Fairview Estate Vineyard Pty Limited v Mid-Western Regional Council [2005] NSWLEC 555 | Case summary

JUDGMENT 1 Cowdroy J: The applicant is the registered proprietor of a 30 ha parcel of land located in Cassilis Road, Mudgee, being lot 2 in Deposited Plan 858020 ("the subject land"). The applicant seeks a declaration that the subject land "adjoins land zoned primarily for urban purposes" within the meaning of cl 4(1)(a) of State Environmental Planning Policy (Seniors Living) 2004 ("the SEPP"). The respondent ("the Council") opposes the grant of such relief and of the consequential orders sought by the applicant. 2 The question for determination by the Court arises in consequence of the applicant's intention to make a development application for the construction of 70 serviced self-care dwelling and a residential care facility on the subject land. 3 The subject land is zoned 1(a) Intensive Agriculture pursuant to the provisions of the Mudgee Local Environmental Plan 1998 ("the LEP"). The critical matter for determination by the Court is whether the requirements of cl 4(1)(a) and (b) of the SEPP are satisfied. They provide: 4 Land to which Policy applies (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: (i) dwelling-houses, (ii) residential flat buildings, (iii) hospitals, (iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries. 4 It is accepted by both parties that the subject land satisfies cl 4(1)(b) of the SEPP, because dwelling houses are allowed under the 1(a) zoning. The dispute between the parties is whether the subject land is adjoined by land zoned primarily for urban purposes. 5 Pursuant to the LEP, lots to the west and south of the subject land are zoned 1(c2) (Rural-Residential) ("the 1(c2) land"). A lot to the north-east is zoned 5(a) Special Uses ("the 5(a) land"). The respondent contends that both the 1(c2) land and the 5(a) land is "zoned primarily for urban purposes". If this is correct with respect to either the 1(c2) land or the 5(a) land, the subject land qualifies for use under the SEPP. 6 The objects of the 1(c2) zoning are: (a) to allow the creation of rural-residential allotments of various sizes, ranging in size between 2 and 10 hectares, to provide a greater choice of housing types, and (b) to permit the development of rural-residential lots adjoining the existing Mudgee and Gulgong urban areas which can be efficiently serviced with town water and sewerage, electricity, telephone and tar sealed roads, and (c) to encourage low density rural-residential and related activities which maintain the residential amenity and semi-rural character of land within the zone, and (d) to ensure that allotments created in the zone do not hinder the proper and orderly development of future urban areas. The objects of the 5(a) zoning are: The objectives of this zone are to identify and maintain land required for particular uses, usually of a public nature, necessary to provide essential services to the community. 7 The 5(a) zoning allows development as follows: 2 Without development consent Development for the purpose of - community markets. 3 Only with development consent Development for the purpose of - the particular building, work, place or land use (other than gas holders or generating works) indicated by lettering on the map, utility installations. 4 Advertised development - only with development consent Development not included in Item 2 or 3. 5 Prohibited Development for the purpose of - brothels; bulky goods sales rooms or showrooms; major commercial premises; major retail premises. Applicant's submissions 8 The applicant submits that to determine whether land is "zoned primarily for urban purposes" it is necessary to have regard to the purposes specified in the zoning table; the objectives of the LEP and of the zone; and the clauses within the LEP which specify the nature of permissible development. The applicant relies upon the decision of Pearlman J in Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443, wherein her Honour found that the word "primarily" means "chiefly" or "principally" and that "urban" means "pertaining to, or constituting a city or town" (Modog at [12]). 9 The applicant submits that whether land is "zoned primarily for urban purposes" is ascertained from the relevant planning statute, namely the LEP. As the words "zoned primarily for urban purposes" are not defined in the SEPP, relevant principles of statutory interpretation apply. The applicant refers to Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 304 and Kingston and Another v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421 as well as to s 33 of the Interpretation Act 1987. 10 The applicant submits that in Modog, Pearlman J was concerned to interpret the purpose and object of State Environmental Planning Policy No 5 - Housing For Older People or People with a Disability ("SEPP 5"), which preceded the SEPP. The applicant submits that the SEPP stipulates more stringent requirements than SEPP 5 with respect to development on land adjoining land zoned for urban purposes. The applicant refers specifically to cll 2(2)(c) and 19 which were included in the SEPP when it replaced SEPP 5. 11 Clause 2 of the SEPP provides: (1) This Policy aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make sufficient use of existing infrastructure and services, and (c) be of good design. (2) These aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes. 12 Clause 19 of the SEPP provides: A consent authority must not consent to a development application made pursuant to this Chapter to carry out development on land that adjoins land zoned primarily for urban purposes unless the proposed development is for the purpose of any of the following: (a) se rviced self-care housing, (b) a hostel, (c) a residential care facility. 13 The applicant submits that these new provisions prevent inappropriate development being carried out on land which is entirely remote from urban areas and that accordingly, the SEPP is intended to have broader application, specifically to land more isolated than would have been permitted under SEPP 5. 14 The applicant submits that, almost as of course, land which adjoins land zoned for urban purposes will be at the fringe of urban land and that "urban purposes" should not be equated with "residential purposes". 15 In relation to the 1(c2) land, the applicant points to the objectives of the 1(c2) zone which refers to the creation of rural-residential allotments, the development of rural-residential lots and the maintaining of the semi-rural character the land within the zone as well as the development of future urban areas. The applicant says several of these objectives are essentially urban in nature. The applicant contrasts the objectives of the 1(c2) zone in these proceedings with those considered by Pearlman J in Modog where the objectives of the local environmental plan were directed primarily to facilitating residential dwellings on large lots. The applicant refers to the fact that a residential flat building is a permissible use in the 1(c2) zone, which is indicative of a purely urban use. 16 The applicant also submits that although objective (1)(a) refers to a 2 ha minimum lot size, cl 15(3) of the LEP permits the subdivision of 1(c2) zoned land to the substantially smaller size of 4,000 m2. The applicant points out that in fact, the 1(c2) land has been substantially subdivided to smaller lot sizes pursuant to cl 15(3). 17 The applicant also submits that a comparison of the various zones in the LEP establishes that the 1(c2) zone is neither wholly rural nor wholly residential. In summary, the applicant submits that such analysis shows that the 1(c2) land should be construed as land which "is zoned primarily for urban purposes". 18 As to the 5(a) land, the applicant submits that land so zoned is to be regarded as an urban zoning. The applicant relies upon the decision of Sheahan J in Neometro Architects and Planners v Gosford City Council [2002] NSWLEC 33 where his Honour observed that the Special Uses 5(a) zone was considered to be an urban zoning: see at [23]. 19 The applicant also says that cl 4(1)(b) of the SEPP, although it relates to the zoning of the subject land rather than the land adjoining, gives some assistance in determining whether a special uses zoning is "urban". The applicant says that the fact development for special uses is identified in cl 4(1)(b)(iv) is a recognition of its inherent urban characteristics. The applicant also refers to Modog, where Pearlman J observed that uses for schools, hospitals and similar public uses were urban in nature. 20 The applicant submits that the objects of the 5(a) zone highlight the urban purpose of the zoning. The applicant submits that whilst 5(a) development may serve non-urban land, its primary function is to cater for urban requirements consisting of public infrastructure and utility installations. The applicant says that although these developments serve both urban and rural interests, they primarily facilitate urban development. Utility installations, allowed under a 5(a) zoning, are principally a support for urban use. The applicant submits that the land must be zoned either for urban or else for non-urban purposes. The question for determination is whether the land is zoned primarily for urban purposes, or primarily for non-urban purposes. If a choice is to be made between "urban" or "non-urban" zoning then the 5(a) land adjoining the subject site should be regarded as "urban". 21 The applicant submits that a zoning for "urban purposes" does not necessarily mean in an urban area. Under the SEPP, development is permissible on land adjoining land zoned primarily for urban purposes even if it is remote from a town or city. Whether development in a remote area would be appropriate is a matter of merit to be determined separately and subsequently to the question of law before the Court. 22 The applicant relies upon the reasoning of Commissioner Bly in Dougruby Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 192 concerning land zoned 6(b) under the Wingecarribee Local Environmental Plan 1989. The Commissioner determined that the land was zoned primarily for urban purposes because the permissible purposes "were more likely to service a residential population found within the residential zone which in turn would be found with an existing or proposed town or city": at [17]. Respondent's submissions 23 The respondent adopts the reasoning of Pearlman J in Modog and also of the approach taken by Commissioner Bly in Dougruby and submits that to qualify for development under the SEPP, the uses in the zone must first be identified, and then those uses must be associated primarily with urban rather than non-urban purposes. 24 The respondent says that the Mudgee local government area comprises both urban and rural pursuits. It says that the LEP provides three relevant zoning groups with common characteristics. The No 1 zones are rural in nature, the No 2 zones are urban in nature and the No 5 zones are public infrastructure-related zones (Special Uses and Special Uses Railway). The objectives of the 5(a) zone are not primarily for urban purposes, but for the purpose of the whole community (of both urban and rural constituents). The respondent points to the fact that the only use not requiring development consent in the 5(a) zone is "community markets", which is not per se an urban purpose. 25 The respondent says that the range of development permissible with consent (either as advertised development or otherwise) under the 5(a) zoning is very broad, covering all uses except the few specified as prohibited development. Some permissible uses may be urban in nature, but many would not be. There is nothing in the range of permissible uses which would allow a conclusion that the land was zoned primarily for urban purposes. 26 The respondent submits that when the zone allows for a range of unspecified and innominate uses, it is necessary to consider not the general zoning in an abstract sense but whether the particular 5(a) land is zoned primarily for urban purposes. The subject land does not adjoin the town but is several kilometres distant. It is separated from the town by a flood plain and the Cudgegong River. There is no association between this land and the urban purposes serving the township. 27 As to the 1(c2) land, the respondent submits that it is not land zoned primarily for urban purposes because it is a rural zone, not an urban zone. Even the smaller permissible lot sizes of 4,000 m2 are not urban in nature. Objective 1(a) of the 1(c2) zone specifically contrasts the rural-residential zone with the "existing Mudgee and Gulgong urban area", and objective 1(c) emphasises the low density and "semi-rural" character of the 1(c2) zone. Objective 1(b) of the 1(c2) zone contemplates "future urban areas" thereby emphasising the existing non-urban nature of the zone. Findings 28 The Court respectfully adopts the observations and conclusions of Pearlman J concerning the interpretation of the word "urban" as used in SEPP 5 and the word "primarily" in relation to such policy and applies them to the interpretation of the SEPP. Further, the Court, in interpreting the SEPP applies the purposive approach to the interpretation of statutory rules as referred to in Kingston and Another v Keprose Pty Ltd (1987) 11 NSWLR 404. The 1(c2) land 29 In Modog Pearlman J considered the approach to determining whether a zoning was for primarily urban purposes. Her Honour observed (at [15] and [16]): The aims and objectives of the LEP itself do not assist, in my opinion, with the problem of construction, because they are couched in general terms relative to the whole of the LEP. But the objectives of the Rural 1(c) zone are directly relevant to the problem of construction. They specify, in pars (a) and (b), that the type of development with which the zone is concerned is "rural-residential" and the character of the area so zoned is also "rural-residential". And it is important to note that the objectives in pars (c) and (d) are, in their terms, subservient to the main objectives in pars (a) and (b). In the light of the objectives in pars (a) and (b), the name of the zone is relevant. It suggests that some emphasis should be placed on the word "rural" in the "rural residential" nature of the zone. The name of the zone is, of course, not determinative, because it is the content and the context of the zoning table which are more important. But the name of the zone lends support to a conclusion that the zone is not primarily concerned with development merely for residential purposes, but is primarily concerned with the development for purposes which are residential with a rural character. 30 The objectives of 1(c2) zone contained in the LEP refer to the creation of rural-residential allotments ranging in size between 2 to 10 ha; the development of rural-residential lots adjoining the townships of Mudgee and Gulgong which can be efficiently serviced with town water and sewerage and other services; the encouragement of low density rural-residential related activities "which maintain the residential amenities and semi-rural character of the land within the zone" and significantly, to ensure that allotments created in the zone "do not hinder the proper and orderly development of future urban areas". 31 It is clear that the zoning is not merely directed to residential development on large lots, but also to encouraging activities which are consistent with the semi-rural character of the area, as was the case in Modog: see at [17]. The ability to carry out development on blocks of a lesser size is an exception to the zoning rather than an indication of its primary purpose. It is limited only to those areas which are fully serviced with a reticulated sewerage system as provided by cl 15(3) of the LEP. The principal requirement remains a minimum land area of not less than 2 ha. In any event, the Court is not satisfied that the smaller lot size of 4,000 m2 should be considered an "urban" lot size. 32 In respect of the applicant's submission that Modog is not applicable because of the enactment of the SEPP (replacing SEPP 5) since that decision, the Court considers that no relevant distinction can be drawn between the two policies. Clause 4 of the SEPP and cl 4 of SEPP 5 are in identical terms. Clause 19 in the SEPP was clearly included to limit the type of development which was permissible on land adjoining land zoned for urban purposes. However, the Court does not consider that this should result in an expansion of the land to which the SEPP applies. If this had been the intention, cl 4 itself could easily have been altered. The Court considers that the inclusion of more detailed and stringent requirements suggests that SEPP 5 was too broadly framed and was allowing inappropriate developments. However, for present purposes, it is sufficient to state that the Court is satisfied that the effect of cl 4 of the SEPP is no different from the effect of cl 4 under SEPP 5. 33 For these reasons, the Court concludes that as in Modog, the 1(c2) land is not land which is "zoned primarily for urban purposes" as required by cl 4(1)(a) of the SEPP. The 5(a) land 34 The Court considers that in determining whether land falls into cl 4(1) of the SEPP, it must look exclusively at the zoning of that land and not at the particular uses which have been developed on the land in question. 35 In Neometro Architects, Sheahan J said: The sub-station site adjacent, although it has a lot of vacant land, is zoned Special Uses 5(a), considered to be an urban zoning. The question of whether the 5(a) zoning was an urban zoning was not in issue between the parties before Sheahan J, and it appears that submissions were made concerning the question. In these circumstances, and given that no other authority was relied upon, the Court receives little assistance from his Honour's observation for the purposes of this case. 36 In Dougruby Commissioner Bly concluded that the majority of the uses in a 6(a) zone were associated with urban purposes. Those purposes included "parks, gardens, recreation areas, camping grounds, caravan parks, children's playgrounds, public baths, public reserves, race courses, recreation areas, refreshment rooms, showgrounds, sports grounds and the like". 37 An examination of the objectives of the 5(a) zone under the LEP shows that they are quite different to those referred to by Commissioner Bly. The requirement "to identify and maintain land required for particular uses, usually of a public nature, necessary to provide essential services to the community" are not uses restricted to a predominantly urban or predominantly non-urban use. 38 In Modog Pearlman J said (at [13]) that:- The matters of location, site, facilities and services explain the provision in cl 4(1)(b) that SEPP 5 applies to land on which the type of development which is permissible is dwelling-houses, residential flat buildings, hospitals, churches, convents, education establishments, schools and seminaries. Those uses are, in my opinion, urban in nature. 39 The Court observes that her Honour was not considering such facilities in the context of a special uses zoning, nor whether such zoning was primarily urban in nature. Further, her remarks were obiter and could not be regarded as determinative of the question of classification which arises in these proceedings. 40 The object of the 5(a) zoning is to identify land "for particular uses, usually of a public nature". There are many permissible uses on 5(a) land which are often located at a distance from urban areas, such as dams, pumping stations, sewerage works, and electricity sub-stations, and which may serve both an urban and a non-urban community. Conversely, institutions such as hospitals and schools are usually located in urban areas, but may equally serve a non-urban community. The 5(a) zoning is primarily a public zoning, relating to neither urban nor non-urban purposes primarily, but to both. 41 It follows that it is impossible to distinguish whether these community uses are primarily to be categorised as urban rather than non-urban. In these circumstances, the Court cannot be satisfied that the 5(a) land is zoned primarily for urban purposes. Costs 42 The applicant submits that costs should follow the event. The respondent wished to consider its position, depending upon the decision of the Court. However since the Court has found in the respondent's favour, the Court will make an order that the applicant pay the respondent's costs. Orders 43 The Court makes the following orders:

The application is dismissed.
The applicant pay the respondent's costs.
The exhibits be returned.

Fairview Estate Vineyard Pty Limited v Mid-Western Regional Council

At a glance

Court

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Judgment (11 paragraphs)

Parties

Cases Cited (5)

Cited By (2)