Club Marconi Limited v Fairfield City Council

[2021] NSWLEC 132

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Club Marconi Limited v Fairfield City Council [2021] NSWLEC 132

Hearing dates:

23 August 2021

Date of orders:

19 November 2021

Decision date:

19 November 2021

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraphs 56 to 58

Catchwords:

CIVIL PROCEEDINGS — declarations — development for the purpose of seniors housing comprising in-fill self-care housing — whether site is zoned primarily for urban use under cl 4(1) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 — whether most of the land that adjoins site is land zoned for urban purposes under cl 4(5) of SEPP — land zoned RE2 Private Recreation under Fairfield Local Environmental Plan 2013 — site is zoned primarily for urban purposes — most of the site adjoins land zoned for urban purposes

Legislation Cited:

Registered Clubs Act 1976 (NSW)

Cases Cited:

ACN 115 840 509 Pty Limited v Kiama Municipal Council (2006) 145 LGERA 147

DEM (Australia) Pty Ltd v Pittwater Council (2004) 136 LGERA 187

Hornsby Shire Council v Malcolm (1986) 60 LGRA 429

Metzger v Department of Health and Social Security [1977] 3 All ER 444

MoDog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443

Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182

Pepperwood Ridge Pty Limited v Newcastle City Council (2005) 142 LGERA 231

Texts Cited:

Macquarie Online Dictionary

Category:

Principal judgment

Parties:

Club Marconi Limited (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
I Hemmings SC and L Nurpuri (Applicant)
A Pickles SC (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/111203

Publication restriction:

No

Judgment

Nature of proceedings

1. The Applicant proposes to seek development consent to carry out development for the purpose of seniors housing comprising in-fill self-care housing on its land, which land is zoned RE2 pursuant to the Respondent’s Local Environmental Plan.

2. Development for the purpose of seniors housing, in particular, in-fill self-care housing, is not permissible within the RE2 zone unless the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) applies. By its Amended Summons dated 23 July 2021, the Applicant seeks two declarations:

1. A declaration that the land comprised of Lot 5/Section B/DP 6934, Lot 6/Section B/DP6934, Lot 3B/DP 407243, Lot 7 DP 664803 and Lot 1 DP 332770, known as 121-133 Prairie Vale Road Bossley Park and owned by the Applicant (the Property), is land zoned primarily for urban purposes pursuant to cl 4(1) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors).

2.   A declaration that for the purposes of cl 4(5) of SEPP Seniors, most of the land that adjoins the Property is land zoned for urban purposes.

3. The Council does not oppose the second declaration sought. The Council does contend that the land is not zoned primarily for urban purposes pursuant to cl 4(1) of the SEPP and, therefore, cannot be developed for the purpose of seniors housing comprising in-fill self-care housing pursuant to the SEPP.

Background Facts

4. Club Marconi Limited (the Applicant) is the registered proprietor of the land known as 121-133 Prairie Vale Road, Bossley Park, comprised of five lots collectively described as Lot 5/Section B/DP 6934, Lot 6/Section B/DP6934, Lot 7 DP 664803 and Lot 1 DP 332770 (the Site).

5. The Site is within the Local Government Area of the Respondent, Fairfield City Council (the Council) and is zoned RE2 Private Recreation under the provisions of the Fairfield Local Environmental Plan 2013 (the LEP). The zoning of the Site and the areas surrounding it are identified in Figure 1 below:

Figure 1: The Site and its land use zone is identified by the light green shading marked ‘RE2’. The land use zones surrounding the Site are shown in dark green (‘RE1’), orange (‘E2’) and red (‘R2’). (Source: Applicant’s submissions at [27]-[28]).

6. The Site has a total area of 11.3ha, and is improved by a club and recreational facilities, carpark and playing fields. The Site is used by the Applicant for the purposes of an existing club known as “Club Marconi”. Club Marconi is a club in respect of which a certificate of registration under the Registered Clubs Act 1976 (NSW) is in force and, accordingly, is a registered club as defined for the purposes of the SEPP and the LEP. The parts of the Site and the uses adjoining it are identified in the aerial photo in Figure 2:

Figure 2: The red outline denotes the area of the Site that is sought to be developed in accordance with the SEPP (Source: Applicant’s submissions at [25]-[26]).

7. On 27 June 2019, the Applicant applied to the Sydney Western City Planning Panel (the Panel) for a Site Compatibility Certificate in support of a proposed development for a seniors housing development comprising in-fill self-care housing, car parking and landscaping on the Site (the Proposed Development).

8. On 14 August 2020, the Panel issued a Site Compatibility Certificate for the Proposed Development (the SCC). The SCC is valid for 24 months from the date of issue and expires on 13 August 2022.

9. On 21 May 2021, Restifa and Partners Pty Ltd, on behalf of the Applicant, lodged development application 174.1/2021 (the DA) seeking consent for the Proposed Development.

10. On 19 July 2021, class 1 appeal proceedings were commenced in the Land and Environment Court on behalf of the Applicant against Fairfield City Council’s deemed refusal of the DA.

Agreed position of parties relating to seniors housing

11. The parties agreed and tendered as evidence in the proceedings an Agreed Statement of Facts. The background facts outlined above generally conform with the facts agreed. In addition, the parties agreed at [11]-19] of the Agreed Statement of Facts that the following factors were relevant to the application of the SEPP:

(1)   Development for the purposes of seniors housing, and in particular in-fill self-care housing, is not permissible within the RE2 zone unless the SEPP applies.

(2)   As the Site is currently used for the purposes of an existing registered club, in order for the Proposed Development to be permissible, the Site must be on land zoned primarily for urban purposes pursuant to cl 4(1) of the SEPP, and most of the land that adjoins the Site must be land zoned for urban purposes pursuant to cl 4(5).

(3)   The Site is not within a zone that is identified as principally for urban investigation, as that term is used in cl 4(2)(b) of the SEPP.

(4)   For the purposes of cl 4(6) of the SEPP, the Site does not satisfy the description of land in Sch 1 to the SEPP.

(5)   The Site is immediately surrounded by low density residential developments to the north, west and south, zoned R2 under the Fairfield LEP. The R2 zoned land surrounding the Site to its north, west and south is land zoned for urban purposes.

(6)   A council oval zoned RE1 and a lot of land zoned E2 Environmental Conservation under the Fairfield LEP adjoins the Site to the east.

(7)   The Site is located in very close proximity to the South West Italian Association Retirement Village located at 84-88 Restwell Road, Bossley Park to the east, which is zoned for urban purposes.

Legislative provisions

12. In order to determine whether the declarations sought ought to be made the following provisions of the SEPP outline the framework within which the facts of the case are to be considered:

2   Aims of Policy

(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

(c)   ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.

…

4   Land to which Policy applies

(1)   General This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if—

…

(b)   the land is being used for the purposes of an existing registered club.

(2)   Land that is not zoned primarily for urban purposes For the avoidance of doubt, land that is not zoned primarily for urban purposes includes (but is not limited to) land that is within any of the following zones under another environmental planning instrument—

(a)   a zone that is identified as principally for rural uses,

(b)   a zone that is identified as principally for urban investigation,

…

(3)   Nothing in subclause (2) or (2A) operates to make any land not referred to in those subclauses land that is zoned primarily for urban purposes.

(4)   Land that adjoins land zoned primarily for urban purposes For the purposes of this Policy, land that adjoins land that is zoned primarily for urban purposes includes (but is not limited to) land that would directly adjoin land that is zoned primarily for urban purposes but for the presence of a public road to which there is direct vehicular and pedestrian access from the adjoining land.

(5)   Application of Policy to land zoned for special uses and existing registered clubs. For the purposes of this Policy (and for the avoidance of doubt), a consent authority must not treat—

…

(b)   land that is being used for the purposes of an existing registered club,

as being land zoned primarily for urban purposes unless it is satisfied that most of the land that it adjoins is land zoned for urban purposes.

…

17   Development on land adjoining land zoned primarily for urban purposes

(1)   Subject to subclause (2), a consent authority must not consent to a development application made pursuant to this Chapter to carry out development on land that adjoins land zoned primarily for urban purposes unless the proposed development is for the purpose of any of the following—

(a)   a hostel,

(b)   a residential care facility,

(c)   serviced self-care housing.

Issues for determination

13. In the circumstances of this case, it is necessary to determine both of the declarations sought. As the existing use of the Site is an existing registered club, it cannot be treated as land that is primarily zoned for urban purposes unless it also meets the requirements of cl 4(5). Therefore, the findings contained in both declarations are necessary to determine whether the type of seniors housing proposed by the Applicant can be undertaken on the Site. By operation of cl 17 of the SEPP, the Site could only be developed for: a hostel; residential aged care facility; and/ or serviced self-care housing if the Site did not meet the requirements of cl 4(1) and cl 4(5).

Evidence

14. In addition to the agreed facts in the Agreed Statement of Facts, the Applicant adduced expert town planning evidence from Mr Ryan. He deposed as to the background of the Proposed Development of the Site. He also expressed opinions as to whether the Site was zoned primarily for urban purposes in the following terms:

27.   I consider the name and objectives of the zone are applicable to both an urban and non-urban context.

28.   In relation to the uses permitted in the zone, and by adopting an approach previously considered by the Court as being preferred (Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council (2008) 168 LGERA 239; [2008] NSWLEC 284 per Preston CJ), I have attempted to categorise the individual land uses and provide my opinion on whether they are more (a) urban in character, (b) neutral in character (in that they are not unequivocally non-urban in character) or (c) non-urban in character, as follows:

a)   More urban in character:

Building identification signs; Car parks; Centre-based child care are facilities; Community facilities; Function centres; Information and education facilities, Recreation facilities (indoor); Recreation facilities (major); Registered clubs; Respite day care centres; Restaurants or cafes.

b)   Neutral in character:

Boat building and repair facilities; Boat launching ramps; Boat sheds; Business identification signs; Environmental facilities; Flood mitigation works; Helipads; Jetties; Kiosks; Marinas; Markets; Mooring pens: Moorings; Recreation areas: Recreation facilities (outdoor); Roads; Water recreation structures; Water recycling facilities: Water supply systems; Wharf or boating facilities

c)   More non-urban in character:

Aquaculture; Camping grounds; Caravan parks; Charter and tourism boating facilities.

29.   In reviewing the full range of permissible uses, I consider that with the possible exception of aquaculture, none of the permitted uses should be described as inherently and exclusively for urban or non-urban purposes. However, in attempting to apply some weighting to where each use might be more likely found I consider that more uses are either more urban in character or neutral (and thus equally likely to be found in an urban area) than those more non-urban (and neutral) in character. On this basis, the zone primarily permits urban purposes.

30.   I am of the opinion the majority of permitted uses are purposes that have a role in serving an urban community and should not be excluded from being considered “urban purposes."

15. The balance of the evidence was documentary material primarily evidencing the grant of the SCC and the nature of the Proposed Development referred to in the DA.

Applicant’s submissions

Is the Site zoned primarily for urban purposes pursuant to cl 4(1) of the SEPP?

16. The land relevant to the questions posed by the declarations sought is the whole of the Site. The seniors housing development is proposed to be carried out on part of that land, but it is still proposed to form part of the larger club development that exists on the Site. For that purpose, the whole of the area outlined in blue on Figure 2 at [6] above should be regarded as the land for the purposes of the determination of the factual matters in this case. This position is consistent with the definition of the land adopted in the SCC for the Site.

17. Particular consideration of the words “primarily” and “urban” was given by Pearlman J in MoDog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 (MoDog) at [12], in which her Honour found, by adopting their grammatical or ordinary meaning, the word “primarily” meant “chiefly” or “principally” and that “urban” meant “pertaining to, or constituting a city or town” (adopted in Murlan Consulting Pty Ltd v Ku- ring-gai Municipal Council [2007] NSWLEC 182 at [23] and Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council (2008) 168 LGERA 239 (Australian Lifestyle Corporation) at [16].

18. The classification of land as meeting the criterion of being “zoned primarily for urban purposes” in cl 4(4) of the SEPP must depend on the construction of the particular environmental planning instrument that zones the land in question, in this instance, the LEP (see Australian Lifestyle Corporation at [20]). In that regard, it is necessary to consider the objectives of the LEP and of the RE2 zone; and the clauses within the LEP that specify the nature of permissible development.

19. The permissible uses in the RE2 zone should be characterised as identified in the affidavit of Mr Ryan as:

1. More urban in character;

2. Neutral; and

3. More non-urban in character.

20. The objectives of the RE2 zone, relevantly, are to provide a range of recreational settings and activities and compatible land uses. Compatible land uses reflect the character of the land in the locality. The land surrounding the Site is quintessentially urban in character, being primarily residential. The RE2 zone in the context of the Site serves the surrounding urban community and ensures that the recreational and social needs of the community are met.

For the purposes of cl 4(5) of the SEPP, does most of the Site adjoin land zoned for urban purposes?

21. The Applicant accepted that even though the Council did not dispute that the land adjoining the Site is primarily land zoned for urban purposes, it was still necessary for it to satisfy the Court that the declaration should be made: Metzger v Department of Health and Social Security [1977] 3 All ER 444 at 451.

22. The identification of land that is considered to be adjoining the Site is to be determined by reference to the provisions of cl 4(4) of the SEPP that contains an inclusive, but not exhaustive, description of land that would meet such characterisation.

23. On the basis of the provisions of cl 4(4) of the SEPP, land that adjoins the Site that is zoned primarily for urban purposes, separated only by a public road, is identified by reference to Figure 1 (at [5] above) as:

1. The land zoned R2 fronting Restwell Road (north of the Site);

2. The land zoned R2 fronting Holbrook Street (west of the Site); and

3. The land zoned R2 fronting Prairie Vale Road (south of the Site).

24. Land zoned R2 is land zoned for an urban purpose as it is a zoning that has as its objectives to provide for housing. Such an objective, adopting the reasoning outlined in connection with the first declaration sought, would be considered as land zoned primarily for urban purposes. To that extent, looking at the land adjoining referred to above, most of the Site adjoins land zoned for urban purposes.

25. If necessary, an examination of the zoning of the balance of the adjoining land reveals the Site adjoins:

1. The Retirement Village land zoned R2 abuts the boundary of that part of the Site and to the extent that there is a component of E2 land that is interposed between the Retirement Village and that part of the Site it remains sufficiently close to be considered as adjoining. Whilst cl 4(4) contains guidance as to adjoining land, no limitation is placed on the manner in which land adjoins. The authorities considering the predecessors to the SEPP supporting the position that “adjoins” means “near to” or “in the neighbourhood of” (MoDog at [23]; Pepperwood Ridge Pty Limited v Newcastle City Council (2005) 142 LGERA 231 at [15]); ACN 115 840 509 Pty Limited v Kiama Municipal Council (2006) 145 LGERA 147 at [31]; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 434); and

2. The balance of the extent of that part of the Site adjoins the club land which is zoned RE2 and for the reasons outlined in connection with the first declaration sought, would be found to be land primarily zoned for urban purposes.

26. On such an analysis the Court would be satisfied for the purposes of cl 4(5) that most of the land that adjoins the Site is land zoned for urban purposes, in that at least three of the boundaries of the Site (being “most” of the Site) adjoins R2 zoned land.

Respondent’s submissions

Is the Site zoned primarily for urban purposes pursuant to cl 4(1) of the SEPP?

27. The concept of the adjective "urban" is to be construed in accordance with its ordinary, common or grammatical meaning of "pertaining to or constituting a city or town": Australian Lifestyle Corporation at [16].

28. The concept of "primarily", has been held to mean "chiefly" or "principally": MoDog at [12]; Retirement by Design v Warringah Council (2007) 153 LGERA 372 at [97] and Australian Lifestyle Corporation at [16].

29. The determination of whether the land is "zoned primarily for urban purposes" then requires construction of the environmental planning instrument that zones the land, being the LEP. In that respect, it is necessary to consider the name, the objects of the zone, and the permissible and prohibited uses of the zone.

27. In the consideration of the LEP it is inappropriate to seek to categorise each specific permitted use as either urban, neutral or non-urban. The task requires a consideration of whether there is a flavour of use that can be attributed to all of the uses in the zone, including those uses that are neutral. In this zone there is an emphasis on recreation. There are also recreational uses that when taken together form an emphasis or provide a character of a non-urban use (see for example the water-based recreational uses which will be attached to non-urban land-based uses). Whilst recreation may occur in both urban and non-urban settings that does not deprive the purpose of the zone as one for recreation which is not of itself an urban purpose.

28. It is inappropriate to seek to characterise the purpose of the zone by reference to the uses being undertaken (or capable of being undertaken) on adjoining land or the locality more generally. It is the zone itself that is to be considered and not its context. If it were the case that the adjoining context could be considered it would subvert the test in the SEPP as any land that was zoned RE2 in an urban area would always be zoned for an urban purpose – taking the surrounding land as a “trump” over the recreational purpose the zone is intended to serve.

For the purposes of cl 4(5) of the SEPP, does most of the Site adjoin land zoned for urban purposes?

32. The Council did not oppose the second of the declarations sought as it agreed that the Site adjoins land zoned for urban purposes because most of the land surrounding the Site is zoned for urban purposes.

Findings

Is the Site zoned primarily for urban purposes pursuant to cl 4(1) of the SEPP?

33. There was no real dispute between the parties as to the appropriate principles to be applied to a determination of the issues in this case. The dispute turns upon the application of those principles to the facts of this case. The principles require a consideration of whether the Site is zoned primarily for urban purposes. What that task involves is to be informed by applying the accepted principles of statutory construction to identify what is meant by that term. Thereafter, the particular provisions of the LEP are to be construed, also in accordance with the accepted principles of statutory construction to determine whether the purpose of the particular zoning can fall within the concept of being “primarily for urban purposes”.

34. To that end it is necessary to construe the provisions of the SEPP. As was observed in DEM (Australia) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 at [47]- [48] per McColl JA:

SEPP No 5 is also in the category of remedial or beneficial provisions which should be construed to afford “the fullest relief which the fair meaning of its language will allow”: Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 per Isaacs J; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 98 per Dawson J; Marks v GIO Australia Holdings (1998) 196 CLR 494 at 528 per Gummow J; ICI Operations Pty Ltd v WorkCover Authority (NSW) [2004] NSWCA 55 at [349].

Where a beneficial statute is expressed in general terms, so far as possible within the text, decision-makers will construe the legislation to advance and achieve those beneficial purposes - not to frustrate and defeat their attainment: Marks v GIO Australia Holdings at [124] per Kirby J; Boral Besser Masonry per Kirby J at [384]. This approach is reinforced in this case by the requirements of s 25 of the Environmental Planning and Assessment Act to which I have earlier referred.

35. The beneficial nature of the SEPP is expressed in its Aims as outlined at [12] above.

36. As both parties accept, applying such a beneficial construction to the ordinary meaning of the word use in cl 4 of the SEPP:

1. “Urban” means pertaining to or constituting a city or a town; and

2. “Primarily” means chiefly or principally.

37. It is necessary, when having regard to the concept of “town” and “city”, to consider population density as the purpose to be served is one connected with a population base. If there is no relevant density of population the purpose could not relate to a town or city. Whilst I accept that the nature or identity of the persons that may resort to a permitted use is not a relevant consideration the broader consideration of the purpose being served by the permitted use in the context requires a consideration of whether the permitted uses are ones that relate to serving a density of population that could enable the use to be characterised as primarily for urban purposes.

38. It is also necessary to consider the provisions in cl 4(1) of the SEPP in the context of the whole of the SEPP. In this case, as we are dealing with an existing registered club use, there is a further provision that relates to the task set by cl 4(1) and that is contained in cl 4(5). The provisions of cl 4(5) also adopt the phrase “land zoned primarily for urban purposes” and, therefore, the same meaning should be ascribed to these words as their use in cl 4(1). However, cl 4(5) operates to add a further layer of consideration, or qualify the consideration, when undertaking the task in cl 4(1). Clause 4(5) has limited operation and its terms provide:

(5)   Application of Policy to land zoned for special uses and existing registered clubs For the purposes of this Policy (and for the avoidance of doubt), a consent authority must not treat—

(a)   land on which development for the purposes of special uses is permitted, or

(b)   land that is being used for the purposes of an existing registered club,

as being land zoned primarily for urban purposes unless it is satisfied that most of the land that it adjoins is land zoned for urban purposes.

39. This clause applies only to the two circumstances: the first to a permitted use; and the second, an actual existing use of land. When considering these two nominated circumstances the consent authority is precluded from treating the land as zoned primarily for urban purposes unless it is satisfied as to a state of affairs relating to adjoining land. When viewed in the context of: the beneficial legislative purpose; the Aims of the SEPP; and the purpose of cl 4 as a whole (being the identification of land to which the SEPP applies); such a provision requires, for the purposes of the consideration of cl 4(1) a consideration of the context of the land beyond the zoning of that land. That is, whether the two categories identified in cl 4(5) are relevantly land to which the SEPP relates in cl 4(1) will be determined in part by the zoning of the land itself and also the zoning of land that adjoins the Site.

40. In this case, as it is agreed that the Site is being used for the purposes of an existing registered club, the task in cl 4(1) is not merely limited to the RE2 zone but requires, in addition, a consideration of the RE2 zone in the context of the purpose of the surrounding adjoining zones. To that end, I am unable to accept the submission of the Council that the purposes of the adjoining zones are irrelevant to the determination of whether the Site is zoned primarily for an urban purpose for the purposes of the SEPP where the provisions of cl 4(5) apply. The caution that the Council raised that to consider adjoining zoning would undermine the purpose of cl 4(1) as all recreational land in an urban area would be considered primarily zoned for urban purposes does not arise in this case, as the consideration arises not by virtue of the RE2 zone but rather the existing use of the Site for a registered club as required by cl 4(5). Further, I am required to consider the present use of the Site, rather than just the permitted uses of the Site under the LEP, in consideration of cls 4(1) and 4(5) of the SEPP as it applies to the particular circumstances of this case.

41. Turning then to the provisions of the LEP, it too must be considered in accordance with the words used and the context of the LEP as a whole.

42. As it pertains to recreational uses the Aims of the LEP at cl 1.2(c) state:

(c)   to ensure that the recreational and social needs of the existing and future community are appropriately planned for

43. Land is then zoned by the expressed land use tables as provided for in Part 2 of the LEP. The Site is zoned RE2 and the land use table for that zone is:

Zone RE2   Private Recreation

1   Objectives of zone

•   To enable land to be used for private open space or recreational purposes.

•   To provide a range of recreational settings and activities and compatible land uses.

•   To protect and enhance the natural environment for recreational purposes.

2   Permitted without consent

Environmental protection works.

3   Permitted with consent

Aquaculture; Boat building and repair facilities; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Car parks; Caravan parks; Centre-based child care facilities; Charter and tourism boating facilities; Community facilities; Environmental facilities; Flood mitigation works; Function centres; Helipads; Information and education facilities; Jetties; Kiosks; Marinas; Markets; Mooring pens; Moorings; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Respite day care centres; Restaurants or cafes; Roads; Water recreation structures; Water recycling facilities; Water supply systems; Wharf or boating facilities.

4   Prohibited

Any development not specified in item 2 or 3.

44. The development types identified in the land use table are defined in the dictionary to the LEP, the relevant definitions I have considered but do not repeat here.

45. As stated, it is by reference to the RE2 zoning that the task in cl 4, in so far as the provisions of cl 4(1) refer is to be undertaken.

46. In carrying out the necessary examination it is necessary to avoid an analysis that requires each of the relevant factors to be taken into account to be only capable of being characterised as urban. The flaw with such an approach was described by Preston CJ in Australian Lifestyle Corporation at [22] as:

A flaw in the Council's argument is that it employs, and seeks to make dispositive, the test of whether each use permitted or permissible with consent in the zone in question is intrinsically or usually associated with city or town development and conversely not with non-urban development. If a use can be undertaken in a non-urban area, whether or not it can be undertaken in a city or town, then it cannot be said to be principally or chiefly pertaining to a city or town. The problem with such a test is that there would be very few uses which could ever meet this test. Even quintessential urban uses such as dwelling houses and shops, can be located in non-urban areas. Hence, it would be difficult to ever pass the Council's test.

47. The name of the relevant zone is RE2-Private Recreation. In having regard to the name of the zone I note that the type of recreation is designated as for “private” and not “public” recreation. In that regard, the primary distinction is that the land so zoned is held in private ownership rather than public ownership. The recreational uses will therefore be undertaken by persons at the invitation or with the permission of the landowner. Such uses by third parties of private land are expected to provide some benefit to the landowner, beyond the mere provision of an amenity benefit which would be expected to be met by public recreation.

48. The objectives of the RE2 zone are stated in very broad and general terms. The reference, however, to private open space is the reference to a defined term, meaning:

private open space means an area external to a building (including an area of land, terrace, balcony or deck) that is used for private outdoor purposes ancillary to the use of the building.

49. Such a concept reinforces an association of a built form rather than an undeveloped open park-like form of use.

50. Turning then to the consideration of the permitted uses in the RE2 zone, I accept the submission of the Council that it is inappropriate to merely consider the permitted uses in the RE2 zone and determine whether such uses fell within the categories of: urban, non-urban; or neutral and then examine which of the uses was in the numerical preponderance as between urban and non-urban. Such an approach of identifying numerically the characterisation of the nominated uses is sterile unless some degree of attention is paid to the purpose or character that the zone as a whole imparts. The necessary consideration is one that is more impressionistic rather than numeric as is emphasised by the use of the term “purposes” in cl 4(1).

51. The approach I take in determining the purpose of the RE2 zone in this LEP is a consideration of the objectives of the zone, the nature and range of uses that are permitted in the zone as relevantly defined. That task leads me to observe that:

1. There is an emphasis in the permitted uses on those that combine a built form to facilitate the use, even where such use is intended to provide for recreation. The necessary built form of the use combined with the types of recreational facility (private recreation) reinforces the concept that there is a population to support such uses, rather than it being a “destination” based recreational use. To this end, the submission that some noisier uses such as go-cart tracks would need separation from urban uses does not overcome the fact that there would need to be a population proximate to the use to support it;

2. The additional uses such as: community facilities; centre-based child care facilities; respite day care centres; restaurants or cafes; function centres and registered clubs are of a type and character that are associated with population densities characteristic of towns and cities and the needs of such populations. These additional “compatible” land uses (as are described in the objectives to the RE2 zone) give a character to the recreational zone as being ones that are more akin to uses pertaining to a town or city than some other non-urban purpose; and

3. When viewed as a whole, the character of the permitted uses in the zone are ones that chiefly or primarily have a relationship to a density of population of a town or city and, therefore, an urban purpose.

52. Having regard to the factors identified above, in the circumstances of the RE2 zone in the LEP, I find that the Site is zoned primarily for urban purposes. In light of that finding it is unnecessary in the circumstances of this case to undertake a further consideration of the context of the surrounding zoning of land. However, if such an examination were undertaken, I would find that it would not detract from my principal finding but would reinforce the primacy of the urban purpose. The presence of the existing club together with the surrounding residential land uses reinforces the urban nature of the zonings in that providing for the needs of the surrounding urban zoned land.

For the purposes of cl 4(5) of the SEPP, does most of the Site adjoin land zoned for urban purposes?

53. The term “most of the land” is not defined. It is used in this context as an adjective. In that grammatical usage the ordinary English meaning as defined in the Macquarie Online Dictionary as:

most

adjective 1. in the greatest quantity, amount, measure, degree, or number: the most votes.

2. in the majority of instances: most exercise is beneficial.

3. greatest, as in size or extent: the most part.

54. I accept and adopt the reasoning in the submissions of the Applicant at [22]-[24] above that most of the land that adjoins the Site is land zoned for urban purposes, as approximately three quarters of its boundary length adjoins R2 zoned land. With that finding it is unnecessary for me to determine whether the uses referred to in [25] above are also land zoned for urban purposes.

Costs

55. In proceedings such as these the usual order as to costs is that costs follow the event. As the Applicant has been successful in obtaining the two declarations which it sought and that no submission has been made that would require a consideration as to whether an alternative order should be made. it is appropriate that an order for costs be made in the Applicant’s favour.

Conclusion and orders

56. For the reasons set out herein, I find that:

1. The Site is zoned primarily for urban purposes pursuant to cl 4(1) of the SEPP; and

2. For the purposes of cl 4(5) of the SEPP, most of the Site adjoins land zoned for urban purposes.

57. The Court makes the following declarations as sought by the Applicant in the Amended Summons dated 23 July 2021:

1. A declaration that the land comprised of Lot 5/Section B/DP 6934, Lot 6/Section B/DP6934, Lot 3B/DP 407243, Lot 7 DP 664803 and Lot 1 DP 332770, known as 121-133 Prairie Vale Road, Bossley Park and owned by the Applicant (the Property), is land zoned primarily for urban purposes pursuant to cl 4(1) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors).

2. A declaration that for the purposes of cl 4(5) of SEPP Seniors, most of the land that adjoins the Property is land zoned for urban purposes.

58. The Court orders that:

1. The Respondent pay the Applicant’s costs of these proceedings; and

2. The exhibits are returned. The parties are to make arrangements to collect the exhibits from my associate within 7 days from the date of these Orders.

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Amendments

19 November 2021 - Corrected representation on the coversheet

Decision last updated: 19 November 2021