site of the proposed development is not necessarily the site of each residential building, neither is it necessarily the boundaries of the particular allotment upon which the development stands. It would be inappropriate for me to say anything further about that other than to observe that in this case it is open for the commissioner hearing the matter to hold that the site of the proposed development is the whole of the allotment upon which the development stands. 19 The formal orders of the Court are that the preliminary questions of law raised by the respondent in these proceedings be answered as follows: (1) Whether on a proper construction of cl 4(1)(b) of State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability ("SEPP No. 5") the land is land upon which development for the purpose of "dwelling-houses" is permitted? Answer : No. (2) Whether on a proper construction of cll 12(1) and 12(2) of SEPP No. 5, the measurement required to be undertaken of the distance between the transport service to the facilities and services specified in clause 12(1) of SEPP No. 5 and the site of the proposed development is required to be undertaken in relation to each of the residential buildings in the proposed development and found to be no more than 400 metres in each case? Answer: This is a question of fact to be determined in each particular case. The site of the proposed development may include the whole of the land within its boundaries or, alternatively, that part of the land upon which the proposed development is located, depending on the circumstances.

(3) Whether the requirement for access in cl 12(1) of SEPP No. 5 is a development standard capable of variation by means of an objection under State Environmental Planning Policy No. 1 - Development Standards? Answer: The parties do not require an answer to this question. I hereby certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 4 February 2004

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.