David Crane and Associates Pty Limited v Kogarah Municipal Council

[1999] NSWLEC 27

Land and Environment Court

of New South Wales

CITATION:

David Crane & Associates Pty Limited -V- Kogarah Municipal Council [1999] NSWLEC 27

PARTIES

Applicant:
David Crane & Associates Pty Limited

Respondent:
Kogarah Municipal Council

NUMBER:

10475 of 1998

CORAM:

Pearlman J

KEY ISSUES:

:- error of law/fact - relevant satisfaction - affordability

LEGISLATION CITED:

error of law/fact - relevant satisfaction - affordability

DATES OF HEARING:

02/08/1999

DATE OF JUDGMENT DELIVERY:

03/02/1999

LEGAL REPRESENTATIVES:

Applicant:
Mr M H Tobias QC with Mr A E Galasso, Barrister

Solicitors:
Dunhill Madden Butler

Respondent:
Mr C W McEwen, Barrister

Solicitors:
Abbott Tout

JUDGMENT:

Introduction

1. This is an appeal under s 56A of the Land and Environment Court Act 1979 brought by Kogarah Council (“the council”) against the decision of Commissioner Roseth (formerly Assessor Roseth). Commissioner Roseth granted development consent subject to conditions to David Crane & Associates Pty Ltd (“the applicant”), in respect of a retirement village at Hurstville Grove comprising 26 self-care units in 13 buildings, and a building containing a communal meeting room and a swimming pool.

2. The development application was made pursuant to State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (“SEPP 5”), and, in essence, the council claims that the commissioner erred in law in the application of cl 12 of SEPP 5.

3. Clause 12 of SEPP 5 relevantly provides as follows:

“12(1) Location, facilities and support services
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 residents of the proposed development will have reasonable access to:
(a) shops, banks and other retail and commercial services that residents may reasonably require, and
(b) community services and recreation facilities, and
(c) health services, and
(d) transport,
and, where appropriate:
(e) home delivered meals, or
(f) personal care and home nursing, or
(g) assistance with housework, or
(h) on site communal meeting spaces (internal and / or external).

(2) In deciding whether the level of access residents have to each facility and service listed in subclause (1) is reasonable (whether provided as part of the development or by an external service provider) the consent authority must consider the following:
(a) …
(b) …
(c) …
(d) the affordability of any relevant facility or service.

(3) Availability of facilities and services
The consent authority must be satisfied that any facility or service provided as a part of the development will be available to residents when the housing is ready for occupation …”

4. Although the notice of motion instituting the appeal raised a number of separate grounds of appeal, those grounds were refined at the hearing to the following:

(1) That the commissioner erred in law in that he either was not or could not be satisfied pursuant to the provisions of cl 12 of SEPP 5 that residents of the development would have reasonable access to the facilities described in cl 12 (e) (f) and (g) inclusive;

(2) The commissioner erred in law in that he did not consider pursuant to cl 12(2) (d) the affordability of any relevant facility or service; and

(3) The commissioner erred in law in that he either was not or could not be satisfied pursuant to cl 12(3) of SEPP 5 that a relevant facility or service provided as part of the development will be available to residents when the housing is ready for occupation.

5. I have concluded that the council has made out the second ground of its appeal, but not the first or the third grounds. I set out below my reasons for concluding that the second ground is made out. It is therefore not strictly necessary for me to deal with the first and third grounds, but I have also set out my conclusions in relation to them.

Ground 2

6. Clause 12(2) imposes a mandatory obligation upon the consent authority. It provides that the consent authority “must consider” a number of specified matters in deciding whether the level of access residents have to the relevant services is reasonable. One of those matters is the affordability of the relevant services (cl 12(2)(d)).

7. The mandatory nature of the obligation imposed by cl 12(2) is revealed, not just by the language used, but by the policy considerations which underlie SEPP 5. Kirby P dealt with this point in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 431 in considering cl 11 (the predecessor of cl 12). His Honour pointed out that SEPP 5 permits development for the purpose of housing for aged or disabled persons in places where otherwise land zoning would prohibit such development, but “… the price of the relaxation … is compliance with the requirements laid down …” by SEPP 5.

8. The council raised the issue of affordability in the statement of issues filed in the proceedings. It alleged that “… the cost of obtaining on-site facilities and services will be excessive …”.

9. I accept that, if the commissioner failed to comply with the mandatory requirement of cl 12(2)(d), he fell into legal error. The question is whether or not the commissioner considered that matter, and to determine that question, it is necessary to turn to the judgment which he delivered ( North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 per Kirby P at 442).

10. On p 2 of his judgment, the commissioner referred to “relevant planning controls”. He noted that SEPP 5 applied, and he quoted cl 12(1). He did not quote cl 12(2) at that point, and he made no reference to cl 12(2) in any other part of his judgment.

11. On p 6, the commissioner dealt with the evidence of a resident objector, Mrs Sharp, saying that her evidence “… strengthened my conclusion that this site provides reasonable access to services”. He went on to say that her evidence “… suggests that it is unreasonable to interpret the requirement of SEPP 5 for reasonable access to facilities as a requirement that frail people should be able to walk to such facilities”. He continued by saying “In my opinion, this development proposal meets the requirements of cl 12(1) of SEPP 5”. He went on to say, in the next paragraph, “… that Mr Riddington’s evidence was to a large extent responsible for my coming to the above conclusion”.

12. I note at this stage that Mr W J Riddington gave evidence for the applicant. He is the managing director of a company called Retirement Living Services Pty Ltd (“RLS”), which prepared a statement of support services to accompany the development application.

13. At the end of section 1.0 of his statement of evidence, Mr Riddington said that RLS would provide services “on a fee for service basis” from a retirement village in a neighbouring suburb, called Greglea Village, or would arrange for other service providers to make private arrangements with residents. Earlier in section 1.0, Mr Riddington said: “I would anticipate that the majority of these residents will be of independent means and that affordability of services will not be an issue”. So far as I can see, these statements comprise Mr Riddington’s only reference to the affordability of the relevant services.

14. There is some doubt in my mind that the evidence I have referred to amounts to a consideration of affordability. At first glance, it seems that Mr Riddington’s remarks were merely a dismissal of affordability as an issue. However, it is possible to read his remarks as reflecting actual consideration of the issue, and expressing a conclusion that, since the majority of residents would have financial means, they would be able to afford the cost of any services they required. That conclusion seems to accord with a document entitled “SEPP 5 Guide” issued by the Department of Urban Affairs and Planning, which Mr Riddington annexed to his statement of evidence and upon which he apparently relied. In that document at p 10, under the heading “Affordability of Services”, the statement is made that “[W]hether the development is aimed at the luxury or affordable end of the market is relevant”.

15. However, the question is not whether Mr Riddington considered the issue of affordability, it is whether the commissioner considered it. I am not satisfied that the commissioner considered that matter as cl 12(2) requires. He made no reference to cl 12(2) in its terms or by implication, and his reference to Mr Riddington’s evidence was in support of a conclusion that reasonableness of access did not depend upon frail people being able to walk to facilities. This is a far cry from saying that, on the issue of affordability, Mr Riddington’s evidence was accepted.

16. The commissioner did take account of the fact that the residents were likely to be of independent means. At p 5 of his judgment, he said:

“… Mr Snashall thought that there must be a public telephone within 400 m of a retirement village. I cannot accept that in 1998, any person with mobility problems who is well enough off to afford a privately funded retirement village, would not have a telephone within his or her apartment (and probably a mobile phone as well).”

17. It is clear from that passage that the financial means of the residents was considered, but in connection with the remoteness of facilities, not in connection with the issue of affordability. There is simply no reference whatsoever in the commissioner’s judgment to the issue of affordability.

18. This is not a case where the language used by the commissioner as a lay tribunal is obscure or ambiguous requiring the Court to examine the words in a liberal fashion (cf Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367 at 368). It is, rather, a case where there is no indication whatever in the judgment that consideration was given to a factor which the commissioner was bound to consider.

19. For this reason, I conclude that an error of law on the part of the commissioner has been demonstrated, and this ground of appeal has been made out.

20. Mr Tobias QC, for the applicant, contended that the issue of affordability was not raised during the hearing, and that it would be contrary to the appellate process to permit it to be raised now. That submission does not accord with the facts. First, as I have already pointed out, the issue of affordability was raised by the council in its statement of issues. Secondly, Mr Galasso, who appeared for the applicant in the appeal, referred to the statement of issues in his opening address although he did not refer to any specific part of it. Thirdly, Mr Galasso also referred to cl 12(2) in his closing submissions, although he did not draw specific attention to subcl (d). Fourthly, compliance with the requirements of SEPP 5 was referred to generally throughout the hearing. It is true that the case was conducted by both parties on the basis that the critical issue was whether or not the site was too remote for access to services to be reasonable. It is unfortunate that, in an administrative appeal before a lay tribunal, counsel for the parties did not see fit to draw the commissioner’s attention in direct terms to the particular tasks he was required to perform under the provisions of SEPP 5. Nevertheless, affordability of services was a live issue, and the commissioner was bound to consider it.

Ground 1

21. This ground of appeal is based on cl 12(1)(e), (f) and (g). That section provides that the consent authority must be satisfied, by written evidence, that residents of the proposed development will have reasonable access to, where appropriate, home delivered meals or personal care and home nursing or assistance with housework.

22. Mr McEwen, for the council, submitted that the first ground of appeal was made out because evidence upon which to base the relevant satisfaction was absent. He developed this submission in the following way:

· In his statement of evidence, Mr Riddington dealt with the services noted in cl 12 (e), (f) and (g). Accordingly, the applicant must be taken to have regarded those services as “appropriate” having regard to the provisions of cl 12(1) of SEPP 5;

· However, although RLS was able to provide those services to residents of the development, it had not been formally engaged to do so. In giving oral evidence, Mr Riddington said that RLS was “more than likely” to enter into a contract with the owner to provide relevant services, but no negotiations had commenced and no contract had been entered into;

· It was an impermissible basis for the relevant satisfaction merely to impose, as the learned commissioner did, a condition of consent in the following terms:

“Evidence shall be produced to the council’s satisfaction and before the construction of the project, of an agreement with a suitably qualified service provider/manager for the provision of services to the residents of the development. An agreement with Retirement Living Services Pty Ltd along the lines of the Support Services Statement in Exhibit 4 to these proceedings shall be considered to be satisfactory to council. Any other service provided shall be assessed in relation to the above Support Services Statement”;

· Although the learned commissioner stated, on p 6 of his judgment, that “[I]n my opinion, this development proposal meets the requirements of cl 12(1) of SEPP 5”, there was no evidence upon which to base that conclusion.

23. In my opinion, on its proper construction, cl 12(1) requires, as a pre-condition to the grant of development consent:

(a) the satisfaction of the consent authority

(b) established by written evidence

(c) as to the fact that in the future reasonable access exists for the residents

(d) to the specified facilities and services.

24. There are no express words which state that the “written evidence” must amount to a binding contract for the provision of access. Indeed, that could hardly be so, having regard to the services set out in subcls (a) to (d), because a binding contract for the provision of those services would be impractical if not impossible.

25. Nevertheless, the satisfaction must be established upon the evidence. There could be a whole range of evidence which would be sufficient to establish the relevant satisfaction. The clause does not specify what kind of evidence would be sufficient, except to say that it must be “written evidence”. A binding contract for the provision of some of the specified services might be sufficient to establish the relevant satisfaction, but there may be other kinds of evidence which could achieve the same result. No doubt, the applicant’s mere assurance that the specified services will be provided would not be sufficient; but beyond that there would be a range of facts and circumstances the proof of which could establish the relevant satisfaction. It is unnecessary and of no utility in the present proceedings to speculate what the evidence might consist of in any given case.

26. That is not to say that there are no guidelines as to the evidence that may be sufficient for the purpose of establishing the relevant satisfaction. One requirement is that it be “written”. There is no dispute between the parties in this case that the requirement of writing would be satisfied by documentary or oral evidence given in Court. Furthermore, the relevant satisfaction cannot be established by making assumptions as to what would occur in the future, nor can it be established simply by imposing a condition of consent requiring the applicant to provide the services (see Hornsby Shire Council v Malcolm at 436).

27. I turn then to the evidence adduced in the hearing before the learned commissioner. As I have earlier indicated, the development application had been accompanied by a document entitled “Support Services Statement” which, according to its introduction, had been prepared by RLS for the purpose of the development application. The Support Services Statement indicated that relevant services would be provided by RLS in conjunction with its management of Greglea Village or provided independently within the subject development upon demand. Mr Riddington gave evidence about the services and facilities specified by cl 12(1), and the commissioner accepted his evidence over evidence on the same matters adduced on behalf of the council. Furthermore, as I have already noted, Mr Riddington conceded that RLS had not been formally engaged, but said it was “more than likely” that a contract would be entered into.

28. It is wrong, therefore, to say, as the council asserts, that there was no evidence upon which the commissioner could base the relevant satisfaction. There was evidence. The question, then, is whether the commissioner erred in law in being satisfied that the residents will have reasonable access to the relevant services. A question as to whether material before the court reasonably admits of different conclusions as to whether it falls within a statutory description is a question of law; but if different conclusions are reasonably possible, the question of whether the material did in fact meet the statutory description is one of fact ( Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156).

29. Here, minds might differ as to whether the evidence was sufficient to establish the relevant satisfaction, but the question of whether it did in fact establish the relevant satisfaction was a matter for the commissioner alone, and his decision on that matter cannot be disturbed by the Court on appeal because it was a question of fact, not a question of law.

30. The council asserted that it was impermissible for the commissioner to meet the requirement of cl 12(1) simply by imposing condition 1; that condition 1 impermissibly deferred for later consideration a fundamental aspect of the proposed development; and that condition 1 impermissibly delegated to the council the task of satisfaction required by cl 12(1). I reject these arguments. I have already pointed out that there was evidence available to the commissioner upon which he could base the relevant satisfaction. The imposition of condition 1 was not designed to achieve that purpose. Rather, as I pointed out in Pace Property Management Services Pty Ltd v Ku-ring-gai Municipal Council (10 June 1998, unreported) at p 7, the commissioner was entitled to enshrine the provision of the relevant services by a condition of consent so as to bind successors in title.

31. For all these reasons, I conclude that the first ground of appeal does not demonstrate an error of law on the part of the commissioner.

Ground 3

32. Clause 12(3) provides that the consent authority must be satisfied that relevant services will be available to residents when the housing is ready for occupation.

33. It is the council’s case that the commissioner was not nor could not be satisfied of that matter in the absence of a binding contract on the part of RLS to provide the relevant services.

34. It is to be noted that cl 12(3) makes no reference to the consent authority being satisfied by “written evidence” which is the phrase used in cl 12(1). Nevertheless, the relevant satisfaction must be established by proper evidence, but, for the reasons which I have given in relation to the same issue in cl 12(1), that does not require the production of a binding contract.

35. I have earlier outlined the evidence which was adduced in relation to the provision of relevant services. In particular, RLS was able to provide those services in conjunction with Greglea Village, an existing development, or independently. Again, minds might differ as to whether that evidence was sufficient to meet the relevant satisfaction, but that is a matter for the commissioner alone, and cannot be disturbed on appeal.

36. This ground of appeal has not been made out.

Conclusion

37. In accordance with the foregoing, my formal orders are as follows:

1. The appeal is upheld.

2. The determination of the commissioner made on 5 November 1998 is set aside.

3. The proceedings are remitted to the commissioner for determination taking into consideration the affordability of services and facilities in accordance with cl 12(2)(d) of State Environmental Planning Policy No 5.

4. The applicant must pay the costs of the council on the appeal as agreed or as assessed.

5. The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 11 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

Associate