Owners of SP 39204 v Sutherland Shire Council

(iii) In the circumstances, the references in the consents to the words "the aged" or "aged persons" must be regarded as mere surplusage and can be ignored with the result that the approved developments were for residential housing without restrictions.

The Council's competing submissions as to the proper construction of the 1971 and 1976 development consents are as follows:

(i) The only basis upon which the Applicant's construction of the consents can be accepted requires the Court to entirely disregard and ignore the expressions "for the aged" or "for the housing of aged persons" where employed in the consents;

(ii) The relevant expressions ("the aged" or "aged persons") though somewhat imprecise, nonetheless have an ascertainable meaning and that meaning governs the nature of the approved developments because those expressions are employed in the compound descriptions of the approved developments;

(iii) The circumstances surrounding the grants of the 1971 and 1976 development consents include the relevant definitions of "aged persons home" and "units for aged persons" contained in the relevant versions of the draft Sutherland Planning Scheme.

(iv) Each of those defined terms expressly refers to, and adopts, the relevant provisions of the Commonwealth Aged Persons Homes Act 1954. Having regard to this fact it is legitimate to interpret the consents as approving "housing for aged persons" as those terms were relevantly employed in the Commonwealth Act. In particular the consents should be interpreted as approving housing for use and occupation by persons who have attained the age of 60 years (being the age currently adopted by that Act for "aged person").

In my opinion there is simply no justification, in terms of applying the principles of statutory interpretation, for the Applicant's contention that the reference in the 1971 development consent to housing "for the aged" or the reference in the 1976 development consent to "aged persons housing" should be entirely disregarded or ignored in determining the true nature of each of the approved developments.

In my judgment the relevant expressions ("housing for the aged" or "housing for aged persons") clearly were intended to define, and hence, to limit the approved developments by prescribing the age qualifications of persons who may reside in the approved housing developments. Such a limitation can be created just as effectively by definition or description of the approved development as it can by way of a condition of development consent. Moreover, the expressions "the aged" or "aged persons" clearly are not meaningless references and their meaning is capable of being ascertained by the process of statutory construction.

Although the question posed in the present case is one of construction of the terms of the 1971 and 1976 development consents, significant illustrative assistance is, in my judgment, to be gained by consideration of the approach and reasoning adopted by the Court of Appeal in Ku-Ring-Gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154 where the Court was called upon to consider the meaning of the expression "home for aged…persons" in the context of the definition of the word "hospital" contained in the Ku-Ring-Gai Planning Scheme Ordinance.

Samuels JA at 162 expressed the following conclusion, which in my respectful opinion applies to the approved developments in the present case in a manner that necessarily limits the nature of the approved developments: I would think that a home for aged persons means a home in which all the residents are aged persons. No doubt there might be some operation of the de minimis rule. But broadly speaking all the occupants of such a place should be aged.

All of the judges in Geoffrey Twibill held that a person attaining the age of 55 years did not thereupon become an aged person. Glass JA at 159 gave judicial notice to the latest life expectancy tables (current for the period 1970-1972) before concluding: Guided by what they show, I would not feel any degree of satisfaction in describing as aged a group of persons having an unspecified upper age limit but of unknown average age and undefined sexual composition unless the lower limit was a minimum of sixty years of age. If it were, I would be so satisfied. It follows that although a retirement village for persons of minimum age fiftyfive would be a home within the meaning of the expression it would not in my view be a home for the aged.

Samuels JA at 162/163 stated: Secondly, I do not consider that a person upon attaining the age of fiftyfive years steps into the category of the aged. The word aged is difficult to define. The definition cannot be made to depend upon individual physical or mental idiosyncrasy or frailty. It is a question of what society generally regards as the qualification for entry into the category. I would myself be inclined to take pensionable age as an adequate guide.

Mahoney JA at 166 stated: But, in any event, I do not think that a limitation of occupancy of the development to those not less than fiftyfive years makes it a development for aged persons. In the ordinary dictionary sense, aged is seen as referring to those who are old . What is aged must, of course, be determined in the context of the ordinance and I am of the opinion that to say of a development that it is to be occupied only by those of fiftyfive years or more, whatever be their condition otherwise, is not, in 1971 or the present time, to limit it to aged persons.

In my respectful opinion, the reasoning variously adopted in Geoffrey Twibill in holding that the proposed housing development for persons who had attained the age of 55 years was not "a home for aged…persons" applies today with as much, if not greater force, than when that case was decided in 1979. The reasoning of Glass JA has strengthened with the significant increases in life expectancy in Australia currently beyond the 1972 figures available in that case. The "pensionable age" adopted by Samuels JA as an "adequate guide" has been increased since the decision in that case.

I recognise that since 1982 "aged person" has been defined in State Environmental Planning Policy No 5 - Housing for Aged or Disabled Persons as "a person aged 55 years or over" (In its current state, the Policy employs the term "older person' instead of "aged person" but otherwise maintains the definition). However, that State Policy does not have universal application under the Environmental Planing and Assessment Act 1979. Moreover, the Model Provisions adopted under that Act (s 33) have maintained the definition of "units for aged persons" where "aged persons" is defined by reference to the Commonwealth Act.

This conclusion concerning the current force of the reasoning in Geoffrey Twibill is of course only relevant if it is appropriate to interpret the 1971 and 1976 development consents as approving "housing for aged persons" where that expression is itself to be given a "speaking", and hence a current, meaning. If contrariwise the meaning of the approved developments is to be ascertained at the respective times when the development consents were granted then there is no relevance in the current meaning of the expression "aged person" (even assuming that there is any difference between the current meaning and the relevant meanings applicable when the development consents were granted).

However, since the Court is construing development consents granted in 1971 and 1976 in order to determine the precise nature of the approved developments, I do not think that the ambulatory approach to interpretation that is generally adopted in the case of legislation, is the appropriate interpretive approach to be taken in respect of the 1971 and 1976 development consents.

In my opinion the proper interpretation of those development consents is that they each approved "housing for aged persons" in the sense that the residents of such housing must themselves be "aged persons" and the meaning of that term is relevantly a person who has attained the age of 60 years (conformably to the reasoning and result in Geoffrey Twibill).

Accordingly, I hold that the Applicant has failed to establish any entitlement to the declaratory relief it has claimed and that in consequence its class 4 application must be dismissed.

This brings me to determine the Council's cross-application. As framed, it asserts (or at least presupposes) the application of the Commonwealth Act (now called the Aged or Disabled Persons Care Act 1954).

However, for the reasons given, I do not think the Council has established that that Act (as it then operated) applied to the developments respectively approved by the 1971 and 1976 development consents. This is because neither of those consents referred in terms to housing approved by that Act. Nor did the consents employ the available terms under the relevant versions of the draft Sutherland Planning Scheme which relevantly adopted the Commonwealth Act (although as has been noted the descriptions of the approved development came ever so close to adopting those terms).

However, for the reasons I have given in rejecting the Applicant's entitlement to the declarations it has claimed, the 1971 and 1976 development consents, properly construed, approved forms of housing for aged persons in a manner that necessarily limited the residents of such housing to persons who were "aged persons" where that expression was capable of yielding an ascertainable meaning, namely, as I have held, a person who has attained the age of 60 years. (Co-incidentally that age is now the age adopted by the current Commonwealth Act, but for the reasons I have given the relevant meaning of the relevant expression was that which it had when the 1971 and 1976 development consents were respectively granted.)

In the event, the proper construction of the 1971 and 1976 development consents has yielded a meaning that entirely supports the grant of appropriate relief in terms of the Council's cross-application. In view of the continuing dispute between the parties it is desirable that that dispute be resolved by the making of an appropriate declaration. E. ORDERS

2.. The Council's cross-application is allowed to the extent of the declaratory relief granted in Order 3.

3. Declare that the approved developments granted respectively by the 1971 and 1976 development consents in respect of premises known respectively as No 322 and No 314 Willarong Road, Caringbah are housing for aged persons which require residents of such housing to be limited to persons, who have attained the age of 60 years.

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