Hosking Munro Pty Ltd v Botany Bay City Council

Properly undertaken, that task, conformably to the manner and content of cl 9(1) of the LEP, must be confined to the inquiry whether the proposed development truly falls within the ambit of the permissible purposes of development, which in the present case can be realistically limited to the defined purpose of " hospital ". Whether it does or does not fall within the ambit of the definition of " hospital ", the relevant enquiry is fully answered and is completed at that point (in the sense that it is either a permissible purpose of development or a prohibited purpose of development) and it is wholly irrelevant to go further to enquire whether it is properly categorised as some other purpose of development eg professional consulting rooms: cf Doyle v Newcastle City Council (1990) 71 LGRA 55 and Gilderthorpe v Sutherland [ 2000] NSWLEC 153.

The following relevant facts have been extracted from the Council's Statement of Facts (Exhibit 2) which the Applicant at the hearing was content to have adopted as the facts relevant to the Court's determination of the question of law.

1. On 8 November 2000 the Applicant lodged a development application seeking consent for demolition of existing building and construction of a new 2 level building over basement parking to be used as a private hospital on the appeal site.
2. The appeal site is included in Zone Residential 2(b) under the LEP.
3. Clause 6 of the LEP adopts the Model Provisions except for a few nominated definitions (including the definition of the health care professional).
4. The Model Provisions contain the following definition - hospital means a building or place (other than an institution) used for the purpose of providing professional health care services (such as preventative or convalescent care, diagnosis, medical or surgical treatment, care for people with development disabilities, psychiatric care or counselling and services provided by health care professionals) to people admitted as in-patients (whether or not out-patients are also cared for or treated there), and includes - (a) ancillary facilities for the accommodation for nurses or other health care workers, ancillary shops or refreshment rooms and ancillary accommodation for persons receiving health care or for their visitors; and (b) facilities situated in the building or at the place used for educational or research purposes, whether or not they are used only by hospital staff or health care workers, and whether or not any such use is a commercial use.
5. The proposed development as described in the development application, does not provide facilities for overnight accommodation for the patients attending the facility.
6. The proposed development will open between the hours of 8.00am to 8.00pm Monday to Friday and 9.00am to 5.00pm on Saturday and Sunday.
7. The proposed development will provide surgery (not being major surgical procedures), medical consultations, x-rays, testing and minor treatment to patients.
8. The range of surgical procedures includes cosmetic surgery, laser surgery, general surgery and gastroscopies.
9. The extent of surgery is limited to day procedure patients who attend at the facility, have the surgery and leave, all on the same day.
10. There is no provision made in the proposed development for an ambulance bay.
11. The proposal is required to be licensed as a day procedure centre under the Private Hospitals & Day Procedures Centres Act 1988.
12. Unless the proposed development is categorised as falling within the scope of the definition of hospital, the development is prohibited by the LEP because it does not fall within any of the other (ie other than hospital) categories of permitted or permissible development within the Residential 2(b) Zone under the LEP (which categories include community facilities, nursing homes and professional consulting rooms).

In addition to the abovementioned agreed facts, each party adduced expert evidence from persons having considerable experience in health/hospital administration. This evidence was directed to the understanding, within the health/hospital industry, of the term "in-patient" and the expression "admitted as an in-patient".

The evidence expressed diametrically opposing opinions as to the general and common understanding within the health/hospital industry of the term and the expression.

In these circumstances, I do not find the evidence helpful to my task of determining the question of law, because the expert evidence clearly does not establish a general or common understanding within the health/hospital industry of the relevant term "in-patient" and the relevant expression "admitted as an in-patient". C. THE COMPETING ARGUMENTS

The Council's primary argument is that the words in the expression "people admitted as in-patients" forming part of the Model Provisions' definition of "hospital" are ordinary words in the English language and are to be given their ordinary and natural meanings.

The Council's submission by that reference to Dictionaries provides assistance in the task of determining what that ordinary meaning is, and reveals the following definitions of the words "in-patient" and "out-patient": - (A) Macquarie Dictionary (i) In-patient a patient who is lodged and fed as well as treated in a hospital. (ii) Out patient a patient receiving treatment at a hospital but not being an in-mate (In-mate is defined as one of those confined in a hospital, prison etc) (B) The New Shorter Oxford Dictionary (1993 ed) (i) In-patient a patient who stays overnight in a hospital where he or she receives medical attention (ii) Out patient a patient who attends a hospital without staying there overnight. (C) The Oxford University Press Australia Dictionary (1998 Ed) (i) In-patient a patient who remains resident in a hospital while undergoing treatment. (ii) Out patient a person who visits a hospital for treatment but does not remain there. (D) The Oxford University Press New York (1998 Ed) (i) In-patient a patient who lives in a hospital while under treatment. (ii) Out patient a patient who attends a hospital for treatment without staying there overnight.

Having regard to the foregoing Dictionary meanings, the Council submits that the plain and natural meaning of the term "in-patient" (particularly when contrasted to the term "out-patient" which is noted in some dictionaries as being the opposite of the former term) requires that the patient be lodged, or reside, at the hospital in the sense that the hospital provides some form of overnight living accommodation for the patient.

The Council's primary submission necessarily leaves no room for the application of any "technical meaning to be given to the term "in-patient" or the expression "person admitted as an in-patient". Recognising that the clear purpose of the definition contained in the Model Provisions and adopted by the LEP is to contribute to the overall scheme or system of classifying or categorising "development" for the purpose of LEP applying controls imposed on development by reference to such classification, the Council submits that the adoption of the plain and ordinary meaning of the relevant word and expression is particularly apt, and it is extremely unlikely that the legislative intention was to adopt a technical meaning of that word and that expression.

However, in the event of the Court determining that the word and the expression were intended to bear some technical meaning, the unresolved conflicting expert evidence did not provide any sound or secure basis for concluding what that technical meaning might be.

The Applicant's competing arguments were as follows: (i.) the various Dictionary meanings diverged - for example, the Oxford Shorter Dictionary defined "in-patient" as one who remains in a hospital while under treatment; (ii.) the defined term "hospital" assumed an extended meaning by virtue of its reference to "services provided by health care professionals" in view of the following definition of "health care professional" contained in the LEP:

health care professional means a person who renders professional health services to members of the public, and includes acupuncturists, chiropractors, dentists, homeopaths, medical practitioners (general practitioner or specialist), naturopaths, orthodontists, osteopaths, physiotherapists, podiatrists or any other like professionals

This extended meaning provided a powerful contextual reason for not assigning to the word " in-patients " the meaning contended for by the Council because many (indeed most) of the services rendered by a " health care professional " would obviously not require the overnight accommodation of the patient receiving such services.

Counsel for the Applicant also referred to the evidence given by the experts in health/hospital administration suggesting that the Court would prefer the evidence of its expert to that of the Council's expert. In this respect, reference was made to the decision of the Court of Appeal in Canonba Pastures Protection Board v Leigh (unreported 26 July 1985) as an illustration of a case where the Court allowed expert evidence to be given as to the meaning of a term contained in the Pastures Protection Act 1934, by way of an exception to the rule enumerated in Marquis Camden v Commissioners of Inland Revenue (1914) 1 KB 641 (that expert evidence is not admissible as to the meaning of ordinary English words in an Act of Parliament). D. THE MEANING OF THE TERM "IN-PATIENT" IN THE MODEL PROVISIONS' DEFINITION OF "HOSPITAL"

In my judgment, it is clear that in the Model Provisions' definition of "hospital", the word "in-patient" and the expression "people admitted as in-patients" are used according to their ordinary meaning and sense. They are not used in a technical sense or any sense other than their ordinary and normal meaning. The immediate context of the word and expression, namely the definition of "hospital" provided by the Model Provisions, and the entire content of that definition, strongly support my conclusion. That support is considerably strengthened by consideration of the wider context and purpose of the LEP and its total dependence upon defined categories of development (including "hospital") for propounding the various controls on development of land in accordance with the provisions of the LEP.

Given these contextual and purposive considerations, it is entirely clear that the word "in-patients" and the expression "admitted as in-patients" are intended to be used according to their ordinary and natural meanings.

The next question is what is the ordinary meaning of the term "in-patient" and the expression "admitted as in-patients" in the context of the Model Provisions' definition of "hospital".

Again, the immediate context and the contents of the definition assists, because immediately following the reference to "people admitted as in-patients", the definition continues "(whether or not outpatients are also cared for or treated there)". This aspect of the definition clearly contrasts the terms "in-patient" and "out-patients" (and as I have earlier mentioned, these terms are noted in some dictionaries as being opposites).

I shall presently return to consider another contextual matter much relied upon by the Applicant, namely the inclusion within Model Provisions' definition of hospital of "services provided by health care professionals" as being within the range of services provided by the hospital.

So far as concerns the Dictionary meanings of the term "in-patient", I am of the opinion that they are virtually unanimous in recognising that the patient be fed and lodged (or accommodated) in the hospital as well as being medically treated. The Shorter Oxford Dictionary meaning cited by the Applicant as showing some divergence of meaning is ever so slight and is not, in my judgment, particularly instructive, inviting the question of what temporal component is involved in the use of the word "remain".

In so concluding that the overwhelming preponderance of Dictionary meanings entirely supports the Council's contention I, of course, appreciate that dictionary meanings are not determinative of the Court's function of statutory construction. In this respect, it is useful to repeat what I said in Crosland in the following passages:

28. However, ultimately, the question of the true meaning of the term " health centre " is one of statutory construction in which dictionary meanings have a legitimate role but not a determinative role: see Provincial Insurance Australia Pty Ltd v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541 at 560/561 per Mahoney JA and House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 at 447 per Mason P.

29. In the interests of economy, I would confine quotation from the illuminating judgment of Mahoney JA in Provincial Insurance to the first two paragraphs of the extended passage cited, where his Honour states:

Dictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per Isaacs J. The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt the much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply.

In doing this, it is, of course, necessary first to determine what is the ordinary or natural meaning of the words used because primarily it is from that that the intention of the legislator or of the parties is to be ascertained: see M P Metals Pty Ltd v Commissioner of Taxation (1968) 117 CLR 631 at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-305; Tullamore Bowling & Citizens Club Ltd v Lander [1984] 2 NSWLR 32 at 53. But that meaning is the ordinary usage of society: Shore v Wilson (1842) 9 Cl & Fin 355 at 527; 8 ER 450 at 518 per Coleridge J and R v Peters (1886) LR 16 QBD 636 at 641. And it is to be taken from the judge's understanding of the sense in which words are used: see, eg, NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 514 per Kitto J. In Midland Railway Co v Robinson (1889) LR 15 App Cas 19, Lord Macnaghten (albeit in dissent) said (at 35) that, in considering the meaning of a term such as mines and minerals, the opinion of particular judges may be a safer guide than any definitions or illustrations to be found in dictionaries.

Interestingly, in that case I held that the word or expression "health centre" had gained a modern day meaning or signification which demonstrated that the Dictionary meanings referred to offered only limited assistance.

In the present case, I think that the dominant Dictionary meaning of the word "in-patients" that I have identified accords with current day understanding and experience in our community of a patient being treated at a hospital as an "in-patient".

In so concluding, I have not overlooked the emergence in our community in recent years of "day procedure centres" providing medical and surgical treatments to patients who are admitted and discharged on the same day.

The conduct of "day procedure centres" is subject to the Private Hospitals and Day Procedure Centres Act 1988. That Act contains the following definitions of "day procedure centre" and 'private hospital":

day procedure centre means premises at which any patient is admitted and discharged on the same day for such medical, surgical or other treatment, and in such circumstances, as may be prescribed by the regulations, but does not include: (a) any such premises conducted by or on behalf of the State, or (b) a public hospital or health service under the control of a public health organisation within the meaning of the Health Services Act 1997, or (c) (Repealed) (d) a private hospital licensed under this Act, or (e) a nursing home within the meaning of the Nursing Homes Act 1988, or (f) a residential rehabilitation establishment licensed under the Drug and Alcohol Rehabilitation Establishments Act 1987.

Private hospital means premises at which any patient is provided with medical, surgical or other treatment, and with ancillary nursing care, for fee, gain or reward, but does not include: (a) an institution conducted by or on behalf of the State, or (b) a hospital or health service under the control of a public health organisation within the meaning of the Health Services Act 1997, or (c) (Repealed) (d) a nursing home within the meaning of the Nursing Homes Act 1988, or (e) a residential rehabilitation establishment licensed under the Drug and Alcohol Rehabilitation Establishments Act 1987.

The Act contains provisions for the licensing of day procedure centres and private hospitals and for the conduct of them. At times, the Act contains provisions that apply to both day procedure centres and private hospitals, where such provisions are expressed to apply to an "establishment" (a defined term that includes both day procedure centres and private hospitals).

However, one feature of the Act that only applies to private hospitals is the accommodation overnight of patients eg s 14(d), a licence for a private hospital must specify "the maximum number of patients who may be accommodated overnight at any one time in each ward of the hospital" and s 40 which creates the offence of accommodating overnight in a hospital ward more patients than the number specified in the licence.

Thus, according to the terms of the Private Hospitals and Day Procedures Centres Act 1988, the chief distinction between a day procedure centre and a private hospital is that patients attending the former are admitted and discharged on the same day, whereas patients attending the latter are provided with accommodation overnight (including ancillary nursing care) in addition to receiving medical, surgical or other treatment.

It may be noted that the Act does not require a day procedure centre to be licensed if it is conducted on the same premises as a licensed private hospital and by the same person who conducts the private hospital: vide s 37(2).

It is interesting to note that according to the expert evidence filed in the proceedings, approximately 80 per cent of all surgical treatments in Australia are currently performed in day procedure centres rather than in hospitals.

However, there is nothing in these recent developments in the form and manner of the provision of health care, including surgical procedures, which eliminates or undermines or elides the distinct (and opposite) concepts of in-patients and out-patients. Indeed, those recent developments only serve to reinforce the distinct and opposite concepts. There is, in my judgment, no blurring of the distinction caused by the concept of patients being "admitted to a day procedure centre". "Admission", whether to a hospital or to a day procedure centre, is but the formal administrative procedure for a patient to be received and treated, by the hospital or day procedure centre, as the case may be.

Nor is it likely that the recent emergence in our community of day procedure centres has not been considered or addressed by modern day environmental planning instruments made under the EP&A Act, such as the LEP. It is probably significant that the definition of "hospital" contained in the Model Provisions was introduced in July 1992 in substitution for the earlier definition (which had been contained in the Model Provisions as originally made in 1980). That earlier definition of "hospital" was in terms that did not refer to persons "admitted as in-patients".

That same definition had been considered by a number of decisions of NSW courts in the 1970's, including the decision of the Court of Appeal in Ku-Ring-Gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154. These cases gave the defined term "hospital" a wide meaning. Similarly, in City of Enfield v Watson (1984) 54 LGERA 31, Matheson gave the word "hospital" a wide meaning in a planning appeal in South Australia where the term was not defined by the relevant planning controls.

My consideration of the legislative history of the definition of "hospital" provided by the Model Provisions (together with previous case law where the differently defined term "hospital" had been considered in the context of town planning applications and appeals), leads me to construe the current definition of "hospital" contained in the Model Provisions as requiring that the recipients of the professional health care services must include persons who are admitted as "in-patients" (in contrast to "out-patients"), meaning thereby persons who are accommodated overnight by the hospital and who receive nursing care in addition to receiving medical or surgical treatment.

In other words, the current definition deliberately distinguishes between persons receiving the professional health care services as in-patients on the one hand and out-patients, on the other, where the existence of the former is an essential component of the definition but the existence of the latter is a non-essential component of the definition.

Is this conclusion dislodged or abrogated by the Applicant's argument based upon the extended definition of hospital by virtue of the definition including as relevant health care services the services provided by "health care professionals" (as that term is very broadly defined by the definition of it adopted by the LEP)?.

In considering the Applicant's argument, I am content to assume that the reference in the Model Provisions' definition of "hospital" to "health care professional" attracts the definition of that expression as contained in the LEP rather than the narrower definition of the same term that is provided by the Model Provisions. (It is to be recalled that the LEP expressly excluded from its adoption of the definitions contained in the Model Provisions the term "health care professional".)

The Applicant's argument, it is to be recalled, is that since it may be reasonably assumed that the services rendered by health care professionals would be rendered to patients who would not, on account of receiving such services (because of the nature of them eg dentistry or podiatry) need to be provided with overnight accommodation (and associated care), the reference to the recipients of such services being "people admitted as in-patients" could not have been intended to apply to persons who are accommodated overnight at the hospital.

Although the argument has some obvious logical force, I do not think that it is correct, essentially because it fails to distinguish between (i) the nature and range of professional health care services available at a hospital; and (ii) the recipients of those services.

In this respect, it is obvious that the definition of "hospital" is founded upon two essential factors - (i.) the provision of professional health care services; and (ii.) the persons receiving those services.

The definition adopts a broad approach to defining the relevant professional health care services, but it adopts a narrow approach to defining the persons receiving those services. Those persons are defined as "people admitted as in-patients" although that class of patient does not exclude "out-patients".

(In passing, I note that the inclusionary features of the definition do not, in my opinion, either qualify or clarify either of the two foundational factors in the definition).

The prescription of the two foundational factors militates overwhelmingly against a construction that would allow, merely by implication, one of the foundational factors to eclipse or subvert or modify the other foundational factor. Thus, the very broad range of professional health care services should not, as a matter of construction, undermine or whittle down the deliberate prescription of the class of persons receiving those services. This is even more especially the case, where the prescription of the class of persons receiving such services, accords with current day conceptions (as illustrated by the terms of the Private Hospitals and Day Procedures Centres Act 1988) of what is the key distinction between a day procedure centre and a hospital. Indeed, with the benefit of the community's knowledge and experience of day procedure centres and hospitals, it is apparent that of the two foundational factors adopted by the Model Provisions definition of "hospital", it is the overnight accommodation (with associated nursing care) of patients receiving such services ("in-patients") that is the key distinction between a day procedure centre and a hospital.

On the other hand, the foregoing conclusions do not mean that the deliberate broadened range of professional health care services adopted by the Model Provisions' definition of "hospital" is defeated or frustrated, since it is obvious that many of the broadened range of services could be provided to an in-patient of the hospital. But to the extent that the services are not available, it matters not to the integrity of both foundational factors prescribed by the definition, or to the definition itself.

For all the foregoing reasons, I do not think that there are reasons of context or statutory purpose that justify a departure from the ordinary and natural meaning of the word "in-patient" in the Model Provisions' definition of hospital, which I have adopted, namely a patient receiving such services who is accommodated overnight in the hospital (and thereby receiving ancillary nursing care). E. CONCLUSIONS AND ORDERS

In the light of the construction I have adopted of the definition of "hospital" contained in the Model Provisions and of the agreed facts, it follows that the proposed development does not qualify as a "hospital" as defined, and that in consequence it is not a permissible purpose of development for the appeal site within the meaning and operation of the LEP.

As conceded by the Applicant, this ultimate conclusion means that the appeal must, as a matter of law, be dismissed and development consent must be refused.

Accordingly, I make the following orders:

1. Appeal dismissed.
2. Development consent refused.
3. Exhibits be returned.
4. Question of costs be reserved.

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