DEM (Aust) Pty Ltd v Pittwater Council - [2004] NSWCA 434

NEW SOUTH WALES COURT OF APPEAL

CITATION: DEM (Australia) Pty Limited v Pittwater Council [2004] NSWCA 434

FILE NUMBER(S):
40135/04

HEARING DATE(S): 31 August 2004

JUDGMENT DATE: 26/11/2004

PARTIES:
DEM (Australia) Pty Limited (Appellant)
Pittwater Council (Respondent)

JUDGMENT OF: Giles JA Santow JA McColl JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 11268/03

LOWER COURT JUDICIAL OFFICER: Lloyd J

COUNSEL:
Mr B J Preston SC/Mr A E Galasso (Appellant)
Dr G A Flick SC/Ms J M Jagot (Respondent)

SOLICITORS:
Deacons Lawyers (Appellant)
Mallesons Stephen Jaques (Respondent)

CATCHWORDS:
ENVIRONMENTAL PLANNING - STATUTORY INTERPRETATION - clause in State Environmental Planning Policy No. 5 applying policy to land on which development for the purpose of dwelling-houses is permitted - whether policy applies to land on which development for the purpose of dwelling-houses is permitted under a local environmental planning instrument notwithstanding the presence of words in that instrument qualifying or limiting the circumstances in which dwelling-house development is permitted. (D)

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 (NSW) s 25, s 33, s 36(2), s 39
Environmental Planning and Assessment Model Provisions 1980
Land and Environment Court Rules 1996 (NSW) Pt 6 r 1
Pittwater Local Environment Plan cl 2, cl 6, cl 9
State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability cl 3, cl 3(2)(a), cl 4(1), cl 4(1)(a), cl 4(1)(b), cl 4(1)(b)(i), cl 5(2), cl 10
State Environmental Planning Policy (Seniors Living) 2004, cl 5(1), cl 6

DECISION:
(1) Grant leave to appeal (2) Subject to the filing of the Notice of Appeal in the form of the draft provided in the papers, within 14 days of the date of this judgment, appeal allowed (3) Set aside Order 1 made by Lloyd J on 4 February 2004 and in lieu thereof answer Question 1 of the Preliminary Questions of Law dated 15 December 2003 in the affirmative (4) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40135/04
LEC 11268/03
GILES JA
SANTOW JA
McCOLL JA
Friday, 26 November 2004

DEM (AUSTRALIA) PTY LIMITED v PITTWATER COUNCIL

FACTS

The appellant applied for the respondent’s consent to construct a development on land at Warriewood. The consent was sought pursuant to State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability (“SEPP No. 5”). The subject land is zoned “Zone No 3(e) (Office Business “E”)” under the respondent’s environmental planning instrument, the Pittwater Local Environment Plan (the “Pittwater LEP”). The development for which consent was sought is prohibited by the Pittwater LEP in that zone.

The appellant appealed to the Land and Environment Court against the respondent’s deemed refusal of the development application. Prior to the hearing of the appeal, Lloyd J heard three preliminary questions of law. This appeal concerns the first question, namely whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 434
Decision Date: 26 November 2004

CaseChat Overview and Summary

The case involved DEM (Aust) Pty Ltd (the appellant) and Pittwater Council (the respondent). The dispute concerned the interpretation of State Environmental Planning Policy No. 5 (SEPP 5) and its application to land zoned under the Pittwater Local Environmental Plan (LEP). The matter came before the Supreme Court of New South Wales, Court of Appeal, following a decision by Lloyd J in the Land and Environment Court.

The primary legal issue before the Court of Appeal was whether SEPP 5 applied to land on which development for the purpose of dwelling-houses was permitted under the Pittwater LEP, notwithstanding that the Pittwater LEP contained provisions qualifying or limiting the circumstances in which such development was permitted. Specifically, the question was whether Clause 4(1)(b)(i) of SEPP 5, which requires that development for the purpose of dwelling-houses be permitted on the land, was satisfied when the Pittwater LEP only permitted dwelling-houses in conjunction with commercial premises or industry.

The Court of Appeal reasoned that SEPP 5, as a statutory instrument, should be interpreted in accordance with general principles of statutory interpretation, favouring an interpretation that best meets its stated aims and objectives, particularly given its remedial nature. The Court noted that SEPP 5 aims to encourage the provision of housing for older people and people with disabilities and is intended to prevail over local planning controls that might hinder these aims. The Court considered that Clause 4(1)(b)(i) of SEPP 5 should be construed broadly to advance its beneficial purposes. Drawing on previous decisions in *T C Punnett v Warringah Council* and *Q & R Developments Pty Ltd v Sutherland Shire Council*, the Court held that a qualification in a local environmental plan limiting the circumstances in which dwelling-houses are permitted does not prevent the land from satisfying the requirement in SEPP 5 that development for the purpose of dwelling-houses be permitted. The Court concluded that the development was permissible under SEPP 5.

The Court of Appeal allowed the appeal, setting aside the previous order of Lloyd J. The Court answered the preliminary question of law in the affirmative, meaning SEPP 5 did apply to the land in question. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Grant leave to appeal (2) Subject to the filing of the Notice of Appeal in the form of the draft provided in the papers, within 14 days of the date of this judgment, appeal allowed (3) Set aside Order 1 made by Lloyd J on 4 February 2004 and in lieu thereof answer Question 1 of the Preliminary Questions of Law dated 15 December 2003 in the affirmative (4) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if otherwise qualified.

Background

Background to the litigation

Lloyd J determined that this question should be answered, “No”.Legislative Background Clause 3 of SEPP No. 5 relevantly provides:“3 Aims(1) This Policy aims to encourage the provision of housing that will:(a) increase the supply and diversity of housing that meets the needs of older people 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 older people or people with a disability that meets the development standards specified in this Policy, …” (emphasis supplied) Clause 4(1) of SEPP No. 5 provides: “4 Where this Policy applies(1) This policy applies to land within New South Wales:(a) that is zoned primarily for urban purposes, or that adjoins land zoned primarily for urban purposes, and(b) on which development for the purpose of any of the following is permitted:(i) dwelling-houses,(ii) residential flat buildings,(iii) hospitals,(iv) development of a kind identified in respect of land zoned for special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries ….” It was common ground that the subject land satisfied cl 4(1)(a) at least because it was diagonally opposite land which was zoned for residential purposes and, therefore, for “urban purposes”. Section 36(2) of the Environmental Planning and Assessment Act 1979 (NSW) relevantly provides that a State environmental planning policy prevails over a regional environmental plan or a local environmental plan made before or after the policy to the extent of any inconsistency, if the policy expressly so provides. Clause 5(2) of SEPP No. 5 provides:“(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 …” Clause 10, which is found in Part 2 of SEPP No. 5 dealing with “Development Criteria”, provides:“This Part allows development for the purpose of any form of housing for older people … despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with this Policy.” (emphasis supplied) Clause 9 of the Pittwater LEP provides:“Development control table9. Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -(a) development may be carried out without development consent;(b) development may be carried out only with development consent; and(c) development is prohibited,are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone.” Clause 2 under the heading “Only with Development Consent” in Zone No 3(e) (Office Business “E”) under the Pittwater LEP permits:“2 … dwelling-houses used in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted …”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SEPP No. 5 was repealed by State Environmental Planning Policy (Seniors Living) 2004, cl 5(1). Clause 6 of the new SEPP provides that SEPP No. 5 as in force immediately before its repeal continues to apply to and in respect of any development application made under that Policy on or before 18 February 2004, but not finally determined before the commencement of the new SEPP. The case was approached on the basis that the development application was to be determined by reference to the now repealed SEPP No. 5. Decision of the Primary Judge It was an agreed fact before the primary judge that the development the subject of the development application did not include any commercial premises or industry and would not be situated on land on which commercial premises or industry was conducted. Before the primary judge the appellant relied upon T C Punnett and Associates Pty Ltd v Warringah Council [2001] NSWLEC 152; (2001) 115 LGERA 314 and Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250; (2001) 117 LGERA 438, in support of its submission that cl 4(1)(b)(i) of SEPP No. 5 was satisfied. Both cases considered the application of that provision and, in particular, the significance of a clause in a local environmental plan qualifying the circumstances in which consent to use land for the purpose of dwelling-houses would be granted. T C Punnett and Associates v Warringah Council concerned Warringah Local Environment Plan 1985 (“Warringah LEP”). Zone 6(b) (Private Recreation “B”) permitted dwelling-houses and residential buildings when “required for use or occupation by persons employed in connection with a purpose permissible under this heading”. McEwen AJ noted cl 9(1) of the Warringah LEP which was in substantially the same terms as cl 9 of the Pittwater LEP. McEwen AJ said (at 320, [24]):“… the use of dwelling-houses or residential flat buildings “by persons employed in connection with a purpose permissible under this heading” (viz those permissible under the land use table for zone 6(b) (Private Recreation B)) necessarily remains a use for the purpose of a dwelling-house or a residential flat building.” Accordingly, his Honour held (at [25]) that development in such a zone was permissible within the meaning of cl 4(1)(b)(i) of SEPP No. 5. An appeal from McEwen AJ’s decision was allowed by this Court on a different ground. The Court did not address the present issue: Warringah Shire Council v T C Punnett & Associates Pty Ltd [2001] NSWCA 480; (2002) 122 LGERA 1. T C Punnett and Associates v Warringah Council was followed by Pearlman J, the Chief Judge of the Land and Environment Court, in Q & R Developments Pty Ltd v Sutherland Shire Council. In that case the Sutherland Shire Local Environment Plan 1993 permitted “dwelling-houses ancillary to a permissible use” on land zoned 4(a) General Industrial. After referring to T C Punnett v Warringah Council, her Honour said (at 446, [35]):“In this case, development for the purpose of dwelling-houses is permissible on the site under the 4(a) General Industrial zone, so long as the dwelling-house is ancillary to a permissible use. The ancillary requirement does not make the development any less a development for the purpose of a dwelling-house.”

Ratio Decidendi

Legal Principle Established

I later explain how the respondent sought to deal with T C Punnett v Warringah Council and Q & R Developments Pty Ltd v Sutherland Shire Council.Consideration SEPP No. 5 was made pursuant to s 39 of the Environmental Planning and Assessment Act 1979 (NSW). In interpreting cl 4(1)(b) of SEPP No. 5, it is necessary, if it is genuinely capable of different interpretations, to prefer that interpretation which best meets its stated aims, objectives, policies and strategies: s 25 of the Environmental Planning and Assessment Act 1979 (NSW). SEPP No. 5 is a species of delegated legislation – it is a statutory instrument. It should be interpreted in accordance with the general principles of statutory interpretation: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398. Accordingly, cl 4(1)(b)(i) must be construed so that it is consistent with the language and purpose of all the provisions of SEPP No. 5: see generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, 384 [69], [78] per McHugh, Gummow, Kirby and Hayne JJ. 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] HCA 60; (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 Ltd [1998] HCA 69; (1998) 196 CLR 494 at 528 per Gummow J; ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18; (2004) 1 DDCR 259 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 Ltd at [124] per Kirby J; Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623 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 1979 (NSW) to which I have earlier referred. Thus the process of construction must begin by examining the context in which cl 4(1)(b)(i) is found. SEPP No. 5 is intended to encourage the provision of housing for the elderly and disabled. It achieves that aim in the first instance by applying both to land which is zoned for urban purposes where housing would clearly be permissible and also to land which adjoins such land. Once cl 4(1)(a) is satisfied, the only additional requirement for SEPP No. 5 to apply to the relevant land is that development for any of the purposes which appear in cl 4(1)(b) is permitted on the land. SEPP No. 5 starts from the premise that obstacles to its aims may be found in local environmental planning instruments and that it is to prevail notwithstanding. This is made clear in the aims (cl 3(2)(a)), the fact that it prevails where it is inconsistent with any other environmental planning instrument (cl 5(2)) and the fact that it allows development despite the provision of any other environmental planning instrument in certain circumstances (cl 10).