Retirement by Design Pty Limited v Warringah Shire Council

Mete v Warringah Council [2004] NSWLEC 273; The Uniting Church in Australia Property Trust (NSW) v Warringah Council [2000] NSWLEC 1; Dem Gillespies v Warringah Council [2002] 124 LGERA 147; CASES CITED: Fairview Estate Vineyard Pty Limited v Mid-Western Regional Council [2005] NSWLEC 555; Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 ; Dougruby Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 192; Spic-In-Span Corporation v Fredericks [1982] 50 LGRA 46; DEM (Australia) Pty Limited v Pittwater Council [2004] 136 LGERA 187

APPLICANT Mr N Hemmings QC, solicitor Allens Arthur Robinson LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso, barrister INSTRUCTED BY Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

06/10349 Retirement by Design Pty Limited v Warringah Shire Council

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Warringah Shire Council (the council), on 23 May 2006, of Development Application 2005/1140 for the construction of a retirement village at 42 - 44 Myoora Road, Terrey Hills - being Lots 37 and 122 in DP 752017 (the site). The development application includes demolition of an existing dwelling house and associated structures.

2. The site is located within Locality A4 Myoora Road under the Warringah Local Environment Plan 2000 (the LEP).

3. The development application was made pursuant to State Environmental Planning Policy (Seniors Living) 2004 (SEPP Seniors Living).

4. The question of whether or not the provisions of SEPP Seniors Living act to permit such a development within Locality A4 Myoora Road falls to be determined as a preliminary step to a merit assessment of the proposal.

5. The LEP is based on a structure of locality statements. These set out, inter alia, the desired future character for the locality. The locality statements also set out in varying categories of permitted development and a list of prohibited development. The desired future character, in this instance, is: The Myoora Road locality will provide an environment for low intensity business, community and leisure uses which do not rely on exposure to passing trade for their continued operation. Along Mona Vale Road a dense bushland buffer will be retained or established.

New development or further intensification of existing development will provide safe vehicular access to the satisfaction of the Council and the Roads and Traffic Authority.

Only small, non obtrusive and non illuminated signs that identify the use of a site are to be visible from Mona Vale Road. Signs that are designed of such size, height or visual appearance so as to attract passing trade will not be permitted. All signs are to be in keeping with the colour and textures of the natural landscape.

Articulated building forms, generous landscaped spaces around buildings and building materials that blend with the colours and textures of the natural landscape will be used to minimise the visual impact of development on long distance views of the locality.

6. The list of permitted land uses in the locality is as follows:

LAND USE Category One Development for the purpose of the following: • agriculture • animal boarding or training establishments • further education • housing • primary schools • recreation facilities • restaurants • retail plant nurseries • veterinary hospitals

Category Two Development for the purpose of the following: • short term accommodation • child care centres • community facilities • health consulting rooms • hospitals • housing for older people or people with disabilities (on land described in the initial paragraph (b) under the heading "Housing density" below) • places of worship • registered clubs • other buildings, works, places or land uses that are not prohibited or in Category 1 or 3. Category Three Development for the purpose of the following: • bulky goods shops • business premises • entertainment facilities • heliports • hire establishments • hotels • industries • medical centres • motor showrooms • offices • services stations • shops • vehicle repair stations • warehouses 7. The LEP makes it clear, in cl 12(3)(a) and (b) that there are different thresholds to be overcome for the categories of permitted development in each locality. Relevant to detailed consideration of the characterisation of the desired future character statements is that these provisions make it clear that a more permissive stance is taken by the LEP to Category One development than to Categories Two and Three. The provision reads: (3) In addition, before granting consent for development classified as: (a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or

(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement but nothing in a description on desired future character creates a prohibition on the carrying out of development.

8. The various locality statements also include, where housing is permitted, provisions relating to the built form required in that locality. Amongst other matters canvassed in these provisions is the permitted housing density in each locality. The relevant provisions for this locality read: BUILT FORM Housing density The maximum housing density is 1 dwelling for 2 ha of site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent), except:

(a) where this standard would prevent an existing allotment accommodating one dwelling, and

(b) on land that adjoins a locality used primarily for urban purposes, where there is no housing density standard if the development is for the purpose of "housing for older people or people with a disability" and the development complies with the minimum standards set out in clause 29. However, consent may be granted for development that will contravene these housing density standards but, if by more than 10 per cent, only with the concurrence of the Director.

9. The LEP contains, in cl 5, a number of exemptions from the applicability of SEPPs. This exempting provision reads [subcl (2) not being presently relevant]: (1) Except as provided by subclause (2), the following environmental planning instruments do not apply to the land to which this plan applies while this plan has effect: State Environmental Planning Policies Nos 1, 4, 5, 6, 9, 11, 19, 21, 22, 33, 35, 44, 45, and 56,

10. In 2004, SEPP 5 was repealed and replaced by SEPP Seniors Living. However, the LEP was not amended to incorporate SEPP Seniors Living in the exemptions contained in cl 5 of the LEP. As a consequence, the provisions of SEPP Seniors Living apply to the site.

11. The effect of the second exception to the housing density provisions of this locality statement (which exception provides a relaxation for housing for older people or people with a disability) is, in effect, the importation of a facultative provision akin to the relevant facultative provision in SEPP 5.

The provisions of SEPP Seniors Living 12. The first two of the critical clauses of SEPP Seniors Living are those which set out the aims of the SEPP and the land to which the SEPP applies.

13. The aims of the SEPP are set out in cl 2 which reads: (1) This Policy aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design. (2) These aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and

(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and 14. The geographic scope of application of the SEPP is set out in clause 4(1) which reads: (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) 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.

15. Subclauses (2) and (3) set out exceptions which are not presently relevant.

16. The other critical provision of SEPP Seniors Living is that contained in clause 5 (3) which provides that, if this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.
17. There is no issue in these proceedings about compliance with clause 4(1)(b)(i) as it is clear that dwelling houses are permitted - housing being listed as Category One development for this locality.

18. The note which immediately follows the description of the process that the consent authority must follow when assessing development in one of the permitted categories against the desired future character provisions of each locality statement reads as follows: Note . Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act. To assist with understanding: Category One development is development that is generally consistent with the desired future character of the locality

19. Although clause 6(2) provides that Notes ……. are explanatory and do not form part of this local environmental plan. They are provided to assist understanding , I am satisfied that I am able to conclude that housing is consistent with the desired future character of this locality. That follows, in my view, self evidently, from the fact that the built form provisions in this locality statement make specific provision for a permitted housing density in the locality.

20. The fundamental question to be addressed, therefore, is whether land in this locality is zoned primarily for urban purposes.

"Zoned" 21. The first matter to be considered is whether or not the regime of locality statements contained in this LEP constitutes a scheme of zoning or not.

22. In Mete v Warringah Council [2004] NSWLEC 273, Talbot J considered this issue and concluded that the structure of locality statements in this LEP did establish a system of zoning although the precise word was not used in the LEP. He said, at para 23: Although innovative and maybe not strictly the conventional approach, on balance, in my view, it is open, and appropriate, to regard the adoption of Locality Statements in WLEP as a means of placing land in a zone and, accordingly, it establishes a system of zoning. It is, therefore, a matter of construction to determine whether land included in any Locality Statement is zoned primarily for urban purposes by reference to uses permissible in each locality. I find that SEPP(SL) applies to land within the Warringah local government area identified in that way as being effectively zoned for urban purposes or adjoining land zoned for that purpose.
23. This approach was taken, in passing, by Sheahan J in The Uniting Church in Australia Property Trust (NSW) v Warringah Council [2000] NSWLEC 1 at para 22.

24. However, Mr Galasso, barrister for the council, seeks to have me draw a differing conclusion which he derives from the comments of Bignold J, in Dem Gillespies v Warringah Council [2002] 124 LGERA 147, at para 21. This paragraph reads:

21. A very important innovation of the LEP is its non-adoption of the conventional zoning approach to development controls. Instead, it adopts " Locality Statements " in respect of some 73 separate designated " localities " depicted upon the LEP map.

25. Although Bignold J was entirely correct in describing the locality designations in the LEP as not being a conventional zoning system, I am satisfied that, nonetheless, they operate as an unconventional zoning system.

26. Indeed, it would, in fact, be a logical absurdity not to regard the locality structure of the LEP as constituting a zoning system in the context of SEPP Seniors Living and its predecessor instrument SEPP 5.

27. This follows as a necessary consequence of the following: - The geographic operational clauses of SEPP 5 and SEPP Seniors Living are in identical terms; - In each instance, the SEPP is expressed to apply to land which is in the state of New South Wales and which is zoned; - The LEP, in its terms, expressly precluded the operation of SEPP 5 from land covered by the LEP; and - If the land covered by the LEP was not, in fact, zoned, then there would have been no need for those drafting the LEP to exclude the operation of SEPP 5 as it could not have applied to any land covered by the LEP.
28. I am, therefore, satisfied that, at least for the purposes of these proceedings, I should consider that the provisions of the locality statement and those matters which flow from it as being analogous to the relevant provisions of a more traditional zoning table.

29. It also necessarily follows that the locality statements for the localities which surround this locality also represent, by analogy, the relevant provisions of a traditional zoning table for each of those zones.

The surrounding localities 30. The Myoora Road locality is surrounded by a total of six other localities. These are the Locality A2 Booralie Road locality; the Locality A3 Terrey Hills Village locality; the Locality A6 Ku-ring-gai Chase National Park locality; the Locality B9 Mona Vale Road East locality; the Locality C4 Garigal National Park locality; and the Locality C9 Austlink Business Park locality.

Locality A2 Booralie Road is clearly designated from its desired future character statement as being a non urban area.

The first paragraph of the Locality A3 Terrey Hills Village locality statement and, indeed, the name of the locality itself, makes it clear that this locality is an urban one.

Locality A6 Ku-ring-gai Chase National Park, from its title, is clearly not an urban area.

Although housing is permitted in Locality B9 Mona Vale Road East, a combination of the desired future character statement and the default housing density (although subject to exceptions) of one dwelling per 20 ha of site area [not including any area of an access corridor] makes it clear that this locality is also not an urban area.

Locality C4 Garigal National Park is also, from its title, clearly not an urban area.

The desired future character statement of Locality C9 Austlink Business Park coupled with the list of Category One development permitted in this locality means, in my view, that this locality is zoned primarily for urban purposes. This is discussed further below.

Cowdroy J observed, in Fairview Estate Vineyard Pty Limited v Mid-Western Regional Council [2005] NSWLEC 555, at para 32, that the effect of cl 4 of SEPP Seniors Living is no different from the effect of cl 4 in the repealed SEPP 5.

He also observed that: 34. The Court considers that in determining whether land falls into cl 4(1) of the SEPP, it must look exclusively at the zoning of that land and not at the particular uses which have been developed on the land in question.

As earlier noted, the housing density for the Myoora Road locality includes an exception which enables the erection of housing for older people or people with a disability, in the nominated circumstance - namely when land adjoins land used for urban purposes.

As the word zone (or zoned) is not used in the LEP, it is, in my opinion, appropriate to consider the word used, in the context of the housing density exception applicable to the Myoora Road locality, as being equivalent to and able to be substituted by the word zoned in order to understand how the provision is to work when considering the framework of locality statements in light of the decision of Talbot J in Mete.

The consequence of this is that the relevant portion of the housing density exception should be read as: on land that adjoins a locality zoned [emphasis added] primarily for urban purposes, where there is no housing density standard if the development is for the purpose of "housing for older people or people with a disability" and the development complies with the minimum standards set out in clause 29.

It is long established that there is a presumption that if words are included in an instruments such as a LEP and they are able to be given an effective and logical meaning, such a meaning should be given to them.

It seems to me, if the Myoora Road locality itself were to be regarded as zoned primarily from urban purposes, that it is logically absurd for there to be a necessity, for the purposes of the housing density exception, for land also to be located adjoining land of a similarly purposed zoning in order to be able to take advantage of the exception.

The consequence of this is that, in order to avoid concluding that the LEP contains an absurdity, I must conclude that the Myoora Road locality should not be regarded as being zoned primarily for urban purposes.

However, if I am wrong that this point is fundamental and excludes the propositions advanced on behalf of the applicant, I turn to consider other matters of relevance.

"Primarily for urban purposes" 46. In Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 Pearlman J considered the approach to determining whether a zoning was for primarily urban purposes. Her Honour said: 12. 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).

13. 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.

The two critical tests arising from the above passage are whether the uses, themselves, can be characterised as urban in nature and, having regard to the critical matters of location, site and access raised by the SEPP, are they to be carried out in an urban setting.

This approach is entirely consistent with that taken by Cowdroy J in Fairview Estate and by Bly C in Dougruby Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 192.

Further, it is clear that the terms primarily and urban are not so restrictive as to be read as if they required exclusivity of the characterisation nor a purely residential character (see Wells J in Spic-n-Span Corporation v Fredericks [1982] 50 LGRA 46 at 49 et seq).

To a further relevant extent, the LEP differs from other LEPs in that there is a hierarchy within the permitted uses in a locality created by the three categories of use permitted and the differing thresholds for consideration as to whether or not consent should be given to a proposal.

I am satisfied that, as a first step in considering the various permitted uses in the locality, I should first have regard to the Category One uses to assess whether or not clarity can be obtained from them with respect to the issue to be determined.

These uses are also, obviously, to be considered in the context of the statement of the desired future character of the locality.

In this regard, it is clear that the use of the words urban or non-urban, in a locality statement, are of little assistance in the construction of this LEP.

For example, the locality statement for the Locality C9 Austlink Business Park locality reads as follows: DESIRED FUTURE CHARACTER The Austlink Business Park will integrate modern forms of industry, manufacturing, research, warehouses, offices and related services with the natural qualities of the locality and the adjacent National Park. Articulated building forms, generous landscaped spaces around buildings and building materials that blend in with the colours and textures of the natural landscape will be used to minimise the visual impact of development on long distance views of the locality. Areas within the locality shown cross-hatched on the map may only be developed if it is clearly demonstrated that the topography of the land is suitable for development and any Aboriginal relics found on the site may be preserved in their natural state. There will be no vehicle access to properties directly from Mona Vale Road or Forest Way.

The permitted primary development in Category One for this locality is contained in the following list: • bulky goods shops • child care centres • industries • offices • recreation facilities • warehouses

These are clearly activities almost universally likely to be undertaken in an urban context. Similarly, consideration of the types of development listed in Categories Two and Three for this locality might be similarly characterised. The built form requirements are also overwhelmingly of an urban characteristic period

Although the word urban does not appear anywhere in the LEP's provisions relating to this locality, there can be no doubt that this locality is intended to be one which is used for urban purposes.

The first of the paragraphs in the present locality statement reads: The Myoora Road locality will provide an environment for low intensity business, community and leisure uses which do not rely on exposure to passing trade for their continued operation. Along Mona Vale Road, a dense bushland buffer will be retained or established.

The low intensity business, community and leisure uses, in the first instance, are those listed as Category One development for this locality. They are: · agriculture · animal boarding or training establishments · further education · housing · primary schools · recreation facilities · restaurants · retail plant nurseries · veterinary hospitals

There is no broad coherence in this grouping of activities. However, I am satisfied that, prima facie, the first and second of them are indicative of a non urban setting.

Of the remainder, further education, primary schools and restaurants might be characterised as tending to indicate an urban setting whilst the balance, in my view, are neutral as they are activities which might well be found in either setting.

Against this somewhat eclectic mix, it is appropriate to test how those who framed the LEP wish the character of the locality to be assessed.

The use of the expression low intensity, in this paragraph, I consider to be the first indication that the tenor of the desired future character of this locality is not an urban one. This paragraph continues by noting that these uses are intended to be destination uses rather than those which rely on passing trade. This intention is reinforced by the requirement that there will be a bushland buffer to Mona Vale Road in order to shield these uses from having high visibility to the passing public.

The second paragraph of the desired future character statement is set out below but provides no assistance in answering the present question. New development or further intensification of existing development will provide safe vehicular access to the satisfaction of the Council and the Roads and Traffic Authority.

The third paragraph of the desired future character statement reads: Only small, non obtrusive and non illuminated signs that identify the use of a site are to be visible from Mona Vale Road. Signs that are designed of such size, height or visual appearance so as to attract passing trade will not be permitted. All signs are to be in keeping with the colour and textures of the natural landscape.

The first sentence of this paragraph reinforces the intention of the LEP to ensure that the activities in the locality are destination uses rather than those relying on passing traffic to attract people to them.

The second sentence of this paragraph also contains the inherent flavour, through the requirement for consistency with colours and textures of the natural landscape for signage, that this is intended to reinforce and act, with the bushland buffer provision, in order to separate the locality from being perceived as having or being in an urban setting.

The final paragraph the desired future character statement reads: Articulated building forms, generous landscaped spaces around buildings and building materials that blend with the colours and textures of the natural landscape will be used to minimise the visual impact of development on long distance views of the locality.

These restrictions, I am satisfied, were also intended by those who framed the provisions of the LEP in this regard to ensure that the pattern of development which might be permitted within the locality would not be and would not be perceived to be of an urban character.

The permitted housing density of 2 ha allotments also assists in setting aside the locality from a conventional one used for urban purposes and serves to remove the otherwise neutral flavour of housing as it blandly appears in the Category One list and have it act, contextually, as an indicator of a non-urban intention.

Although the range of activities set out as Category Two and Three development for this locality are also eclectic, they are, in general terms, more consistent with an urban environment than with a non urban one. However, those drafting the LEP have posed higher thresholds of permissibility, as early as set out, for these categories of development.

As I have concluded that the desired future character statement for this locality, when read in conjunction with the permitted Category One development, gives a non urban flavour to the desired future character of the area, the fact that Category Two and Three development must be consistent with that desired future character for it to be permitted in the locality means that such development could not be permitted if it were to derogate from that desired future non urban character.

As a consequence, I do not consider that be broader and more urban nature of the permitted Category Two and Three development for this locality, given that threshold, can be of any assistance to the applicant in the proceedings.

Mr Hemmings QC, solicitor for the applicant, invited me to conclude that the site's satisfaction of the SEPP Seniors Living test was supported by the provisions of the State Government's Metropolitan Strategy applying to the site and to other lands in its vicinity.

Although this document uses a context of zoning, this is not used in the statutory sense in which the LEP needs to be interpreted in but is rather used as a descriptive expression.

In addition, although those who drafted this strategy may regard the site is being within an existing urban area, this is of little assistance in the present proceedings where I am obliged, by the provisions of the SEPP, to interpret the provisions of the LEP.

As a consequence, I do not accept that the Metropolitan Strategy is of any assistance to the applicant's argument.

The facultative presumption for SEPP Seniors Living

In DEM (Australia) Pty Limited v Pittwater Council [2004] 136 LGERA 187, McColl JA noted, at para 47, that (the former) SEPP 5 was remedial or beneficial. As a consequence, it is to be approached in a facultative fashion rather than in a restrictive one.

Necessarily, therefore, a similar position applies to SEPP Seniors Living.

I have considered whether this facultative presumption for SEPP Seniors Living should tip the scales and set aside the conclusions which I have otherwise reached.

I cannot so conclude with respect to the first reason which leads me to reject the application - namely that of constructional necessity derived from the Housing Density provision of this locality statement as there is no question of discretion arising in this regard.

As to the broader matters drawn from interpretation of the desired future character of this locality, I do not consider that the view I have reached is one which has any degree of "fine balance" which might be tipped in favour of the applicant by the facultative presumption to be afforded by SEPP Seniors Living. I am satisfied that the conclusion I have reached from the specific individual indicator elements in the desired future character statement is sufficiently emphatically necessary as following from them that it would be unreasonable to set them aside.

As proposed by Pearlman J in Modog, having regard to the critical matters of location, site and access raised by the SEPP, there is nothing concerning these matters raised by the evidence which would provide any assistance to the applicant.

Conclusion 85. I have, therefore, concluded: on one basis, that SEPP Seniors Living cannot; and on a separate basis, that SEPP Seniors Living does not apply to the land identified by the LEP as being within Locality A4 Myoora Road.

86. As a consequence, the orders of the Court are: 1. The appeal is dismissed; 2. Development Application 2005/1140 for the construction of a retirement village at 42-44 Myoora Road, Terrey Hills - being Lots 37 and 122 DP 752017 - is determined by the refusal of development consent; and 3. The exhibits are returned.

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