Central Coast Care v Wyong Shire Council

[2003] NSWLEC 17

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Reported Decision: 124 LGERA 320

Land and Environment Court

of New South Wales

CITATION:	Central Coast Care v Wyong Shire Council [2003] NSWLEC 17
PARTIES:	APPLICANT: Central Coast Care RESPONDENT: Wyong Shire Council
FILE NUMBER(S):	11097 of 2001
CORAM:	Lloyd J
KEY ISSUES:	Question of Law :- preliminary questions of law - State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability - amendment - no jurisdiction to allow amendment
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 80(3) Land and Environment Court Act 1979 s 39(2) State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability Pt 1 cl 3(1), cl 3(2), cl 4, cl 5, Pt 2 cl 10, cl 11, cl 12, cl 12(1), cl 12(2A), cl 12(4), cl 13, cl 13A, cl 14, cl 15, Pt 3 cl 21 State Environmental Planning Policy No. 33 - Hazardous and Offensive Development cl 13
CASES CITED:	Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; Our Firm Facility Pty Ltd v Wyong Shire Council [2001] NSWLEC 243
DATES OF HEARING:	15/11/2002
DATE OF JUDGMENT:	02/13/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr T F Robertson SC SOLICITORS: Winston Readford RESPONDENT: Mr D P F Officer QC SOLICITORS: Abbott Tout

JUDGMENT:

- 14 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11097 of 2001
Lloyd J
13 February 2003

Central Coast Care

Applicant
v

Wyong Shire Council

Respondent

JUDGMENT

Introduction

1 This is the separate determination of questions of law in proceedings brought in Class 1 of the Court’s jurisdiction. The separate determination of any question separately from any other question is permitted by Pt 31 r 2 of the Supreme Court Rules 1970 (which applies in this Court by dint of Pt 6 r 1(1) of the Land and Environment Court Rules 1996).

2 The principal proceeding is an appeal against a deferred commencement condition and certain other conditions of a development consent granted by the respondent, Wyong Shire Council (“the council”).

3 Both the applicant and the council have each put forward separate sets of questions for determination. I finally answer those questions at the conclusion of this judgment. The principal question, however, is whether State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability (“SEPP No. 5”) applies to the proposed development. The remaining questions depend upon a finding on this principal question.

The facts

4 On 16 October 2001 the applicant made a development application for a development described as a “100 bed nursing home” at No. 40 Pearce Road, Kanwal. A similar development application for the same land had been made by the applicant in December 2000, which was refused and which was then the subject of an appeal in this Court. That appeal was heard by me over five days in September 2001. On 25 September 2001 in an extempore judgment I dismissed the appeal (Our Firm Facility Pty Ltd v Wyong Shire Council [2001] NSWLEC 243). One of the major issues in the appeal was the availability of sewerage. In the course of giving my reasons I said:

[4] I propose only to deal with those issues which remain unresolved. Firstly, the issue of sewerage. This emerged as perhaps the major issue during the hearing. The council contends that the proposed development does not comply with either cl 29 of the Wyong LEP nor with sub-cl 12(4) of SEPP 5. Clause 29 of the Wyong LEP states:
The Council shall not grant its consent to the carrying out of any development on any land unless (a) an adequate water supply and facilities for the removal or disposal of sewage and drainage are available to that land or (b) arrangements satisfactory to the Council have been made for the provision of that supply and those facilities.
[5] Subclause 12(4) of SEPP 5 states:
(4) Water and sewer
(a) The consent authority must not consent to a development application made pursuant to this Part unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or the disposal of sewage.
[6] My attention has been drawn to the decision of the Court of Appeal in Codlea Pty Limited v Byron Shire Council (1999) 105 LGERA 370, in which that Court construed a provision which was in similar terms to cl 29(b) of the Wyong LEP.
[7] In my opinion, neither that case nor cl 29(b) of the Wyong LEP are relevant. This is because of a provision of SEPP 5, which applies to the land in this case, which is as follows:
5(2 ) 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 .
[8] It seems reasonably clear that there is an inconsistency between the wording of sub-cl 12(4) of SEPP 5 and cl 29(b) of the Wyong LEP, so that any further consideration of cl 29(b) and the construction placed upon clauses of that kind in Codlea Pty Ltd v Byron Shire Council are irrelevant.

5 I found that the terms of cl 12(4) of SEPP No. 5 had not been satisfied; that is, adequate facilities for the removal and the disposal of sewage were not available to the development. As a consequence the appeal was dismissed.

6 The present development application is accompanied by a statement of environmental effects. This document notes that the proposed development is within a Rural Holding Zone under the Wyong Shire Council Local Environmental Plan 1991 (“the Wyong LEP”) in which hospitals are permitted. A nursing home is, for relevant purposes, a hospital. In the statement of environmental effects the following is stated under the heading “SEPP 5 ‘Housing for Older People or People with a Disability’”:

Despite permissibility under the ordinary zoning of the site, approval under SEPP 5 would be an alternative to an approval under the Wyong LEP. The proposal, on the initiative of the Applicant, meets all of the development standards set down in SEPP 5.

7 Other statements in the statement of environmental effects include the following (inter alia):

SEPP 5, though not necessarily applicable to the proposal, provides a good guide for the development standards that are appropriate for the project.
…
The development statistics, summarised in the table below, are assessed against the major controls of State Environmental Planning Policy No.5. These guidelines are used only as the best guide by which to assess the subject proposal. Compliance is only necessary if a SEPP 5 consent is to be issued by Council, one alternative available to Council.
…
The subject site is currently zoned 1(c) Rural Holding Zone. This is a zone in which urban support facilities are encouraged, especially those requiring large sites. Hospitals are permissible in the zone with Council’s consent as are nursing homes, places or buildings which provide professional health care services.
…
Although an application for development is not necessary under SEPP 5, the development standards contained within this policy are considered to be relevant to the application by the Applicant.

8 By letter dated 11 January 2002 addressed to the applicant’s consultant, Mr M E Neustein of Neustein & Associates, the council requested additional information on the proposed method for providing sewerage to the development site. The letter then continues:

In addition to this, you are required to provide evidence from a medical practitioner(s) that a suitable agreement has been made to provide an appropriate level of medical services for future residents, as per the recent Court decision.

9 Mr Neustein replied by letter dated 30 January 2002. His letter includes the following:

The issue of medical practitioner contracts is one normally for SEPP 5 development. As this application is neither a SEPP 5 application nor one for infill aged housing, the situation is different.

10 On 31 January 2002 Mr Neustein sent a message by facsimile to the council, which states:

We wish to remind Council that the current application for a 100 bed nursing home is not made under SEPP 5 but under the provisions of the current zoning of the land which permits hospitals and hence nursing homes.

11 A report was prepared by the council’s Health and Development Department for its Development Management Panel. The report, dated 25 February 2002 includes the following:

The new development application is not lodged under the ambit of SEPP 5, as was the previous one. This application is lodged as a nursing home, under the definition of ‘housing for aged or disabled persons’, which is permissible in the 1(c) zone with consent.
The primary issue with the current development application is whether or not the proposal satisfied clause 29 of the Wyong Local Environmental Plan 1991. This clause states that Council shall not grant its consent to the carrying out of any development on any land unless -
(a) an adequate water supply and facilities for the removal or disposal of sewerage and drainage are available to that land; or
(b) arrangements satisfactory to the Council have been made for the provision of that supply and those facilities.
None of the temporary sewerage options that are proposed satisfy Council and consequently, the development application fails to comply with clause 29 of the Wyong LEP and should be refused.
…
Council’s local environmental plan and development control plans have been primarily used to assess this application, as it no longer falls within the ambit of SEPP 5. The development standards in SEPP No. 5, though not necessarily applicable to the proposal, have been used where the issues are not covered in Council’s policies.

12 The report contained a recommendation that the development application be refused “as it is contrary to clause 29 of the Wyong Local Environmental Plan 1991 as adequate facilities for the removal or disposal of sewage are not available to the site”.

13 On 4 March 2002 the council’s Development Management Panel recommended that the applicant be advised that the council proposes to grant a deferred commencement consent pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and that the following condition be satisfied prior to the consent operating:

The obtaining of the approval of the Water Supply Authority under the Water Management Act 2000, for the provision of the permanent sewer reticulation system to service the development from sewer pump station C13 in Minnesota Road.
(The council is the relevant water supply authority under the Water Management Act).

14 It seems that the recommendation of the Development Management Panel was adopted by the council. A notice of determination was issued by the council on 3 April 2002 with the deferred commencement condition that had been recommended, together with other conditions. On 6 May 2002 the applicant appealed to the Court against the deferred commencement condition and certain other conditions. The applicant’s solicitor subsequently filed and served a statement of issues, followed by an amended statement of issues.

15 By its amended statement of issues the applicant challenges the deferred commencement condition together with a number of other conditions in the development consent. One of the conditions which the applicant challenges is condition 12. That condition requires the construction of a concrete footpath along the public road as an access for residents to a nearby general store. As to this condition, the amended statement of issues states: “Condition 12 is inappropriate. This is not a SEPP5 development.” The council’s solicitors then sought particulars of the issues. In relation to condition 12 the council’s solicitors asked for the following:

(a) Does the applicant assert that the Council’s power to impose such a condition only arises under SEPP5? If so, please identify the relevant legislation and case authorities upon which the applicant relies for this assertion.
(b) Please identify with precision matters upon which the applicant relies to assert that the imposition of condition 12 is inappropriate.

16 The applicant’s solicitor’s response to this request is as follows:

(a) Yes. The SEPP speaks for itself. We do not propose to provide you with our legal submissions now.
(b) This is not a SEPP5 development.

17 It can be seen that the applicant had consistently asserted that the development application is not one that is made pursuant to SEPP No. 5; that it is not an application that relies for its permissibility upon SEPP No. 5; that the provisions of SEPP No. 5 do not apply; and it “is not a SEPP5 development”. In a complete about-face, however, the applicant now submits that the proposed development is a SEPP No. 5 development and that the provisions of SEPP No. 5 do apply. The council, on the other hand, consistent with the applicant’s assertions hitherto, submits that the development application was not made pursuant to SEPP No. 5.

18 The reason for the applicant’s about-face is readily apparent. If SEPP No. 5 applies to the development, then cl 12(4) thereof would prevail over cl 29 of the Wyong LEP. If, however, SEPP No. 5 does not apply, then according to the decision of the Court of Appeal in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370, it is not open for the Court to make the prior adequate arrangements for the provision of services to the land under cl 29. The Court’s only function would be to satisfy itself that those arrangements had been made. It would effectively preclude the applicant’s appeal against the deferred commencement condition.

The parties’ submissions

19 Mr D P F Officer QC, appearing for the council, makes the following submissions:

(1) The various development criteria in Pt 2 of SEPP No. 5 only apply to “a development made pursuant to this Part”– see for example, cl 12(4).

(2) The development application in this case was expressly stated to be “not a SEPP 5 development”.

(3) Although the development application may be impliedly made under SEPP No. 5 because SEPP No. 5 applies to the kind of development for which consent is sought, it cannot encompass an application where the applicant expressly requests that it is not made pursuant to SEPP No. 5.

(4) Here, the development application was not “made pursuant to this Part”.

(5) The words “made pursuant to this Part” do not appear in other State environmental policies and are there for a purpose and serve a function.

(6) The aims and objectives of SEPP No. 5 are facultative and for the benefit of the applicant, encouraging a certain form of housing by setting aside local planning controls that could prevent such development, so that an applicant not wishing to take advantage of SEPP No. 5 need not comply with its provisions if he can get consent under some other instrument.

(7) This is confirmed by the use of the words “a development application made pursuant to this Part” rather than “an application to carry out development to which this Part applies”, as used, for example, in SEPP No. 33 - Hazardous and Offensive Development (cl 13).

(8) The Court does not have jurisdiction to allow the fundamental basis of an application to be amended on an appeal (from a non-SEPP No. 5 development to a SEPP No. 5 development).

20 Mr T F Robertson SC, appearing for the applicant, makes the following submissions:

(1) Clause 4 of SEPP No. 5 provides that SEPP No. 5 applies to land upon which development for the purpose of, inter alia, hospitals, is permissible.

(2) Therefore, SEPP No. 5 applies and it is not a question of choice.

(3) The purpose of SEPP No. 5 is not just to remove planning road blocks, but to ensure that there are uniform standards for a vulnerable section of the community.

(4) No application for aged or infirm persons’ accommodation in New South Wales can be assessed otherwise than pursuant to SEPP No. 5.

(5) The only exception is where such development is permissible without consent (cl 11).

(6) The use of the expression “a development application made pursuant to this Part” is simply a reference to the fact that, by dint of cll 4 and 10, any application for such development is development under Pt 2 of SEPP No. 5.

(7) The council assessed the development against the standards in SEPP No. 5, other than the sewerage issue (which was assessed under cl 29 of the Wyong LEP).

Conclusions

21 It is appropriate to consider, firstly, the relevant provisions of SEPP No. 5. Clause 3(1) sets out the aims of SEPP No.5. Clause 3(2) sets out how these aims will be achieved, including “setting aside local planning controls that would prevent the development of housing for older people or people with a disability that meets the development standards specified in this Policy”.

22 Clause 4 specifies where SEPP No. 5 applies: relevantly for the present case it applies to land on which development for hospitals is permitted. The present development application for a “100 bed nursing home” was made on the basis that it was for the permitted use of a hospital.

23 Clause 5 provides that if SEPP No. 5 is inconsistent with any other environmental planning instrument then the Policy prevails to the extent of any inconsistency. Part 2 of SEPP No. 5 (cll 9 to 19) is headed “Development Criteria”. Clause 10 provides that this Part “allows” development for the purpose of any form of housing for older people or people with a disability “despite the provisions of any other environmental planning instrument”, if the development is carried out in accordance with SEPP No. 5. Clause 11 states: “Development allowed by this Part may be carried out only with the consent of the relevant authority unless another environmental planning instrument allows that development without consent.”

24 Clause 12 sets out a number of matters for consideration by the consent authority. Thus, cl 12(1) provides that the consent authority must not consent to “a development application made pursuant to this Part” unless it is satisfied that the residents of the development will have access to certain facilities and services. Similarly, cl 12(2A) provides that the consent authority must not consent to “a development application made pursuant to this Part” unless it is satisfied as to the provision of certain other services.

25 Clause 13 provides that a consent authority must not consent to “a development application made pursuant to this Part” unless buildings comply with certain height and setback controls. Clause 13A provides that a consent authority must not consent to “a development application made pursuant to this Part” unless it complies with a number of standards. Clause 14 provides that the consent authority must not refuse consent to “a development application under this Part” if the development complies with a range of other standards. Clause 15 provides that “development allowed by this Policy” may include accommodation for people who live with older or disabled persons, or who are staff employed in the facility.

26 Part 3 of SEPP No. 5 is headed “Design Requirements” (cll 20 to 25). Clause 21 states: “This Part applies to development that is allowed to be carried out with development consent by this Policy” and a number of design principles are then set out.

27 The language thus employed in SEPP No. 5 suggests that it is not intended to apply universally, that is, to all such development. The reference in cl 10 to “allowing” such development “despite the provisions of any other environmental planning instrument” suggests that SEPP No. 5 is not an exclusive code. The subsequent reference in cl 11 to “development allowed by this Part” is a reference back to cl 10, that is, to development allowed by Pt 2 despite the provisions of any other environmental planning instrument. The various references to “a development application made pursuant to this Part” suggest that development applications may be made for development of the kind described therein other than pursuant to Pt 2 of SEPP No. 5. If it was the intention of the legislature that SEPP No. 5 was to be an exclusive code for such development, then it seems to me that more appropriate language would have been used, such as “development to which this Part applies” as under in cl 13 of SEPP No. 33 – Hazardous and Offensive Development, or “a development application to carry out development for the purpose of…” as used in cl 12 of SEPP No. 33, for example. As Mr Officer QC points out, all other State environmental planning policies apply to development of a kind which (by definition) is caught by the instrument as opposed to development for which an application is made pursuant to the Policy.

28 Similarly, the references in cl 15 to “development allowed by this Policy” and in cl 21 to “development that is allowed to be carried out with development consent by this Policy” are clearly limited to such development and cannot apply to development for which consent is sought and allowable under some other instrument.

29 In the present case the proposed development is permissible with consent under the local environmental plan. Although SEPP No. 5 applies to the proposed development by dint of cl 4, the proposed development does not rely upon SEPP No. 5 for its permissibility. The present development application was not a development application made under SEPP No. 5 and, in particular, it is not a development application to which cl 10 applies. The application was expressly stated as being not made pursuant to SEPP No. 5 and is thus not a development application made pursuant to Pt 2 thereof.

30 Mr Robertson SC submits that although the development application is expressly stated as not being made under SEPP No. 5, the Court on appeal exercising all the functions and discretions of the consent authority pursuant to s 39(2) of the Land and Environmental Court Act 1979, may nevertheless hear and determine the appeal on the basis now sought by the applicant, that is, as a SEPP No. 5 development. In Mr Robertson’s submission, the council assessed the development application against the relevant criteria and standards in SEPP No. 5 in any event: it is not, in Mr Robertson’s submission, a question of amending the development application. The submission was developed in this way:

In any event, what amendment could the applicant seek? It does not propose to alter any physical aspect of the development. It simply asserts the permissibility of the development and its compliance with appropriate development standards pursuant to a different instrument. This does not require amendment.

31 On Mr Robertson’s analysis, the Court is obliged to have regard to SEPP No. 5 whether or not the parties raise it.

32 Mr Officer QC submits, however, that the Court does not have any of the functions or powers of the consent authority under SEPP No. 5 because that was not the application that was before the council. The Court has no jurisdiction to entertain an original development application. The council was invited by the applicant not to exercise any consideration under SEPP No. 5 and the council in reliance on that invitation made a determination on the development application solely under the local environmental plan. This is not an original determination by the council based on an assessment under SEPP No. 5. In particular, there was no determination by the council under cl 12(4) of SEPP No. 5 relating to the provision of water and sewerage, because the council was not asked to do so. The council, on the contrary, applied cl 29 of the Wyong LEP. It is submitted that if the applicant now wants the development proposal to be assessed under SEPP No. 5 and not under the Wyong LEP then the council ought to be given an opportunity to consider an original development application on that basis.

33 I find Mr Officer’s submission compelling. In making the development application the applicant insisted that it was not made under the ambit of SEPP No. 5 and that it was not a SEPP No. 5 development. The council accepted and considered the development application on that basis. As noted in par [11] above, the report prepared by the council’s Health and Development Department states: “Council’s local environmental plan and development control plans have been primarily used to assess this application, as it no longer falls within the ambit of SEPP 5”. Importantly, the council did not consider cl 12(4) of SEPP No. 5 relating to the provision of water and sewerage, but applied cl 29 of the Wyong LEP in assessing the development application. I agree that, under these circumstances, the council should be given an opportunity to consider an original development application on the new basis. What is now proposed is a different development under a different instrument calling for different considerations. The Court does not have jurisdiction to hear and determine the appeal on the basis now sought by the applicant.

34 In the light of the conclusions to which I have come it is now possible to turn to the various questions for determination raised by the parties.

Questions of law raised by the applicant
Question 1: Whether the development is permissible pursuant to SEPP No. 5?
Answer: Yes, if the applicant had sought consent under SEPP No. 5.
Question 2: Whether clause 29 of the Wyong LEP is relevant to the appeal.
Answer: Yes.
Question 3: If so:

(a) Whether clause 29(a) of the Wyong LEP can be satisfied by proof that facilities for the removal or disposal of sewage are available to the subject land, even though such facilities are not presently adequate to service the proposed development;

Answer: No. It is not open for the Court to make the prior adequate arrangements for the provision of services to the land under clause 29 of the Wyong LEP. The Court’s only function is to be satisfied that those arrangements had been made.

(b) Whether clause 29(b) of the Wyong LEP has been satisfied, as evidenced by the deferred commencement condition, and the grant of development consent, such that the provisions of clause 29 are no longer an issue in the appeal.

Answer: No. Clause 29 of the Wyong LEP is an essential pre-condition to the granting of consent: “The Council shall not grant its consent to the carrying out of any development on any land unless…” (Although the question was not argued, it seems to me that, for this reason, the consent that has been granted is unlawful.)
Questions of law raised by the respondent council
Question 1: Was the subject development application made pursuant to SEPP No. 5 and in particular Part 2 thereof?
Answer: No.
Question 2: If the answer to question 1 is in the negative can the applicant on a Class 1 appeal treat the application as if it were so made and would the Court have jurisdiction to hear such an appeal?
Answer: No.
Question 3: If the answer to either questions 1 or 2 is in the negative, was an arrangement reached between the respondent and the applicant within the meaning of clause 29 of the Wyong Local Environmental Plan?
Answer: This is a question of fact and not a question of law and it is, therefore, unnecessary to answer.
Question 4: If so, the applicant having resiled from that arrangement, has the Court jurisdiction to make alternative arrangements between the parties – if not, is it within the Court‘s power to make an order having the effect of upholding the appeal?
Answer: No.

35 Mr Robertson sought an order for costs. Mr Officer asked that I reserve the question of costs. In the circumstances it is appropriate that the costs of the separate determination of these preliminary questions of law be reserved.

**********

I hereby certify that the preceding 35 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated: 13 February 2003