Lend Lease Development Pty Limited v Manly Council

[1999] NSWLEC 2

Land and Environment Court

of New South Wales

CITATION:

Lend Lease Development Pty Limited -V- Manly Council [1999] NSWLEC 2

PARTIES

Lend Lease Development Pty Limited

Manly Council

NUMBER:

10741 of 1997

CORAM:

Pearlman J

KEY ISSUES:

:-
Church purposes
power to exclude specified part of development application

LEGISLATION CITED:

Church purposes
power to exclude specified part of development application

DATES OF HEARING:

12/04/1998

DATE OF JUDGMENT DELIVERY:

01/28/1999

LEGAL REPRESENTATIVES:

Mr M G Craig QC

Solicitors:
Makinson & d'Apice

Mr P D McClellan QC with Ms G B Furness, Barrister

Solicitors:
Deacons Graham & James

JUDGMENT:


Introduction

1. This is an appeal under s 56A of the Land and Environment Court Act 1979 from a decision of Assessor Bly.

2. The decision the subject of this appeal concerned the proposed development of some of the land comprised in St Patrick’s Estate at Manly. The estate has been divided into 13 precincts. The proposed development related only to precincts 5, 10 and 11. This appeal is concerned with the decision so far as it relates to precincts 10 and 11.

3. In relation to precincts 10 and 11, the learned assessor upheld the applicant’s appeal and granted development consent as follows:

“Development consent is granted for the development of part of Lot 2 DP 544297 for self-care aged persons dwellings on Precinct 10 and for alternations and additions to the Archbishop’s Residence, accommodation for elderly priests and nuns and a day care centre for children on Precinct 11 subject to the conditions in Annexure B hereto.”

4. Included in the conditions set out in annexure B was a condition, numbered 1, which provided that the development was to be carried out generally in accordance with specified plans, but that “[A]ny reference in these plans to the hostel buildings in precinct 11 is to be disregarded”.

5. The learned assessor noted, on pp 3-4 of his judgment, that the proposed development on precinct 10 was 24 self-care aged persons dwellings in eleven 1-2 storey buildings with parking below. In relation to precinct 11, he noted that the proposed development comprised:

· a new residential hostel for the aged containing 45 units and associated facilities including parking;

· the adaptation of the Archbishop’s Residence to accommodate the public and communal areas associated with an aged persons hostel and facilities for elderly nuns and priests;

· a new housing complex attached to the Archbishop’s Residence to accommodate elderly nuns and priests; and

· a new long day care centre for 24 children.

6. The learned assessor did not grant development consent for the first aspect of the proposed development for precinct 11, that is, for the hostel part of the proposed development. On p 11 of his judgment, he said: “… I have been persuaded that the integrity of the relevant curtilage of the Archbishop’s Residence will be so affected by the hostel buildings that they should not be approved”. However, he granted development consent for the remainder of the proposed development, including the proposed self-care aged persons dwellings on precinct 10. I will refer to the development which was the subject of the consent as “the development as approved” in order to distinguish it from the development for which consent was sought.

7. For the purposes of this present appeal, it is relevant to note that, under Manly Local Environmental Plan 1988 (“the Manly LEP”), precincts 10 and 11 fall within zone no 5 “Special Uses Zone”. On the zoning map, the land comprising precincts 10 and 11 is identified as being for “church purposes”. Clause 10(3) of the Manly LEP requires the council not to grant consent to the carrying out of development unless the council “… is of the opinion that the carrying out of the development is consistent with the objectives of the zone …”. In the case of zone no 5, the objective which relates to the land comprising precincts 10 and 11 is to “… identify and set aside land required for essential services to the public or the community which … is now owned or used for public or community purposes”.

Grounds of appeal

8. The council appeals from that part of the order granting development consent for the self-care aged persons dwellings on precinct 10.

9. The grounds of appeal were formulated as follows:

1. The learned assessor erred in law in concluding that the development of part of lot 2 DP 544297 for self-care aged persons dwellings on precinct 10, absent on-site support facilities, was a use permissible with consent on land zoned Special Uses - Church Purposes.

2. The learned assessor erred in law in granting development consent for the development of part of lot 2 DP 544297 for self-care aged persons dwellings on precinct 10 in the absence of a residential hostel and associated facilities on precinct 11, which development on precinct 11 the learned assessor found should not be approved.

Development for “church purposes”?

10. Mr McClellan QC, for the council, put the council’s case on the basis that the development for which consent was sought was an integrated retirement village on precincts 10 and 11. The hostel was a fundamental part of the proposed development. Accordingly, so his argument ran, the removal of the hostel from the consent had the consequence that the remainder of the proposed development is not permissible with consent, because it is no longer development for “church purposes”.

11. In Mr McClellan’s submission, no issue as to the permissibility of the proposed development was raised in the appeal before the learned assessor, because the council accepted that development of an integrated retirement village was development for “church purposes”.

12. Mr Craig QC, for the applicant, contended that the issue of permissibility cannot be raised on an appeal from the decision of the learned assessor. Relying on Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, Mr Craig submitted that the council was bound by the conduct of its case before the learned assessor, and that it was contrary to the appellate process to permit the issue to be raised now.

13. In my opinion, however, the cases upon which Mr Craig relied must be distinguished from the circumstances of the present appeal. They were cases where, had the particular point been taken in the court below, relevant evidence could have been adduced. Thus, in Suttor v Gundowda , the defendant, on the hearing of an appeal, sought to raise for the first time a defence to a suit for specific performance. It was held that he could not do so. The High Court took into account that specific performance is a discretionary remedy, and that, if the defence had been raised in the court below, relevant evidence might have been tendered (pp 438-439). Similarly in Coulton v Holcombe , the question was whether there were considerations which would require a departure from the well-established principle that a point cannot be taken on appeal where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding (pp 7-8). It was held that there were no such considerations in that case.

14. In the present case, there was no opportunity in the hearing before the learned assessor to adduce evidence going to any issue of permissibility, because that issue has emerged only since the decision of the learned assessor was given. In other words, the issue arises solely as a consequence of the learned assessor’s decision to refuse to grant consent for the hostel, and the failure to adduce evidence before him on the question of permissibility was not a matter of forensic decision or inadvertence on the part of either party.

15. There is another point of distinction between those authorities and this case. In Suttor v Gundowda , the question was whether an order for specific performance should be refused on the ground of the plaintiff’s lack of candour and suppression of the truth. In Coulton v Holcombe , the question was the invalidity of a notice issued under the Water Act 1912. But, by virtue of s 56A of the Land and Environment Court Act, the present appeal is confined to a question of law. Hence, the question before the Court on this appeal is not simply whether the proposed development upon precinct 10 is permissible with consent or is prohibited, it is whether the learned assessor erred in law in concluding it was permissible with consent.

16. For these reasons, I conclude that the question raised by the council’s first ground of appeal may be entertained.

17. I turn, then, to that question. In doing so, attention must be focussed on the development as approved. At p 3 of his judgment, the learned assessor merely noted that “[T]he developments described in the applications require development consent”. He did not advert to any question as to whether or not the development as approved was for “church purposes” and so permissible with consent. He did not do so simply because the issue was not raised by either party. But, having granted consent, it must be accepted that, by implication, he had concluded that the development as approved was permissible with consent and not prohibited. The question is whether, in so concluding, he erred in law, because legal error is the only basis for a s 56A appeal.

18. The proper approach to an appeal in a case such as this is set out in Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7 - 8. Following that authority, it is clear that two issues arise in this case. They are:

(1) are the words “church purposes” used in the Manly LEP in any other sense than that which they have in ordinary speech?

(2) was no other conclusion than that the development as approved was for church purposes reasonably open to the learned assessor?

19. In relation to the first issue, Mr McClellan directed the Court to a number of cases concerned with testamentary dispositions (eg Re McGregor; Thompson v Ashton (1932) 32 SR (NSW) 483; Re Moroney; Maguire v Reilly (1939) 39 SR (NSW) 249) and to a number of cases concerned with rating exemptions for public charities (eg New South Wales Nursing Service & Welfare Association for Christian Scientists v Willoughby Municipal Council (1968) 16 LGRA 65). These cases are, however, of no assistance. The former cases dealt with the interpretation of wills, where the validity of testamentary gifts depended upon whether the words used showed that the gifts were for a purpose which was religious and charitable in a legal sense. The latter cases dealt with the construction of the words “public charity” as a basis for exemption from rating under the Local Government Act 1919.

20. In this connection, the following passage from the judgment of the High Court in Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145 at 148 is apposite:

“Even if those cases do correctly establish some more general proposition in rating exemption cases however, they cannot properly be treated as authoritative of the meaning of the phrase “place of public worship” in the Ordinance. The considerations of context and policy which might be relevant in resolving the latent ambiguity of that phrase in an exemption clause in rating legislation are plainly different from those which are relevant in determining the meaning of the phrase in planning legislation.”

21. In these proceedings, the phrase “church purposes” is used in an environmental planning instrument. In zone no 5, development which is permissible with development consent includes “[T]he particular purpose indicated by red lettering on the map”. That is a reference to the zoning map, and, as the learned assessor noted on p 2 of his judgment, the lands in zone no 5 are identified for “church purposes” on that map. In that context, the words “church purposes” must be read having regard to the purpose of the instrument. The words are incorporated in the zoning table by reference. The purpose of the zoning table, as cl 10 of the Manly LEP indicates, is to specify development which may be carried out without development consent, or for which consent is required, or which is prohibited. Furthermore, since cl 10(3) provides that the council shall not consent to development unless it is of the opinion that it is consistent with zone objectives, it is necessary to construe the words used in the light of those objectives. In the case of zone no 5, the only relevant objective is “… to identify and set aside land required for essential services to the public or the community …”. Having regard to these matters, it is clear that the words “church purposes” bear no technical meaning but simply their ordinary meaning. That meaning is broad. It encompasses purposes which are not exclusively religious, but rather fall within the broad objectives of the Church as a whole. The purpose of the development as approved is aged care, and that purpose is plainly within the broad ambit of “church purposes”.

22. The next issue is whether the development as approved falls within the description of “church purposes” and whether any other conclusion was reasonably open to the learned assessor.

23. Mr McClellan’s argument depended upon concluding that, whilst an integrated retirement village would constitute development for church purposes, self-care dwellings for the aged would not. That was because, in his submission, the self-care dwellings did not provide either the services and facilities that would be derived from the hostel on precinct 11 or the continuum of self-care through to hostel care which the hostel on precinct 11 would have provided.

24. It is evident from the learned assessor’s judgment that he directed his mind to accommodation for aged purposes, because:

· He imposed as a condition of consent the following condition:

“2. The self care housing proposed on Precinct 10 are to be provided with at least 50% of units/dwellings that comply with Australian Standard 1428 - 1992, 1993 (Design for Access and Mobility to the satisfaction of the Group Manager, Land Use Management.”

· He made findings about the suitability of the site for aged care, as shown in the following passage from pp 19 and 20 of his judgment:

“Firstly, concerns were raised about the suitability of the site generally for aged care especially in relation to the distance between Precincts 10 and 11 and the steepness of the site, In response, Mr R Gray, the Director of Aged Care Services, Australian Catholic Health Care Association gave evidence in support of the proposal. He said that in terms of access to services etc. the site was ideally suited. He acknowledged that topographical difficulties associated with pathways can be overcome in detailed designs by ensuring that slopes of 1:14 are achieved. Mr Ingham agreed. He also carried out an assessment of the proposal in the context of State Environmental Planning Policy No. 5 and found it to be satisfactory. I accept the evidence of Mr Gray and Mr Ingham.”

· At p 21, under the heading “Conclusion”, he stated that he was satisfied with “… the suitability of Precinct 10 for aged care”.

25. Taking those findings into account, and taking into account that the purpose of the development as approved was for aged care, I find that no other conclusion than that the development as approved was for “church purposes” within zone no 5 of the Manly LEP was reasonably open to the learned assessor.

26. Accordingly, the council’s challenge on this ground must fail.

The power to grant consent

27. The second ground of appeal calls into question the power of the Court to grant development consent to a development different from that which was sought in the development application. In other words, did the learned assessor fall into legal error in granting development consent for self-care aged persons dwellings on precinct 10 and adaptation of and additions to the Archbishop’s Residence, in the absence of a grant of consent for the hostel on precinct 11?

28. The council’s case was that the grant of development consent for the remainder of the proposed development (that is, for the development for which consent was sought absent the hostel) contravenes s 91(1)(a) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) because that section permits only the grant of consent to the particular development sought in the development application. Furthermore, it was contended by the council that the course which the learned assessor adopted was not permitted by s 91AB of the EP&A Act.

29. The development application sought consent for a development described as “[A]ccommodation for aged persons/child care”. Mr McClellan pointed out that, insofar as it related to accommodation for aged persons, the proposed development was presented and assessed as an integrated retirement village. He pointed to that approach in the following evidence:

· The support services statement which accompanied the development application. It described the proposed development as a “retirement village” (pp 1, 2, 5 and 12), and it described that “village” as including the self-care units, the apartments in the hostel, and a village community centre including the Archbishop’s Residence (p 1). On p 2 the proposed development was described as being built “… in two distinctive sections linked together by an internal pathway …”;

· The expert evidence adduced at the hearing on behalf of the applicant. I refrain from setting out all the examples which were brought to the Court’s attention in this appeal. It is sufficient if I point to evidence given by Mr Gray and by Mr Ingham. Mr Gray noted that the development enabled a continuity of care from the self-care level through to hostel care, that the care available on the site for the self-care section of the development would be that which would be available in the hostel area; that there is integration from a management point of view. Mr Ingham gave similar evidence, and said that, if there was no hostel in precinct 11, the housing development in precinct 10 would not really be an integrated retirement village. He said it probably could proceed but it would not work effectively as an integrated retirement village.

30. Section 91(1)(a) of the EP&A Act empowers the council, and the Court on appeal, to determine a development application by “… the granting of consent to that application , either conditionally or subject to conditions” (my emphasis added). In Mr McClellan’s submission, the proposed development was an integration of accommodation, management, staff and facilities. That was what made up the development application, and it was “that application” and no other which could be the subject of a grant of consent.

31. He submitted that, whilst modifications may be made to a development application, neither the council, nor the Court on appeal, may grant consent to a development that is substantially different from the development described in the development application ( Parkes Developments Pty Ltd v Cambridge Credit Corporation Ltd and Anor (1974) 33 LGRA 196). In Mr McClellan’s submission, the removal of the hostel struck at the very heart of the development application.

32. In my opinion, however, this ground of appeal must fail for two reasons.

33. In the first place, the development for which consent was sought (leaving aside the child care component) was for “accommodation for aged persons”. The development as approved is still “accommodation for aged persons”. The references in the evidence to a “retirement village” do not derogate from that description of the development for which consent was sought. It was development for aged persons involving a number of components. What was removed by the learned assessor was merely one of those components. I am unable to see why the removal of the hostel made such a fundamental difference to the development for which consent was sought that it was no longer development involving “accommodation for aged persons”. In my opinion, the development as approved is substantially the same as the development for which consent was sought, and accordingly, the Court was empowered under s 91(1)(a) to grant development consent for the development as approved.

34. Secondly, however, s 91AB of the EP&A Act is sufficient, in my opinion, to authorise the course which the learned assessor took. That section provides as follows:

“Staged development

91AB (1) A development consent may be granted -

(a) for the development for which the consent is sought; or

(b) for that development, except for a specified part or aspect of that development; or

(c) for a specified part or aspect of that development.”

35. I adverted to this section in an earlier judgment concerning proposed development for St Patrick’s Estate ( Lend Lease Development Pty Ltd v Manly Council (1997) 92 LGERA 420 at 435 - 436) but I have not resiled from the opinion I there expressed. The words of s 91AB(1) are plain and unambiguous. (There may perhaps be an ambiguity in the heading, “staged development”, but that heading may be ignored (s 34 Interpretation Act 1987)). The section permits development consent to be granted except for a specified part or aspect of “that development”, that is, the development for which the consent is sought. The removal of the hostel from the proposed development in this case falls squarely, in my opinion, within s 91AB(1), because the development consent which was granted by the learned assessor was for the development for which consent was sought except for a specified part of that development.

Orders

36. For the foregoing reasons, the council’s appeal must fail.

37. Accordingly:

1. The appeal is dismissed.

2. The respondent must pay the costs of the applicant as agreed or as assessed.

3. 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