Health Administration Corporation v Ryde City Council

[2005] NSWLEC 507

Land and Environment Court

of New South Wales

CITATION:	Health Administration Corporation v Ryde City Council & Anor [2005] NSWLEC 507
PARTIES:	APPLICANT: Health Administration Corporation FIRST RESPONDENT: Ryde City Council SECOND RESPONDENT: Florences Forest Preservation Society Incorporated
FILE NUMBER(S):	40483 of 2005
CORAM:	Pain J
KEY ISSUES:	Development Application :- whether ambulance station is prohibited
LEGISLATION CITED:	Ambulance Services Act 1990 Ryde Planning Scheme Ordinance
CASES CITED:	CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270; Flower & Samios Pty Limited v Mosman Municipal Council (Stein J, NSWLEC 24 June 1993, unreported); Noel Bell, Ridley Smith & Partners v Rockdale Municipal Council (Stein J, NSWLEC, 14 July 1993, unreported); Parramatta City Council v Amalgamated Television Services Pty Limited (1979) 38 LGRA 379; Taylor & Pearce v Hornsby Shire Council (Hemmings J, NSWLEC, 3 April 1990, unreported)
DATES OF HEARING:	13/09/2005
DATE OF JUDGMENT:	09/14/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr C Harris (barrister) SOLICITORS: State Crown Solicitor's Office FIRST RESPONDENT: submitting appearance SECOND RESPONDENT: Mr D Wilson (barrister) SOLICITORS: Mark McDonald & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

14 September 2005

40483 of 2005 Health Administration Corporation v Ryde City Council & Florences Forest Preservation Society Incorporated

JUDGMENT

1 Her Honour: These are Class 4 proceedings brought by the Applicant against Ryde City Council (“the Council”). On 11 June 2004, the Applicant lodged Development Application No. 515/2004 (“the development application”) with the Council for the construction of an ambulance station at Lot 1 DP 869614 known as 1 – 13 Denistone Road, Eastwood (“the site”).

2 On 9 November 2004, the Council resolved to inform the Department of Planning, Infrastructure and Natural Resources that it was unable to approve the development application on the basis that it was prohibited under the provisions of the Ryde Planning Scheme Ordinance (“the PSO”). The Applicant has now filed a Class 4 Application seeking declarations that the development application is permissible with the consent of the Council. The Second Respondent has been joined as a party to the proceedings.

3 The matter has come before me for the determination of a preliminary question of law. The question to be determined is:

Whether on the true construction of the applicable planning instrument the proposed use of land at lot 1 DP 869614 for the purposes of an ambulance station is prohibited.

Background

4 The site is located in an area zoned 5(a) Special Uses “A” by the PSO. Clause 22 of the PSO contains the land use table that provides for development on zone 5(a) Special Uses “A” land. Column III in the land use table provides that the particular purpose for which buildings or works may be erected or carried out or used, subject to such conditions as may be imposed by the responsible authority, is “Hospital”. Column IV for zone 5(a) Special Uses “A” identifies development that may be carried out with consent of the Council and provides relevantly that:

Any purpose ordinarily incidental or subsidiary to a purpose referred to in Column III… may be carried out only with development consent of the responsible authority.

Column V for zone 5(a) Special Uses “A” prohibits all development not otherwise permitted.

5 The area zoned 5(a) Special Uses “A” includes Ryde Hospital, a childcare centre and the site. The childcare centre is located to the west of the site and is located between the hospital and the site.

6 “Hospital” is defined in cl 3 of the PSO as follows:

“hospital” means a building or place used as a –
(a) hospital;
(b) sanatorium;
(c) health centre;
(d) nursing home;
(e) home for 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.

7 The parties tendered an Agreed Statement of Facts. The relevant facts are as follows:

…

7. The operations of the existing Ryde Ambulance Station at 323 Blaxland Road, Ryde which has only one internal parking bay (see plan prepared by architex dated September 2002), will be replaced by the facilities and services on the site. (A copy of the plan prepared by architex will be handed up at the hearing).

8. The proposed ambulance station will be administered by the Ambulance Service of NSW. The Ambulance Service does not administer the Ryde Hospital.

9. The administration and function of the proposed ambulance station will be independent of the administration and function of Ryde Hospital.

10. The proposed ambulance station and Ryde Hospital will not share any facilities.

11. The proposed ambulance station will service any facility (hospital or otherwise) that makes an emergency call or that a doctor certifies that a patient should be transported to or from, including places that are not hospitals.

12. The proposed ambulance station would service facilities including facilities in the following suburbs:

· North Ryde

· East Ryde

· Ryde

· West Ryde

· Meadowbank

· Denistone

· Denistone East

· Eastwood

· Epping

· Marsfield

· Beecroft

· Approximately 50% of Gladesville

13. The ambulance station would be responsible for the transport of the sick and injured and the pre hospital care of the sick and injured in accordance with the Ambulance Services Act 1990 (“the Ambulance Act”).

14. “Ambulance services” under the Ambulance Act means “services relating to the work of rendering first aid to, and the transport of, sick and injured persons”.

15. The proposed ambulance station will be comprised of:

(a) Undercover parking for 5 ambulances;
(b) An ambulance wash bay;
(c) Two offices for ambulance staff;
(d) A staff training room;
(e) A staff common room. Meal room and locker room;
(f) Off-street parking for four vehicles; and
(g) Associated plant and storerooms.

16. A total of 25 staff will be employed at the proposed ambulance station. A maximum of 8 to 10 staff would be working at any one time.

17. 5 ambulances will operate from the proposed ambulance station.

18. The proposed ambulance station will operate 24 hours a day, 7 days a week.

8 It is the usual practice of the Court to require that preliminary questions of law proceed on the basis of agreed facts. In this case the Applicant wished to rely on additional facts which could not be agreed between the parties. Although the Second Respondent would not accept them, as these facts did not appear particularly controversial, I allowed the Applicant to tender a Statement of Additional Facts as follows, based on small parts of an affidavit of Mr Dennis Jenner, an officer of the Applicant sworn 20 May 2005:

1. The proposed ambulance station is to replace the existing Ryde Ambulance Station at 323 Blaxland Road Ryde which the Ambulance Service is occupying under an expired licence agreement.

2. The site is located closer to the epicentre of the Catchment Area than Ryde Ambulance Station, which will improve the response times of ambulances within the Catchment.

3. The Department of Health determined that relocation of the Ryde Ambulance Station would be best to a purpose-built ambulance station adjacent to the child-care centre presently located on the Ryde Hospital site.

4. Examples of ambulance stations located at Hospital sites [zoned 5(a)] include Blacktown, Bowral, Coffs Harbour, Tumbarumba and Tweed Heads.

9 An affidavit of Mr Stephen Mitchell, Capital Works Manager at the Ambulance Service of New South Wales sworn 9 September 2005 was also read, which stated that there were numerous other hospitals where ambulance stations were located. I also accept statements from the bar table that there are many hospitals throughout the state which do not have ambulance stations attached. Given the way the arguments were ultimately put none of these additional facts were particularly relied on and having considered the matter further I consider they are of marginal relevance.

Second Respondent’s submissions

10 The key issue is whether the ambulance station falls within Column IV of the zoning table as being “ordinarily incidental or subsidiary” to the hospital use. The Second Respondent submitted that as a matter of degree and fact the proposed ambulance station was not “ordinarily incidental or subsidiary” to the use of a hospital. It argued that the proposed ambulance station was physically separate from the area currently occupied by Ryde Hospital. The administration and function of the ambulance station was independent from the administration and function of the hospital. The ambulance station would service a wide area and a number of facilities. These facts indicated that the ambulance station was not “ordinarily incidental or subsidiary” to the use of Ryde Hospital.

11 In the alternative, if the Court was minded to find that the proposed ambulance station was “ordinarily incidental or subsidiary” to the use of a hospital, the use of the site as an ambulance station was so substantial it should be categorised as another innominate use which was prohibited pursuant to Column V of the zoning table contained in the PSO.

Applicant’s submissions

12 The Applicant argued that the relevant question was not whether the administration or the function of the ambulance station was “ordinarily incidental or subsidiary” to the administration or function of Ryde Hospital. Rather the correct approach was to consider whether, on a common sense approach, the ambulance station was ordinarily incidental or subsidiary to the use of a hospital. Taking a broad, common sense view, the Applicant argued that the proposed ambulance station was both ordinarily incidental and subsidiary to the use of a hospital as ambulance services could be seen as commonly connected with hospitals and as serving to assist and supplement the function of hospitals.

13 The Applicant also submitted that, if the Court was minded to find that the proposed ambulance station was “ordinarily incidental or subsidiary” to the use of a hospital, it was incorrect to categorise the subsidiary use as another use which was prohibited. All subsidiary uses could be defined as separate and independent uses. Accordingly, to define all subsidiary uses as prohibited uses would deprive Columns III and IV of the zoning table contained in the PSO of operation.

Finding

14 It is clear that the area of land zoned 5(a) Special Uses “A” to be occupied by the ambulance station is physically separate from Ryde Hospital. It is agreed that the ambulance station would operate separately from the hospital. It would service a wide range of facilities over a large area, including Ryde Hospital.

15 It is necessary to consider the meaning of “incidental” and “subsidiary”. In the Macquarie Dictionary (second revised edition):

(i) “ordinary” is defined as “such as is commonly met with”;
(ii) “incidental” is defined as “in fortuitous or subordinate conjunction with”; and
(iii) “subsidiary” is defined as “serving to assist or supplement; auxiliary”.

16 In the Concise Oxford Dictionary:

(i) “ordinary” is defined as “regular, normal, customary”;
(ii) “incidental” is defined as “occurring; in fortuitous or subordinate conjunction with something else”; and
(iii) “subsidiary” is defined as “serving to help, assist or supplement; auxiliary”.

17 In Noel Bell, Ridley Smith & Partners v Rockdale Municipal Council (Stein J, NSWLEC, 14 July 1993, unreported) Stein J at 10 considered that the phrase “ordinarily incidental or subsidiary to” should be “viewed in the broad sense”. I consider that applying a broad approach it is clear that an ambulance station “assists or supplements” a hospital use and “serves to assist” that use given that the agreed facts (and common knowledge) are that ambulances are used to transport patients between health care facilities of many types, doctors’ surgeries and patients’ homes.

18 The Second Respondent stressed in its argument that there was no particular connection with Ryde Hospital and the proposed ambulance station more than any other facility which ambulances from the station were likely to attend, and that this was required in order to satisfy the PSO. While the Second Respondent argued that it is necessary to consider the precise relationship, or lack thereof, between the ambulance station and Ryde Hospital to determine this issue, it does not appear from the PSO or the cases relied on that that necessarily follows. The definition of “hospital” in the PSO is broad and includes hospital, sanatorium, health centre, nursing home and home for infirm persons, incurable persons, or convalescent persons. Column IV refers to “any purpose ordinarily incidental or subsidiary to a purpose referred to in Column III”. There is no statement that a particular purpose, or institution, is identified by this wording. Ambulances from this ambulance station, it is agreed, would visit a variety of facilities, which are highly likely to include institutions such as those identified in the definition of “hospital” in the PSO, including Ryde Hospital. There is no suggestion that the zoning table in the PSO requires that the Column IV use must be incidental to a particular hospital, the general use of which is identified in Column III as the “special use”. I do not consider that approach to the construction of the zoning table in the PSO is warranted or in accordance with the usual approach to the construction of zoning tables.

19 The cases relied on also do not suggest that such an approach is warranted. The facts of Flower & Samios Pty Limited v Mosman Municipal Council (Stein J, NSWLEC 24 June 1993, unreported) and Noel Bell differ to those before me. In Samios the same organisation which owned a church also wished to build a presbytery. In Noel Bell an organisation which owned the church wished to construct a church hall for the purposes of a children’s club, band practice, social functions and indoor sports. While in both cases the Court undertook an analysis which considered what was proposed in the new buildings to determine how it related to the church use, it was simply unnecessary to consider issues relating to whether there would be different operators of two different uses on the same site. These cases do not suggest that as a general principle there must be a particular link between a specific institution and the “ordinarily incidental and subsidiary” use.

20 While the findings of Sheppard J in Parramatta City Council vAmalgamated Television Services Pty Limited (1979) 38 LGRA 379 did consider the facts of that case closely to decide if the use of the helicopter was incidental to the use of the television station, I consider that case reflects its particular circumstances. What was at issue was whether helicopter use was ordinarily part of the activities of a television station and evidence on helicopter use at the particular television station and elsewhere in Sydney and overseas was adduced. In that case, the Parramatta Planning Scheme Ordinance provided that within the particular zone, land may, with the consent of the council, be used for "any purpose ordinarily incidental or subsidiary to the purpose indicated on the scheme map". This differs from the PSO in this case which provides that the Council may give consent for “any purpose ordinarily incidental or subsidiary to a purpose referred to in Column III”.

21 I consider the ambulance station is “ordinarily incidental and subsidiary” to a hospital use and therefore falls within Column IV of the zoning table.

22 Having so found, is it a separate use which falls into Column V and therefore prohibited? The Second Respondent argued that if a use can be characterised in more than one way, one of which is prohibited, then the use is prohibited. Support for this proposition was found in Taylor & Pearce v Hornsby Shire Council (Hemmings J, NSWLEC, 3 April 1990, unreported) and CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 per Hope JA at 271 to 272. I do not entirely follow the logic of this argument in this case however, because there is only one way this use can be characterised, namely as an ambulance station, which use I have held is ordinarily incidental and subsidiary to that of a hospital. There is no doubt that it is a significant and separate use of the zone 5(a) Special Uses “A” site. Its ultimate use as an ambulance station does not mean that it falls into Column V as an innominate use, because that use is separate and significant on the site, if its use as an ambulance station falls into Column IV.

Finding

23 Accordingly, in answer to the question of law stated in par 3 above, I find that on the true construction of the applicable planning instrument the proposed use of land at Lot 1 DP 869614 for the purposes of an ambulance station is not prohibited.

Orders

24 The Court orders that:

1. The exhibits are to be returned;

2. Costs are reserved.