Q & R Developments Pty Ltd v Sutherland Shire Council

Clause 26 of the 1998 SEPP 5 provided as follows: Development applications made before the commencement of Policy

26 A provision of this Policy does not apply to or in respect of the determination of a development application made, but not determined, before the commencement of the provision.

Amendment No 1, which created the 2000 SEPP 5, made no change to cl 26, and accordingly it remains as a provision of the 2000 SEPP 5.

Mr Cole, appearing for the council, submitted that the operation of cl 26 is confined to development applications made but not determined before the coming into force of the 1998 SEPP 5, that is, cl 26 has no continuing effect, so that, at the present time, development applications whenever made are governed by the 2000 SEPP 5. Mr Cole relied upon the decision of Bignold J in Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61. Bignold J held, in pars 35 to 43 inclusive, that cl 26 should not be given a continuing effect, or "an ambulatory effect". His Honour held, in par 41, that cl 26 is a "… transitional provision of the conventional kind when one legislative or delegated legislative regime is repealed (in whole or part) and is replaced by another regime". His Honour's reasoning was that cl 26 operated when the 1998 SEPP 5 replaced the former regime (1982 SEPP 5), but that it did not operate when the 1998 SEPP 5 was amended by Amendment No 1 to its current form.

The question presently before the Court throws up the correctness of the decision in Druitts Developments v Gosford City Council. Mr Hemmings, appearing for the applicant, invited the Court not to follow that decision and he put three propositions in this regard:

(1) As a matter of construction, cl 26 does not on its face have the confined operation which the council asserts. It could have been removed by Amendment No 1 but it was not. Accordingly, it is part of the 2000 SEPP 5, it runs with it and it applies to all amendments. That construction is supported by the words of cl 26, which refer to "[a] provision of this Policy" and not to the commencement of the 1998 SEPP 5. By this language, the draftsperson was intending to ensure that the transitional effect of cl 26 applied whenever any provision of the Policy is amended rather than just simply the amendment of the whole legislative regime; (2) If cl 26 was to have the confined operation which the council asserts, it would have a retrospective effect, because it would operate to remove from the applicant its right to have the development application dealt with as if the 2000 SEPP 5 had not been made. There is both a statutory and common law presumption that legislation will not have a retrospective operation unless there is a clear statement to the contrary. The statutory provision is s 30 of the Interpretation Act 1987 which relevantly provides that an amendment of an Act or statutory rule does not affect any right or privilege acquired, accrued or incurred under the Act or statutory rule. A discussion of the common law presumption is to be found in Statutory Interpretation in Australia, D C Pearce and R S Geddes, 4th edition, 10.1;

(3) If there is any ambiguity in the proper meaning and operation of cl 26, regard can be had to explanatory notes to assist in construction - s 34 Interpretation Act. The explanatory notes contain the following introductory paragraph: This section provides a clause by clause explanation of SEPP 5 (Amendment No 1) Housing for Older People or People with a Disability ("the amending policy"). So far as concerns cl 26, it provides as follows: Note : Clause 26 - the savings provision in SEPP 5 - applies also to any amendments made by the amending policy.

Mr Hemmings properly drew the Court's attention to the decision of Talbot J in Bardetta and Anor v Baulkham Hills Shire Council [2001] NSWLEC 164. His Honour was also asked in that case not to follow Druitts Developments v Gosford City Council. Talbot J noted the strength of the arguments raised in support of departure from that decision, but, noting that he did not have the benefit of argument from an opposing party, his Honour stated in par 17 as follows: Nevertheless, having brought my own judgment to bear, I am not so convinced that the judgment of Bignold J in Druitts was so manifestly wrong that I should not follow it, as the decision of another judge of co-ordinate jurisdiction …

I have given considerable thought to the propositions put by Mr Hemmings, and I have noted in particular that the explanatory notes do not appear to have been brought to the attention of Bignold J. I have concluded that Mr Hemmings' propositions are correct, and that cl 26 does have a continuing affect, operating to have a development application dealt with under the legislative regime in existence before amendments to any provisions of SEPP 5 are made. I can discern nothing in cl 26, preserved as it is in the 2000 SEPP 5, which would mandate a conclusion that its operation was confined to development applications made before the commencement of the 1998 SEPP 5, and that view is reinforced by the explanatory notes.

The approach that I should adopt in declining to follow the decision of another judge was set out in the following passage from the judgment of Holland J in Michael Realty Pty Ltd v Carr and Anor (1975) 2 NSWLR 812 at 820: There is no rule of law which binds a judge to abide by the decision of another judge of co-ordinate jurisdiction, but a judge of first instance will, as a matter of judicial comity, usually follow the decision of another judge of first instance in the same jurisdiction, unless convinced that the judgment was wrong: Metropolitan Police District Receiver v Croydon Corporation (1956) 2 All E R 785; Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 at 349, Halsbury's Laws of England, 3rd ed, vol 22, p 801, par 1689. As I have said, I think I am bound, first, to consider the matter for myself in order to decide whether I ought to follow the decision of Needham J.

I have explained why I am convinced that the judgment of Bignold J was wrong, and I decline to follow it. I hold that the development application in this case falls to be determined according to the 1998 SEPP 5, and not according to the 2000 SEPP 5.

Since the council conceded that the site is land which falls within the description of land in cl 4 of the 1998 SEPP 5, it follows that the answer to the first preliminary question of law is in the affirmative, and the second preliminary question of law does not strictly arise.

It is not necessary, therefore, to deal with the alternative issue as to whether the site falls within the description of land in cl 4(1)(b) of the 2000 SEPP 5 as being either land in respect of which development for the specified purposes is permitted, or as land in respect of which development for the purpose of "dwelling-houses" is permitted. However, that issue was fully argued and it is appropriate to deal with it.

Mr Cole submitted that cl 4(1)(b)(iv) of the 2000 SEPP 5 is confined to land which is actually zoned for special uses. That follows, he submitted, from the language used, and by contrast with the language of the previous cl 4(1)(b)(iv) in the 1998 SEPP 5. The amendment made by Amendment No 1 was intended to limit the permissibility of SEPP 5 development. Mr Cole drew support for his submission from the explanatory notes, item 1 of which contains the following statement: The land to which SEPP 5 applies is set out in clause 4. Under the new clause 4(1)(b)(iv), SEPP 5 may apply on land zoned for special uses, including such land where development for the purposes of churches, convents, educational establishments, schools and seminaries are permitted.

Mr Cole further submitted that the construction which he put forward is consistent with general planning principles. It is obvious, in his submission, that SEPP 5 would be appropriate in terms of both the physical environment and strategic land use control where that development is located on land zoned for special uses for churches, convents, educational establishments, schools and seminaries. Such a construction avoids the ambiguous position that SEPP 5 development might be permissible simply because, for example, development for the purpose of a church might be a permissible use in a zone.

Mr Hemmings rejected that approach. He focussed on the language of the whole of cl 4(1), and pointed to the fact that, whilst sub-cl (a) is expressly concerned with zoning, sub-cl (b) is concerned with permissible development of specified kinds. The proper approach, in his submission, is to have regard to the permissibility of kinds of development in land zoned for special uses under the relevant instrument. If development of the kind specified (churches, convents etc) is identified as permissible in respect of land zoned special uses under the relevant instrument, and is also development of a kind which is permissible in the particular zone in question, then the land falls within the description of land to which SEPP 5 applies. Thus, under LEP 1993, development for the purpose of, for example, churches, is permissible under the special uses zone as being a purpose indicated by lettering on the zoning map. Development for the purpose of churches is therefore development of a kind identified in respect of land zoned for special uses and it is development which is permissible in the 4(a) General Industrial zone. Therefore, the site is amenable to SEPP 5 development, because it is land within New South Wales on which development for one of the specified purposes is permitted.

This whole matter is not free from doubt. The language of cl 4(1)(b) is tortuous and leaves a lot to be desired. After anxious consideration, I have concluded that the submission of Mr Hemmings is correct. The construction which he proffered is based on the language used, and in particular, the reference in sub-cl (b) to "purpose" which is "permitted" being "development of a kind". The reference point is land zoned special uses, but the determinative factor is the permissibility of development for specified purposes. According to cl 4(1)(b), the land to which SEPP 5 applies is land on which development for certain specified purposes is permitted. Those purposes are dwelling-houses, residential flat buildings, hospitals, and development for purposes of a kind identified in respect of land zoned for special uses, including churches, convents etc. If, on the land in question (here, the site) development for any of those purposes is permitted, it is land to which SEPP 5 applies.

The scope and purpose of SEPP 5 does not, in my opinion, require a different conclusion. Clause 4 is concerned with land to which SEPP 5 may apply, that is, land upon which SEPP 5 development may be carried out. Whether it is appropriate to be carried out on that land, however, depends upon the application of the other provisions of SEPP 5 which include development criteria and design standards. The policy of providing housing for older people and people with a disability is met if land is available in accordance with the requirements in cl 4 and the other criteria and standards are satisfied. That seems to me to meet the objective, stated in cl 3(1)(a) of SEPP 5, of encouraging the provision of housing that will "increase the supply and diversity of housing that meets the needs of older people or people with a disability …".

The explanatory notes only serve to reinforce the doubts. On the face of it, they seem to indicate that sub-cl (b)(iv) is confined to land zoned for special uses, but that, in my opinion, ignores the language used. As Mr Hemmings submitted, the explanatory notes may merely be widening the ambit of land to which SEPP 5 applies by including land which is zoned special uses as well as land where specified special uses are permitted. In any event, I do not regard to the explanatory notes as determinative; they are merely an aid to construction under s 34 of the Interpretation Act.

Mr Hemmings submitted alternatively that the site falls within the description of land on which development for the purpose of dwelling-houses is permitted, thus being encapsulated by cl 4(1)(b)(i). He pointed to the fact that, under the zoning table for the 4(a) General Industrial zone in LEP 1993, a permissible use is "dwelling houses ancillary to a permissible use". Relying upon the decision of McEwen AJ in T C Punnett and Associates Pty Ltd v Warringah Council [2001] NSWLEC 152, Mr Hemmings contended that a development for the purpose of "dwelling houses ancillary to a permissible use" is, despite the ancillary requirement, properly characterised as a use for the purpose of "dwelling house" and therefore falls within cl 4(1)(b)(i).

In T C Punnett v Warringah Council, McEwen AJ was called upon to decide whether "dwelling houses … required for use or occupation by persons employed in connection with a purpose permissible under this heading" were dwelling-houses for the purposes of cl 4(1)(b)(i) of SEPP 5. His Honour held that they were. In par 24, his Honour said: By analogy, in the present instance the use of dwelling-houses … by persons employed in connection with a purpose permissible under this heading' (viz those permissible under the land use table for zone 6(b)(Private Recreation "B") necessarily remains a use for the purpose of a dwelling- house…

I am inclined to the view that this approach is correct. In this case, development for the purpose of dwelling-houses is permissible on the site under the 4(a) General Industrial zone, so long as the dwelling-house is ancillary to a permissible use. The ancillary requirement does not make the development any less a development for the purpose of a dwelling-house. That is the nature of its purpose, although the nature of its use is limited by the ancillary requirement (see Warringah Shire Council v Raffles and Anor (1978) 38 LGRA 306 at 310, cited in par 23 of the judgment of McEwen AJ in T C Punnett v Warringah Council).

The conclusion that I have reached, in accordance with the foregoing reasons, is that the development application falls within cl 4(1) of the 1998 SEPP 5, and is accordingly within the description of land to which the 1998 SEPP 5 applies.

I therefore answer the preliminary questions of law as follows: Question 1:

Whether land zoned 4(a) Industrial pursuant to Sutherland Shire Local Environmental Plan 1993 is capable of permitting development within the meaning of clause 4(1)(b)(iv) of State Environmental Planning Policy No 5.

Yes. The development application falls to be considered under the 1998 SEPP 5, and it is conceded that, under that instrument, the site falls within the description of land to which SEPP 5 applies pursuant to cl 4(1)(b)(iv).

Alternatively, if the development application falls to be considered under the 2000 SEPP 5, the site also falls within the description of land to which SEPP 5 applies pursuant to cl 4(1)(b)(iv).

If the answer to Question 1 is no, whether the proposed development by the Applicant of Lot 2 DP 234622 known as 2 - 28 Alexander Avenue Taren Point for the purposes of a development pursuant to SEPP 5 is prohibited.

Does not strictly arise in view of the answer to question 1, but, regardless of the answer to question 1, no, because the site falls within the description of land to which SEPP 5 applies pursuant to cl 4(1)(b)(i).

The class 1 appeal should now proceed to hearing upon the basis of the answers I have given to the preliminary questions of law. I stand the proceedings over to a call-over before the Registrar on 29 November 2001.

No submissions were made about costs, and accordingly I reserve the question of costs.

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