Mosman Municipal Council v Gavin Barr Pty Ltd

[1989] NSWLEC 205

Land and Environment Court

of New South Wales

CITATION:

Mosman Municipal Council v Gavin Barr Pty Ltd [1989] NSWLEC 205

PARTIES:

APPLICANT
Mosman Municipal Council

RESPONDENT
Gavin Barr Pty Ltd

RESPONDENT

FILE NUMBER(S):

10543 of 1988

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

Land and Environment Court Act
Partnership Act
Environmental Planning and Assessment Act

CASES CITED:

North Sydney Municipal Council v. Lycenko (Court of Appeal Unreported 15 November 1988);
Leichhardt Municipal Council v. Mansfield ((1985) 57 LGRA 214;
Canterbury Municipal Council v. Moslem Alary Society 1986-7 162 CLR 145 at 150

DATES OF HEARING:

DATE OF JUDGMENT:

06/09/1989

LEGAL REPRESENTATIVES:

APPLICANT
Mr. McClellan, Q.C
RESPONDENT
Mr. Davidson

JUDGMENT:

HIS HONOUR; This is an appeal under s.56A of the Land and Environment Court Act against a decision of an Assessor granting development consent, subject to certain conditions, to the use of premises at 31 Bardwell Road, Mosman, for medical consulting rooms.

It is the submission on behalf of the appellant Council that the Assessor erred in law in misinterpreting the meaning to be ascribed to the words "practise in partnership" in the Model Provisions. In the submission of Mr. McClellan, Q.C., "partnership" means partnership in law, i.e., one under the Partnership Act where persons carry on a business in common with a view to profit.

The definition in the Model Provisions is as follows:-

"'professional consulting rooms' means a room or a number of rooms forming either the whole of or part of, attached to or within the curtilage of a dwelling-house and used by not more than three legally qualified medical practitioners or by not more than three dentists within the meaning of the Dentists Act, 1934, or by not more than three health care professionals, who practise therein the profession of medicine, dentistry or health care respectively, and if more than one, practise in partnership, and who employ not more than three employees in connection with that practice;"

By the Mosman Local Environmental Plan No. 1, gazetted 22 January 1982, the Council adopted the Model Provision -

"except that a reference in the definition of that expression in those Provisions to three legally qualified medical practitioners, three dentists, three health care professionals or three employees shall be read and construed as a reference to two legally qualified medical practitioners, two dentists, two health care professionals or two employees, respectively;"

The respondent's proposal placed before the Assessor was that "no more than two doctors will be using the building for consulting at any one time". Dr. Barr proposes that there be 2 consulting rooms in the premises and that he consult for 3-1/2 days per week in one room. The second consulting room would, according to Dr. Barr, be used by 5 other specialists on a sessional basis, each for one half day per week. The doctors would not be in partnership but would pay a proportion of the overheads (secretary, telephone, cleaning, electricity etc.) based upon individual utilisation of the consulting room. The doctors would be "associating" together for the purpose of certain outgoings but not contributing to capital nor sharing in profits or losses.

The material part of the Judgment of the Assessor is as follows:-

"This is a planning matter which involves the likely environmental impact of the proposed use of the subject premises. The assessment of the use must take into account physical and social parameters. Hence I have accepted the common or vernacular meaning of the term partnership when applied to the use of the premises. The strict legal definition cannot affect the number of persons who will actually use the premises or the physical or social consequences to the precinct. From the evidence I have concluded that the proposal includes most of the applicant's medical practice, supplemented by small fractions of a number of other practices. In my opinion the sum of these does not exceed two whole practices. A whole practice should include a practitioner and the required administrative and/or support staff to serve as a base for a catchment of clients. Only the applicant would have all these resources on the subject site."

It will be seen that the Assessor adopted what he described as "the common or vernacular meaning" of the term partnership rather than the legal definition. It is in this respect that it is submitted he fell into legal error and this error infected his decision and vitiated the orders made.

On behalf of the respondent to the appeal (the applicant before the Assessor), Mr. Davison submits that the Assessor committed no error of law. Alternatively, he submits that if an error of law is found to have been committed, it was not such as to vitiate the decision. Because of the conclusion I have reached on the principal issue it is unnecessary to explore the alternative submission, suffice to say that in view of the manner in which his client's case was presented to the Assessor I would doubt the validity of the submission

The word "partnership" has different definitions. It can of course mean a partnership in the legal sense. "Partner" can also mean "a sharer or partaker; an associate" (see primary definition in Macquarie Dictionary). "Partner" is similarly defined in the Shorter Oxford English Dictionary. But how is 'partnership' to be construed where it appears in the Model Provisions made under s.33 of the Environmental Planning and Assessment Act? In my opinion the answer to this is to be ascertained by first asking the question - What is the planning purpose of the definition of "professional consulting rooms"? The parties agree that the planning purpose of the definition as modified by the Mosman LEP is to limit the commercial use of professional consulting rooms in residential areas. This is obviously to mitigate the effect that such uses may have on surrounding residential areas. The planning purpose is achieved by providing that the "professional consulting rooms" form the whole or part of a dwelling house, and by res

tricting the use to no more than (in this case) two medical practitioners and no more than two employees employed "in connection with that practice". The definition is also conditioned by the words "and if more than one, practise in partnership".

Mr. Davison submits that the planning purpose is achieved by a single administrative practice or structure whether by means of a legal partnership or an association of doctors such as proposed by the respondent. If the administrative structure ensures that the premises cannot be used by more than 2 medical practitioners at the one time and associating together as Dr. Barr proposes, then the definition (and the planning purpose behind it) is satisfied. Mr. Davison asks rhetorically, what is the planning purpose in restricting the definition to medical practitioners (or the others mentioned) who are 'legal' partners?

In my opinion the planning objective of the definition in the model provision is to restrict the use of the premises at any one time to no more than 2 doctors (operating in association and under the one administrative structure) and no more than 2 employees. That the doctors do not share in profits or liabilities, nor contribute to capital tells us nothing of the planning purpose. Nor should it be assumed that Dr. Barr's proposal will necessarily be likely to have an effect on the environment additional to that of 2 doctors in a legal partnership. Indeed, it is possible that they could have less effect. One just doesn't know. It must also be stressed that only 2 consulting rooms are proposed. However, these are factual assessments for the Assessor and not for the Court on appeal confined to legal error.

Taken to its logical conclusion the submission of Mr. McClellan may lead to manifestly absurd situations. To give just one example, what if there are two partners and one is ill or away from his practice for some time. A locum could not be brought in to replace him because the definition would be breached. Mr. Davison submits that this could not have been the intention and contemplation of the draftsman.

In my opinion the definition and the obvious planning intent behind it can only be reasonably understood by reference to the presence at the practice of the number of persons specified in the definition at any one time. This was acknowledged by the Assessor in the conditions he imposed on the consent. Adopting this approach leads to a reasonably practicable result rather than an unreasonable one. Competing interpretations are open and one may lead to an unreasonable if not absurd result. In this situation the Court may prefer the interpretation which avoids the unreasonable result and is consistent with the planning policy behind the provision. In saying so I reject the appellant's submission that only one construction is open - viz., that of a partnership in law. Indeed, it seems to me that such a construction may frustrate the achievement of the purpose of the provision. See Kirby P. in North Sydney Municipal Council v. Lycenko (Court of Appeal Unreported 15 November 1988).

My approach derives some assistance from the decision of Leichhardt Municipal Council v. Mansfield ((1985) 57 LGRA 214). In this case Kirby P. (with whom Hope and McHugh JJA agreed), interpreted the model provision as including medical practitioners who were employees. At page 220-1 the President said:-

"A third objection was that, there being more than one medical practitioner, and it being shown that the other two practitioners were not in partnership, the closing requirement of the definition was not complied with. This objection, likewise, has no merit. The object of the provision would appear to be directed to limiting the practice to be conducted in a dwellinghouse to a single one, so that flat buildings are not converted from residential purposes to multiple professional purposes. Such use would carry the risk that it would change the character of the building as a dwellinghouse. The conduct in consultingrooms of a single practice involves a lesser risk of altering the character of the premises. There are two additional reasons for coming to that conclusion. The first is that the closing words of the definition envisage that there may be employees, although not more than three, in connection with the practice. Accordingly, this phrase envisages that employed medical practitioners may be engaged. But a

s well, given the apparent purpose of the provision, it would be unthinkable that model provisions governing the use of consultingrooms of a medical practitioner would be so construed as to impose upon him the obligation to enter a partnership with medical practitioners whom he would otherwise engage as employees. The purpose is to limit the number of practices. It is not to impose on practitioners, particular relationships, especially as a number of practitioners may be employed in other local government areas, having no legitimate connection with land the concern of the council.

This last consideration is an answer to the final objection of this kind. It would be of no concern at all to the Council of the Municipality of Leichhardt how many employees Dr Mansfield had in connection with his practice elsewhere in the State. The legitimate focus of concern, and the obvious purpose, of the definition is addressed to the use, or proposed use of the professional consultingrooms. It is only in that connection that the employment practices of the practitioner are relevant. The definition should be so construed as to limit the concern to the number of employees employed in connection with the practice, but at those rooms. So construed, there is no difficulty in holding compliance with the definition." (My added emphasis).

The above approach of the President is, I believe, consistent with my construction of the definition. It must not be forgotten that we are dealing with a provision of a planning instrument and references to other statutes and the interpretation of a term in other contexts may not be helpful (Canterbury Municipal Council v. Moslem Alary Society) 1986-7) 162 CLR 145 at 150).

In my opinion the degree of association that is proposed between Dr. Barr and the visiting specialist consultants satisfies the ordinary meaning of partnership - they are associating together and sharing a common administration and outgoings in so far as concerns the use of the subject professional consulting rooms. I can see no good reason to restrict the word partnership in the model provision to partnerships in the legal sense.

I mention that this Judgment has been delivered in some haste because I am informed that the Council has prepared a draft Local Environmental Plan which, if made, will have the effect of prohibiting professional consulting rooms on the site.

In the result I do not find that the Assessor fell into any error of law. The appeal will therefore be dismissed with costs and the orders made by the Assessor confirmed. The exhibits may be returned with the exception of Ex. B.