Crosland v North Sydney Council

[2000] NSWLEC 165

Reported Decision: 109 LGERA 244

Land and Environment Court

of New South Wales

CITATION:	Crosland v North Sydney Council [2000] NSWLEC 165
PARTIES:	APPLICANT: Crosland RESPONDENT: North Sydney Council
FILE NUMBER(S):	10435 of 2000
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- whether proposed development permissible as a "health centre".
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97
CASES CITED:	Doyle v Newcastle City Council (1990) 71 LGRA 55; Foote v Willoughby Municipal Council (1985) 18 Aust Planning Appeal Decisions 9; Gilderthorpe v Sutherland [2000] NSWLEC 153; House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 at 447; Pittwater Municipal Council v Peterson and Warta Holdings Pty Ltd, Talbot J (unreported 6 May 1993); Provincial Insurance Australia Pty Ltd v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541; Woollahra Municipal Council v Carr (1982) 47LGRA 105
DATES OF HEARING:	20th July 2000
DATE OF JUDGMENT:	08/02/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr P D McClellan QC SOLICITORS J P O'Neill RESPONDENT: Mr A Galasso, Barrister SOLCITORS Malleson Stephen Jacques

JUDGMENT:

IN THE LAND AND Matter No . 10435 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 2 August 2000

G B CROSLAND

Applicant

v

NORTH SYDNEY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. In pending class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979 (EP&A Act 1979), s 97 against the Council’s refusal of a development application, the Council has raised for preliminary determination the question whether the proposed development is a prohibited purpose of development in terms of the North Sydney Local Environmental Plan 1989 (the LEP).

2. The development application proposes the erection of a two storey building on land known as No 47 Atchinson Street, Crows Nest (the development site) to be used for two separate purposes—(i) the ground floor to be used as medical consulting rooms; and (ii) the upper floor to be used as a dwelling unassociated with the use proposed for the ground floor.

3. The question of law (reformulated to more sharply define the issue in dispute) is—

Is the medical consulting rooms component of the proposed development for a prohibited purpose of development in terms of the LEP?

B. THE RELEVANT FACTS

4. The parties have submitted an Agreed Statement of Facts (Exhibit 1)from which the following essential facts may be distilled:—
1. The development site is included in Zone No 2(c) “Residential C” in terms of the LEP.
2. According to cl 9(1) of the LEP, development within Zone No 2(c)—may be carried out without development consent (item 1), may be carried out only with development consent (item 2) and is prohibited (item 3) for the following purposes respectively:
1. Without Development Consent

Dwelling-houses; home occupations.

2. Only With Development Consent

Attached dwellings; boarding-houses; child care centres; educational establishments; home industries; hospitals; housing for aged or disabled persons; infill development; open space; places of assembly; places of public worship; resident medical practices; residential flat buildings; roads; utility installations, other than gasholders or generating works.

3. Prohibited

Any purpose other than a purpose included in item 1 or 2.

4. The LEP contains (in the conventional manner) a number of definitions of various purposes or types of development. Relevantly for the permissible purposes of development specified by cl 9(1) in relation to Zone No 2(c), each of the purposes (except for “ open space ”) is defined by cl 5.

For present purposes, the only relevant definition is that of “ hospital ” which is defined as follows:

hospital means a building or place used as -

(a) a hospital;

(b) a sanatorium;

(c) a health centre;

(d) a nursing home; or

(e) a home for aged persons, infirm persons, incurable persons or convalescent persons;

whether public or private, and includes a shop or dispensary used in conjunction therewith, but does not include an institution;

5. The LEP also contains the following definitions:

commercial premises means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause;


dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile;

dwelling-house means a building comprising one but not more than one dwelling on a single allotment, but does not include a building or place elsewhere specifically defined in this clause;

health care professional means a person who renders professional health services to members of the public, and includes -

(a) a chiropodist registered under the Chiropodists Registration Act 1962;

(b) a chiropractor or an osteopath or a chiropractor and an osteopath registered under the Chiropractic Act 1978;

(c) a physiotherapist registered under the Physiotherapists Registration Act 1945;

(d) an optometrist registered under the Optometrists Act 1930; and

(e) an acupuncturist, a naturopath, a psychologist, a herbalist, a homoeopath and the like.

professional consulting rooms means premises used by not more than 3 legally qualified medical practitioners or by not more than 3 dentists, within the meaning of the Dentists Act 1934, or by not more than 3 health care professionals who practise therein the profession of medicine, dentistry or health care respectively, and if more than one, practise in partnership, and who employ not more than 3 employees in connection with that practice;
resident medical practice means a room or number of rooms forming part of a building used as a detached dwelling-house for one permanent resident, who is a legally qualified medical practitioner or a dentist within the meaning of the Dentists Act 1934, or is a health care professional, who practises there as a sole practitioner and employs not more than one employee in connection with the practice;

6. The accommodation on each floor of the proposed building is shown on Plan A03-B, a copy of the ground floor plan of which is annexed hereto .

The ground floor layout accommodates a reception area, a waiting room, two consulting rooms, a treatment room a lunch room, a storeroom, a storeroom/utility room and a water closet.

7. The ground floor is proposed to be used by two dermatologists, a general practitioner, a physiotherapist, a psychologist and a dietitian—on a sessional basis.

8. The proposed upper floor dwelling is to be used separately from the use of the ground floor.

C. THE COMPETING ARGUMENTS

5. It is common ground that the only permissible purpose of development for which the proposed ground floor use of the proposed development may possibly be categorised is “hospital” and in particular, by qualifying as a “health centre”.

6. The Council, in its written submissions, had submitted that the proper categorisation of the proposed development for the purposes of the LEP was as “professional consulting rooms”, a purpose of development falling within the innominate purposes of prohibited development.

7. However, as I pointed out in the course of argument, this submission is founded upon a misconception of the task of properly categorising the proposed development that is required in the present case. Properly undertaken, that task, conformably to the manner and content of cl 9(1) of the LEP, must be confined to the inquiry whether the proposed development truly falls within the ambit of the permissible purposes of development, which in the present case can be realistically limited to the defined purpose of “hospital”. Whether it does or does not fall within the ambit of the definition of “hospital”, the relevant enquiry is fully answered and is completed at that point (in the sense that it is either a permissible purpose of development or a prohibited purpose of development) and it is wholly irrelevant to go further to enquire whether it is properly categorised as some other purpose of development eg professional consulting rooms: cf Doyle v Newcastle City Council (1990) 71 LGRA 55 and Gilderthorpe v Sutherland [2000] NSWLEC 153.

8. Thus, the only question that requires determination is whether the consulting rooms component of the proposed development is properly to be categorised as a “health centre” as contended by the Applicant, or is not so properly categorised as contended by the Council.

9. In support of the competing arguments, each party drew my attention to dictionary meanings of the expression “health centre” which in common with all the other terms included in the LEP definition of “hospital” is not defined by the LEP.

10. The Council drew my attention to the Macquarie (3rd ed) definitions of “health centre” and “centre” which are as follows:

health centre a welfare centre set up by state authority for the care of the general health of the residents in that area, especially mothers and babies. See baby health centre .

centre a building or building complex which houses a number of related specified services: a shopping centre; a sports centre; a medical centre.

11. The Applicant drew my attention to the following definitions under the word “ health ” in the Complete Oxford:

health centre , a local headquarters of medical services, spec., a local centre for a group practice.

12. Additionally, the parties referred me to two earlier decisions of this Court which have considered the term “ health centre ” as an aspect of the defined term “ hospital ”. The first decision was that of Assessor Domicelji in Foote v Willoughby Municipal Council (1985) 18 Aust Planning Appeal Decisions 9 and the second decision was that of Talbot J in Pittwater Municipal Council v Peterson and Warta Holdings Pty Ltd (unreported 6 May 1993).

13. In Foote, the proposed development was “for the purpose of health care professional consulting rooms….for use by not more than three legally qualified medical practitioners, one phycologist and two other health care professionals, but to be used by no more than four professional persons and two support staff at any one time”: at p 11.

14. In that case, the learned Assessor concluded at p 18/19 that the proposed development was properly categorised as a “health centre” and hence for the permissible purpose of “hospital” as defined by the relevant planning instrument (in identical terms to the definition of “hospital” contained in the LEP).

15. In reaching that ultimate conclusion, the Assessor had distinguished the earlier decision of Perrignon J in Woollahra Municipal Council v Carr (1982) 47LGRA 105 where his Honour had held that a development involving a wide ranging dental practice providing total dental care to its patients could not be properly regarded as a “health centre”.

16. At 109, his Honour had observed that (t)he meaning of the words “health centre” in the definition of “hospital” “presents difficulties” and “(w)hatever may be the precise limits of that meaning, I do not think that the activities which are presently under consideration fall within those limits”.

17. It was because the development in Foote went beyond the concept of a medical practice by proposing “a mixed use” by medical practitioners and health care professionals…. “in order to offer a holistic approach to medical treatment” that the decision in Carr could be legitimately distinguished.

18. In Foote, the learned Assessor also considered some dictionary definitions of “health centre” in concluding that the concept of “health centre” did not involve as an essential ingredient “live in” the accommodation of patients.

19. In Peterson and Warta Holdings Pty Ltd, Talbot J, in the course of interpreting a development consent, concluded that it had permitted the use of the premises as a “health centre” within the definition of “hospital” (again in identical terms to the definition contained in the LEP).

20. The approved development in that case involved a new three storey building comprising carparking on the ground floor, two surgery rooms, a waiting room and childrens’ play area with ancillary facilities on the first floor and another surgery and waiting room and two bedroom dwelling on the second floor.

21. In the course of concluding that the approved development was a health centre, his Honour said:

The council seeks to infer that because all of the other specified uses referred to in the definition of hospital involve the concept of a facility providing accommodation it was intended that a health centre should fall into that same category. While, arguably, there may be the common element of accommodation in the other specified uses identified within the definition they also have the common element of providing some form of medical care (see Tankard v Albury City Council 49LGRA 69). The Oxford Dictionary refers to a health centre as a local headquarters of medical services, spec., a local centre for a group practice. The use of three surgeries for doctors together with ancillary rooms and facilities can be as compatible with a residential area as a hospital in the normal sense, a nursing home or aged persons home or a sanatorium. In planning terms, it would be consistent to exclude such a use from the category of commercial premises which are prohibited in the residential zone.

22. These earlier decisions of the Court are of considerable illustrative assistance, since each case was dealing with similar statutory provisions to the relevant provisions of the LEP in the present case and with a similar small scale development, as is proposed in the present case.

23. However, ultimately, the question of the true meaning of the term “health centre” is one of statutory construction in which dictionary meanings have a legitimate role but not a determinative role: see Provincial Insurance Australia Pty Ltd v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541 at 560/561 per Mahoney JA and House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 at 447 per Mason P.

24. In the interests of economy, I would confine quotation from the illuminating judgment of Mahoney JA in Provincial Insurance to the first two paragraphs of the extended passage cited, where his Honour states:

Dictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per Isaacs J. The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt the much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply.

In doing this, it is, of course, necessary first to determine what is the ordinary or natural meaning of the words used because primarily it is from that that the intention of the legislator or of the parties is to be ascertained: see M P Metals Pty Ltd v Commissioner of Taxation (1968) 117 CLR 631 at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-305; Tullamore Bowling & Citizens Club Ltd v Lander [1984] 2 NSWLR 32 at 53. But that meaning is the ordinary usage of society: Shore v Wilson (1842) 9 Cl & Fin 355 at 527; 8 ER 450 at 518 per Coleridge J and R v Peters (1886) LR 16 QBD 636 at 641. And it is to be taken from the judge’s understanding of the sense in which words are used: see, eg, NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 514 per Kitto J. In Midland Railway Co v Robinson (1889) LR 15 App Cas 19, Lord Macnaghten (albeit in dissent) said (at 35) that, in considering the meaning of a term such as mines and minerals, the opinion of particular judges may be a safer guide than any definitions or illustrations to be found in dictionaries.

25. The present case, in my opinion, is an example of a word (or expression), namely “ health centre ” which has gained a modern day meaning or signification which demonstrates that the dictionary meanings referred to, offer only limited assistance.

26. In my opinion, the proposed development accords with the current day understanding and experience of the existence in our community of medical centres or health centres, being places offering an extensive range of professional services of medical and health care to the local community.

27. The range of such services has not, however, become standardised. Nor has there emerged any concept of a minimum range in the variety of such services. Such matters are necessarily variable depending upon the scale of the medical or health centre.

28. However, what clearly distinguishes the modern day medical or health centre from, for example, a general medical practitioner’s practice of a group practice of general medical practitioners, is the fact that there is available at the one place (ie the medical or health centre) a variety of specialised medical or health services.

29. It is obvious that the proposed development will provide only a small range of medical or health services within the overall spectrum of services that nowadays are commonly provided at medical or health centres.

30. However though undoubtedly small, I think the proposal will provide a sufficient range of medical and health services as to properly and reasonably qualify its existence as a medical or health centre. This conclusion is entirely consistent with the conclusions that were reached by the Court in the two earlier cases that I have cited and discussed for illustrative purposes.

31. Whereas it is not appropriate for the Court to attempt to prescribe the range or the variety of medical and health services required for a development to qualify as a medical or health centre (the Court’s interpretative task being more descriptive of such activity as it manifests itself in our modern day community, than prescriptive of what should be provided by that activity) it is entirely legitimate for the Council as the local planning authority to insist upon the continuing existence and essentiality of such a variety of medical and health services, whilever the LEP distinguishes (as it currently does) between different categories of development providing various forms of medical or health services.

32. As I have earlier noted, the LEP defines a number of purposes of development all of which are concerned with the provision of medical or health services eg hospitals (with its several types of different services including “health centres”) professional consulting rooms, resident medical practices and commercial premises. More importantly, for present purposes, the LEP limits the type of medical health service that may be established in the Residential 2C Zone to hospitals (including “health centres”). It is this limiting and discriminating feature of the LEP which justifies the insistence that a proposed development that provides a range of medical and health services (and thereby qualifies as a health centre according to modern day understanding and experience) must maintain that distinctive.

33. The Council argues that because some of the proposed medical and health services will be provided on a sessional basis, this feature disqualifies the proposal from being properly categorised as a health centre.

34. In my opinion, this feature of the proposal is not disqualifying per se, because it simply reflects the manner in which even very large medical centres generally provide medical specialist services.

35. To some extent, I think the provision of medical and health services on a sessional basis in the present proposed development is to be understood as a function of the small size of the health centre (with a floor space of 130 m2). However, I do not think these facts in combination, disqualify the proposal from being properly categorised as a health centre, albeit a small one providing a limited variety of medical and health services.

C. CONCLUSIONS AND ORDERS

36. For the foregoing reasons, I am of the opinion that the proposed development is properly categorised as a “health centre” and hence falls within the permissible purpose “hospital” in terms of the LEP as it applies to the Residential 2C zone.

37. Accordingly, I would order that the question whether the medical consulting rooms component of the proposed development is for a prohibited purpose of development in terms of the LEP be answered in the negative.

ANNEXURE