MoDog Pty Ltd v Baulkham Hills Shire Council

MODOG PTY LTD Applicant v BAULKHAM HILLS SHIRE COUNCIL Respondent

A preliminary question of law has arisen for determination in class 1 proceedings which involve a development application under State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability ("SEPP 5") in respect of land at Lot 1 DP 544726 Kenthurst Road, Dural ("the site").

The preliminary question of law is as follows: Whether the site, the subject of the development application may properly fall within the land to which State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability, clause 4 applies, in that the land may not be said to be "zoned primarily for urban purposes", or adjoining land "zoned primarily for urban purposes".

The fundamental issue is whether or not SEPP 5 applies to the site, and that issue arises from cl 4(1) of SEPP 5 which provides as follows: 4(1) This Policy 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) special uses including churches, convents, educational establishments, schools and seminaries.

An agreed statement of facts was filed, from which the following relevant facts are derived:

(1) The site is zoned Rural 1(c) under the Baulkham Hills Local Environmental Plan 1991 ("the LEP"); (2) The site is surrounded on three sides by land zoned Rural 1(c); (3) The fourth side comprises the frontage of the site to Kenthurst Road; (4) Opposite the fourth side, also fronting Kenthurst Road, are three dwelling houses erected on land zoned Rural 1(c); (5) Approximately 220 m distant to the south of the site is an approved SEPP 5 development on land zoned Rural 1(c), which is on land that directly abuts land zoned General Business 3(a) and Residential 2(a); (6) To the south-east of the site are three parcels of land zoned Rural 1(c), and beyond this is land zoned Residential 2(a).

It is apparent that the preliminary question of law may be divided into two parts - first, is the site zoned primarily for urban purposes, and, secondly, does the site adjoin land zoned primarily for urban purposes? It will be convenient to consider each of these parts separately, but, at the outset, it is relevant to note that the none of the three expressions, "primarily for urban purposes", "urban purposes" or "urban", are defined in SEPP 5 or the Environmental Planning and Assessment Act 1979.

Finally, for the purposes of this introduction, the question of law arises in the context of the zoning table of the LEP, which, in the conventional manner, specifies the purposes for which development may or may not be carried out. The relevant parts of the zoning table are as follows: Objectives of zone

(a) to accommodate rural-residential development that is sympathetic with the environment and minimises risks from natural hazards; and (b) to provide for a range of activities which are compatible with the rural residential character of the area; and (c) to ensure that development in the area does not unreasonably increase demand for public services and public facilities; and (d) to encourage the preservation of suitable areas for open space purposes.

Additions or alterations to an existing dwelling; agriculture (other than aquaculture, intensive lot feeding of livestock or mushroom growing); bushfire hazard reduction; forestry; home activities.

Advertising structures; bushfire fighting establishments; cemeteries; child care centres; community facilities; dams; dwelling-houses; exhibition homes; landscape supply establishments; leisure facilities; mushroom growing; open space; places of worship; public buildings; recreation areas; recreation facilities; retail plant nurseries; roads; roadside stalls; rural industries (other than poultry processing); rural workers' dwellings; stables; utility installations (other than gas holders or generating works); veterinary establishments; wholesale plant nurseries.

The competing arguments about "primarily for urban purposes"

Mr Leggat, appearing for the council, submitted that the site is not zoned primarily for urban purposes upon three grounds. First, he pointed to the fact that, under State Environmental Planning Policy No 32 - Urban Consolidation (Redevelopment of Urban Land) ("SEPP 32"), all land within New South Wales is defined as "urban land", except land which is within an area or zone identified under an environmental planning instrument by any of a number of descriptions, including "Rural" and "Rural residential". The site is within a zone identified under the LEP as "Rural". Hence, for the purposes of SEPP 32, it is not "urban land". In Mr Leggat's submission, this suggests that the site is not zoned primarily for urban purposes, because it would be curious if the same parcel of land is considered under one state environmental planning policy to be zoned primarily for urban purposes, whilst under another such policy it is considered not be to urban land.

Secondly, by reference to the ordinary meaning of the word "urban" as "pertaining to … a city or town", Mr Leggat drew attention to the permissible uses within the Rural 1(c) zone, and submitted that, although those uses are varied and some of them are urban within that ordinary meaning, they support an overall impression that the land is zoned other than primarily for urban purposes.

Thirdly, Mr Leggat pointed to the definition of "rural residential land" in the Local Government Act 1993 which provides that it is land "zoned or otherwise designated for use … for non-urban purposes", and he linked that definition to the first two objectives of the Rural 1(c) zone which uses the term "rural-residential development".

For the applicant, Mr Ayling submitted that SEPP 5 facilitates housing for older persons and persons with a disability wherever residential uses or otherwise compatible forms of development are permissible, and that, in that context, "urban purposes" suggests those purposes which are compatible with the accommodation of the persons for whom SEPP 5 is designed, especially so far as those purposes allow access to appropriate facilities and services. By reference to the zoning table, Mr Ayling contended that the Rural 1(c) zone under the LEP primarily permits development which is "rural-residential", that is, the zone is a low density residential zone and quite intense city uses are contemplated, such as child care centres, community facilities, places of worship and public buildings. Accordingly, in Mr Ayling's submission, the site is zoned primarily for urban purposes.

The task of the Court in construing a provision of this kind is to give effect to the intention of the legislature in enacting the particular statutory instrument ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304). In approaching that task, the Court is required by s 33 of the Interpretation Act 1987 to prefer a construction which would promote the underlying purpose or object of the statutory rule.

The first step in resolving the problem of construction is to give to the word "urban" in SEPP 5 its grammatical and ordinary meaning. I can perceive nothing in the provisions of SEPP 5 which would justify a special or technical meaning. Accordingly, I approach the task of construction by having regard to the definition of the word "urban" in the Shorter Oxford English Dictionary as meaning "pertaining to, or constituting a city or town", and I note that a similar definition is given in the Macquarie Dictionary. In the same manner, I take the word "primarily" to mean "chiefly" or "principally" as specified in both the Macquarie Dictionary and the Shorter Oxford English Dictionary. The question, then, is whether the grammatical and ordinary meaning of those words reflect the legislature's intention in enacting SEPP 5. That is to be answered by having regard to the purpose and object of SEPP 5 ( Kingston and Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423).

Critical to the provision of housing for older people and people with a disability under SEPP 5 is an appropriate location, a suitable site, and reasonable access to services and facilities. That is clear from cl 3(2) of SEPP 5 which stipulates that the aim of encouraging the provision of housing that meets the needs of the target community will be achieved by, amongst other things, setting design principles that respond to the characteristics of site and location. Furthermore, cl 12 makes it clear that reasonable access to and the availability of facilities and services is a critical consideration. The matters of location, site, facilities and services explain the provision in cl 4(1)(b) that SEPP 5 applies to land on which the type of development which is permissible is dwelling-houses, residential flat buildings, hospitals, churches, convents, educational establishments, schools and seminaries. Those uses are, in my opinion, urban in nature. It is possible, of course, for any one of those uses to be carried out in a non-urban setting, but, read as a whole and with the critical matters of location, site and access in mind, those uses pertain, in my opinion, to a city or town, and must be regarded as "urban". I conclude accordingly that the land which is contemplated by SEPP 5 as being appropriate for the type of development which it permits is urban in nature, that is, the purpose and object of SEPP 5 is to permit medium density development so as to provide housing in an urban setting for older people and people with a disability.

I turn now to the zoning table in the LEP. In the conventional manner, cl 9 of the LEP specifies that the zoning tables govern the purposes for which development may be carried out without consent, or which are permissible with consent, or which require advertising or which are prohibited, and cl 9 also specifies that the carrying out of development must be generally consistent with the aims and objectives of the LEP and the zone. In other words the zoning table is concerned with the purposes for which land may or may not be developed. In order, then, to determine whether the site is zoned primarily for urban purposes, it is necessary to have regard to the objectives of the LEP, the objectives of the Rural 1(c) zone, and the purposes which are specified in the zoning table.

The aims and objectives of the LEP itself do not assist, in my opinion, with the problem of construction, because they are couched in general terms relative to the whole of the LEP. But the objectives of the Rural 1(c) zone are directly relevant to the problem of construction. They specify, in par (a) and par (b), that the type of development with which the zone is concerned is "rural-residential" and the character of the area so zoned is also "rural-residential". And it is important to note that the objectives in par (c) and par (d) are, in their terms, subservient to the main objectives in par (a) and par (b).

In the light of the objectives in par (a) and par (b), the name of the zone is relevant. It suggests that some emphasis should be placed on the word "rural" in the "rural residential" nature of the zone. The name of the zone is, of course, not determinative, because it is the content and context of the zoning table which are more important. But the name of the zone lends support to a conclusion that the zone is not primarily concerned with development merely for residential purposes, but is primarily concerned with development for purposes which are residential with a rural character.

Mr Ayling sought to argue that the term "rural residential" was simply another name for a low density form of urban living. The population of areas zoned for rural residential purposes, he said with some flourish, is not made up of "the sons and daughters of the soil", but rather consists of those who eschew agricultural activity and seek, instead, the tranquillity of residential living on large lots. Mr Ayling may or may not be correct in his characterisation of those who live in the Rural 1(c) zone, but I do not accept that the purposes for which development may be carried out in the Rural 1(c) is primarily residential dwellings on large lots.

I reach that conclusion by reference to the purposes which are specified in the zoning table. Whilst cl 12 of the LEP does restrict the lot sizes in the Rural 1(c) zone to a two hectare minimum, the objectives of the Rural 1(c) zone are not expressed as primarily concerned with development for residential purposes, nor are the purposes specified within the zone principally or chiefly of a residential nature. Looking first at the purposes for which development may be carried out without consent, there is no suggestion that those purposes are primarily residential purposes - those purposes, instead, include "agriculture" and "forestry" and, so far as concerns development for residential purposes, the purpose is limited to "[a]dditions or alterations related to an existing dwelling".

Turning to the next category, that is, the purposes for which development is permissible with consent, it is apparent that the purposes there specified reflect both rural characteristics and urban characteristics, and it is difficult to say which of those characteristics is predominant amongst the purposes specified. Thus, "mushroom growing" , "rural industries", wholesale and retail "plant nurseries" and "stables" are permissible with consent, but so is development for the purpose of "dwelling-houses", "child care centres", "places of worship" and "public buildings". Nonetheless, if the Rural 1(c) was in truth primarily an urban zone, as Mr Ayling submitted, then it would not have specified purposes which are rural in character, nor would it have nominated "agriculture" and "forestry" as purposes for which development may be carried out without development consent.

This analysis leads me to the conclusion that the Rural 1(c) zone is not a zone which is principally characterised by urban purposes, and I conclude, accordingly, that the site cannot be said to be "zoned primarily for urban purposes".

I am fortified in that conclusion by the use of the word "urban" in SEPP 32 and the use of the words "rural residential land" in the Local Government Act to which Mr Leggat drew my attention. The use of those words in those instruments is not determinative, but each instrument uses the two expressions in a planning context, and that supports the view that, in a planning context, land zoned under a description of "rural" or "rural residential" is not land zoned primarily for urban purposes.

Does the site adjoin land zoned primarily for urban purposes?

In Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276, Bignold J was required to construe the word "adjoins" in the phrase "the land is within or adjoins land zoned for urban uses" in SEPP 5 in its original form. He held, at pp 283 - 284, that the word bears its loose sense of "is near to" or "is neighbouring on" rather than its exact meaning of "is conterminous with". In Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, the Court of Appeal also adopted a loose sense of the word rather than its exact meaning, and stressed that its meaning depended upon its context (see Kirby P (as he then was) at p 433 and Glass JA at p 443).

In the context of the purpose and object of SEPP 5, to which I have already referred, that is, to provide medium density development for housing older people and people with a disability in an urban setting, I respectfully adopt the loose meaning of the word "adjoins" as being "near to" or "in the neighbourhood of". The question, then, is one of fact - do the facts support a conclusion that the site is near to or in the neighbourhood of land zoned primarily for urban purposes?

Mr Ayling contended that the question could only be answered satisfactorily when all the relevant facts and circumstances of the location of the site are before the Court, and he contended that the agreed facts were not sufficient for that purpose since they did not specify the uses to which the surrounding land is put. In my opinion, however, the agreed facts are sufficient because they establish the zoning of the surrounding land, which is the critical inquiry. The question to be asked does not focus on the uses to which the surrounding land is put; it is, rather, whether the surrounding land is zoned primarily for urban purposes. The critical matter is zoning rather than actual use. The facts are that the land which surrounds the site on every side is zoned Rural 1(c), taking into account that the frontage of the site is separated from Rural 1(c) land only by a road. For the reasons I have already set out, land which is zoned Rural 1(c) is not land which is zoned primarily for urban purposes. I note that there is land which is zoned General Business 3(a) and Residential 2(a) (which, for present purposes, I take to be land zoned primarily for urban purposes) but that land is located over 200 m beyond the site, and it is separated from the site by land which is zoned Rural 1(c). Therefore, it cannot be said, in my opinion, that the site is near to or in the neighbourhood of land zoned primarily for urban purposes. I conclude, therefore, that the site does not adjoin land zoned primarily for urban purposes.

In accordance with the foregoing, I answer the preliminary question of law as follows: Question

Whether the site, the subject of the development application may properly fall within the land to which State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability, clause 4 applies, in that the land may not be said to be "zoned primarily for urban purposes", or adjoining land "zoned primarily for urban purposes."

The site the subject of the development application does not fall within land to which State Environmental Planning Policy No 5 applies because it is not land which is zoned primarily for urban purposes and it is not land that adjoins land zoned primarily for urban purposes.

My conclusion is likely to effectively determine the class 1 appeal, but, so that the parties can consider their respective positions, I stand the proceedings over to a callover before the Registrar on 29 August 2000 so that the further disposal of the proceedings may be dealt with.

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Does the site adjoin land zoned primarily for urban purposes?

22. In Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276, Bignold J was required to construe the word "adjoins" in the phrase "the land is within or adjoins land zoned for urban uses" in SEPP 5 in its original form. He held, at pp 283 - 284, that the word bears its loose sense of "is near to" or "is neighbouring on" rather than its exact meaning of "is conterminous with". In Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, the Court of Appeal also adopted a loose sense of the word rather than its exact meaning, and stressed that its meaning depended upon its context (see Kirby P (as he then was) at p 433 and Glass JA at p 443).

23. In the context of the purpose and object of SEPP 5, to which I have already referred, that is, to provide medium density development for housing older people and people with a disability in an urban setting, I respectfully adopt the loose meaning of the word "adjoins" as being "near to" or "in the neighbourhood of". The question, then, is one of fact - do the facts support a conclusion that the site is near to or in the neighbourhood of land zoned primarily for urban purposes?

24. Mr Ayling contended that the question could only be answered satisfactorily when all the relevant facts and circumstances of the location of the site are before the Court, and he contended that the agreed facts were not sufficient for that purpose since they did not specify the uses to which the surrounding land is put. In my opinion, however, the agreed facts are sufficient because they establish the zoning of the surrounding land, which is the critical inquiry. The question to be asked does not focus on the uses to which the surrounding land is put; it is, rather, whether the surrounding land is zoned primarily for urban purposes. The critical matter is zoning rather than actual use. The facts are that the land which surrounds the site on every side is zoned Rural 1(c), taking into account that the frontage of the site is separated from Rural 1(c) land only by a road. For the reasons I have already set out, land which is zoned Rural 1(c) is not land which is zoned primarily for urban purposes. I note that there is land which is zoned General Business 3(a) and Residential 2(a) (which, for present purposes, I take to be land zoned primarily for urban purposes) but that land is located over 200 m beyond the site, and it is separated from the site by land which is zoned Rural 1(c). Therefore, it cannot be said, in my opinion, that the site is near to or in the neighbourhood of land zoned primarily for urban purposes. I conclude, therefore, that the site does not adjoin land zoned primarily for urban purposes.

25. In accordance with the foregoing, I answer the preliminary question of law as follows:

Whether the site, the subject of the development application may properly fall within the land to which State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability, clause 4 applies, in that the land may not be said to be "zoned primarily for urban purposes", or adjoining land "zoned primarily for urban purposes."

The site the subject of the development application does not fall within land to which State Environmental Planning Policy No 5 applies because it is not land which is zoned primarily for urban purposes and it is not land that adjoins land zoned primarily for urban purposes.

26. My conclusion is likely to effectively determine the class 1 appeal, but, so that the parties can consider their respective positions, I stand the proceedings over to a callover before the Registrar on 29 August 2000 so that the further disposal of the proceedings may be dealt with.