(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.