Retirement by Design Pty Ltd v Warringah Council

[2007] NSWLEC 87

Reported Decision: 153 LGERA 372

Land and Environment Court

of New South Wales

CITATION:	Retirement by Design Pty Limited v Warringah Council [2007] NSWLEC 87
PARTIES:	APPLICANT Retirement by Design Pty Limited RESPONDENT Warringah Council
FILE NUMBER(S):	10349 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Appeal :- question of law - construction of environmental planning instruments - whether land "zoned" - whether land "zoned primarily for urban purposes" - whether land "zoned for industrial purposes"
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW) s 76(1), s 76A(1), s 76A(5), s 76B, s 76(2), s 76(3), s 85A, s 97 Land and Environment Court Act 1979 (NSW) s 17, s 56A, s 56A(1)
CASES CITED:	DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187; Gillespies v Warringah Council (2002) 124 LGERA 147; Mete v Warringah Council [2004] NSWLEC 273 ; Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443; Retirement by Design Pty Limited v Warringah Council [2006] NSWLEC 656
DATES OF HEARING:	16 February 2007
DATE OF JUDGMENT:	22 February 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr N Hemmings QC SOLICITORS Allens Arthur Robinson RESPONDENT Mr A Galasso SC SOLICITORS Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

22 FEBRUARY 2007

10349 OF 2006

RETIREMENT BY DESIGN PTY LIMITED V WARRINGAH COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant, Retirement by Design Pty Limited, applied to Warringah Council to construct and use a retirement village at 42-44 Myoora Road, Terrey Hills. The applicant relied on State Environmental Planning Policy (Seniors Living) 2004 for the permissibility of its proposed development on that land. The Council refused consent on the basis that the Seniors Living Policy does not apply to the land.

2 The applicant appealed to this Court under s 97 of the Environmental Planning and Assessment Act 1979 (NSW). That type of appeal is assigned to class 1 of the Court’s jurisdiction by s 17 of the Land and Environment Court Act 1979 (NSW).

3 The Court hearing the appeal was constituted by Commissioner Moore. Commissioner Moore determined on 19 October 2006 that the Seniors Living Policy cannot and does not apply to the land: Retirement by Design Pty Limited v Warringah Council [2006] NSWLEC 656. Commissioner Moore therefore dismissed the appeal.

4 The applicant appealed against Commissioner Moore’s decision under s 56A of the Land and Environment Court Act. Such an appeal is restricted to a question of law: s 56A(1) of the Land and Environment Court Act.

5 The applicant submits that Commissioner Moore misconstrued the provisions of the Seniors Living Policy and Warringah Local Environmental Plan 2000. Misconstruction of relevant statutory provisions involves a question of law. To determine whether any misconstruction occurred, I will firstly identify the relevant statutory provisions, secondly summarise Commissioner Moore’s reasons for decision, thirdly summarise the applicant’s arguments and the Council’s notice of contention on this s 56A appeal, and finally, analyse and determine the applicant’s arguments and the Council’s contention.

The Seniors Living Policy and Warringah Local Environmental Plan

6 The Seniors Living Policy is an environmental planning instrument that aims to encourage the provision of housing (including residential care facilities) that will:

“(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design”: cl 2(1) of the Seniors Living Policy.”

7 These aims are to be achieved by:

“(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability the meets the development criteria and standards specified in this Policy, and

(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes”: cl 2(2) of the Seniors Living Policy.”

8 However, the Seniors Living Policy does not apply to all land within New South Wales. Clause 4 specifies the land to which the Seniors Living Policy applies. It does this, firstly, by a positive identification of the land to which the Seniors Living Policy applies but, secondly, specifies the land to which the Seniors Living Policy does not apply. The consequence is that if land falls within the categories of land expressly identified as being land to which the Seniors Living Policy does not apply, the Policy will not apply even if the land otherwise falls within the categories of land expressly identified as being land to which the Policy applies.

9 The land to which the Seniors Living Policy applies is land within New South Wales:

“(a) that is zoned primarily for urban purposes or that adjoins land zoned primarily for urban purposes, and
(b) on which development for the purpose of any of the following is permitted:
(i) dwelling-houses,
(ii) residential flat buildings,
(iii) hospitals,
(iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries”: cl 4(1) of the Seniors Living Policy.

10 The land to which the Seniors Living Policy does not apply is:

“(a) land described in Schedule 1 (Environmentally sensitive land), or
(b) land that is zoned for industrial purposes, or
(c) the land to which Sydney Regional Environmental Plan No 17 – Kurnell Peninsula (1989) applies, or
(d) land to which an interim heritage order made under the Heritage Act 1977 by the Minister administering that Act applies, or
(e) land to which a listing on the State Heritage Register kept under the Heritage Act 1977 applies”: cl 4(2) of the Seniors Living Policy.

11 In order to determine whether land is zoned in a particular manner or development for a particular purpose is permitted, consideration needs to be given to other environmental planning instruments, principally local environmental plans, that effect the zoning of land and the control of development on land.

12 In this case, the relevant environmental planning instrument is Warringah Local Environmental Plan 2000 (“WLEP”). As I will explain in more detail later, WLEP does not zone land in the local government area of Warringah in the conventional way. Instead of conventional zones, WLEP uses localities.

13 The applicant’s land is located in Locality A4 – Myoora Road. In Locality A4, development for the purposes of housing (which means development involving the creation of one or more dwellings), hospitals and places of worship, amongst other uses, are permitted with development consent. This has the consequence that the applicant’s land is land that satisfies cl 4(1)(b) of the Seniors Living Policy.

14 The Locality A4 adjoins, to the north, Locality A3 - Terrey Hills Village; to the west, Locality A2 Booralie Road; to the south, Locality C9 - Austlink Business Park and Locality C4 - Garigal National Park; and to the east, Locality B9 - Mona Vale East. The applicant’s land, however, only adjoins Locality B9 - Mona Vale East. The applicant’s land extends from Myoora Road through to Mona Vale Road. Locality B9 cannot be said to be primarily for urban purposes. It is common ground, therefore, that the applicant’s land cannot be said to be land that meets the second phrase in cl 4(1)(a), that is to say, land that “adjoins land zoned primarily for urban purposes”.

15 The applicant contended at the hearing that the Seniors Living Policy applies to the applicant’s land because that land “is zoned primarily for urban purposes” and therefore falls within the first phrase in cl 4(1)(a). The Council contested this proposition. As I have noted, Commissioner Moore held that the applicant’s land was not land zoned primarily for urban purposes and hence cl 4(1)(a) was not satisfied. Accordingly, Commissioner Moore held that the Seniors Living Policy did not apply to the applicant’s land.

16 Although not dealt with by the parties or Commissioner Moore, it needs to be noted that satisfaction of the criteria in cl 4(1)(a) and (b), whilst necessary, is not sufficient for a conclusion that the Seniors Living Policy applies to the applicant’s land. It must also be established that the negative stipulation of cl 4(2) of the Seniors Living Policy does not apply. Of relevance in this case is cl 4(2)(b). Development for industrial purposes is, in fact, a permitted purpose of development in Locality A4 - Myoora Road, in which locality the applicant’s land is located.

17 The applicability of the Seniors Living Policy to the applicants land turns, therefore, on whether the applicant’s land:

(a) is zoned primarily for urban purposes (cl 4(1)(a)); and

(b) is not zoned for industrial purposes: cl 4(2)(b) of the Seniors Living Policy.

The Commissioner’s decision

18 Common to both of the criteria that need to be satisfied is the requirement that the applicant’s land be “zoned”.

19 The Council contended before Commissioner Moore that WLEP is a unique environmental planning instrument that does not “zone” land at all; it uses other planning tools to control development than zoning. On this basis, the Council contended, the Seniors Living Policy cannot apply to land in the local government area of Warringah because such land is not “zoned” for any purpose, let alone primarily for urban purposes.

20 Commissioner Moore rejected the Council’s argument, holding that WLEP by its use of localities, employs a zoning system, albeit an “unconventional” zoning system (see paras 25-29 of the Commissioner’s reasons).

21 The Council, by way of the notice of contention on the applicant’s appeal seeks to challenge this holding. I will return to the concept of zoning later.

22 The two criteria that need to be satisfied in order for the Seniors Living Policy to apply to the applicant’s land, also require consideration of the purposes of the zoning. The positive criterion is that the land must be zoned primarily for urban purposes. The negative criterion is that the land must not be zoned for industrial purposes.

23 Commissioner Moore held that the applicant’s land did not satisfy the positive criterion of being zoned primarily for urban purposes, for two sets of reasons.

24 First, Commissioner Moore noted that the Locality Statement for Locality A4 specifies that development for the purposes of housing for older people or people with disabilities is prohibited except on land that “adjoins a locality used primarily for urban purposes” in which circumstance development for that purpose is a permitted Category Two development. Commissioner Moore deduced from this requirement an intention of the draftsperson of the Locality Statement that Locality A4 was not a locality “zoned” primarily for urban purposes. Commissioner Moore considered that if Locality A4 itself was to be regarded as zoned primarily for urban purposes, it would be “logically absurd” for there to be a necessity, in order for development for the purpose of housing for older people or people with disabilities to be permitted and not prohibited, for the land within that locality also to be located adjoining land of a similarly purposed zoning: para 43 of the Commissioner’s reasons.

25 Secondly, in the event that he was wrong as to his first reason, Commissioner Moore went on to examine the categories of permitted development in Locality A4 and the desired future character of that locality.

26 Commissioner Moore initially considered the Category One uses (para 51) in the context of the statement of the desired future character of the locality (para 52). Commissioner Moore noted (para 59) the list of Category One uses for Locality A4 to be:

· agriculture

· animal boarding or training establishments

· further education

· housing

· primary schools

· recreational facilities

· restaurants

· retail plant nurseries

· veterinary hospitals

27 Commissioner Moore observed there was “no broad coherence in this grouping of activities” (para 60 of the Commissioner’s reasons). Commissioner Moore considered that:

(a) agriculture and animal boarding and training establishments are indicative of a non-urban setting; (para 60)

(b) further education, primary schools and restaurants tend to indicate an urban setting; (para 61) and

(c) the balance are neutral as they are activities which might well be found in either setting. (para 61)

28 Commissioner Moore next evaluated these uses by testing “how those who framed the LEP wished the character of the locality to be assessed” (para 62).

29 Commissioner Moore referred at paragraph 58 to the first of the paragraphs in the desired future character statement for Locality A4 which states:

“The Myoora Road locality will provide an environment for low intensity business, community and leisure uses which do not rely on exposure to passing trade for their continued operations. Along Mona Vale Road and dense bushland buffer will be retained or established”.

30 Commissioner Moore considered the use of the expression “low intensity” was “the first indication that the tenor of the desired future character of this locality is not an urban one” (para 63). Commissioner Moore next referred to the subsequent statement in the first paragraph of the desired future character statement that the uses permitted are intended to be destination uses rather than those which rely on passing trade. Commissioner Moore considered this intention “is reinforced by the requirement that there will be a bushland buffer to Mona Vale Road in order to shield these uses from high visibility to the passing public” (para 63).

31 Commissioner Moore found the second paragraph of the desired future character statement dealing with safe vehicular access to be of no assistance (para 64).

32 Commissioner Moore referred (at para 65) to the third paragraph of the desired future character statement which describes the types of signs that will be permitted:

“Only small, non obtrusive and non illuminated signs that identify the use of a site are to be visible from Mona Vale Road. Signs that are designed of such size, height or visual appearance so as to attract passing trade will not be permitted. All signs are to be in keeping with the colour and textures of the natural landscape”.

33 Commissioner Moore considered the first sentence of this paragraph “reinforces the intention of the LEP to ensure that the activities in the locality are destination uses rather than those relying on passing traffic to attract people to them” (para 66). Commissioner Moore found the second sentence of this paragraph “also contains the inherent flavour, through the requirement for consistency with colours and textures of the natural landscape for signage, that this is intended to reinforce and act with the bushland buffer provision, in order to separate the locality from being perceived as having or being in an urban setting” (para 67).

34 The final paragraph of the desired future character statement provides:

“Articulated building forms, generous landscaped spaces around buildings and building materials that blend with the colours and textures of the natural landscape will be used to minimise the visual impact of development on long distance views of the locality”.

35 Commissioner Moore considered the restrictions referred to in this final paragraph “were also intended by those who framed the provisions of the LEP in this regard to ensure that the pattern of development which might be permitted within the locality would not be perceived to be of an urban character” (para 69).

36 Next, Commissioner Moore examined the controls on development for Category One development in Locality A4. Commissioner Moore noted that the permitted housing density is of 2 ha allotments. This permitted housing density of 2 ha allotments “also assists in setting aside the locality from a conventional one used for urban purposes and serves to remove the otherwise neutral flavour of housing as it blandly appears in the Category One list and have it act, contextually, as an indicator of a non-urban intention” (para 70).

37 Commissioner Moore then turned to examine the Category Two and the Category Three developments permitted in Locality A4. Commissioner Moore held:

“Although the range of activity set out as Category Two and Three development for this locality are also eclectic, they are, in general terms, more consistent with an urban environmental than with a non-urban one. However, those drafting the LEP have posed higher thresholds of permissibility, as earlier set out, for these categories of development” (para 71).

38 This last sentence was a reference to the fact that under cl 12(3) of WLEP, before granting consent to a Category Two or Category Three development in Locality A4, the consent authority must be satisfied that the proposed development will be consistent with the desired future character described in the Locality statement. Commissioner Moore continued:

“As I have concluded that the desired future character statement for this locality, when read in conjunction with the permitted Category One development, gives a non urban flavour to the desired future character of the area, the fact that Category Two and Category Three development must be consistent with that desired future character for it to be permitted in the locality, means that such development could not be permitted if it were to derogate from that desired future non urban character.
As a consequence, I do not consider that [the] broader and more urban nature of the permitted Category Two and Three development for this locality, given the threshold, can be of any assistance to the applicant in the proceedings” (paras 72 and 73).

Applicant’s submissions on the s 56A appeal

39 The applicant submitted that both sets of reasons of Commissioner Moore reveal errors of law. In relation to the first reason, the applicant submitted that Commissioner Moore erred by substituting for the actual word “used” in the requirement that the land “adjoins the locality used primarily for urban purposes” the word “zoned” (para 41). Only by that means, the applicant submitted, was Commissioner Moore able to find a logical absurdity. The applicant submitted that the words “zoned” and “used” have different meanings and it was an error to substitute one for the other.

40 The applicant also submitted that Commissioner Moore’s second set of reasons revealed error. First, Commissioner Moore, in construing the Category One development, had regard to the desired future character statement and in this way qualified the urban purposes by the desired setting. The applicant submitted that a change in the intensity of the use is not indicative of a different use or purpose. The applicant relied on DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 for the proposition that development for a purpose (dwelling houses in that case) is no less for that purpose if there are requirements regulating the circumstances in which development for that purpose may be carried out (in that case that the dwelling houses must be used in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted). Accordingly, the expressed desire in the desired future character statement for low intensity development, the requirement for landscaping, the regulation of signage and the permitted housing density of two hectare allotments, do not cause the permitted Category One developments to lose their classification as being for urban purposes.

41 Secondly, in relation to the Category Two developments, the applicant submitted that Commissioner Moore erred in holding that the urban purposes in Category Two could not be of any assistance given the threshold of being consistent with the desired future character. This was, the applicant submitted, contrary to DEM (Aust) Pty Ltd v Pittwater Council. The applicant submitted that the Category Two developments are primarily for urban purposes, notwithstanding development controls on the manner of use for such purposes.

42 Logically, I need to deal first with the Council’s notice of contention that Commissioner Moore erred in law in holding the applicant’s land is “zoned” at all under WLEP before I deal with the applicant’s submissions that Commissioner Moore erred in law in holding the applicant’s land is not zoned “primarily for urban purposes”.

“Land that is zoned”

43 The Council contended that WLEP does not zone land in the local government area of Warringah in the conventional sense at all. In order to deal with this contention, I will need first to explain the planning tool of zoning then examine whether WLEP employs this tool.

The tool of zoning to control development

44 The principal legal effect of a local environmental plan is the control of development in accordance with the procedures in Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW). The local environmental plan may expressly permit specified development to be carried out without the need for development consent (s 76(1)), declare development of a specified type or description that is of minimal environmental impact to be exempt development (s 76(2)), provide that specified development that may not be carried out except with development consent (s 76A(1)), declare that development can be addressed by specified, pre-determined development standards is complying development (s 76A(5)) and provide that specified development is prohibited (s 76B).

45 Where a local environmental plan contains provisions so controlling development, the Environmental Planning and Assessment Act 1979 (NSW) gives statutory force and effect to these controls. Where development is specified as not requiring development consent and development is specified as being exempt development, that development may be carried out without consent: s 76(1) and (3) respectively. Development that is specified as prohibited must not be carried out: s 76B. Where development is specified as not to be carried out except with development consent, that development may be carried out only after the grant of development consent and then in accordance with that consent (which includes a complying development certificate issued pursuant to s 85A in the case of complying development): s 76A(1). This latter form of controlling development is by far the most commonly employed by environmental planning instruments.

46 The most common form of controlling development in a local environmental form is by means of zoning. Conventionally, zoning divides a local government area into zoning districts on the basis of the functional incompatibility and compatibility of various types of uses. Generic categories of fundamentally incompatible types of uses, such as housing, business and industry, are segregated into separate zoning districts which are typically labelled to indicate the generic category of use such as residential, business and industrial zones. The typical generic zoning districts, segregated by the fundamental incompatibility of types of uses, are: non-urban or rural; residential; commercial or business; industrial; special uses (such as transport infrastructure or institutions including educational and religious institutions); open space and conservation.

47 Within each zoning district, there may be subdistricts segregating, at a more specific level, the generic categories of uses. For example, within a generic residential zone, there may be specific sub-districts for low-density (detached dwelling houses), medium density and high density residential uses. Similar distinctions, based on the intensity of use, are often found in business and industrial zoning districts (such as light industry versus heavy industry).

48 Often the local environmental plan will include one or more special purpose zones addressing particular characteristics of the environment, such as hazard areas (flood, geotechnical or foreshore hazards), scenic landscape areas and heritage areas. These special purpose zones are often applied as “overlays” so that the particular land subject to special overlay zones are also within an underlying zoning district. For example, land within a residential zone might also be located within a flood hazard zone. The land would be subject to the controls and development of both the underlying zone (in the example, residential) and the overlay zone (flood hazard).

49 Having segregated blocks of land on the basis of the fundamental incapability of types of uses, the local environmental plan typically prescribes the rules that apply in each zoning district or sub-district. These rules typically establish a list of developments permitted in each zoning district or sub-district. The permitted developments are those that are functionally compatible with one another. Functionally incompatible developments are prohibited.

50 The rules also typically specify the standards or requirements in relation to the carrying out of the permitted developments, such as lot size; built upon area; location, siting and setback; and bulk, scale, shape, size, height, density, design or external appearance of the permitted development. These standards also have as their aim the fostering of compatibility between permitted developments.

51 The conventional zoning approach is not the only approach to zoning, although it is by far the most common approach. Other types of zoning include performance zoning. Performance zoning uses performance-based or goal-orientated criteria to establish review parameters for proposed developments in any area. Performance based zoning is founded on the assumption that the impacts of land use are a function of intensity of the use rather than the specific use. A land use is measured against the pre-determined performance standards that set quantative limits on acceptable levels of use.

52 Other types of zoning include incentive zoning and design based zoning.

WLEP’s control of development

53 In the local government area of Warringah, planning control and development is regulated by WLEP. Unlike other local environmental plans in New South Wales, WLEP does not separate land uses in a hierarchy based on land use type, such as dividing residential, business and industrial uses from each other in prescriptive zones. Instead, WLEP employs a multi-layer approach.

54 One layer is based on the concept of a locality. A locality is a discrete geographical area of land or water. Each locality is delineated on the plan map, mostly using street or property lines, to show the boundaries of the locality.

55 The criteria for delineating a discrete tract of land as a locality is, firstly, geographical and secondly, the character of the tract of land, both existing but more importantly, the desired future character of the tract of land.

56 The geographical criteria include the hydrological catchments of the local government area and geographical location. WLEP identifies five hydrological catchments, a locality centred on Middle Harbour and two geographical locations of Dee Why and Harbord. Each geographical area is assigned a letter (A-H). The geographical areas are:

A - Cowan Creek Catchment
B - Narrabeen Lagoon Catchment
C - Middle Harbour Suburbs
D - Collaroy Beach Catchment
E - Dee Why
F - Curl Curl Lagoon Catchment
G - Manly Lagoon Catchment
H - Harbord

57 The applicant’s land is within the Cowan Creek Catchment.

58 Within each of these geographical areas, tracts of land are further delineated based on the character of the land. The character of the land is influenced by both natural factors, such as physiographical and vegetative features, as well as human influences, such as the pattern of development, types of use and manner of development. The character of the land includes that in existence and importantly that which is desired in the future.

59 Proximately located lands of similar character are grouped into a locality and delineated from other land with a different character. The character of the locality is described in the locality statement for that locality.

60 Each locality is given a name describing the geographical location of the locality and a number. Thus, taking the localities within the Cowan Creek Catchment, there are the following localities:

A1 - Cottage Point
A2 - Booralie Road
A3 - Terrey Hills Village
A4 - Myoora Road
A5 - McCarrs Creek Road
A6 - Ku-ring-gai Chase National Park
A7 - Mona Vale Road North

61 The applicant’s land is within Locality A4 - Myoora Road.

62 Overlaying the localities are other special purpose areas. These include:

· Heritage items/conservation areas;

· Beach hazard areas (designated by a setback line from the foreshore);

· Medium density areas (for housing);

· Local retail centres;

· Cross-hatched areas (indicating restrictions such as by reason of the topography of the land or the presence of aboriginal relics);

· Public open space;

· Open space reservation;

· Regional open space reservation;

· Arterial road reservation.

63 These special purpose areas are not confined to any particular locality but occur, as appropriate, in a number of localities across the local government area. Thus, for example, local retail centres are identified (by orange colouring on the plan map) in a number of localities, including Locality A3 - Terrey Hills Village.

64 A number of these special purpose areas have some affinity with the conventional zoning approach of segregating land by reference to the types of land use (retail, residential and open-space).

65 WLEP uses the localities and the special purpose areas overlaid on the localities as the primary means to control development in the local government area. An exception to this general approach is that WLEP directly (and not indirectly by means of the locality statements) specifies development that is exempt and development that does not require consent (cl 7 of WLEP).

66 The locality statement for each locality identifies development that is complying development, development that is permitted with the grant of development consent and prohibited development.

67 Permitted development is divided into three categories: Category One, Category Two and Category Three. The classification of permitted development into the three categories for any particular locality will depend on the desired future character of that locality. As the note to cl 12 of WLEP explains:

“Category One development is development that is generally consistent with the desired future character of the locality. Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is generally inconsistent with the desired future character of the locality”.

68 Nevertheless, it is worth noting that each of Category One, Category Two and Category Three development is permitted development. If a development is fundamentally inconsistent with the desired future character of the locality, it will be prohibited in the locality statement for that locality.

69 The categorisation of the permitted development as Category One, Category Two or Category Three affects the consent authority’s consideration of any application for development consent. For example, the consent authority, before granting consent to permitted development classified as Category One development, must consider the desired future character described in the relevant locality statement, but before granting consent to permitted development classified as Category Two or Category Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the Locality Statement: cl 12(3)(b).

70 Where there is a special purpose area within the locality, the categories of permitted development may be further subdivided. For example, in Locality A3 - Terrey Hills Village, the special purpose area of local retail centre is identified on certain properties. There is also a further identification of an industrial area, the Tepko Road industrial area (the extent of which is found in the Locality Statement). The types of Category One developments permitted on land within Locality A3 are subdivided by reference to the local retail area, the industrial area and the remaining area of the locality. The subdivision is made according to the land use type.

71 Industries and warehouses are permitted Category One developments in the Tepko Road industrial area but not in the local retail centre or the remainder of the locality. Business premises, offices, restaurants and shops are permitted Category One developments in the local retail centre but not in the Tepko Road industrial area or the remainder of the locality. Housing generally is a permitted Category One development in the locality but is restricted in the local retail centre (not on the ground floor) and in the Tepko Road industrial area (only where used in conjunction with industries or warehouses).

72 This segregation of land uses accords with the more conventional zoning approach of segregating land uses thought to be incompatible with one another. However, the system of planning regulation in the WLEP differs from conventional zoning in two fundamental respects. First, the segregation by type of land use (such as commercial and industrial) is not done at the level of locality but at the level of special purpose area. Secondly, those uses which are not classified as being permitted Category One developments for certain areas of the locality, nevertheless are still permitted in the locality, being classified as Category Three developments. Thus, business premises, restaurants and shops which are Category One developments in the local retail centre, and industries and warehouses which are Category One development in the Tepko Road development, are each permitted Category Three developments in the remainder of the locality.

Is land under WLEP zoned?

73 It is clear from the description I have given above of the means WLEP uses to control development that WLEP does not adopt a conventional zoning approach. Other judges of this Court have also so concluded: Gillespies v Warringah Council (2002) 124 LGERA 147 at 153 [21] and Mete v Warringah Council [2004] NSWLEC 273 at [23]. However, that is not determinative of the question that needs to be determined under cl 4(1)(a) of the Seniors Living Policy of whether the land, in this case the applicant’s land, is zoned primarily for urban purposes. Although land may not be zoned in the conventional sense for different purposes under WLEP, nevertheless WLEP does distinguish between different tracts or areas of land based on criteria of geographical features and character and identifies the purposes for which development is permitted on the different areas of land. The applicant’s land, for example, is identified, by the means of inclusion in a locality, as being land on which development for specified purposes is permitted. In this sense, the applicant’s land can be said to be “zoned” for those specified purposes.

74 This was the conclusion reached by Talbot J in Mete v Warringah Council [2004] NSWLEC 273. Talbot J said that the conventional system of zoning is certainly one way of achieving of zones but it is by no means the exclusive one (at [22]). Talbot J continued:

“Although innovative and maybe not strictly the conventional approach, on balance, in my view, it is open, and appropriate, to regard the adoption of Locality Statements in WLEP as a means of placing land in a zone and, accordingly it establishes a system of zoning. It is, therefore, a matter of construction to determine whether land included in any Locality Statement is zoned primarily for urban purposes by reference to uses permissible in each locality. I find that SEPP (SL) applies to land within the Warringah local government area identified in that way as being effectively zoned for urban purposes or adjoining land zoned for that purpose” (at [23]).

75 Commissioner Moore in this case followed that decision to conclude that the applicant’s land could be said to be “zoned”. I am of the view that this is the correct construction of the provisions of the Seniors Living Policy that refer to land being zoned (cl 4(1) and (2)). Accordingly, I reject the Council’s notice of contention.

“Zoned primarily for urban purposes”

76 The applicant’s first submission was that Commissioner Moore erred in his first reason for concluding that the applicant’s land was not zoned primarily for urban purposes by impermissibly substituting the word “zoned” for “used” when referring to the requirement that development for the purpose of housing for older people or people with disabilities be on land that adjoins a locality used primarily for urban purposes.

77 I agree with the applicant’s submission.

78 WLEP does not use the word “zoned”; it uses the word “used”. The zoning of land establishes parameters or rules to permit or control development to be carried out on the land. Zoning is prospective in focus. “Used”, in contrast, focuses on the present state of affairs. A locality “used primarily for urban purposes” is one in which the land uses in the locality are already primarily for urban purposes. A locality “zoned primarily for urban purposes” is one where the rules so permit and control development for urban purposes as to bring about the state of affairs that the locality will be used primarily for urban purposes.

79 WLEP’s use of the word “used” in requiring development for the purpose of housing for older people and people with disabilities to be on land in or adjoining a locality used primarily for urban purposes accords with sound planning policy. Development for the purpose of housing for older people or people with disabilities should make efficient use of existing infrastructure or services (see, for instance, cl 2(1)(b) of the Seniors Living Policy). If a locality is already used primarily for urban purposes, infrastructure and services will already exist to service those existing uses for urban purposes. New development for older people or people with disabilities can take advantage of the existing infrastructure and services. This can be done if such development is carried out in such a locality or on land that adjoins such a locality so that the existing infrastructure and services can be readily extended to the land.

80 In these circumstances, the choice of the word “used” in the phrase “on land that adjoins a locality used primarily for urban purposes” in WLEP is not synonymous with “zoned”. Commissioner Moore was in error in substituting “zoned” for “used” in that phrase.

81 If the word “used” remains in the phrase, applying the logic of Commissioner Moore, the only conclusion that could be reached as to the intention of the draftsperson of the Locality Statement could be that Locality A4 was not considered to be a locality that was “used” primarily for urban purposes because if it were to be, there would have been no need to have required development for the purpose of housing for older people or people with disabilities to be on land that adjoins a locality used primarily for urban purposes. It is to be noted that other localities which are clearly urban do not so limit development for the purpose of housing for older people or people with disabilities to land that adjoins a locality used primarily for urban purposes. Locality A3 - Terrey Hills Village is an example.

82 However, a conclusion that Locality A4 is not a locality “used” primarily for urban purposes is not determinative of the question that needs to be determined under cl 4(1)(a) of the Seniors Living Policy of whether land within the locality is “zoned” primarily for urban purposes. Because of the different focus of “used” and “zoned” it is theoretically possible that land in a locality zoned primarily for urban purposes may not be used primarily for urban purposes at a particular juncture.

83 The applicant’s next submission was that Commissioner Moore erred in his second set of reasons for concluding that the applicant’s land was not zoned primarily for urban purposes by qualifying the purposes of the uses, which the applicant submitted are primarily urban purposes, by reference to the development controls on the manner of use for such purposes.

84 I reject the applicant’s submissions. Commissioner Moore’s second set of reasons do not involve error of law.

85 I have held above that the concept of “zoned” in cl 4 of the Seniors Living Policy is wide enough to include the form of planning and development control employed by WLEP. However, when it comes to determine whether land under WLEP is zoned for purposes, including primarily for urban purposes (cl 4(1)(a)) and for industrial purposes (cl 4(2)(b)), this wider meaning of zoned must continue to be employed. One cannot revert to the conventional sense of zoning.

86 The enquiry is whether land, by the means WLEP employs of delineating tracts or areas of land into localities based on criteria of geographical features and character and designating for each locality the permitted purposes of development and the controls on permitted development, can be said to be zoned “primarily for urban purposes”. That enquiry cannot be performed by reference only to the types of land use specified as permitted purposes of development for land in the locality. The type of land use is not the primary criterion identifying the “zones” under WLEP, rather the geographical features and character of land are the criteria. Any evaluation of whether land “zoned” under the system of planning and development control employed by WLEP can be described as being zoned “primarily urban purposes” needs to be made having regard to the criteria used to delineate the locality in which the land is located (the geographical features and the character) and the controls which will regulate future development in that locality. The process of “zoning” land under WLEP includes these criteria and controls. The mere identification of the list of Category One, Category Two and Category Three developments permitted on land in the locality cannot be divorced from the criteria that led to the locality being delineated and the controls on development in that locality being specified to accord with those criteria.

87 This point can be illustrated by reference to the quintessentially urban purpose of housing. Housing is a permitted purpose of development in nearly all of the localities in the Warringah local government area, but the localities have widely different characters ranging from non-urban to densely urban. The mere fact that housing is specified as a permitted purpose of development on land in a locality, by itself, cannot provide insight into whether land in such a locality is primarily for urban purposes. Insight can only be gained by a wider enquiry also of the criteria that led to the locality being distinguished and delineated as a locality from other localities, including the geographical features and the existing and desired future character of land in the locality and the manner in which the permitted purposes of development in that locality may be carried out. The density of housing permitted, for example, can be indicator of whether a locality is primarily for urban purposes. A very low density (such as one dwelling per two hectares) is an indicator of a non-urban character while higher densities (including medium density) is an indicator of an urban area.

88 This wholistic approach to construction of the locality can be illustrated by reference to three localities in and adjoining the applicant’s land. These are Locality A2 - Booralie Road, Locality A3 - Terrey Hills Village and Locality A4 - Myoora Road. These three localities can be arranged in ascending order of degree of urban purposes.

89 At the lower end is Locality A2 - Booralie Road. It is described in the desired future character statement for that locality as being a non-urban area. The first paragraph states:

“The Booralie Road locality will remain a non-urban area consisting of detached style housing in distinctly non-urban settings and occasionally low intensity, low impact business or community uses that are compatible with a non urban nature of the locality and predominant scale of existing development”.

90 Reference to only the range of permitted purposes of development in Category One, Category Two and Category Three listed in the Locality Statement would give little indication of this non-urban character of land in the locality. Many of the permitted uses are for urban purposes. Category One development includes housing. Category Two includes child-care centres, community facilities and health consulting rooms. Category Three development includes an even wider range such as business premises, entertainment facilities, hospitals, hotels, medical centres, offices, places of worship, primary schools, restaurants, service stations and shops. There are other non urban purposes specified, including agriculture, as Category One development. However, the list of permitted purposes alone does not rank or weight the purposes – it is just a list.

91 Nevertheless, the description of the desired future character as non urban, the requirement for consideration of or consistency with this desired future character and the various controls on development limiting urban development, have the consequence that land in the locality cannot be said to be “primarily” for urban purposes.

92 At the upper end of degree of urban purposes is Locality A3 - Terrey Hills Village. The desired future character statement for this locality identifies a predominantly residential area, within which is located a local retail area and an industrial area. The locality is referred to by the label “Terrey Hills Village”, signifying the primarily urban nature of the locality. The locality is stated in the desired future character statement to be “characterised by detached style housing in landscaped settings interspersed by a range of complementary and compatible uses”. The latter is a reference to the uses in the local retail area and the Tepko Road industrial area.

93 The range of permitted purposes of development in Locality A3 is wide, as I have earlier explained. Each of the urban purposes that are identified as being permitted in the non-urban area of Locality A2 are also permitted in Locality A4. This again shows that blinkered reference only to the list of the permitted purposes of development would give a misleading explanation of the nature of the locality. The list of permitted purposes in Locality A2 and Locality A3 may be the same, but evidently the localities are materially different, the former non-urban and the latter urban.

94 In between these two localities is Locality A4, the locality in which the applicant’s land is located. The desired future character statement for this locality and the permitted purposes of development have been set out earlier in these reasons when summarising Commissioner Moore’s reasons. These characteristics reveal an intention to delineate a locality with a greater degree of urban purposes than Locality A2 but a lesser degree than Locality A3.

95 Although the approach to planning and development control employed by WLEP differs from conventional zoning, nevertheless I note that a wholistic construction approach has been adopted for determining whether land in a conventional zone can be described as being zoned primarily for urban purposes. This wholistic construction approach looks not merely to the list of permitted uses in the zone but also to the name of the zone and the stated objectives of the zone: see, for example, Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 448.

96 Accordingly, the approach adopted by Commissioner Moore of considering not only the permitted purposes of development but also the desired future character and the controls on permitted development was one which was permissible in order to evaluate whether land in the locality in question, Locality A4, was zoned primarily for urban purposes. I therefore reject the applicant’s submissions that Commissioner Moore erred in law by doing so.

97 I should add that independently I would also conclude that land in Locality A4 does not attain the threshold required under cl 4(1)(a) of the Seniors Living Policy of being zoned “primarily” for urban purposes. Undoubtedly, urban purposes are permitted on land in the locality, however, overall land in the locality cannot be said to be “primarily” for urban purposes. Pearlman J in Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 447 [12] took the word “primarily” to mean “chiefly” or “principally”. Land in Locality A4 cannot be said to be used principally for urban purposes. Incompatible non-urban uses, such as agriculture or animal boarding or training establishments, speak against a conclusion that the locality is chiefly or principally for urban purposes: see Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 449 [18]-[20]. The desired future character statement and the controls on development also operate to deny a conclusion that land in Locality A4 is zoned “primarily” for urban purposes.

“Zoned for industrial purposes”

98 As I have noted, the Seniors Living Policy will not apply to lands that are zoned for industrial purposes (see cl 4(2)(b)). In the case of land in Locality A4, development for the purpose of industry is a permitted Category Three development. Industry is defined in the usual way: see dictionary of WLEP. This poses a problem for the applicant’s case. Land in WLEP is “zoned” in this wider sense for industrial purposes.

99 The applicant sought to avoid this conclusion by, first, submitting that cl 4(2)(b) should be read as if the words “primarily” or “only” were included before “industrial purposes”. This self evidently cannot be correct because the draftsperson has expressly made such a qualification on the purposes in cl 4(1)(a) but did not do so for the purposes in cl 4(b).

100 Secondly, the applicant submitted the word “zoned” in cl 4(2)(b) should be construed as referring to zoning in the conventional sense, so as to include only conventional industrial zones. This argument also is self evidently incorrect. If the word “zoned” in cl 4(1)(a) of the Seniors Living Policy can be given a wide enough meaning to include within its exclusionary ambit the process under WLEP of delineating localities and listing permitted purposes of development in the locality, the word “zoned” in cl 4(2) must also be given that wide meaning.

101 Thirdly, the applicant submitted that because development for industrial purposes is a Category Three development, consent can only be granted to such development where the consent authority forms the opinion that the carrying out of such development will be consistent with the desired future character of the locality: cl 12(3)(b) of WLEP. Whilst this is true, that does not deny the fact that the development for industrial purposes is a permitted development. As was held in DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187, development remains development for a purpose notwithstanding the presence of words qualifying or limiting the circumstances in which development for that purpose is permitted. Accordingly, the applicant’s land remains land that is zoned for industrial purposes, notwithstanding that development for industrial purposes may only be consented to in circumstances where such development is consistent with the desired future character of the locality.

102 Fourthly, the applicant submitted that to construe cl 4(2)(b) as applying to land in Locality A4 would be contrary to the aims of the Seniors Living Policy and its beneficial and facultative nature. However, the Seniors Living Policy expressly specifies the land to which it does apply and the land to which it does not apply. There is an evident planning policy behind each of these specifications of applicability and non-applicability. Land that is zoned for industrial purposes is deemed unsuitable for development of the kind that the Seniors Living Policy promotes because industrial purposes are fundamentally incompatible with the residential purposes of housing for older people and people with disabilities. Hence, to hold that the Seniors Living Policy does not apply to land in Locality A4 on which land development for industrial purposes is permitted is, in fact, to be consistent with the Seniors Living Policy.

103 Accordingly, the applicant’s land is land zoned for industrial purposes under WLEP and, by reason of cl 4(2)(b) of the Seniors Living Policy, is therefore land to which the Seniors Living Policy does not apply.

Conclusion

104 Although one of Commissioner Moore’s reasons for his conclusion that the Seniors Living Policy does not apply to the applicant’s land reveals an error of law, that error is not material. Commissioner Moore’s conclusion can be sustained by Commissioner Moore’s further reasons for holding the applicant’s land is not zoned primarily for urban purposes as well as by the fact that the Seniors Living Policy does not apply to the applicant’s land by reason of cl 4(2)(b).

105 Accordingly, the Court orders:

1. The applicant’s s 56A appeal is dismissed.

2. The applicant is to pay the Council’s costs as agreed or assessed.

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