Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council

KEY ISSUES: Development Application :- seniors living development - permissibility - land zoned 5(a) Special Uses (Hospital) - whether land "zoned primarily for urban purposes" within State Environmental Planning Policy (Seniors Living) 2004

Fairview Estate Vineyard Pty Limited v Mid-Western Regional Council (2005) 143 LGERA 252; DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187; CASES CITED: Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443; Neometro Architects and Planners v Gosford City Council [2002] NSWLEC 33; Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87; Spic-N-Span Corporation v Fredericks (1982) 50 LGRA 46;

APPLICANT Mr A Galasso SC SOLICITORS Mallesons Stephen Jaques

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr P Rigg (Solicitor) SOLICITORS Deacons

SECOND RESPONDENT Mr C R Ireland (Solicitor) SOLICITORS Blake Dawson Waldron

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11193 OF 2006 MURLAN CONSULTING PTY LIMITED V KU-RING-GAI MUNICIPAL COUNCIL

1 HIS HONOUR: The applicant applied on 4 August 2006, for development consent for the partial restoration of an existing heritage building, "Rippon Grange", and the erection of 78 seniors living residential units within 8 buildings, basement car parking and landscape works at 35 Water Street and 64 Billyard Avenue, Wahroonga. The site has been used as a hospital since 1952. 2 The respondent Council refused the development application on 12 December 2006. The applicant appealed to this Court against the refusal. 3 The Council raise certain issues in its statement of issues filed 19 January 2007. The permissibility of the proposed development under State Environmental Planning Policy (Seniors Living) 2004 was not one of them. 4 On 29 March 2007, a local resident group, John Williams Neighbourhood Group Inc, applied to the Court to be joined, and the Court joined the group, as a party to the proceedings. One of the issues the group was granted leave to raise concerned the permissibility of the proposed development under the Seniors Living Policy. The Court ordered that this issue be heard and determined as a separate question before the balance of the proceedings. The separate question is: "Whether the proposed development on Lots 1 and 2 DP 375262 (Primary Development Lots), the subject of this appeal, is development on land zoned "primarily for urban purposes" within the meaning of cl 17(a) of the Seniors Living SEPP". 5 The separate question was fixed for hearing and has been heard today, 3 April 2007. 6 The lots referred to in the separate question, Lots 1 and 2 in DP 375262, are zoned 5(a) Special Uses (Hospital) under Ku-ring-gai Planning Scheme Ordinance. These lots compromise the whole of the 5(a) Special Uses (Hospital) zone at this site. There is another lot making up the development site, Lot 1 in DP 726091, but this is zoned 2(c) Residential. No issue is raised as to the permissibility of the proposed development of this lot. 7 The area surrounding the development site consists of mostly single dwelling houses on residentially zoned land. To the north-east of the site is Wahroonga Public School also known as the "Bush School". 8 Ku-ring-gai Planning Scheme Ordinance divides the local government area of Ku-ring-gai into zones. One of the zones is the 5(a) Special Uses zone. This zone is subdivided by reference to the particular development indicated by scarlet lettering on the scheme map. The particular developments indicated on the scheme map include hospital, aged persons home, school, teachers college, training centre, church, convent, seminary, WS & D (water, sewerage and drainage), municipal purposes and Commonwealth purposes. Each of these particular developments are the "special use" identified for the 5(a) Special Uses zone. To describe something as "special" is to refer to its distinct or particular character: see Macquarie Dictionary. 9 Clause 23 and the Table thereto of Ku-ring-gai Planning Scheme Ordinance specifies the restrictions on building and use of land in each zone, including the 5(a) Special Uses zone. In the 5(a) Special Uses zone, development for the purpose of the particular development indicated by scarlet lettering on the scheme map, in this case "hospital", is permissible with development consent. "Hospital" is defined in cl 4(1) of the Ordinance as: "a building used or intended for use as a hospital, sanatorium, health centre or dispensary, nursing home or home for aged, infirm, incurable or convalescent persons, whether public or private, and includes a shop or dispensary used in conjunction therewith, but does not include an institution". 10 This particular development of hospital identifies, defines and confines the character of the particular category of special use zone as being the 5(a) Special Uses (Hospital) zone. It identifies the character by being indicated on the map as the special use for the zone; it defines the character through the definition in the Ordinance of the particular development of 'hospital', the name it lends to the zone (5(a) Special Uses (Hospital)) and by being a nominate permissible purpose of development; and it confines the character by excluding other special uses, these being prohibited in the zone by not being nominated as permissible. In short, it is what makes the zone this particular, special use zone. 11 The Table also specifies three other types of development as being permissible with consent, namely demolition of a building or work (being demolition that is not exempt development) and development (other than exempt development) for the purpose of utility installation (other than generating works or gas holders) and special events. 12 Demolition of a building or work, by itself, is not a use for a purpose and does not assist in characterising the purpose for which land in the 5(a) Special Uses (Hospital) zone is zoned. 13 "Utility installation" is defined as: "a building or work intended for use by a public utility undertaking but does not include a building designed wholly or principally as administrative or business premises or as a showroom". 14 A "public utility undertaking" is, in turn, defined as: "any of the following undertakings carried on or permitted or suffered to be carried on by or by authority of any Government Department or under the authority of or in pursuance of any Commonwealth or State Act, that is to say- (a) railway, road transport, water transport, air transport, wharf or river undertakings; (b) undertaking for the supply of water, hydraulic power, electricity or gas or the provision of sewerage or drainage services; and any reference to a person carrying on any public utility undertaking shall be deemed to include a reference to a council, county council, Government Department, corporation, firm or authority carrying on such undertaking". 15 A "special event" is defined as: "a concert, circus, special public event, charity event, cultural event, sporting event, fair, market or the like, conducted by the Council, an education establishment, a hospital, a nursing home, a community based non-profit organisation, a charity, or a community based sporting non-profit organisation". 16 Exempt development (referred to in clause 46 of the Ordinance and Schedule 1 of Development Control Plan (Exempt and Complying Development) is permissible without consent. 17 Any development other than the nominate permissible development and exempt development is prohibited in the zone. This means that special uses other than the particular development indicated by scarlet lettering on the map are prohibited. Hence, in the 5(a) Special Uses (Hospital) zone, the other special uses, such as schools and churches, are prohibited. 18 The applicant's proposed seniors living development involving self-contained dwellings, arguably does not fall within either any of the nominate permissible developments for the 5(a) Special Uses (Hospital) zone or exempt development. It is, therefore, arguably prohibited in the 5(a) Special Uses (Hospital) zone under the Ordinance. 19 The applicant relies, however, on the application of the Seniors Living Policy to make permissible the proposed seniors living development. Clause 4 of the Seniors Living Policy states that the Policy applies to land in 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." 20 There are some exceptions specified in cl 4(2) where the Seniors Living Policy will not apply, but these are not relevant to the land in this case. 21 Clause 17 of the Seniors Living Policy operates to make permissible on land zoned primarily for urban purposes, development for the purpose of any form of seniors housing (cl 17(a)) and on land that adjoins land zoned primarily for urban purposes, development for the purpose of any form of seniors housing consisting of a hostel or a residential care facility (cl 17(b)). 22 The resident group contend that:

(a) the form of seniors housing proposed by the applicant is neither a hostel nor a residential care facility;

(b) accordingly, the proposed development cannot be carried out on land that adjoins land zoned primarily for urban purposes under cl 17(b) of the Seniors Living Policy;

(c) the proposed development must, therefore, be on land "zoned primarily for urban purposes" within cl 17(a) of the Seniors Living Policy;

(d) the two lots zoned 5(a) Special Uses (Hospital) are not land "zoned primarily for urban purposes"; and

(e) hence, the Seniors Living Policy does not apply or make permissible the applicant's proposed seniors living development on those lots. 23 In Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443, Pearlman J considered the equivalent phrase "land zoned primarily for urban purposes" under the predecessor to the Seniors Living Policy, namely in State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP 5). Pearlman J held:

(a) The word "urban" bears its grammatical and ordinary meaning, not any special or technical meaning: at [12];

(b) The word "urban" means "pertaining to, or constituting a city or town": at [12];

(c) The word "primarily" means "chiefly" or "principally": at [12];

(d) The type of development identified in cl 4(1)(b) of SEPP 5 [and also of cl 4(1)(b) of the Seniors Living Policy] of dwelling-houses, residential flat buildings, hospitals, churches, convents, educational establishments, schools and seminaries are all urban in nature: at [13]; and

(e) 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: at [13]. 24 In DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 at 193, McColl JA (with whom Santow JA and Giles JA agreed) held that SEPP 5 is: "in the category of remedial or beneficial provisions which should be construed to afford 'the fullest relief which the fair meaning of its language will allow'…Where a beneficial statute is expressed in general terms, so far as possible within the text, decision-makers will construe the legislation to advance and achieve those beneficial purposes - not to frustrate and defeat their attainment…SEPP 5 is intended to encourage the provision of housing for the elderly and disabled": at [47]-[50]. 25 The zone in this case, Zone 5(a) Special Uses (Hospital), expressly permits development for the purpose of hospital. Indeed, as I have explained above, this special use for the purpose of hospital gives that zone its unique name and character. Use for the purpose of hospital ranks as the chief or principal purpose. Use for the purpose of hospital is a use of an urban nature. Collectively, these factors relating to the special use of hospital cause land within the 5(a) Special Uses (Hospital) zone properly to be characterised as being zoned primarily for urban purposes. 26 The other types of development permissible in the 5(a) Special Uses (Hospitals) zone do not detract from this conclusion. 27 Demolition of a building or work is not a use for a purpose and therefore does not assist in the task of characterising the purpose of the zone. 28 Development for the purpose of utility installation (other than generating works or gas works which are of a large scale and industrial nature) can also be of an urban nature. The supply of water, electricity and gas and the provision of sewerage services are essential for urban development. Indeed, access to such services is a critical reason for the Seniors Living Policy requiring development for the purpose of seniors housing to be on or to adjoin land zoned primarily for urban purposes where such services will be available: see Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 447[13] and Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87 (22 February 2007) at [79]. The provision of transport facilities and services, such as by rail, road, water and air, are also necessary for urban development. 29 Development for the purpose of special events, by their nature, is likely to be one off. Nevertheless, the types of events listed in the definition of "special events" and quoted above, are of an urban nature. 30 There are no uses permitted in the 5(a) Special Uses (Hospital) zone that are for non-urban purposes. The inclusion of non-urban purposes in a zone, such as agriculture or other rural pursuits, can be an indicator that land is not zoned primarily for urban purposes: see Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 448[18]-449[20], Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87 at [97] and Spic-N-Span Corporation v Fredericks (1982) 50 LGRA 46 at 50. 31 Ku-ring-gai Planning Scheme Ordinance does not specify any objectives for the 5(a) Special Uses (Hospital) zone. There are objectives in relation to the residential zones (see cl 1B of Schedule 9) but these are not applicable. Hence, no guidance can be gained in this case by reference to zone objectives, unlike in other cases where the zone objectives assisted in the characterisation of the purposes of the zone: see, for example, Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 448 [15]. 32 Accordingly, reference to each of the nominate permissible purposes of the 5(a) Special Uses (Hospital) zone and the name of the zone reveals that land in the zone can properly be characterised as being zoned primarily for urban purposes. 33 The resident group resist the above characterisation of the land in 5(a) Special Uses (Hospital) zone in this case by citing the decision of Cowdroy J in Fairview Estate Vineyard Pty Limited v Mid-Western Regional Council (2005) 143 LGERA 252 that another 5(a) Special Use zone under another environmental planning instrument was not a zoning that was primarily for urban purposes within the meaning of the Seniors Living Policy. The resident group submit: "The zones are nominally and in substance, materially the same, and it would be an odd result, requiring the Court to disapprove and depart from Cowdroy J's decision in Fairview if the Ku-ring-gai PSO 5(a) Special Uses zone were to be classified as being "primarily for urban purposes", contrary to that decision.": at [22] of the resident group's written submissions. 34 In the Fairview Estate Vineyard case, the proposed seniors living development was located some several kilometres from the rural town of Mudgee, being separated by a flood plain and the Cudgegong River. The proposed development site was zoned 1(a) Intensive Agriculture under Mudgee Local Environmental Plan 1998. Cowdroy J held, unsurprisingly, the proposed development site was not itself zoned primarily for urban purposes: at [33]. The proposed development site also adjoined land that was claimed by the developer to be zoned primarily for urban purposes. The adjoining land was zoned 5(a) Special Uses. The zoning map indicated by lettering the particular land use that was the special use. Unfortunately, Cowdroy J's judgment does not reveal what the indicated special use was. 35 Mudgee Local Environmental Plan 1998 specified objectives of the 5(a) Special Uses zone which were "to identify and maintain land required for particular uses, usually of a public nature, necessary to provide essential services to the community": at [6]. 36 The range of permissible development in the 5(a) Special Uses zone was extensive. Development for the purpose of community markets was permissible without consent. Development for the purpose of the particular building, work, place or land use (other than gas holders or generating works) indicated by lettering on the map, as well as utility installations, were permissible with consent. In addition, there was a category of advertised development that was permissible with consent, in which category all development not included in the previous two categories and that was not otherwise nominated as prohibited, was permissible. The nominate prohibited development was development for the purpose of brothels, bulky goods, sales rooms or show rooms, major commercial premises and major retail premises. The category of advertised development permissible with consent was, therefore, large. 37 Cowdroy J held that land in the 5(a) Special Uses zone in that case was not zoned primarily for urban purposes. His reasons are encapsulated in the following paragraphs: "[40] The object of the 5(a) zoning is to identify land " for particular uses, usually of a public nature" . There are many permissible uses on 5(a) land which are often located at a distance from urban areas, such as dams, pumping stations, sewerage works, and electricity sub-stations, and which may serve both an urban and non-urban community. Conversely, institutions such as hospitals and schools are usually located in urban areas, but may equally serve a non-urban community. The 5(a) zoning is primarily a public zoning, relating to neither urban nor non-urban purposes primarily, but to both. [41] It follows that it is impossible to distinguish whether these community uses are primarily to be categorised as urban rather than non-urban. In these circumstances, the Court cannot be satisfied that the 5(a) land is zoned primarily for urban purposes". 38 I do not consider that Cowdroy J's finding in the Fairview Estate Vineyard case can be applied to the land in this case zoned 5(a) Special Uses (Hospital) under Ku-ring-gai Planning Scheme Ordinance for the following reasons. 39 First, the characterisation of the purposes for which land is zoned, in order to determine whether land is zoned primarily for urban purposes within the meaning of the Seniors Living Policy, involves construing the environmental planning instrument zoning the land, in accordance with accepted principles of statutory construction. It involves understanding the nature of the zoning approach employed in the instrument; construing the words used in the instrument having regard to their meaning, whether ordinary or defined, and their content; considering the content and context of any development control table in the instrument regulating the use of land; characterising the nature of the permitted and prohibited uses in that table; considering any objectives of the relevant zone stated in the instrument; and considering the name of the zone. 40 These considerations will, of course, vary between different environmental planning instruments and different zones. A conclusion in respect of land in a particular zone under a particular environmental planning instrument is unlikely to be of assistance in respect of land in another particular zone under another particular environmental planning instrument. Each conclusion is a reflection of the particular considerations that applied in each case. 41 Cowdroy J's conclusion in the Fairview Estate Vineyard case reflects his construction and characterisation of the particular 5(a) Special Uses zone under Mudgee Local Environmental Plan 1998. As I have indicated above and will further explain in my subsequent reasons, this zone had some unique features including its objectives and extensive range of permissible uses. It is quite different to the 5(a) Special Uses (Hospital) zone under Ku-ring-gai Planning Scheme Ordinance. Cowdroy J's decision in respect of the former zone and instrument is not able to be applied to the latter zone and instrument. 42 There is nothing "odd" about such a conclusion, as the resident group has submitted. Rather, it reflects proper principles of statutory construction. 43 Second, the particular special use applicable for the 5(a) Special Uses zone that was involved in the Fairview Estate Vineyard case is not identified by Cowdroy J. Instead, Cowdroy J deals with the 5(a) Special Uses zone as a generic category, ignoring the qualification that is placed by the instrument on the zone by means of identifying a particular special use by lettering on the zone map. Reference to the range of permissible uses identified by Cowdroy J readily reveals that uses such as dams, pumping stations or sewerage works, if identified by lettering on the map, would give the zone a different character to an identified special use of institutions such as hospital and school. A change in the identified special use changes the name of the zone (the special use being added as a qualification of (Special Uses) zone), the permitted uses (development for the purpose of the special use indicated by lettering on the map becomes a permitted use) and the objectives of the zone (to identify and maintain land for the particular uses including the special use indicated by lettering on the map). Cowdroy J's decision fails to address the particular special use indicated by lettering on the map in that case and therefore fails to focus on the applicable name, permitted uses and objectives of the zone for that particular special use. 44 In the present case, as I have indicated above, the identification of a particular development as the permitted special use for the 5(a) Special Uses zone under Ku-ring-gai Planning Scheme Ordinance affects the character of the zone. 45 Third, the range of uses permitted in the 5(a) zone in the Fairview Estate Vineyard case was extensive. The special use (identified by lettering on the zoning map) was but one of the uses in this extensive range. It did not have the same dominance as the special use of hospital does in the present case in the 5(a) Special Uses (Hospital) zone. 46 Fourth, critical to Cowdroy J's conclusion in the Fairview Estate Vineyard case was his construction of the 5(a) zoning in that case as being "primarily a public zoning": at [40]. However, the requirement in the Seniors Living Policy that land be zoned primarily for urban purposes does not import a necessity that the zone not be a "public" zoning. Nothing in the Seniors Living Policy supports qualifying the word "urban" by the concept of "public". Use of land for the purpose of an institution such as hospital or school is of an urban nature, irrespective of whether the hospital or school is public or private. Indeed, urban areas are often characterised by a mix of both private and public uses. Civic buildings, churches, hospitals and schools, all of which may be public, are quintessential components of cities and contribute significantly to their urban character. 47 Fifth, in the Fairview Estate Vineyard case, the relevant local environmental plan stated objectives for the 5(a) Special Uses zone. The particular terms in which the objectives for that zone were framed were influential in Cowdroy J's decision. They qualified the character of the zone. In the present case, however, there are no zone objectives for the 5(a) Special Uses (Hospital) zone. Cowdroy J's decision is, therefore, not applicable to the 5(a) Special Uses (Hospital) zone in this case where no objectives are specified to qualify the character of the zone. 48 Sixth, Cowdroy J was influenced in the Fairview Estate Vineyard case by his belief that the community being served by the land uses permitted in the 5(a) Special Uses zone might be both an urban and a non-urban community. Yet, the character of the purpose of a use is not determined by the community served by the use. The fact that persons attending a special institutional use such as a hospital or school may reside on land not zoned primarily for urban purposes does not cause that use to lose its urban nature or the land zoned for the hospital or school not to be used primarily for urban purposes. The relevant enquiry looks to the use itself, not the identity of the user. Hospitals and schools are uses that pertain to a city or town. They are for urban purposes. They remain that regardless of the residence of the users. 49 Seventh, Cowdroy J declined to follow the holding of Sheahan J in Neometro Architects and Planners v Gosford City Council [2002] NSWLEC 33 (15 March 2002) that land zoned Special Uses 5(a) for a sub-station was an urban zoning: at [23] in the Neometro case. Although Cowdroy J notes that the question of whether the 5(a) zoning was an urban zoning was not in issue between the parties before Sheahan J and it appears that submissions were not made concerning the questions (at [35] in the Fairview Estate Vineyard case), Cowdroy J does not explain why Sheahan J's holding was wrong. 50 Accordingly, I answer the separate question in the affirmative, namely that the proposed development on Lots 1 and 2 of DP 375262, the subject of this appeal, is development on land zoned "primarily for urban purposes" within the meaning of cl 17(a) of the Seniors Living Policy. 51 The costs of the separate question are reserved.

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