Findings
66It was common ground that with the exception of additional facilities for such things as storage, housekeeping and laundry (including in the VSQ development chutes for laundry from each floor to the basement area), the serviced apartments do not differ physically from those initially approved as residential apartments. It was common ground that the authorised use, and the actual development, falls within the definition of "serviced apartments" in the SSLEP. Exhibit B, the Apartment Registration form used for the ACI site, identifies the occupant signing the form as "a guest of Meriton", and requires details of arrival and departure dates and total nights. There was no direct evidence as to the average period of stay for the ACI site, or that expected for the VSQ site, however it was not in dispute that the use of the serviced apartments was and will be for short-term stays consistent with the definition of "serviced apartments".
67The physical structure of the buildings is relevant, but not determinative, and it is the categorisation of the use to which they are put that is determinative: North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 535; Council of City of Sydney v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97 at [36].
68In Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400, Preston CJ held:
27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534.
28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508.
69The development consents granted in 2004 for the ACI site and 2010 for the VSQ site authorised both the construction of the apartments and their use as residential apartments, and it is not relevant that there has been no actual physical occupation of the units on either site for that purpose. Clause 27P(2)(a) refers to "intended" use, and thus requires consideration as at the date of the grant of development consent. The issue is whether the development consents granted in 2006 for the ACI site and 2011 and 2012 for the VSQ site for the change of use of the apartments to serviced apartments means that the total floor area in each of the buildings represented by the serviced apartments "is intended to be used exclusively for residential purposes" from that time, or not.
70The principles of construction to be applied are settled. In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ held:
69.The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
71Starting with the words used in cl 27P, I agree with the Council (but for different reasons), that nothing relevantly turns on the use of the word "exclusively" in cl 27P(2)(a). Planning law accepts that premises may be used for more than one purpose, with an inquiry sometimes required as to whether one or more such uses is ancillary to a dominant use, or whether each use is independent: Foodbarn v Solicitor General of New South Wales (1973) 32 LGRA 157. The calculation of the affordable housing levy is based on the total floor area identified in any building, and asks what proportion of that total floor area is used either exclusively for residential purposes, or not exclusively for residential purposes. A part of the building used for more than one purpose, only one of which was properly characterised as being for residential purposes, would fall within cl 27P(2)(a)(ii). The relevant issue in the present proceedings is whether the use for serviced apartments is a use "for residential purposes".
72Clause 27P should be read in its context. Clause 27P is contained in Div 3 of Part 4 of the SSLEP, which together with Divs 2 and 2A, apply to development in Green Square. The definition of "residential development" in cl 27KC applies to Div 2A of the SSLEP, the provisions relating to Green Square Town Centre, and it therefore does not in terms apply to Div 3, including cl 27P. The definition in Sch 1 to the SSLEP of "residential use" applies "in this Plan", and because the definition of "residential use" is expressly limited to be "within Green Square", would apply to development on both sites. That definition in terms means use "for long-term residential accommodation", and includes "multiple dwellings".
73There are difficulties in accepting the Council's approach, and using the definition of "residential development" in cl 27KC in the interpretation of cl 27P. Even disregarding the limited application of cl 27KC to Div 2A of Part 4, the Div 2A provisions are directed to the specific objective of regulating development in one part of the larger Green Square area, namely the Green Square Town Centre, providing architectural design standards, gross floor area and height limits. The provisions of Div 3 are focussed instead on affordable housing, both its provision and retention, and financial contributions to achieve it, with the objectives clearly stated in cl 27L. It is difficult to see how the definition of "residential development" in cl 27KC could necessarily assist in the application of the affordable housing provisions: that definition, for example, includes "educational establishments", "local shops", and "professional consulting rooms", none of which could reasonably be described as for a "residential purpose". The definition of "private hotel" in Sch 1, on which the Council relied, reinforces the difficulty. It is correct to say, as the Council submits, that this definition uses the phrase "residential purposes", and that it expressly refers to use primarily for "short-term" residential purposes. However, "private hotels" are included as a form of "commercial development", as opposed to "residential development", in cl 27KC. While Divs 2, 2A and 3 together relate generally to the redevelopment of the Green Square area, the statutory scheme gives each different work to do, and in my view it would not be appropriate to rely on the definitions in cl 27KC in interpreting cl 27P.
74The authorities which have considered the interpretation of phrases such as "residential buildings", and similar expressions in other planning instruments and development consents, have most recently been considered by Lloyd AJ in GrainCorp Operations Pty Ltd v Liverpool Plains Shire Council [2012] NSWLEC 143. In that case, the term used in the relevant local environmental plan was "residential buildings", and the development the subject of the proceedings was workforce accommodation provided for mining employees in self-contained "village style" facilities.
75Lloyd AJ noted that in North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 the Court of Appeal had considered whether letting a number of units containing residential units as serviced apartments was use as a "residential building", holding (at 537-538 per Mahoney JA, Priestley and Handley JJA concurring) that the definition of that term in the Cumberland Planning Scheme Ordinance envisaged a significant degree of permanency of habitation or occupancy. On the facts in that case, where the most common period of stay was 13 days and some 67% of occupants stayed for two weeks or less, the use as serviced apartments did not have that degree of permanence.
76North Sydney was applied by Pain J in Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251;186 LGERA 274, in holding (at [110]) that proposed inpatient accommodation of up to six to ten months duration at a Salvation Army Recovery Centre did not have sufficient permanency to satisfy the requirement of "residential accommodation" in the relevant planning instrument.
77Serviced apartments were the subject of two further decisions, KJD York Management Services Pty Ltd v Sydney City Council [2006] NSWLEC 218; 148 LGERA 117 (Lloyd J) and Sydney City Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97; 158 LGERA 67 (Pain J). In KJD York, the relevant definition of "residential flat building" included the phrase "...constructed, designed or adapted as to be capable of being occupied or used as a separate domicile". Lloyd J applied North Sydney, and also noted that the ordinary meaning of "domicile" implies a degree of permanence. The same definition of "residential flat building" was considered in Waldorf Apartments Hotel, and Pain J applied North Sydney and KJD York, holding that a development consent for use as "flats" did not authorise the use for serviced apartments.
78Having regard to these authorities, to the decision of Balmford J in the Victorian Civil and Administrative Tribunal in Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC; 108 LGERA 129 to which Pain J referred in Waldorf Apartments Hotel, and to dictionary definitions of the terms "residential", "residence" and "reside", Lloyd AJ concluded in GrainCorp:
27 I am persuaded by the authorities mentioned above together with the dictionary meanings. I accept that the decisions in KJD York and in Waldorf Apartment Hotel turned, at least in part, on the use of the word "domicile" in the definition of "flat". However, the reasons of Mahoney JA in Sydney Serviced Apartments, of Balmford J in Derring Lane together with the authorities upon which her Honour relied, noted at [23] and [24] above, together with the dictionary definitions - particularly the word "residential" - all lead to the conclusion that there must be an element of permanence or residence for a considerable time, or having the character of a person's settled or usual abode.
79Lloyd AJ concluded that the proposed development was not within the meaning of the compound term "residential buildings": the facility was intended to accommodate a transient population; it did not have the physical characteristics of a residence, having a communal kitchen, a restaurant, a retail area, a manager's office, and the absence of any facilities in the individual units other than an en-suite bathroom; there was nothing in the evidence to suggest that returning occupants were allotted the same unit on a recurring basis, and nothing to suggest that a lease would be entered into with each individual occupant; and none of the occupiers would regard the facility as their settled or usual abode, or the place where they lived.
80The evidence of Ms Robinson as to the differences between a serviced apartment and a residential apartment (summarised at [30] above), was not disputed, and was consistent with the view. Having regard to that evidence, I am satisfied that apart from the provision of a kitchen and laundry facilities, the serviced apartments the subject of these proceedings share the attributes identified by Lloyd AJ in GrainCorp.
81It is correct, as the Council submitted, that these authorities, including GrainCorp, were in relation to terms and phrases defined in other planning instruments, which have no direct application to the phrase used in cl 27P(2) of the SSLEP. However, they support an interpretation of the word "residential" as used in cl 27P(2) to require a degree of permanency or residence for a considerable period of time, or as a person's settled or usual abode.
82Such an interpretation is consistent with the definition of "residential use" in Sch 1, being for long-term accommodation, which applies specifically in Green Square.
83In my view, it is immaterial that cl 27P uses the term "residential purposes" rather than "residential use". The common element is "residential", and as Chamwell makes clear, any use must be for a purpose, which is the end to which the land is seen to serve.
84I am satisfied that the use for the purpose of a serviced apartment, being for short-term accommodation for people whose residence is elsewhere, is not a use "for residential purposes" and that cl 27P(a)(ii) would apply to the calculation of affordable housing contributions.