Owners of SP 39204 v Sutherland Shire Council

[2003] NSWLEC 255

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Reported Decision: 129 LGERA 364

Land and Environment Court

of New South Wales

CITATION:	Owners of SP 39204 v Sutherland Shire Council [2003] NSWLEC 255
PARTIES:	APPLICANT: Owners of SP 39204 RESPONDENT: Sutherland Shire Council
FILE NUMBER(S):	40547 of 2002
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- meaning of development consents-aged persons housing projects-whether any limitation on age of residents of development.
LEGISLATION CITED:
CASES CITED:	Auburn Council v Szabo (1971) 67LGRA 427; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; Ku-Ring-Gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404
DATES OF HEARING:	18/08/2003
DATE OF JUDGMENT:	10/28/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Tomasetti, Barrister SOLICITORS Gregory J Halpin RESPONDENT: Mr J E Robson, Barrister SOLICITORS Duffy and Associates

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 40547 of 2002

Coram : Bignold J

29 October 2003

THE OWNERS OF STRATA PLAN 39204

Applicant

v

SUTHERLAND SHIRE COUNCIL

Respondent

JUDGMENT

A. INTRODUCTION

1. By class 4 application filed 23 August 2002, the Applicant claims the following declaratory relief:

1. A declaration that, on the true construction of Development Consent No. 1643/70 granted by the Respondent and in the events which have happened, there is no restriction, prohibition or limitation that requires the development on Lots A, MPS(RP) 120497 and 2, DP 207250 (No 322) Willarong Road, Caringbah to be occupied by persons aged sixty (60) years or older.

2. A declaration that, on the true construction of Development Consent No 403/76 granted by the Respondent and in the events which have happened, there is no restriction, prohibition or limitation that requires the development on Lot 8 in FP 389498 (No 314) Willarong Road, Caringbah to be occupied by persons aged sixty (60) years or older.

2. The Council opposes the declaratory relief and by cross-application filed 22 October 2002 it claims the following declaratory relief:

1. A declaration that development consent 1643/70 granted by the Cross Applicant imposes upon the development on Lots A, MPS (RP) 120497 and 2, DP207250 (No 322) Willarong Rd Caringbah a condition, prohibition, or limitation that that development cannot be occupied by persons under the age specified in the definition of aged persons in the Aged or Disabled Persons Care Act 1954 (Cth) .

2. A declaration that development consent 403/76 granted by the Cross Applicant imposes upon the development on Lot 8 in RP 389498 (No 314) Willarong Rd Caringbah a condition, prohibition, or limitation that that development cannot be occupied by persons under the age specified in the definition of aged person in the Aged or Disabled Persons Act Care 1954 (Cth).

(In its cross-application, the Council had claimed by way of alternative relief to the declarations claimed, declarations that each of the two recited development consents were void, but on 12 August 2003, I ordered that the claims to alternative relief be struck out.)

3. The hearing of the application and the cross-application had been delayed at the mutual request of the parties who earlier this year were content to await the outcome of a development application that the Applicant had lodged with the Council, which if it had been granted consent, apparently would have avoided the need for the litigation to be proceeded with.

4. Although the Court has not been informed of the outcome of that development application, it is assumed by the parties prosecuting the application and cross-application that the dispute between the parties has not been resolved.

5. Again, the Court has not been informed of the history or background to the present dispute, except for what is revealed in Mr Halpin’s affidavit sworn 22 August 2002. Mr Halpin is the Applicant’s Solicitor and his affidavit annexes a letter dated 7 December 2001 that he received from the Council. That letter advised him as follows:

I refer to previous correspondence and discussions with Council’s Corporate Lawyer, Patrick Duffy in regard to the age restriction the age restriction applicable to occupiers of the complex known as Elim , and inform that the Council having considered a report in Closed Session which canvassed all issues arising from the occupation of units within the complex by those persons under the age of 60 years resolved at its Meeting held on 22 October 2001 in the following terms:

1. That the owner/occupiers under the age of 60 years be allowed to continue occupation on the understanding that upon their vacation of the premises or sale of the property that any future owner/occupier or tenant would need to be 60 years and over.

2. That those persons who are occupying as tenants and are under the age of 60 years be allowed to continue to do so until they vacate the premises before or at the expiration of the current tenancy agreements or maximum period of three years from 22 October 2001, whichever is the lesser period.

6. When the contents of that letter are read with the claims in the application and cross-application, it is apparent that the parties have been in dispute, and continue to be so concerning the proper construction of the two relevant development consents—one granted in 1971 in respect of the development of No 322 Willarong Road, Caringbah and the other granted in 1976 in respect of the development of No 314 Willarong Road, Caringbah. More particularly, the disputed question is whether the relevant development consents have imposed any restrictions on the age of persons who may reside in the developments that exist on the two properties situate in Willarong Road, Caringbah.

7. Although the determination of both the application and the cross-application will be yielded by the proper construction of the two development consents, there has been some dispute between the parties as to whether the Court in undertaking that task of construction, is entitled to consider documents other than the two written notices granting the two respective development consents.

8. These other documents which were provisionally admitted with the consent of the parties subject to objection and to ultimate relevance include, for example, the written development applications which yielded the respective development consents.

9. I shall presently return to consider this matter, but firstly I should set forth the terms of the two Notices granting the respective development consents.
B. THE RELEVANT DEVELOPMENT CONSENTS

10. Copies of the two development consents are annexed to Mr Halpin’s affidavit.

11. The Notice granting the 1971 development consent is in the following terms:

SUTHERLAND SHIRE COUNCIL
Council Chambers,

SUTHERLAND, 2232

Notice of APPROVAL to Development

under Planning Provisions of the Local Government Act


1. County of Cumberland Planning Scheme Ordinance (as amended)
or
2. Town and Country Planning (General Interim Development) Ordinance 105.


Messrs. Norman A Naylor & Associates , Consent No. 1643/70
23 Coopernook Avenue , Date: 7/1/71
GYMEA BAY NSW 2227 B.A. No.
Authority: Dev. Com. Min. 742 of
26/10/70 & Dev. Com. Min. 894 of 21/12/70

Under the provisions, the Council of the Shire of Sutherland hereby APPROVES your application for the erection of a group housing project for the aged, comprising two single-storey blocks of six units and one single-storey block of five units with provision for ten car parking spaces

On Lots A, MPS (RP) 120497 and 2 DP 207250 (No 322) Willarong Road, Caringbah.

Subject to the following conditions:
Erection of a feature brick/masonry screen wall 6’ high on the western alignment of car space 6.
Turning facilities to be widened to accommodate two Doctor/Medical parking bays
Stormwater being collected and drained to the street or other means of being removed from the site area, such as a drainage easement.
The fitting of safety handrails on all steps or stairs and the height of risers in stair being reduced or the provision of ramps.
Bathroom/laundries having a floor area of 56 sq ft
Unit being connected to Water Board Sewer mains.
The creation of drainage easement through the properties abutting to the rear to allow drainage of all roof and surface water to either Gillwinga Avenue or Telopea Road, to the satisfaction of the Shire Engineer.
The provision of frontage andor drainage works to the satisfaction of the Shire Engineer (See attached letter for details.)
Levels for site and road construction to be submitted to the satisfaction of the Shire Engineer.

Which are imposed for the following reasons:

To ensure compliance with the requirements of Council.
To prevent the creation of a traffic hazard.
To ensure no injury is caused to the amenity of the area.
In the public interest.

This decision has been made by the Council as the authority responsible in respect of development within (a) An area the zoning of which has been suspended under the provisions of Section 342Y of the LG Act (B) A Living Area
(c) A Living/FSP Area (d) An Industrial Area (e)

The consent does not relieve the applicant of the obligation to obtain BUILDING APPROVAL as provided by Sections 311 and 312 and Ordinance 71 under the Local Government Act BEFORE ANY WORK IS COMMENCED.
Applicant Register File PBD Cert. Room V.G.

12. The Notice granting the 1976 Development consent is in the following terms:

SUTHERLAND SHIRE COUNCIL
Council Chambers,

SUTHERLAND, 2232

Notice of APPROVAL to Development

under Planning Provisions of the Local Government Act

or

Norman A Naylor & Associates , Consent No. 403/76
364 Croydon St , Date: 1st July, 1976
CRONULLA NSW 2230 File D.C. 702/314
BA No:
Authority: Delegation

Under the provisions, the Council of the Shire of Sutherland hereby APPROVES your application for the erection of three (3) structures containing a total of 17 single residential units for the housing of aged persons generally in accordance with the plan number DA1-987 dated 26/2/76.
Lot 8 in DP 389498 (No 314) Willarong Road, Caringbah.

Subject to the following conditions:

SEE ATTACHED OFFICIAL SCHEDULE ON CONDITIONS AS IMPOSED BEING CONDITIONS NOS 1 to 10 INCLUSIVE

Which are imposed for the following reasons:

1. To ensure compliance with the requirements of Council & stat. Authorities.
2. To prevent the creation of a traffic hazard.
3. To ensure no injury is caused to the amenity of the area.
4. In the public interest.

This decision has been made by the Council as the authority responsible in respect of development within (a) An area the zoning of which has been suspended under the provisions of Section 342Y of the LG Act (B) A Living Area
(c) A Living/FSP Area (d) An Industrial Area (e)

The consent does not relieve the applicant of the obligation to obtain BUILDING APPROVAL as provided by Sections 311 and 312 and Ordinance 71 under the Local Government Act BEFORE ANY WORK IS COMMENCED

A.G. HILL

Shire Clerk.

Applicant Register File PBD Cert. Room V.G.

SUTHERLAND SHIRE COUNCIL

SHEDULE OF CONDITIONS ATTACHED TO
DEVELOPMENT CONSENT NO. 403/76

1. The layout and landscaping is to be carried out according to the provisions of plan “A” attached hereto.

2. That the implementation of the standard engineering requirements to the satisfaction of the Council (see attached letter for details).

3. The consolidation of all properties involved in the proposal.

4. Materials used in construction is to be to the satisfaction of the Council.

5. The garbage receptacle area being lowered and integrated into the frontal landscaped treatment of the site.

6. Redesign of the location of the units in order to comply with Schedule 7 of the Local Government Act.

7. Provision of one visitors’ toilet (external) in accordance with part 46.5(6) Ordinance 70.

8. Builders’ toilet is to be connected to the sewer.

9. Each unit is to be fire separated by a one hour fire rated internal wall in accordance with parts 16.11 and 16.12 of Ordinance 70.

10. Submission of a formal building application to Council.

13. The 1976 Development Consent contains express reference to two plans—(i) “Plan No DA1-987 dated 26/2/76” referred to in the description of the approved development; and (ii) “plan A” attached hereto” referred to in Condition 1.

14. These plans which were admitted into evidence without objection as Exhibits “C” and “A” respectively indisputably form part of the 1976 Development Consent. They each describe the proposed development as “Aged persons housing development”.
C. ANY OTHER EVIDENCE RELEVANT TO THE TASK OF CONSTRUINGTHE DEVELOPMENT CONSENTS?

15. I have earlier mentioned the provisional admission into evidence of the two development applications that yielded the grant of the two relevant consents. May these documents be utilised by the Court? The parties referred to the relevant caselaw.

16. It is to be recalled that both development consents were issued well before the commencement of the Environmental Planning and Assessment Act 1979 at times when the relevant source of town planning law was found in the provisions of the Local Government Act 1919, Part XIIA.

17. It is not clear whether the consents were consents issued under the County of Cumberland Planning Scheme or consents issued under the Town and Country Planning (General Interim Development) Ordinance 105, but nothing turns on this small element of uncertainty as to the relevant source of law.

18. Thus, the relevant caselaw is that which considered the previous town planning law. Of the cases cited by the parties, the principal authorities are the decisions of Hope J in Auburn Council v Szabo (1971) LGRA 427 and of the Court of Appeal in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404.

19. In Szabo, Hope J said at 433/434:

Before going to the consent of 1953, I think it is convenient first to consider the effect of the consent in 1958. That consent on its face simply approved additions in a context where there was an existing building which had been the subject of an earlier consent. The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 and by the Court of Appeal in Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would crate a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved. In particular, it is not possible to go to the form of application for approval unless in some way that document has in whole or in part, expressly or by necessary implication, been incorporated in the consent. On some occasions no doubt there is such an incorporation. Thus, if an application were made and a council did no more than approve the application, it seems to me that by necessary implication the terms of the application must be incorporated.

20. In Sydney Serviced Apartments, the Court of Appeal at 407 adopted “the relevant principles conveniently summarised by Hope J in Szabo at 433/434” quoting most of the foregoing passage.

21. Applying those principles to the facts of the present case it is sufficiently clear that each of the two development consents has expressly incorporated the respective applications which yielded those respective development consents.

22. Accordingly, it is legitimate to consider the contents of those applications in the task of construing the relevant development consents to determine what developments were authorised by those consents.

23. The development application which yielded the 1971 development consent described the proposed development as follows:

Housing for Aged Persons

Single and two storey dwellings.

Brick and brick/V

Metal deck roof

24. By way of comparison, the 1971 development consent described the development as follows:

…..the erection of a group housing project for the aged, comprising two single-storey blocks of six units and one single-storey block of five units with provision for ten car parking spaces.

25. Thus, the comparison of the descriptions of the proposed development respectively contained in the development application and in the development consent yields the following very similar result:

(i) “housing for aged persons” (development application); and
(ii) “Group housing project for the aged” (development consent).

26. The development application which yielded the 1976 development consent described the proposed development as follows:

Aged persons units

27. By way of comparison, the 1976 development consent described the development as follows:

the erection of three (3) structures containing an estate of 17 single residential units for the housing of aged persons…..

28. Again, the comparison of the descriptions of the proposed development respectively contained in the development application and in the development consent yields the following very similar result:

(i) “Aged persons units” (the development application; and

(ii) “residential units for the housing of aged persons” (the development consent);

and for completeness, the two plans expressly incorporated in the development consent described the development as “aged persons housing development”.

29. The other evidence provisionally admitted subject to the Applicant’s objection concerns the state of the statutory town planning instruments applicable at the times respectively of the grant of the 1971 and the 1976 development consents.

30. This evidence is contained in the affidavit sworn 14 November 2002 by Gregory Hand, the Council’s Manager Environment Planning and Commissions. Mr Hand has been continuously employed by the Council since 1964 in various town planning positions. He deposes to the following facts—

(i) in September 1965 the Council adopted the draft Sutherland Planning Scheme and February 1966 submitted it to the State Planning Authority requesting the requisite Certificate from the Minister;

(ii) following protracted negotiations, the draft Sutherland Planning Scheme was publicly exhibited on 6 December 1971 and was finally adopted as a prescribed planning scheme on 24 April 1980;

(iii) as at the date when the 1971 development consent was granted, the draft Sutherland Planning Scheme contained the following definition:

Aged persons home means an approved home as defined in the Aged Persons Homes Act, 1954, of the Parliament of the Commonwealth, erected or to be erected by an eligible organisation within the meaning of that Act, the Housing Commission of New South Wales, the Council or other public authority.

(iv) as at the date when the 1976 development consent was granted, the draft Sutherland Planning Scheme contained the following definition:

Units for aged persons means a residential flat building used or intended to be used to house aged persons as defined in the Aged Persons Homes Act 1954, as amended, of the Parliament of the Commonwealth, erected or to be erected by an eligible organization as defined in that Act, the Housing Commission of New South Wales or any other Department or instrumentality of the Crown.

(v) during the period prior to the draft Sutherland Planning Scheme coming into force as a prescribed scheme, its contents were administered by the Council as comprising a relevant consideration for the determining of development applications and by letter dated 3 December 1971, the Council was advised by the State Planning Authority (following the issue by the Minister of the requisite Certificate under s 342F) that it “should deal with development applications submitted for its consideration in accordance with the Scheme certified to by the Minister”.

31. The evidence of Mr Hand is, I think, admissible as establishing the relevant surrounding circumstances concerning the applicable town planning regimes in force at the times that the 1971 and 1976 development consents were respectively granted cf the following statement of principle, in the context of the interpretation of a contract, contained in the judgment of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352:

The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

32. In so concluding, it is apparent from the parties’ competing cases that there is some recognised doubt or ambiguity in the language of the 1971 and 1976 development consents insofar as they describe in each case, the approved developments. Whereas it is obvious that each of the development consents authorised some form of residential housing for aged persons the composite expression (or any component of it eg “aged person”) was not defined in the development consents.

33. Moreover, the extrinsic materials disclosed by Mr Hand’s evidence do not provide a basis for a clear or conclusive meaning to be given to the descriptions of the approved developments because neither of the development consents, in terms, adopt either of the terms “aged persons home” or “units for aged persons” that were employed in relevant versions of the draft Sutherland Planning Scheme when the consents were granted.

34. If the evidence had been otherwise (eg if it had been the fact that in terms of the draft Sutherland Planning Scheme units for aged persons was the only form of multi dwelling housing developments permissible on the subject lands) then it would have been but a short step to construe the consents as if they had approved that type of development. But for unexplained reasons Mr Hand’s evidence did not disclose how the draft Sutherland Planning Scheme applied to the subject lands in terms of zoning and permissible purposes of development.

35. However, what Mr Hand’s evidence reveals concerning the adoption by the relevant versions of the draft Sutherland Planning Scheme of the defined terms “aged persons home” and “units for aged persons” is consistent with the relevant content of then contemporary legislation concerning that subject matter of which the Court may take judicial notice (see the Evidence Act 1995, s 143).

36. This legislation includes the following:
(i) The Aged Persons Homes Act 1954 of the Commonwealth of Australia; and
(ii) The following prescribed town planning schemes all published in the 1970 Volume of NSW Rules Regulations and By-Laws
· Willoughby Planning Scheme Ordinance (at p 307 et seq)
· Canterbury Planning Scheme Ordinance (at p 384 et seq)
· Auburn Planning Scheme Ordinance (at p 460 et seq)

37. Each of these three mentioned prescribed planning scheme ordinances contains a definition of “units for aged persons” in the same terms as the definition of that term that is contained in the version of the draft Sutherland Planning Scheme that was publicly exhibited on 6 December 1971 that I have earlier quoted.

38. The Commonwealth Act as in force when (i) the three 1970 prescribed planning schemes were made; and (ii) the 1971 development consent was granted contained provisions for financial assistance by the Commonwealth towards the provision of homes for aged persons by “eligible organisations”. Such assistance included contributions to the capital costs of providing the home: ss 8 and 9.

39. Section 6(1) relevantly provided:

Where the Director-General is satisfied that a building or buildings erected or to be erected, or purchased or to be purchased, by an eligible organization is or are intended to be used permanently by or on behalf of the organization as a home or homes for the accommodation of aged persons, he may, in his discretion, approve that building or proposed building or those buildings or proposed buildings as a home for the purposes of this Act.

40. Section 2 contained relevant definitions including the following:

aged person means a man who has attained the age of sixty-five years or a woman who has attained the age of sixty years and includes the wife or husband of an aged person residing or desiring to reside with the aged person;

approved home means a building or buildings or proposed building or buildings approved under section 6.

41. The provisions of the Commonwealth Act that I have quoted remained materially unchanged at the date of the grant of the 1976 development consent (although other supervening amendments had been made to the Act).

42. It is to be noted that in its current state the Commonwealth Act no longer provides for financial assistance to be provided towards the provision of aged persons housing (other than in the form of a “nursing home” or “hostel”).

43. Moreover, the Act now defines “aged person” as a person who has attained the age of 60 years.
D. WHAT IS THE TRUE NATURE OF THE DEVELOPMENTS RESPECTIVELY APPROVED BY THE 1971 AND 1976 DEVELOPMENT CONSENTS?

44. The Applicant in support of the declarations it claims makes the following submissions as to the proper construction of the 1971 and 1976 development consents—

(i) The consents must be construed according to their own terms. There are no relevant incorporated documents or surrounding circumstances that cast light upon the meaning of the words “the aged” or “aged persons” relevantly employed in the consents.

(ii) The consents should be construed against the Council in the sense that in granting the consents the Council was approving residential developments where it could have restricted the use of the approved residential premises to persons of a certain age etc by the imposition of conditions, but it did not do so.

(iii) In the circumstances, the references in the consents to the words “the aged” or “aged persons” must be regarded as mere surplusage and can be ignored with the result that the approved developments were for residential housing without restrictions.

45. The Council’s competing submissions as to the proper construction of the 1971 and 1976 development consents are as follows:

(i) The only basis upon which the Applicant’s construction of the consents can be accepted requires the Court to entirely disregard and ignore the expressions “for the aged” or “for the housing of aged persons” where employed in the consents;

(ii) The relevant expressions (“the aged” or “aged persons”) though somewhat imprecise, nonetheless have an ascertainable meaning and that meaning governs the nature of the approved developments because those expressions are employed in the compound descriptions of the approved developments;

(iii) The circumstances surrounding the grants of the 1971 and 1976 development consents include the relevant definitions of “aged persons home” and “units for aged persons” contained in the relevant versions of the draft Sutherland Planning Scheme.

(iv) Each of those defined terms expressly refers to, and adopts, the relevant provisions of the Commonwealth Aged Persons Homes Act 1954. Having regard to this fact it is legitimate to interpret the consents as approving “housing for aged persons” as those terms were relevantly employed in the Commonwealth Act. In particular the consents should be interpreted as approving housing for use and occupation by persons who have attained the age of 60 years (being the age currently adopted by that Act for “aged person”).

46. In my opinion there is simply no justification, in terms of applying the principles of statutory interpretation, for the Applicant’s contention that the reference in the 1971 development consent to housing “for the aged” or the reference in the 1976 development consent to “aged persons housing” should be entirely disregarded or ignored in determining the true nature of each of the approved developments.

47. In my judgment the relevant expressions (“housing for the aged” or “housing for aged persons”) clearly were intended to define, and hence, to limit the approved developments by prescribing the age qualifications of persons who may reside in the approved housing developments. Such a limitation can be created just as effectively by definition or description of the approved development as it can by way of a condition of development consent. Moreover, the expressions “the aged” or “aged persons” clearly are not meaningless references and their meaning is capable of being ascertained by the process of statutory construction.

48. Although the question posed in the present case is one of construction of the terms of the 1971 and 1976 development consents, significant illustrative assistance is, in my judgment, to be gained by consideration of the approach and reasoning adopted by the Court of Appeal in Ku-Ring-Gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154 where the Court was called upon to consider the meaning of the expression “home for aged…persons” in the context of the definition of the word “hospital” contained in the Ku-Ring-Gai Planning Scheme Ordinance.

49. Samuels JA at 162 expressed the following conclusion, which in my respectful opinion applies to the approved developments in the present case in a manner that necessarily limits the nature of the approved developments:

I would think that a home for aged persons means a home in which all the residents are aged persons. No doubt there might be some operation of the de minimis rule. But broadly speaking all the occupants of such a place should be aged.

50. All of the judges in Geoffrey Twibill held that a person attaining the age of 55 years did not thereupon become an aged person. Glass JA at 159 gave judicial notice to the latest life expectancy tables (current for the period 1970-1972) before concluding:

Guided by what they show, I would not feel any degree of satisfaction in describing as aged a group of persons having an unspecified upper age limit but of unknown average age and undefined sexual composition unless the lower limit was a minimum of sixty years of age. If it were, I would be so satisfied. It follows that although a retirement village for persons of minimum age fiftyfive would be a home within the meaning of the expression it would not in my view be a home for the aged.

51. Samuels JA at 162/163 stated:

Secondly, I do not consider that a person upon attaining the age of fiftyfive years steps into the category of the aged. The word aged is difficult to define. The definition cannot be made to depend upon individual physical or mental idiosyncrasy or frailty. It is a question of what society generally regards as the qualification for entry into the category. I would myself be inclined to take pensionable age as an adequate guide.

52. Mahoney JA at 166 stated:

But, in any event, I do not think that a limitation of occupancy of the development to those not less than fiftyfive years makes it a development for aged persons. In the ordinary dictionary sense, aged is seen as referring to those who are old . What is aged must, of course, be determined in the context of the ordinance and I am of the opinion that to say of a development that it is to be occupied only by those of fiftyfive years or more, whatever be their condition otherwise, is not, in 1971 or the present time, to limit it to aged persons.

53. In my respectful opinion, the reasoning variously adopted in Geoffrey Twibill in holding that the proposed housing development for persons who had attained the age of 55 years was not “a home for aged…persons” applies today with as much, if not greater force, than when that case was decided in 1979. The reasoning of Glass JA has strengthened with the significant increases in life expectancy in Australia currently beyond the 1972 figures available in that case. The “pensionable age” adopted by Samuels JA as an “adequate guide” has been increased since the decision in that case.

54. I recognise that since 1982 “aged person” has been defined in State Environmental Planning Policy No 5—Housing for Aged or Disabled Persons as “a person aged 55 years or over” (In its current state, the Policy employs the term “older person’ instead of “aged person” but otherwise maintains the definition). However, that State Policy does not have universal application under the Environmental Planing and Assessment Act 1979. Moreover, the Model Provisions adopted under that Act (s 33) have maintained the definition of “units for aged persons” where “aged persons” is defined by reference to the Commonwealth Act.

55. This conclusion concerning the current force of the reasoning in Geoffrey Twibill is of course only relevant if it is appropriate to interpret the 1971 and 1976 development consents as approving “housing for aged persons” where that expression is itself to be given a “speaking”, and hence a current, meaning. If contrariwise the meaning of the approved developments is to be ascertained at the respective times when the development consents were granted then there is no relevance in the current meaning of the expression “aged person” (even assuming that there is any difference between the current meaning and the relevant meanings applicable when the development consents were granted).

56. However, since the Court is construing development consents granted in 1971 and 1976 in order to determine the precise nature of the approved developments, I do not think that the ambulatory approach to interpretation that is generally adopted in the case of legislation, is the appropriate interpretive approach to be taken in respect of the 1971 and 1976 development consents.

57. In my opinion the proper interpretation of those development consents is that they each approved “housing for aged persons” in the sense that the residents of such housing must themselves be “aged persons” and the meaning of that term is relevantly a person who has attained the age of 60 years (conformably to the reasoning and result in Geoffrey Twibill).

58. Accordingly, I hold that the Applicant has failed to establish any entitlement to the declaratory relief it has claimed and that in consequence its class 4 application must be dismissed.

59. This brings me to determine the Council’s cross-application. As framed, it asserts (or at least presupposes) the application of the Commonwealth Act (now called the Aged or Disabled Persons Care Act 1954).

60. However, for the reasons given, I do not think the Council has established that that Act (as it then operated) applied to the developments respectively approved by the 1971 and 1976 development consents. This is because neither of those consents referred in terms to housing approved by that Act. Nor did the consents employ the available terms under the relevant versions of the draft Sutherland Planning Scheme which relevantly adopted the Commonwealth Act (although as has been noted the descriptions of the approved development came ever so close to adopting those terms).

61. However, for the reasons I have given in rejecting the Applicant’s entitlement to the declarations it has claimed, the 1971 and 1976 development consents, properly construed, approved forms of housing for aged persons in a manner that necessarily limited the residents of such housing to persons who were “aged persons” where that expression was capable of yielding an ascertainable meaning, namely, as I have held, a person who has attained the age of 60 years. (Co-incidentally that age is now the age adopted by the current Commonwealth Act, but for the reasons I have given the relevant meaning of the relevant expression was that which it had when the 1971 and 1976 development consents were respectively granted.)

62. In the event, the proper construction of the 1971 and 1976 development consents has yielded a meaning that entirely supports the grant of appropriate relief in terms of the Council’s cross-application. In view of the continuing dispute between the parties it is desirable that that dispute be resolved by the making of an appropriate declaration.
E. ORDERS

63. Accordingly, I make the following orders:

1. The Applicant’s application is dismissed.

2.. The Council’s cross-application is allowed to the extent of the declaratory relief granted in Order 3.

3. Declare that the approved developments granted respectively by the 1971 and 1976 development consents in respect of premises known respectively as No 322 and No 314 Willarong Road, Caringbah are housing for aged persons which require residents of such housing to be limited to persons, who have attained the age of 60 years.

4. Exhibits be returned.

5. Question of costs be reserved.