Mete v Warringah Council

Land and Environment Court (NSW)|2004-05-31|Before: Talbot J, Mr J

Introduction 1 On 11 November 2003 the applicant lodged a development application with Warringah Council ("the council") seeking consent for the erection of four two-bedroom dwellings for Housing for Older People or People with Disabilities and subsequent strata subdivision on land known as No. 3 Tristram Road, Beacon Hill ("the subject land"). The development application was lodged pursuant to Warringah Local Environmental Plan 2000 ("WLEP") made on 5 December 2000. 2 On 24 December 2003 the applicant commenced these class 1 proceedings by way of an appeal against the deemed refusal of the development application by the council. A Statement of Issues was filed and served on 17 February 2004. Warringah Local Environmental Plan 2000

3 The structure of WLEP encapsulates the description of desired characters of the localities that make up Warringah and relates the controls on development to the achievement of the desired character of those places. The plan applies to the local government area of Warringah, except any land while it is shown on the map as "Deferred Matter". 4 Locality Statements are appended to the WLEP. The relevant Locality Statement classifies land within a locality as being within Category One, Category Two or Category Three. 5 Clause 5(1) of WLEP provides that State Environmental Planning Policy No. 1 ("SEPP 1") and State Environmental Planning Policy No. 5 ("SEPP 5"), inter alia, do not apply to land to which WLEP applies. Development standards for development are set out in the respective Locality Statements. Before granting consent for development classified as Category One the consent authority must consider the desired future character described in the relevant Locality Statement. Before granting consent for development classified Category Two or Three the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement. 6 The subject land is covered by the Locality Statement B1-Frenchs Forest East. Housing for Older People or People with Disabilities is classified as Category Two in the Locality Statement and is therefore permissible with consent pursuant to WLEP. 7 The dictionary to WLEP contains the following definition of Housing for Older People or People with Disabilities:- …residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with disabilities, whether or not it is also used to accommodate people who live with older people or people with disabilities, or staff who are employed to assist in the administration of and provision of services to such housing. Housing for older people or people with disabilities may consist of a residential care facility, a hostel or a grouping of 2 or more self-contained dwellings, or a combination of these, but does not include a hospital or a group home. 8 Clause 29 of WLEP sets out a set of reverse development standards in respect of applications for Housing for Older People or People with Disabilities by prescribing the grounds which cannot be relied upon for refusal of the application. General principles of development control for Housing for Older People or People with Disabilities are included in cl 40 of WLEP. These controls relate to support services, wheelchair access and other principles and standards listed in Sch 16 to the plan. Further development standards for the Frenchs Forest East locality in respect of built form of development are contained in the locality statement.

State Environmental Planning Policy (Seniors Living) 2004

9 On 31 March 2004 State Environmental Planning Policy (Seniors Livings) 2004 ("SEPP(SL)") was gazetted. 10 The aims of SEPP(SL) are stated in cl 2 as follows:-

(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. 11 With minor grammatical changes the above aims are in the same terms expressed in cl 2(1) of SEPP 5 and in a statement of "State policy" in respect of Housing for Older People or People with a Disability contained in Sch 5 to WLEP. The statement in Sch 5 to WLEP is referred to in its introduction as "State policy" whereas in cl 12(1)(b) the consent authority is required to be satisfied that development is consistent with "any relevant State environmental planning policy described in Schedule 5 (State policies)". Accordingly, although SEPP 5 does not apply to land to which WLEP applies, the consent authority is nevertheless required to be satisfied that development is consistent with it. This requirement would also appear to carry through to SEPP(SL). 12 SEPP(SL), by dint of cl 4(1), 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.

13 SEPP(SL) expressly repeals SEPP 5 and states that if the policy is inconsistent with any other environmental planning instrument, made before or after the policy, the Seniors Living policy prevails to the extent of the inconsistency. Despite the repeal of SEPP 5 it continues to apply to and in respect of any development application made under that policy on or before 18 February 2004 but not finally determined before the commencement of the later policy on 31 March 2004. There is no savings provision in SEPP(SL) in respect of development applications made to the respondent pursuant to WLEP and prior to the date of gazettal. 14 SEPP(SL) contains definitions of "seniors", "people with a disability" and "seniors housing" that are comparable to similar definitions in WLEP. 15 In addition to the application of SEPP(SL) to land "zoned" primarily for urban purposes, pursuant to cl 4 in Ch 1, and despite the provisions of any other environmental planning instrument, cl 17 in Ch 3 allows development for the purposes of any form of seniors housing to be carried out in accordance with the policy if it is development on land zoned primarily for urban purposes and development for the purpose of any form of seniors housing consisting of serviced self-care housing, a hostel or a residential care facility on land that adjoins land zoned primarily for urban purposes. Thereafter, Ch 3 of the policy regulates development for seniors housing and in terms refers only to development applications made pursuant to Ch 3 or development allowed by Ch 3.

16 A consent authority is precluded from granting development consent to a development application made pursuant to Ch 3 unless the proposed development complies with the standard specified in cl 38 of SEPP(SL). The standards in cl 38 are distinct from the development standards provided in WLEP. It appears to be common ground that the development proposed by the applicant, although it can comply with the development standards in WLEP, it will not comply with development standards contained in cl 38. There is, therefore, a debate between the parties as to whether cl 5(1) of WLEP (which provides that SEPP 1 does not apply to land to which WLEP applies) has the effect that SEPP 1 cannot be relied upon to support an objection made in respect of the development standards in cl 38 of SEPP(SL) where the land is subject to the provisions of WLEP. As will become apparent, it is not necessary to resolve the debate in these proceedings. However, as SEPP(SL) makes no reference to SEPP 1 and cl 5(1) of WLEP expressly provides that SEPP 1 does not apply to land to which WLEP applies, there is clearly an argument to support the proposition that SEPP 1 cannot be applied to support an objection made to application of a development standard in SEPP(SL) where the subject land is in Warringah.

17 It is the contention of the applicant, largely supported by the council, that the development application lodged pursuant to WLEP may be considered and determined pursuant to WLEP either because it was made prior to the gazettal of SEPP(SL) or that it is not an application made pursuant to Chapter 3 of SEPP(SL). Furthermore, it is submitted by the applicant that the development the subject of the development application is not development "allowed" by Ch 3. 18 The following preliminary questions of law have been formulated by the parties for determination prior to a hearing on the merits of the application:- 1. Does State Environmental Planning Policy (Seniors Living) 2004 ("SEPP SL") apply to the Local Government Area ("LGA") of Warringah being a local government area for which the Respondent is responsible?

Further or in the alternative to the question in (1) above, does SEPP SL apply to a development application made under the Environmental Planning & Assessment Act (1979) ("the EPA Act") on land within the LGA of Warringah to which the Warringah Local Environmental Plan 2000 (the "WLEP") applies?

Further or in the alternative to the questions in (1) and (2) above, does SEPP SL apply to a development application relating to land within the LGA of Warringah made under the EPA Act on land to which the WLEP applies, but not finally determined, prior to 18 February 2004?

Is the development the subject of the appeal development "allowed" by Chapter 3 of SEPP SL clauses 17, 18 and 20?

Is the development application, the deemed refusal which gives rise to this appeal, development "made pursuant to this chapter" (that is Chapter 3 of SEPP SL) within the meaning of clauses 25, 28, 30, 38(1), 51, 78 and 81 of that policy? 6. Is SEPP SL inconsistent with the WLEP and in particular, with: (a) Clause 29; (b) Clause 40; and or (c) Schedule 16, thereof so as to enliven the operation of clause 5(3) of SEPP SL?

19 Mr Ayling SC, who appears for the applicant, submits that contrary to the accepted and well understood sense of zoning land, WLEP, in an innovative way, characterises the individual localities by name "principally according to their extant environmental qualities and built form". Mr Wilson, who appears for the respondent, relies upon the Shorter Oxford English Dictionary definition of a zone as a limited area distinguished from those adjacent by some quality or condition frequently indicated by a defining word or phrase. 20 The Macquarie Dictionary provides further assistance by describing a zone as any continuous tract or area which differs in some respect or is distinguished for some purpose from adjoining tracts or areas and also including an area or district under special restrictions or where certain conditions or circumstances prevail. The Australian Oxford Dictionary includes an area having particular features, properties, purpose or use in its definition of a zone. There is no direct statutory assistance. 21 In Gillespies v Warringah Council (2002) 124 LGERA 147 at [21] Bignold J made the following comment in relation to WLEP:- A very important innovation of the LEP is its non-adoption of the conventional zoning approach to development controls. Instead, it adopts "Locality Statement" in respect of some 73 separate designated "localities" depicted upon the LEP map. 22 Mr Ayling insists that the word "zoned", where it is used in cl 4 of SEPP(SL), should not be given its ordinary meaning but as a jargon word it should be understood in planning terms in the context of statutory planning. He says WLEP identifies areas with a common character and then places them in a locality rather than the conventional method of identifying the zones and then fitting particular areas into particular zones. In other words, the localities are identified first in WLEP and then acceptable development and controls are fitted into them. By contrast, where land is zoned the zone is established first and then the individual areas are placed in a zone. Clause 4(1) of SEPP(SL) refers to the placement of land in a particular category through a process whereby it is zoned in the ordinary sense of the word. I cannot see any justification for only recognising the type of scheme postulated by Mr Ayling. It is certainly one way of achieving a system of zones. It is by no means the exclusive one. 23 Although innovative and maybe not strictly the conventional approach, on balance, in my view, it is open, and appropriate, to regard the adoption of Locality Statements in WLEP as a means of placing land in a zone and, accordingly, it establishes a system of zoning. It is, therefore, a matter of construction to determine whether land included in any Locality Statement is zoned primarily for urban purposes by reference to uses permissible in each locality. I find that SEPP(SL) applies to land within the Warringah local government area identified in that way as being effectively zoned for urban purposes or adjoining land zoned for that purpose. Is there an inconsistency between WLEP and SEPP(SL)?

24 Clause 5(3) of SEPP(SL) provides as follows:- If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency. 25 This clause only has effect to resolve any inconsistency between SEPP(SL) and WLEP. Otherwise, it must be regarded as confirming, in the absence of any express provision to the contrary, that there was no intention to repeal the provisions of WLEP dealing with aged housing. This view is supported by cl 5(1) of SEPP(SL) which expressly repeals SEPP 5. SEPP(SL) makes no reference to WLEP. 26 WLEP contains comprehensive provisions dealing with the grounds which do not constitute a reason for refusal of applications for development of Housing for Older People or People with a Disability and requirements for the provision of support standards as well principles and standards for housing. SEPP(SL) contains provisions along the same lines although not in identical terms. The intent and purpose of both sets of provisions appear on their face to be consistent with each other by seeking to obtain a common objective, namely to ensure that housing for the particular target group is designed in a manner particularly suited to that group. I agree with the submissions made by Mr Ayling that the provisions in WLEP can be regarded as a slightly different means of dealing with what is perceived to be the same problem. Furthermore, I agree with the submission made by Mr Wilson that the question as it is posed in question 6 is too broad to be answered in any meaningful way in the context of determining the preliminary questions posed in this case. Questions of fact are involved and each will need to be decided on that basis as and when the various components and aspects of the development are considered in detail. I nevertheless find that there is no inherent inconsistency between the provisions of SEPP(SL) and WLEP.

Whether the development is pursuant to or allowed by Chapter 3 of SEPP(SL) 27 Clearly the proposed development is allowed pursuant to WLEP and SEPP(SL), being development which is consistent with the definition of Housing for Older People or People with Disabilities in WLEP and development that meets the needs of seniors or people with disabilities contemplated by SEPP(SL). 28 However, the development application was lodged on 5 December 2000 and these appeal proceedings were commenced on 24 December 2003. Both dates are prior to the commencement of SEPP(SL). There is no transitional provision which deals with an application made pursuant to WLEP prior to the relevant date. There is, of course, a provision which preserves applications made under the now repealed SEPP 5 in the circumstances I have already referred to. SEPP(SL) does not repeal any part of WLEP. Assuming there is no relevant inconsistency in respect of particular provisions in the two environmental planning instruments, they now operate concurrently so that an applicant for a relevant development consent can elect to apply for consent pursuant to or under the provisions of WLEP or SEPP(SL). SEPP(SL) applies to all land within New South Wales, including the land in the Warringah local government area but it is not expressed in a way which excludes the operation of WLEP, except to the extent of any inconsistency. 29 In the present case, there is no question of election because the applicant had already made his application pursuant to WLEP and has continued to pursue it under the terms of that instrument notwithstanding that SEPP(SL) has been made in the meantime. It cannot be said, therefore, that the subject development application has been "made pursuant to" Ch 3 of SEPP(SL)within the meaning of cl 25, cl 28, cl 30, cl 38(1), cl 51, cl 78 and cl 81, or any other provision of that policy where that phrase is used.

Does SEPP(SL) have any application to the subject development application? 30 There are two means by which the provisions of SEPP(SL) are relevant to the consideration of the subject development application. 31 Firstly, s 79C(1)(a) of the Environmental Planning and Assessment Act 1979 provides that a consent authority is to take into consideration the provisions of any environmental planning instrument that applies to the land to which the development application relates. Although SEPP(SL) does not, in a direct sense, apply to the subject development application, it nevertheless applies to the subject land, being land which is zoned and situated in New South Wales. Moreover, pursuant to cl 12(1)(b), the consent authority is required to be satisfied that development is consistent with any relevant State Environmental Planning Policy described in Sch 5 of WLEP. I am satisfied, for the reasons explained at [11] above, that SEPP(SL) is picked up by the description in Sch 5. Furthermore, cl 5(3) of SEPP(SL) means that in the event of an inconsistency between SEPP(SL) and WLEP, SEPP(SL) prevails to the extent of the inconsistency. Accordingly, it is necessary for the consent authority to consider the provisions of SEPP(SL) and to discern any inconsistency between provisions in WLEP and SEPP(SL) when determining an application made pursuant to WLEP. The consent authority and this Court should determine a development application having regard to the facts, circumstances and law as they exist at the time of determination of a development application (Sofi v Wollondilly Shire Council and Another (1975) 31 LGRA 416 at 422). 32 Otherwise than as just stated, the subject development application having been made before SEPP(SL) was gazetted, pursuant to the provisions of WLEP in respect of development permissible under WLEP, it falls for determination pursuant to the provisions of WLEP, subject to taking into account the provisions of SEPP(SL) to the extent delineated above. 33 There is no reason why two environmental planning instruments making provisions for a particular type of development cannot apply concurrently to the same land. However, in this case the application has been made pursuant to WLEP and the Court is therefore required to consider it as an application made under WLEP and not SEPP(SL).

Answers to the questions in Reformulated Questions of Law 34 I provide the following answers to each of the preliminary questions of law, particularised at [18]:-

(2) SEPP(SL) applies to a development application made pursuant to Ch 3 in respect of land within the local government area of Warringah and applies to the extent that it must be considered in respect of a development application made pursuant to WLEP and in the latter case, prevails to the extent of any inconsistency between WLEP and SEPP(SL). (3) No, except to the extent that the provisions of SEPP(SL) must be considered and prevail to the extent of any inconsistency. (4) Yes. (5) No. (6) Not answered.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Mete v Warringah Council [2004] NSWLEC 273 APPLICANT Anthony Mete PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 11629 of 2003 CORAM: Talbot J KEY ISSUES: Planning Instruments :- whether provisions of later instrument prevail and if so to what extent - whether planning instruments can have concurrent effect - whether SEPP(SL) applies to Warringah LGA Construction and Interpretation :- meaning of "zoned" Environmental Planning & Assessment Act 1979 s 79C(1)(a) State Environmental Planning Policy No 1 LEGISLATION CITED: State Environmental Planning Policy No 5 cl 2(1) State Environmental Planning Policy (Seniors Living) 2004 cl 2, cl 4, cl 4(1), cl 5(3), cl 12(1)(b), cl 17, cl 25, cl 28, cl 30, cl 38, cl 38(1), cl 51, cl 78, cl 81 Warringah Local Environmental Plan 2000 cl 5(1), cl 29, cl 40, CASES CITED: Gillespies v Warringah Council (2002) 124 LGERA 147; Sofi v Wollondilly Shire Council (1975) 31 LGRA 416 DATES OF HEARING: 14/05/2004 DATE OF JUDGMENT: 05/31/2004

(2002) 124 LGERA 147

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