I myself do not see the need to consider the expression "unless otherwise provided".
75 As to the second question, there is no definition of "general presumption", but it seems to me that it means rebuttable presumption rather than conclusive presumption and that the term means that unless, on a proper construction of the relevant instruments one can see some other legislative intention, in the event of an inconsistency, the State environmental planning policy prevails and a provision of a local environmental plan ceases to apply to the extent of the inconsistency.
76 As to inconsistency, I would agree with Basten JA's analysis.
77 At this point I might be permitted to make two digressions. Digression A, dealing with some of the facts of this case, and digression B dealing with some propositions which appear to be common ground between the parties.
78 As to A, the basal facts which I take from the council officer's report about the development which commences at 282 of the Blue Appeal Book, the facts are that the subject site is at the southernmost end of Hastings Point Village and is separated from other residential zoned land by Crown reserves. The application was for a three stage seniors' living development. Stage 1 would comprise the construction of independent living units, Stage 2 hostel units and Stage 3, residential care units, additional hostel units and a dining and servery area and there would be gradual winding down of the existing caravan park facility on the site. There would be buildings of three storeys high on the site, the tallest building being Building F, part of Stage 3, which would come to a height of 10.8 metres.
79 The application provoked a considerable amount of adverse comment from persons who claimed to be affected. One of the prime matters of concern raised by objectors was the height of the building and how permitting buildings of this height in Hastings Point would affect the area generally. The TLEP in clause 16, when read with the height of buildings map, permits three storey development on the subject site.
80 On 6 July 2005, the Tweed Shire Council resolved to amend the TLEP by reducing the maximum height of buildings south of Cudgera Creek from three storeys to two storeys and the council prepared proposed amendment No 81. However, the Director General of the NSW Department of Planning, informed council on 30 March 2006, that he was withholding the issuing of authorisation with respect to amendment No 81. On 19 December 2006, council resolved to abandon pursuing amendment No 81. On 20 March 2007, the Director General provided the council with authorisation conferring the right to exhibit publicly the draft amendment. The council did so on 10 May 2007, and invited comment from the public. The council approved the development application at its general meeting on 8 May 2007 and gave notice of the determination granting approval on 14 May 2007.
81 Miss Galle, town planner, prepared her report to the council in relation to the development. She said in that report, inter alia (Blue 336):
"The bulk and scale of the development is a controversial component of the development as a whole. Whilst the Tweed LEP stipulates that the subject site is affected by a three-storey height limit, Council has previously considered reducing the height limit to two storeys in this location. Draft LEP 81 has since been deferred for consideration in the new LEP and therefore the three-storey height limit remains in force.
The proposed development complies with this height limit but would not be consistent with the existing one to two-storey character of the area. Given the applicable three-storey height limit it can be argued that this development is one of the first to contribute to a changed character for Hastings Point. This is topical, however, given the three-storey height limit for the purposes of this Clause the proposed development is considered satisfactory based on a changing character for Hastings Point.
The proposal will add and enhance the character and amenity of the area, through the introduction of modern architecturally designed buildings … ".
82 As to digression B, it seems to me that it was accepted by everybody that one effect of clause 17 of SEPP-SL is that any zoning restriction preventing housing for seniors or disabled persons in a particular zone of a shire is overridden.
83 Mr Greenwood SC for the appellant, submitted that is as far as the clause operated.
84 Next, Mr Greenwood acknowledged that if there is a situation where there is a "can do" under the SEPP-SL and a "can't do" under the local environmental plan, then the SEPP-SL prevails; see DEM (Australia) Pty Ltd v Pittwater Council [2004] NSWCA 434; 136 LGERA 187.
85 Thirdly, it is conceded that the provisions in the SEPP do not override the need to comply with s 79C of the EP & A Act. However, Mr McEwen SC for the second respondent made it clear that a consent authority's statutory obligation to take into consideration the provisions of any environmental planning instrument picks up only applicable environmental planning instruments. Thus, it will only pick up an LEP if it is applicable despite the SEPP.
86 Both counsel agree clause 2 of SEPP-SL is significant. It reads as follows:
" Aims of Policy
(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 efficient 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 … ".
87 Mr Greenwood says that subclause (2) is merely aspirational. He submits that it doesn't in fact set aside local planning controls and that what one must bear solidly in mind is the aim of the policy in subclause (1).
88 Whilst the submission as to subclause (2) may be correct, clause 17 of SEPP-SL and s 36 of the EP & A Act seem to do the work that clause 2(2) of SEPP-SL aspired to do.
89 I now turn back to my mainstream consideration of the current appeal.
90 There was discussion during oral argument as to whether the SEPP-SL was a code. I believe the upshot of this decision was that Mr Greenwood posited that the SEPP-SL was not a code, whilst Mr McEwen put that whilst it was not a complete code, it was a species of code in that it endeavoured to cover completely various aspects of the planning process. It comprehensively dealt with site analysis and design requirements, even to the extent of the minutiae of prescribing the format of letter boxes. However, there may be other aspects which were not covered by SEPP-SL.
91 Certainly, the SEPP-SL deals with certain matters in great detail. I need not go into all of these matters, but so far as height of building is concerned, there are provisions which deal with the subject. However, they do not deal totally with the subject. Clause 38(4) of SEPP-SL deals with the height in zones where residential flat buildings are not permitted, and mandates that buildings in such zones must be 8 metres or less in height. Now that does not apply in the instant case. However, what is significant is that if a building was 10.8 metres in height, but was three storeys, then it could be approved under the TLEP, but could not be approved under the SEPP-SL and there would be a clear inconsistency.
92 Clause 79 of SEPP-SL (and 80 and 81 are in the same plight) provides that:
"A consent authority must not refuse to consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a residential care facility on any of the following grounds:
(a) building height: if all proposed buildings are 8 metres or less in height."
93 Mr Greenwood says that, properly read, that means that a consent authority may refuse consent if it finds that a building in the development application exceeds 8 metres in height. That is probably correct. However, again, if all the buildings in this development were 8 metres or less in height, could a consent authority say (now referring to TLEP clause 8(1)(c)) that the council declined to consent to a development because, taking into account factors including building height, it was not satisfied that the development "would not have an unacceptable cumulative impact on the community or locality" (I cannot get away from the triple negative!)?
94 However, I do not need to answer that question because it seems to me that Mr McEwen, in his submissions, put an unanswerable proposition. Clause 8(1)(c) of the TLEP says that the consent authority may grant consent to development only if it is satisfied that the development would not have an unacceptable cumulative impact on the locality etc [the italics are mine]. Cases such as Currey v Sutherland Shire Council (1998) 100 LGERA 365 and Franklins Ltd v Penrith City Council [1999] NSWCA 134 (especially at [23]) point out the significance of the sort of phraseology used in 8(1) and that is to deprive the consenting authority of any power to issue a consent unless the precondition is satisfied.
95 Accordingly, here, we have the situation where the SEPP contains an aim in cl 2 to encourage the provision of housing that will increase the supply and diversity of residences that meet the needs of seniors and make efficient use of existing infrastructure and services. There are detailed considerations to be given, for instance, in Part 3 of Chapter 3 of SEPP-SL recite analysis, there are provisions with respect to site area, height, landscaping etc, all of which can be set at nought if a council has no power to approve the development because an assessment of cumulative impact of existing and similar proposals to the one in the application has been carried out and the result found to be acceptable.
96 Mr Greenwood says that the SEPP does not deal with cumulative impact at all; therefore, there is no inconsistency with clause 8(1)(c) of the TLEP with the SEPP. For the reasons I have just given, that, in my view, is not the correct way of looking at the matter. Whilst it would be a quite different matter if clause 8 had said that a consent authority was to take into account cumulative impact, when the clause removes the power of a council to consent to an application which complies with SEPP but which does not address cumulative impact, then, to my mind, there is an inconsistency.
97 Thus, in my view, her Honour was quite correct in saying that the failure to be satisfied under clause 8 cannot, on its own, give rise to a refusal of a development application which is for a development that is within SEPP-SL.
98 Accordingly, in my view the appeal should be dismissed with costs.
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