Hallidays Point Developments Pty Ltd & Anor v Greater Taree City Council

KEY ISSUES: Question of Law :- preliminary question of law - development application - tourist and aged residential care facilities - permissibility - access - development standard - operation of State Environmental Planning Policy (Seniors Living) 2004 - adjoining land - whether primarily for urban purposes

Environmental Planning and Assessment Act 1979 s 4(1) LEGISLATION CITED: State Environmental Planning Policy (Seniors Living) 2004 cl 4 Uniform Civil Procedure Rules 2005 r 28.2 Greater Taree Local Environmental Plan 1995 cl 35(2)

Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276 Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130 DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 CASES CITED: Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182 North Sydney Municipal Council v PD Mayoh Pty Ltd (No. 2) (1990) 71 LGRA 222 Retirement by Design Pty Ltd v Warringah Council (2007) 153 LGERA 372 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 Warringah Shire Council v TC Punnett & Associates Pty Ltd (2002) 122 LGERA 1

APPLICANTS: I J Hemmings (barrister) SOLICITORS: Stacks LEGAL REPRESENTATIVES: RESPONDENT: M C Fraser (barrister) SOLICITORS: P J Donnellan & Co

JUDGMENT:

• 11 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

HALLIDAYS POINT DEVELOPMENTS PTY LIMITED & ANOR v GREATER TAREE CITY COUNCIL [2008] NSWLEC 106

JUDGMENT 1 HIS HONOUR: A development application was made to Greater Taree Council for consent for a "rural tourist facility, nursing home and medical clinic" on land at lots 3 and 4 in deposited plan 260256, Blackhead Road, Blackhead. The council refused the application on the sole ground that insufficient information had been provided to enable its assessment. 2 This appeal against the council's decision has raised several issues of merit and a legal issue. The legal issue is now the subject of a separate determination, as permitted by r 28.2 of the Uniform Civil Procedure Rules 2005. The legal issue is, in fact, three issues which are as follows:

1. Properly construed, for the purposes of cl 35(2) of Greater Taree Local Environmental Plan 1995 , does the development have direct access to - · "an arterial road" and thus fall under cl 35(2)(a); or · "a road connecting an arterial road", where the access to that development is within 90 metres of the arterial road and thus fall under cl 35(2)(b)?

2. Properly construed is cl 35(2)(a) or cl 35(2)(b) (whichever is found applicable) a development standard as defined by s 4(1) of the Environmental Planning and Assessment Act 1979 ?

3. Is zone 6(b) Open Space Private, land " that is zoned primarily for urban purposes " within the meaning of cl 4(1)(a) of State Environmental Planning Policy (Seniors Living) 2004 ?

The proposed development 3 According to the plans which accompanied the development application, the proposal comprises the following: 330 caravan park sites; community centre and community sports oval; equestrian facilities; service station containing a tourist office, shops and a café; a 108-bed aged persons care facility and associated medical clinic; and internal access roads and walking and cycling tracks.

The relevant planning controls 4 Two environmental planning instruments apply to the proposed development: Greater Taree Local Environmental Plan 1995 ('the LEP") and State Environmental Planning Policy (Seniors Living) 2004 ("the Policy"). 5 The development is classified as a rural "tourist facility" as defined in the LEP and a "residential care facility" within the meaning of the Policy. A "tourist facility" is relevantly defined in the LEP as an establishment providing holiday accommodation or recreation and includes, inter alia, a caravan park, playground and shops of an ancillary nature. 6 The land is zoned under the LEP as partly 1(a) Rural General, 1(b1) Rural Valley Agriculture and 7(a) Environmental Protection Habitat. The land has a frontage to Blackhead Road, which is an "arterial road" as defined in the LEP. On the opposite side of Blackhead Road the land is zoned partly 1(a) Rural General, 1(b1) Rural Agriculture and 6(b) Open Space Private.

Issue 1 - the application of cl 35(2) of the LEP 7 Clause 35(2) states: (2) The Council shall not consent to the development of land zoned 1(a), 1(b1), 1(b2), 1(c1), 1(c2) or 1(f) for any purpose listed in Schedule 4 if the development will have direct access to: (a) an arterial road, or (b) a road connecting an arterial road, and the access to that development is within 90 metres of the arterial road . 8 Schedule 4 is headed "Traffic generating purposes on arterial roads". The listed purposes include "caravan parks", "recreation facilities", "restaurants", "service stations", and "tourist facilities", all of which are proposed by the development. 9 The plans show a single access from Blackhead Road on to the land, where a road within the development site in turn provides access to the various components of the development. Two components of the development which front the internal road are within 90 metres of the arterial road. Although the service station access onto the internal road is shown as an egress, which is within 90 metres of the arterial road, there is nothing to prevent pedestrians from using this route to gain access to the shops and café behind the service station. I accept the council's contention that cl 35(2) is not directed solely to access by vehicles, but also refers to the coming and going of persons. 10 The other component of the development fronting the internal road and which is within 90 metres of the arterial road is the medical clinic. Although the access to the parking area for the medical clinic is more than 90 metres from the arterial road, there is again nothing to prevent pedestrians from accessing this part of the development within 90 metres of the arterial road. 11 It follows that the development infringes cl 35(2), which in turn has the effect of prohibiting the development.

Issue 2 - whether cl 35(2)(b) of the LEP contains a development standard 12 The applicants nevertheless contend that the 90 metre control in cl 35(2)(b) is a development standard as defined by s 4(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). If it is a development standard, then it could be the subject of an objection under State Environmental Planning Policy No. 1 - Development Standards. 13 The term "development standards" is defined in s 4(1) of the Act as meaning "provisions of an environmental planning instrument or the regulations,… being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development". The definition goes on to give examples of what are said to be development standards. 14 The question of whether a particular provision of an environmental planning instrument is a development standard is not always easy to determine. The cases are legion, but generally turn upon their own facts. In the present case, however, I have no hesitation in finding that cl 35(2)(b) is not a development standard but a prohibition. I have come to this view for the following reasons. 15 It is necessary to look at the effect of the provision rather than its form to determine whether it is a development standard: Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [93]; Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130 at [12] and [78]. In the present case the clause describes a characteristic of the land which must be satisfied before any form of development is permissible with consent upon that land: Laurence Browning at [48]. 16 The position is explained by Mahoney JA in North Sydney Municipal Council v PD Mayoh Pty Ltd (No. 2) (1990) 71 LGRA 222 at 234: There is, in my opinion, a distinction in the provisions between a provision which in form provides: "On land of characteristic X no development may be carried out" and a provision which in form provides: "On such land development may be carried out in a particular way or to a particular extent". 17 In the present case cl 35(2) clearly falls within the former kind of provisions - that is, on land having characteristic X no development may be carried out. 18 Moreover, as Clarke JA observed in PD Mayoh at 236: There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing requirements to be complied with in carrying out that development. 19 Clause 35(2) in the present case prohibits the carrying out of development on identified land. It is a prohibition that deals with whether development may be carried out at all, rather than what occurs in the carrying out of the development. That is, it does not prescribe what occurs in the carrying out of the development, namely a particular thing to be done or a particular standard to be observed in carrying out development (cf Mahoney JA in PD Mayoh at 332). It is self-evidently a control by complete prohibition.

Issue 3 - the application of the State Environmental Policy (Seniors Living) 2004 20 The third issue turns on cl 4(1) of the Policy, which is as follows: This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if: (a) development for the purpose of any of the following is permitted on the land: (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, or

(b) the land is being used for the purposes of an existing registered club. 21 The applicants concede that the subject land is not zoned primarily for urban purposes. The applicants also concede that the land on the opposite side of Blackhead Road which is zoned 1(b1) Rural Valley Agriculture is not zoned primarily for urban purposes. The question for determination is whether the land on the opposite side of Blackhead Road which is zoned 6(b) Open Space Private is land zoned primarily for urban purposes. 22 The parties agree, consistent with authority, that the land zoned 6(b) relevantly adjoins the subject land for the purposes of cl 4(1) of the Policy: Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276, Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443. 23 The development control table in the LEP describes the objectives of the 6(b) zone as follows: (a) the development of open space in a manner which optimises the satisfaction of private recreation needs of the community, and

(b) the provision of development associated with, ancillary to, supportive of, or compatible with, private recreational use. 24 The table states that the only development which may be carried out without consent is works for the purposes of landscaping, gardening or bushfire hazard reduction. Development which is prohibited in the zone is all development which is not consistent with such objectives of the zone as are relevant to the particular case. Development which is permissible with consent is any development other than development which is permissible without consent or which is prohibited. 25 Mr I J Hemmings, appearing for the applicants, relies upon a plan provided by the council entitled "Hallidays Point Development Strategy" which the council adopted on 27 October 1999. The plan shows the 6(b) land and land adjacent to it zoned 2(a) as "existing urban". 26 The council's understanding in 1999 as to whether the 6(b) land was urban land is, however, irrelevant. It is a question for the Court to determine whether the 6(b) land is land zoned primarily for urban purposes. 27 Mr Hemmings relies upon the following further submissions

(a) The Policy is remedial or beneficial legislation and so should be construed so as to afford the fullest relief which the fair meaning of the language will allow: DEM (Aust) Pty Ltd v Pittwater Council 136 LGERA 1787 at 193.

(b) The approach to the question of whether a zone is primarily for urban purposes is set out in Modog v Baulkham Hills Shire Council (2000) 109 LGERA 443 and Murlan Consulting Pty Ltd v Ku Ring Gai Counci l [2007] NSWLEC 182.

(c) The uses that are permissible in the zone are expansive - essentially, anything is permissible with consent as long as that development is consistent with the objectives of the zone.

(d) Those objectives are directed to the development of open space in a manner which optimises the satisfaction of private recreation needs of the community. As a result, any development that fulfils those objectives is permissible and is relevantly for urban purposes. 28 I accept, of course, the remedial and beneficial nature of the Policy and the need to construe it as widely as its language will allow. I also accept the submission that the correct approach to determining the question of whether land is zoned primarily for urban purposes is described in Modog and in Murlan Consulting upon which Mr Hemmings relies. 29 In Modog, Pearlman J adopted (at [12]) the meaning of the word "urban" as "pertaining to, or constituting a city or town". Her Honour also had regard to the aim of the then Policy (State Environmental Planning Policy No. 5) of encouraging the provision of housing that meets the needs of the target community. Her Honour also had regard to a clause in the policy which made it clear that reasonable access to and the availability of facilities and services is a critical consideration. 30 The present Policy also has a similar aim: see, in particular Ch 2 of the Policy. Similarly, cl 25 of the Policy requires that the development must have reasonable access to facilities and services. 31 In Murlan Consulting, Preston J held (at [30]) that the inclusion of non-urban purposes in a zone can be an indicator that land is not zoned primarily for urban purposes. His Honour also had regard (at [32]) to the name of the zone as indicating its character. In Retirement by Design Pty Ltd v Warringah Council (2007) 153 LGERA 372, Preston J took the word "primarily" to mean "chiefly" or "principally" (at [97]). Thus although urban purposes are permitted, overall, land in the locality must be said to be principally for urban purposes. 32 In the present case, the applicants' submission overlooks the word "primarily" in cl 4(1) of the Policy. The objectives of the 6(b) zone apply equally to meeting the recreational needs of the urban community and the non-urban community. It cannot be said, therefore, that the land is zoned primarily for urban purposes. 33 Moreover, as Mr M C Fraser, appearing for the council, points out, support for this conclusion is found in cl 4(2) of the Policy. Clause 4(2) at the relevant time stated that the Policy does not apply to "(a) land described in Schedule 1 (Environmentally sensitive land)". Schedule 1 refers to "land identified by any of the following descriptions or by description that incorporate any of the following words or expression: …(e) open space". 34 In Warringah Shire Council v TC Punnett & Associates Pty Ltd (2002) 122 LGERA 1, the circumstances were almost identical to those in the present case. In that case the land in question was zoned 6(b) Private Recreation "B" in the relevant local environmental plan. The Court of Appeal held that Sch 1 of the then State Environmental Planning Policy No. 5 gave effect to the otherwise neutral heading "Open Space", because the schedule engages these words as one of the descriptions in the local environmental plan that identifies the subject land (at [37], per Mason P). The Court of Appeal accordingly held that the then Policy did not apply to the subject land. 35 The facts in the present case are materially indistinguishable from those that were considered by the Court of Appeal in TC Punnett & Associates. The decision in that case confirms the conclusion which I have stated in par [32] above. I find, that the Policy does not apply to the subject land.

Conclusion 36 It is appropriate to answer the questions for determination as follows:

Question : 1. Properly construed, for the purposes of cl 35(2) of Greater Taree Local Environmental Plan 1995 , does the development have direct access to - · "an arterial road" and thus fall under cl 35(2)(a); or · "a road connecting an arterial road, and the access to that development is within 90 metres of the arterial road" and thus fall under cl 35(2)(b)?

Answer : " No " to the first part. " Yes " to the second part.

Question : 2. Properly construed is cl 35(2)(a) or cl 35(2)(b) (whichever is found applicable) a development standard as defined by s 4(1) of the Environmental Planning and Assessment Act 1979 ?

Question: 3. Is zone 6(b) Open Space Private, land " that is zoned primarily for urban purposes " within the meaning of cl 4(1)(a) of State Environmental Planning Policy (Senior Living) 2004 ?

I hereby certify that the preceding 36 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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