The Uniting Church in Australia Property Trust (NSW) v Warringah Council

Counsel for the parties agreed at the hearing before me that Question 1, namely the test of " adjoining ", is squarely determined by the application of the binding Court of Appeal decision in Malcolm, which held that for the purposes of cl 11(2) of State Environmental Planning Policy No.5 (" SEPP 5 ") land " adjoins " land zoned for urban purposes if separated from it by only a road or road reservation.

In Malcolm (at 443), Glass JA (with whom Mahoney JA agreed) said, in reference to the judgment at first instance of Bignold J: The trial judge ruled that the word 'adjoins' in the statutory phrase 'adjoins land zoned for urban purposes' is used in its loose sense of 'is near to' and 'is neighbouring on' rather than its exact meaning 'is conterminous with'. So construed the subject land which is separated from urban land zoned for urban uses by no more than a public road adjoined such land. Mr Hemmings argued for the construction of 'adjoins' as meaning 'abuts' or 'is contiguous with'. He referred to s 90(1)(h) of the Environmental Planning and Assessment Act 1979 which distinguishes between adjoining land and land in the locality. In my opinion the word 'adjoins' is currently used in both senses and must take its colour from the context in which it appears. I do not find in the language of State Environmental Planning Policy No.5 any persuasive indication that land which immediately adjoins should be exempt whereas land which adjoins in the lesser sense is not. I see no error of law in the construction of the provisions of cl 11(2) which the trial judge adopted.

Kirby P said on the same issue (at 434): … I am not at all convinced that the separation of the proposed development site from the Galston Village was such a distance as properly to fall outside the description of abutment. Roads and roadside reserves exist as a normal feature of urban development. In the present case there was no separate development between land undoubtedly zoned for urban use and the proposed development. But even if there were no strict abutment, because of the lack of physical contiguity, there is still a sufficient proximity to bring the proposed development within the word 'adjoins' in the context of cl 11(2)(a). Words in the English language are constantly changing their primary meanings as any dictionary demonstrates. The word 'adjoins' is no exception. Whereas originally it might well have connotated immediate physical contiguity, nowadays that idea tends to require the use of the adverb 'immediately' , such as 'immediately adjoins' . That adverb would not be necessary if the word itself invariably connotated immediate physical proximity.

It is not appropriate in the present facts to speculate upon what would be the case if there were a separation between land zoned for urban uses and the proposed development site other than a road and roadside reserve. The appellant called attention to the terms of s 90(1)(h). By the reference in that paragraph to 'in the locality' , it may be suggested that 'adjoins' in the policy means something considerably more proximate. But that argument can be conceded, and there is still a sufficiently close proximity in the facts of the present case to uphold the conclusion that the proposed development adjoined urban land. Accordingly, the first and second grounds of the appeal fail.

Accordingly, Question 1 in the Notice of Motion properly becomes a question of fact for the Commissioner at the merits hearing.

It seems to be conceded by the Council that the third question posed, namely, whether the proposed development provides for an increase in the type and/or diversity of residential accommodation for aged or disabled persons, is also a question of fact for the Commissioner.

Accordingly, the only question for the Court to answer in this judgement is Question 2.

The question " whether or not the proposed development is for the purpose of any form of housing for older people or people with a disability within the meaning of cl 10 of SEPP 5 " is a question of law requiring the proper construction of SEPP 5, and its application to DA2018.

In her report to the Council meeting which refused the application, the Council's Town Planner, Kathryn Fadeev, disagreed with the applicant's view that the proposal is covered by SEPP 5. The report says in this connection: Firstly, the site does not meet the location criteria of clause 4 (1) of that policy. Whilst the site contains a dwelling, both the subject site and the wider locality are not zoned primarily for urban purposes. Rather, it is zoned Non-Urban 1(a1).

Secondly, the proposed use is not housing. It is an office/administration use. The purpose of the office is to facilitate the provision of support services to people within the community generally.

Mr Ayling on Council's behalf submits that within the sense of SEPP 5 the " services " envisaged by cl 12 must be available to persons " in the housing " provided under SEPP 5.

SEPP 5 is concerned with provision of " housing ", which is defined in terms of residential accommodation; its aims (cl 3) focus on housing; the land (cl 4) must be urban, and zoned for purposes compatible with housing; the concepts and standards referred to in cls 9, 10, 13 and 14 and Part 3 of SEPP 5 relate to residential accommodation; " development carried out under this policy may be subdivided… " (cl 18); and, even though cl 15 speaks of the " accommodation of … staff employed to assist in the administration of and provision of services to housing provided under the policy " the heading speaks of " who can live in housing for older people or people with disabilities? " (my emphasis).

Mr Ayling also points out that the definition of " residential care facility " embraces the cl 12 "services" with housing " not being a dwelling … ".

As this application involves the provision of no housing , but the provision only of such services as Malcolm says must support a DA for the development of " housing ", under SEPP 5, Mr Ayling argues that SEPP 5 cannot cover a DA related only to those services.

Mr Maston, for the applicant, points out that SEPP 5 does not say that the services must not be based on land separate from the land on which the beneficiaries live. (References are to paragraphs in his written submissions). The subject proposal involves a facility " which provides residential care in each of the categories (a), (b) and (c) of the definition of 'residential care facility'" (par 3); the form of housing which the proposed development seeks to promote (par 7) is housing of older persons in their own homes ; cl 10 of SEPP 5 says that Part 2 " allows development for the purpose of any form of housing ", and this proposal meets SEPP 5 criteria by extending the useful term of old people's occupancy of their own homes (cl 3(1)(a)). In such circumstances the development criteria are not relevant. Such housing also makes sufficient use of existing infrastructure and services (cl 3(1)(b)).

The more effective provision and management of the services envisaged (by SEPP 5 cl 12) as needed by people housed pursuant to SEPP 5 may facilitate the development of SEPP 5 projects in the area. While that might well be desirable and in the community's interest, we must focus here on the permissibility of the suggested use, not its possibly desirable consequences.

I can find nothing in SEPP 5, nor in the discussion of its underlying rationale in Malcolm , to bring DA2018 within its scope.

The availability of the relevant community services is essential, and the government packages require people to deliver and administer them, but, in the absence of a proposal for the building of aged/disabled housing on the subject land, to which the accommodation of such administrative functions may arguably be ancillary, there is no basis in SEPP 5 for this DA to be approved.

In response to Mr Maston's submission regarding cl 10, I would remind him that cl 10 goes on to say " if the development is carried out in accordance with this policy ". The SEPP envisages active development of housing, whereas this proposal involves no works, but only a change of use of what is already housing .

I would, therefore, answer the question in Question 2 of the Notice of Motion in the negative .

The two exhibits should remain with the Court papers, and the matter is remitted for determination by the allocated Commissioner of the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.