DEM (Aust) Pty Ltd v Pittwater Council

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.