Rosewood Australia Pty Ltd v Ku-ring-gai Council

[2019] NSWLEC 84

Land and Environment Court

New South Wales

Medium Neutral Citation:	Rosewood Australia Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 84
Hearing dates:	11 June 2019
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See orders at [76]
Catchwords:	DEVELOPMENT APPLICATION – whether land mapped “Biodiversity” in Ku-ring-gai Local Environmental Plan 2015 is “Environmentally sensitive land” within the meaning of Sch 1 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 – whether proposed development in the public interest – appeal upheld
Legislation Cited:	Biodiversity Conservation Act 2016 (NSW) Environmental Planning and Assessment Act 1979 (NSW) s 4.15 Interpretation Act 1987 (NSW) s 35 Ku-ring-gai Local Environmental Plan 2015 cll 1.2, 3.3, 6.3 Land and Environment Court Act 1979 (NSW) s 36 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Sch 1, cll 4, 15, 16
Cases Cited:	4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191; (2017) 224 LGERA 301 Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 Challenger Listed Investments Limited v Valuer General (No 2) [2015] NSWLEC 60 Druitts Developments Pty Ltd v Gosford City Council [2001] NSWLEC 96; (2001) 114 LGERA 61 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Mac Services Group v Mid-Western Regional Council [2014] NSWLEC 1072 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Pepperwood Ridge Pty Ltd v Newcastle City Council [2006] NSWCA 122; (2006) 145 LGERA 340 Warringah Shire Council v Punnett & Associates Pty Ltd [2001] NSWCA 480; (2001) 122 LGERA 1 Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143; (2018) 235 LGERA 5
Category:	Principal judgment
Parties:	Rosewood Australia Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) N Williams SC with J V Smith (Respondent)   Solicitors: Hall & Wilcox (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/00120815
Publication restriction:	Nil

Judgment

1. Rosewood Australia Pty Ltd (‘applicant’) appeals against Ku-ring-gai Council’s (‘Council’) deemed refusal of Development Application DA0063/18 for the demolition of existing dwellings and ancillary structures and the construction of a seniors living development comprising seven self-contained dwellings of one to two storeys over a basement garage and associated works on land at 116-118 Junction Road, Wahroonga (‘site’).

2. The site is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (‘LEP’) – the proposed development, being a “residential care facility”, is prohibited in that zone. As such, the applicant relies upon the operation of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (‘SEPP’) for permissibility.

3. Council’s primary contention is that the development is prohibited because part of the site is mapped “Biodiversity” under cl 6.3 of the LEP, and by operation of cl 4(6) and Sch 1 (b) and (d) of the SEPP, the SEPP does not apply to the site.

4. For the reasons that follow, I find that the SEPP applies to the site and that there is no public interest concern that militates against the granting of development consent.

Background

5. These proceedings were commenced on 17 April 2018. On 21 March 2019, the applicant was granted leave to rely upon further amended plans and supporting documentation which effectively resolved Council’s merit-related concerns that had previously been raised.

6. In its amended statement of facts and contentions filed 12 April 2019 (‘Council’s Contentions’), Council raised three remaining issues as follows:

(1) The proposed development for the purposes of seniors housing is a prohibited form of development in the R2 Low Density Residential zone under the LEP. The applicant cannot rely for permissibility upon provisions in the SEPP, as the SEPP does not apply to the site and nor does the proposed development comply with the development standards and criteria under the SEPP, in any event.

(2) The site is subject to cl 6.3 of the LEP (Biodiversity Protection) and is mapped “Biodiversity” under the LEP on the Terrestrial Biodiversity Map, as the vegetation thereon is representative of Sydney Turpentine Ironbark Forest. The site is also classified as “Environmentally Sensitive” land pursuant to cl 4(6)(a) and Sch 1 (c) and (d) of the SEPP and as such, the applicant cannot rely upon the operation of cll 15 and 16 of the SEPP to prevail over the LEP for permissibility, as the SEPP does not apply to the site by virtue of cl 4(6)(a) of the SEPP.

(3)   The further amended application should be refused because approval of the proposed development would not be in the public interest.

7. Despite the above wording, the primary issue in these proceedings, which is effectively jurisdictional, is whether the proposed development is on land described as “environmentally sensitive land” within the meaning of Sch 1 of the SEPP thereby rendering the proposed development prohibited. It is common ground between senior counsel for each of the parties, Mr A Galasso SC who appears for the applicant and Mr N Williams SC who appears with Dr J V Smith for Council, that contentions (1) and (2) are relatively coincident and effectively raise the same issue. It is further agreed that contention (3) is confined to various concerns raised by local objectors. Thus, the principal contention relates to the permissibility of the proposed development.

Legislative framework

8. Clause 4(1)(a) of the SEPP describes the land to which the SEPP applies as follows:

4    Land to which Policy applies

(1)    General

This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if:

(a)   development for the purpose of any of the following is permitted on the land:

(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 …

9. Clause 4(6) of the SEPP identifies the land to which the SEPP does not apply, relevantly land identified in Sch 1:

(6)    Land to which Policy does not apply

This Policy does not apply to:

(a) land described in Schedule 1 (Environmentally sensitive land) …

10. Clauses 15 and 16 of the SEPP provide:

15   What Chapter does

This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy:

(a)   development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and

(b)   development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.

16   Development consent required

Development allowed by this Chapter may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.

11. Schedule 1 of the SEPP provides:

Schedule 1 Environmentally sensitive land

Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions:

(a)   coastal protection,

(b)   conservation (but not land identified as a heritage conservation area in another environmental planning instrument),

(c)   critical habitat,

(d)   environment protection,

(e)   open space,

(f)    escarpment,

(g)   floodway,

(h)   high flooding hazard,

(i)    natural hazard,

(j)    (Repealed)

(k)    scenic (but not land that is so identified if:

(i)    the land is within a residential zone in which development of two storeys or more in height is permitted, or

(ii)   an adjacent residential zone, also identified as scenic, permits development of two storeys or more in height),

(l)    water catchment,

(m)  natural wetland.

12. Clause 6.3 of the LEP provides:

6.3 Biodiversity protection

(1)   The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including:

(a)   protecting biological diversity of native fauna and flora, and

(b)   protecting the ecological processes necessary for their continued existence, and

(c)   encouraging the recovery of threatened species, communities, populations and their habitats, and

(d)   protecting, restoring and enhancing biodiversity corridors.

(2) This clause applies to land identified as “Biodiversity” on the Terrestrial Biodiversity Map.

(3)   Before determining a development application for development on land to which this clause applies, the consent authority must consider:

(a)   the impact of the proposed development on the following:

(i)   any native vegetation community,

(ii)   the habitat of any threatened species, population or ecological community,

(iii)  any regionally significant species of plant, animal or habitat,

(iv)  any biodiversity corridor,

(v)   any wetland,

(vi)   the biodiversity values within any reserve,

(vii)  the stability of the land, and

(b)   any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and

(c)   any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.

(4)   Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a)   is consistent with the objectives of this clause, and

(b)   is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided:

(i)    the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and

(ii)   measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and

(iii)  the development avoids clearing steep slopes and facilitates the stability of the land, and

(iv)  measures have been considered to achieve no net loss of significant vegetation or habitat.

(5)   In this clause:

biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and flora habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.

13. “Biodiversity” is defined in the LEP Dictionary as follows:

biodiversity or biological diversity means the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems.

14. The essential issue in relation to permissibility is whether the description “biodiversity” on the Terrestrial Biodiversity Map (Terrestrial Biodiversity Map–BIO_006) (‘Map’) under cl 6.3 of the LEP satisfies any of the relevant categories in Sch 1 of the SEPP.

15. An extract of the Map is reproduced below with the site informally identified in red. As shown in the extract, part of the site is shaded green, which indicates that it is mapped “biodiversity”.

Council’s position

16. Council submits that the heading in Sch 1 of the SEPP, including the words “Environmentally sensitive land”, are an important part of the context in which the descriptions that follow are to be read, citing s 35(1)(b) of the Interpretation Act 1987 (NSW) (‘Interpretation Act’).

17. Council references Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [9] and submits that in construing an environmental planning instrument (‘EPI’), the planning purpose is to be determined by reference to the language of the instrument considered in context.

18. Council contends that the context and purpose of the SEPP as a whole indicates that the provisions which are designed to promote or facilitate development for seniors living do not apply to environmentally sensitive land and that the use of the phrases “the following descriptions”, “like descriptions” or “descriptions that incorporate any of the following words or expressions” in Sch 1 of the SEPP evince a legislative intention to cast a wide net for that exclusion.

19. While Council acknowledges that the words “conservation” and “environment protection” are not defined in the SEPP, it submits that the descriptors used in Sch 1 combine planning and physical characteristics of land. Council references “coastal protection”, “escarpment”, “floodway” and “natural wetland” in support of this point.

20. Council contends that the essential issue is whether any of the site identified in the LEP can be considered a “like description” to one or more categories in Sch 1 of the SEPP.

21. Council submits that only part of the site is identified as “biodiversity” on the Map. Council contends that by reference to the Map, it is apparent that the land so identified is part of a vegetation corridor. According to its Ecological Referral and the applicant’s Statement of Environmental Effects accompanying the development application, Council submits that remnant Sydney Turpentine Ironbark Forest (‘STIF’), listed as an endangered ecological community under the Biodiversity Conservation Act 2016 (NSW) (‘Biodiversity Conservation Act’), has been identified on the Junction Road frontage of the site.

22. Council notes that “biodiversity” is defined in the LEP Dictionary as “the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems”.

23. In light of the text and context of the descriptor of the land as “biodiversity”, Council submits that it should be identified “by describing it by reference to the conservation values that are to be conserved”: Pepperwood Ridge Pty Ltd v Newcastle City Council [2006] NSWCA 122; (2006) 145 LGERA 340 (‘Pepperwood Ridge’) at [41]. Council submits that the context in which “biodiversity” is used in the LEP, including the heading “Biodiversity protection” in cl 6.3, supports a reading of it as being a like descriptor for “conservation” or “environment protection” within the meaning of Sch 1 of the SEPP.

24. When cl 6.3 of the LEP and Sch 1 of the SEPP are read in context and consideration is given to the heading of Sch 1, pursuant to s 35(1) of the Interpretation Act, Council submits there is “little doubt” that land identified in the LEP as “biodiversity” constitutes “environmentally sensitive land”, and that “biodiversity”, a term which only assumes meaning within the field of discourse of conservation and environment protection, is a “like description” for those terms.

25. While Council notes that the issue in this matter was recently considered by this Court in Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 (‘Australian Nursing Home Foundation’), it submits that the argument before the Court on that occasion was put on a different basis.

26. Accordingly, Council submits that the Court would find that the proposed development is on land described in Sch 1 of the SEPP with the effect that the SEPP does not apply pursuant to cl 4(6)(a), rendering the proposed development prohibited.

The applicant’s position

27. The applicant submits that within Sch 1 of the SEPP, the operative component is “land identified”. That is, the relevant enquiry is limited to the identification of the land in a particular way and it is telling that “biodiversity” is not listed as a category in Sch 1 and none of the words or expressions in Sch 1 incorporate “biodiversity”. Accordingly, the applicant submits that the only way to engage Sch 1 would be to characterise “biodiversity” as a “like description” for any of the words or expressions listed in the schedule, which it contends is a high threshold to meet.

28. The applicant submits that in determining whether something is a “like description” for another, the comparator in Sch 1 should be to a word where a single word is used or to an expression where more than a single word is used, and that it is inappropriate to extract from a composite expression a single word in making this determination: Druitts Developments Pty Ltd v Gosford City Council [2001] NSWLEC 96; (2001) 114 LGERA 61 (‘Druitts’) at [14].

29. The applicant submits that Council’s contention that the site is mapped in a particular way as the vegetation thereon is representative of STIF is irrelevant and objectionable as the factual circumstances and exigencies of the land are irrelevant to the cl 4 SEPP enquiry. The applicant submits that this irrelevance extends to Council’s contention that the land is part of a “corridor” as this is contained in a development control plan (not an EPI). The applicant submits that Council’s reference to its Ecological Referral and the applicant’s Statement of Environmental Effects are similarly irrelevant as they are matters of evidence which do not form part of an EPI (and go beyond identification of land described in a particular way).

30. The applicant contends that “biodiversity” is not a like description for “critical habitat”, nor is it a like description for “environment protection”. While biodiversity bespeaks a variety within species and ecosystems, the applicant submits that whether or not land is critical habitat to species within the diversity between species is wholly irrelevant to the concept of biodiversity. Further, the applicant submits that protection in the context of environment protection is concerned with conservation or protection, however, as used in the LEP, biodiversity is merely identifying the land as having a potential attribute.

31. The applicant contends that the task presented in cl 4(6) of the SEPP ends with the description on the Map as that is the mechanism selected in the LEP to identify the land. Nevertheless, the applicant submits that the concept of “biodiversity” within the LEP is not addressed in a way that undermines that limitation, referencing cll 1.2, 3.3(2)(g) and 6.3 (the latter of which is addressed further below) and a series of provisions in the LEP which cross-reference the Biodiversity Conservation Act. The applicant also notes that “biodiversity corridor” is referenced in one of the objectives of the E4 Environmental Living Zone, however it submits that the concept is inconsistent with any notion of “critical habitat” or “environment protection” and that the relevant phrase is “biodiversity corridor” which is different to the overall concept of “biodiversity”.

32. The applicant submits that none of the objectives of the R2 Zone, where the site is situated, are consistent with the identification of land which engages Sch 1 of the SEPP as no components thereof are like descriptions for “critical habitat” or “environment protection”.

33. The applicant submits that the objectives in cl 6.3(1) of the LEP are not to be equated with zone objectives. The applicant cites Tobias JA in Pepperwood Ridge at [37], [41], [42] and submits that the key question is whether there are words in the objective of the zone which identify the land by a like description to those contained in Sch 1 of the SEPP, and the chapeau of the schedule is not satisfied merely because a particular word is found in the objective.

34. The applicant submits that the objectives in cl 6.3 of the LEP do not serve an identification function and on the engagement of the clause, neither “critical habitat” nor “environment protection” is contemplated as the clause is directed towards the determination of a development application as per subcl (3), not the converse. The applicant contends that cl 6.3(3)(a) of the LEP pertains to an assessment function which does not posit a circumstance of the environment necessarily requiring protection, evidenced by the use of the word “any” throughout the clause.

27. The applicant submits that cl 6.3(4) of the LEP demonstrates that the mapping is less to do with identification of land and more to do with the establishment of criteria for the assessment of a development application in relation to that land. The applicant contends that this is so because pursuant to cl 6.3(4)(a), before consent is granted, the consent authority must be satisfied that the development is consistent with the objectives of the clause. As such, the applicant submits that the objectives set out in cl 6.3 relate to an assessment function rather than an identification function.

28. Even by reference to the objectives of cl 6.3 of the LEP (which the applicant contends is not permitted), the applicant submits that it cannot be said that the site is on land that pertains to a like description to any of the words or expressions contained in Sch 1 of the SEPP.

29. The applicant submits that its position is consistent with the decision in Australian Nursing Home Foundation, noting that the factual circumstances of the present case are no different to those contemplated in Australian Nursing Home Foundation given that Council appears to eschew element (c) in Sch 1 (“critical habitat”) for element (b) (“conservation”).

30. The applicant submits that insofar as Council references “conservation”, for the reasons set out above with respect to “critical habitat” and “environment protection”, there is no foundation for a conclusion that biodiversity is a like description thereof. The applicant contends that there is no necessary implication that conservation is relevant to the identification of land as “biodiversity” and that engagement of the clause may result in the converse of any notion of conservation. The applicant further submits that cl 6.3 of the LEP is also concerned with enhancement or restoration, which is beyond the scope of conservation.

31. With reference to the Biodiversity Conservation Act, the applicant submits that the concept of “biodiversity” is inconsistent with any notion of conservation. Even within the Biodiversity Conservation Act, the applicant submits that “conservation” is used to express a sentiment related to biodiversity that is different to the mere identification of biodiversity.

32. The applicant submits that as there is no use of the term “biodiversity” in Sch 1 of the SEPP, and there is no use of the terms “conservation”, “critical habitat” or “environment protection” in any relevant label of land within the LEP, there is no basis for finding that the SEPP does not apply to the site.

Consideration

The applicability of the SEPP to the site

41. The principles of statutory construction in relation to subordinate legislation, including EPIs such as the SEPP and LEP are well-known. I do not repeat them except to note that the general principles relating to the interpretation of primary legislation are equally applicable to the interpretation of EPIs: 4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191; (2017) 224 LGERA 301 at [45], [106], and Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143; (2018) 235 LGERA 5 (‘Whittaker’) at [28].

42. It is clear that Sch 1 of the SEPP requires identification of land by either the descriptions therein, by like descriptions or by descriptions that incorporate any of the words or expressions in the schedule. As the enquiry is one of identification of land in the LEP, I consider that the sole identifier or descriptor in the LEP is “biodiversity”. Given that there is nothing in the words or phrases used in (a) through to (m) of Sch 1 that incorporate “biodiversity”, the only enquiry is whether “biodiversity” is a “like description” to the nominated descriptors in the schedule.

43. While Council submits that the chapeau to Sch 1 evinces an intention to cast a wide net in construing the terms and phrases therein, I do not consider a “look and sounds like” or “vibe” approach (as suggested by the applicant) sufficient to meet the threshold. Although Council nominated “critical habitat” and “environment protection” in its contentions, in written and oral submissions, Council focused on the engagement of “conservation” and “environment protection”. For the reasons that follow, I find that “biodiversity” is not a like description for “conservation”, “environment protection” or “critical habitat” (insofar as it is relied upon). While there is a degree of latitude in the phrase “like description”, it still has to be like.

44. Both parties referred to earlier authority where the Court considered questions of categorisation and identification arising under previous incarnations of the SEPP. The authorities have generally supported a textual approach to determining whether land can be categorised by reference to a “like description” of land itemised in Sch 1 of the SEPP: Warringah Shire Council v Punnett & Associates Pty Ltd [2001] NSWCA 480; (2001) 122 LGERA 1 (‘Punnett’) at [25], Pepperwood Ridge at [40] and Whittaker at [28]. This approach has more recently been adopted by this Court in Australian Nursing Home Foundation.

45. In Punnett, the developer sought consent for the construction of housing for aged people in Dee Why. The developer needed to invoke State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (‘SEPP 5’) to overcome the prohibition for the development in the Warringah Local Environmental Plan 1985 (‘WLEP’). Pursuant to cl 4(2)(a) of SEPP 5, the policy did not apply to land described in Sch 1 (environmentally sensitive land). Schedule 1 was in very similar terms to Sch 1 of the SEPP in this case. The essential question was whether the subject land was identified in WLEP as “open space” within the meaning of Sch 1.

46. The subject land was within Zone 6(b) (Private Recreation “B”) pursuant to the WLEP. Clause 5 of the WLEP incorporated a map that included an index identifying eight zones. Zone 6(b) (Private Recreation “B”) was one of four zones identified under the heading “6. OPEN SPACE” in the index. The four zones under the heading “6. OPEN SPACE” did not use the term “open space” as part of their short description.

47. A textual approach was adopted by Mason P who found that the heading “6. OPEN SPACE” had “descriptive capacity”: at [31]. His Honour rejected the idea that the only verbal descriptions capable of attracting Sch 1 were those to which the EPI assigned some discrete operative or functional effect, finding that identification by description was sufficient and the incorporation of the map into the WLEP meant that the identification was made in the WLEP: at [32], [35]. His Honour concluded that Sch 1 gave effect to the otherwise neutral heading “6. OPEN SPACE” as the schedule engaged those words as one of the descriptions in the WLEP that identified, inter alia, the subject land: at [37].

48. To the extent that Council relies upon the heading of cl 6.3 of the LEP, being “Biodiversity protection” in light of s 35(2)(a) of the Interpretation Act (see Tcpt, 11 June 2019, p 31(9-15)), the present matter is distinguishable as the heading of cl 6.3 is not used to classify the zone as in Punnett. Given Mason P’s rejection of the notion that the only verbal descriptions capable of attracting Sch 1 were those to which the EPI assigned some discrete operative or functional effect (for example, by explicating zoning parameters) (at [35]), I consider that this is not determinative. In any event, unlike the present case, the expression “open space” was specifically referenced in Sch 1 of SEPP 5 so it was not necessary to resort to “like descriptions” for the descriptors thereof.

49. In Pepperwood Ridge, the subject land was zoned “7(c) Environmental Investigation Zone” pursuant to the Newcastle Local Environmental Plan 2003 (‘NLEP’). Aged accommodation was prohibited in that zone and the developer relied upon the (then) State Environmental Planning Policy (Seniors Living) 2004 (‘SEPP (SL)’). Although it was not contended that the description of Zone 7(c) as “Environmental Investigation” satisfied the chapeau of Sch 1, it was submitted that the zone objectives provided the relevant description identifying the land. The zone objectives were as follows:

(a)   To provide for the development of land for purposes which will not, or will be unlikely to, prejudice its possible future development for urban purposes or its environmental conservation.

(b)   To conserve the rural or bushland character, and the biodiversity values or other conservation values, of the land.

50. The essential issue was whether the words in objective (b) identified the land by the description “conservation” or any like description within the meaning of Sch 1 of the SEPP (SL). The Court of Appeal found, following Punnett, that it was not confined to the short name given to the relevant zone, however, there needed to be words in the text of the NLEP, or in the map referred to as part of the NLEP, which were “used descriptively with reference to the subject land”: at [36]. This required the words relied upon to be words of description that identified the land in accordance with one or more of the words or expressions set forth in Sch 1: at [36].

51. Tobias JA found that the chapeau of Sch 1 could not be satisfied merely because the word “conservation” was found in objective (b): at [37]. His Honour found that in order to exclude the subject land from the operation of SEPP (SL), the Court needed to locate in objective (b) a textual reference that identified the land by the description “conservation” or “environment protection” or some like description: at [40]. While objective (b) contained the phrase “conservation values”, Tobias JA did not consider it possible to find that the objective used those words, or any other words, to identify the land in the zone: at [41]. His Honour accepted that the objectives of a zone may be framed in such a way that they contain words of description which identify land in terms of one or more of the words or expressions in Sch 1, but the relevant objectives were not so framed in that case: at [42].

52. In the present matter, I do not accept that the objectives in cl 6.3(1), when read both textually and contextually, perform an identification function for the purpose of Sch 1 of the SEPP. Even if Council sought to rely upon the “objectives” of cl 6.3 of the LEP, noting the extent of any such reliance is not clear, I consider that the task of identifying the land is complete before cl 6.3 is further engaged and, in any event, the objectives in cl 6.3(1) are only given work to do by cl 6.3(4)(a).

53. While Council submitted that the subject land is a “biodiversity corridor” pursuant to the Map, I find that the Map merely identifies part of the land as “biodiversity” as per cl 6.3(2) of the LEP and that “biodiversity corridor” is used throughout cl 6.3 in the context of the operation of that clause, rather than for an identification purpose. Even if the subject land is a “biodiversity corridor” pursuant to the Map, I do not consider that this detracts from my finding that the expression still needs to be a like description for the words or phrases contained in Sch 1. I am not satisfied that it is. Further, despite Council’s contention that remnant STIF has been identified on the Junction Road frontage of the site, the relevant enquiry before me is confined to the construction of the LEP and the SEPP and, in any event, the evidence before the Court includes Council’s Ecological Referral (which provides, inter alia, although not necessary to my determination, that “the proposal will not result in the removal of native vegetation…”).

54. Although Council cited Pepperwood Ridge at [41] and submitted that the text and context of the descriptor of the land as “biodiversity” identifies it “by describing it by reference to the conservation values that are to be conserved”, I find that this reasoning does not apply in the circumstances as it was advanced by Tobias JA in another context, that being in relation to the objectives of a zone.

55. The objectives in cl 6.3(1) cannot be equated with zone objectives and while there are circumstances where zone objectives may be used to identify land, those objectives would need to use words or expressions within the meaning of Sch 1 of the SEPP in an identification process. Here, the objectives of cl 6.3 are only engaged in relation to the determination of a development application for proposed development on land to which cl 6.3 applies. In effect, cl 6.3 prescribes a method or protocol for the consideration of development on land identified as “biodiversity” on the Map. Clause 6.3(2) (which raises the Map for consideration) is simply an application provision whereby land is identified for the purpose of closer consideration of any development application applicable thereto.

56. Accordingly, although a textual approach was adopted in Punnet and Pepperwood Ridge, as stated above, the emphasis in the current matter is not on zone objectives. The objectives in cl 6.3(1) plainly relate to future development of the land and are directly called upon by cl 6.3(4)(a) for the purpose of assessing a development application and not for identifying the land as the identification process is done by the Map referred to in cl 6.3(2). It follows that I accept the applicant’s submission that cl 6.3 performs an investigation function rather than an identification function.

57. In Druitts, the subject land was zoned “No 2(f) Residential (Beach Frontage)” pursuant to the Gosford Planning Scheme Ordinance (a deemed EPI) and the essential question was whether the express objective in respect of the zone identified the land as falling within the ambit of Sch 1 in SEPP 5 (which was substantially similar in terms to Sch 1 of the SEPP). The relevant objective was:

The objectives [sic] of Zone No 2(f) is to ensure that low scale development on land situated in proximity to public areas or identified as being subject to hazard from the [sic] coastal erosion and storms (or both) is located and constructed so as to avoid or minimise the potential hazard and minimise visual impact

58. Bignold J found that the adopted means of identification in Sch 1 were deliberately flexible, particularly in light of legislative antecedents of SEPP 5, by reference to the several verbal descriptions contained in the schedule but also by reference to “like descriptions” or descriptions that “incorporate” any of the verbal descriptions contained in Sch 1: at [14], [21]. His Honour found that for a description to incorporate a phrase in the schedule, it had to reference the whole of the phrase, rather than part of it: at [14].

59. His Honour concluded that the expression employed in the zone objective, being “subject to hazard from coastal erosion and storms (or both)”, was a description of land that was like “coastal protection” and “natural hazard” as contained in Sch 1: at [30].

60. Again, unlike this matter, Druitts concerned identification of land through a zone objective. The applicant referred to Druitts for the principle that in determining whether something is a “like description” for another, the comparator in Sch 1 should be to a word where a single word is used or to an expression where more than a single word is used. Curiously, while the applicant drew the Court’s attention to this proposition, it referred to the definition of “environment” as contained in the EPA Act. I do not find this definition determinative in the present matter for the reasons proffered by Bignold J in Druitts given that “environment” cannot be separated from the composite phrase “environment protection”. Council sought to rely on the context in which “biodiversity” is used in the LEP, including the heading “Biodiversity protection” to submit that it is a like descriptor for “conservation” and/or “environment protection”. However, as stated above, pursuant to the reasoning in Druitts, “environment” cannot be separated from “protection” to identify the land as being a like descriptor thereof and “biodiversity” is different in meaning from “environment protection” and “conservation”.

61. More recently, in Australian Nursing Home Foundation, this Court dealt with an almost identical question concerning the application of the SEPP and the LEP in circumstances where Council contended that a seniors living development proposal was prohibited. Council submitted that the reasoning and approach of the Senior Commissioner was incorrect and that her finding should not be followed (Tcpt, 11 June 2019, p 5(33-42)). I do not accept Council’s position. Apart from Council’s initial reliance on (c), being “critical habitat” in Sch 1 of the SEPP, the argument put in the present case is not significantly different to that put to the Senior Commissioner in Australian Nursing Home Foundation.

62. Council also submitted that questions of judicial comity did not arise in relation to the decision in Australian Nursing Home Foundation (Tcpt, 11 June 2019, p 5(31-33)). Although that submission is not fundamental to my determination, which I have independently reached by applying ordinary principles of statutory construction, I consider that to the extent that it may have been suggested otherwise, a decision of a commissioner, in accordance with s 36(3) of the Land and Environment Court Act 1979 (NSW), is deemed to be a decision of the Court: Mac Services Group v Mid-Western Regional Council [2014] NSWLEC 1072 at [52]-[61] and Challenger Listed Investments Limited v Valuer General (No 2) [2015] NSWLEC 60 at [28]-[31]. In any event, I do not consider the decision in Australian Nursing Home Foundation to be “plainly wrong”: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [294]-[295]. I consider the decision and reasoning at [85]-[95] in that case to be correct in circumstances where a considered judgment was provided on a point fully argued.

63. Despite Council’s submissions to the contrary, the identification of the land as “biodiversity” does not in my view, equate to “environment protection”. It is not a “like description” because, as submitted by the applicant, the concept of environment protection (by the adjectival use of environment) is concerned with conserving and protecting, whereas biodiversity simply identifies land as having a particular or potential attribute.

64. The applicant submitted, and I find, that despite the use of the phrase “biodiversity conservation” in professional nomenclature, item (b) in Sch 1 is not “biodiversity conservation” and, while “biodiversity conservation” is used in another statutory context, that being in relation to the Biodiversity Conservation Act, that Act is of no assistance in the statutory construction exercise presently before me. Further, in passing, I note that while the applicant pointed out various approvals that had been granted to nearby properties under the same instruments at the site inspection, such approvals are similarly irrelevant to the statutory construction exercise before me.

65. Accepting that the critical issue is whether the site is identified in accordance with any of the words or expressions in Sch 1 of the SEPP, I find that “biodiversity” is not a like description for “environment protection”, “conservation” or “critical habitat”. The identification of the site on the Map, in my view, does nothing more than identify that the land has “biodiversity” as an attribute.

66. Council directed the Court to the heading of Sch 1 of the SEPP and the heading of cl 6.3 of the LEP to determine whether “biodiversity” is a like description for “environment protection” and/or “conservation” within the meaning of the schedule. While it is uncontroversial that the heading of Sch 1, being “Environmentally sensitive land”, is taken to form part of the instrument pursuant to s 35(1)(b) of the Interpretation Act, as noted above, the heading to cl 6.3, being “Biodiversity protection” cannot be so used pursuant to s 35(2)(a) of the Interpretation Act. That being said, cl 4(6) of the SEPP is engaged by what follows after the heading to the schedule, not by merely enquiring as to whether the land is environmentally sensitive.

58. In light of the above, I consider that the description “biodiversity” as used in the LEP to identify the portion of site shaded green on the Map, is not a “like description” for the expressions “environment protection”, “conservation” or “critical habitat” in Sch 1 of the SEPP. Therefore, cl 4(6)(a) of the SEPP is not engaged and the SEPP applies to the site.

Public interest

68. The remaining contention raised by Council relates to s 4.15(1)(b), (c) and (e) of the Environmental Planning and Assessment Act 1979 (NSW) and primarily focuses on the public interest. Council contends that the public interest is demonstrated by conformity with the applicable planning controls (as dealt with in its other contentions) and by matters which have been raised by objectors. At the hearing, Council directed the Court to the various concerns expressed by objectors in its bundle of documents.

69. At the site inspection, the Court heard evidence from Mr Richard Rogers, an adjoining neighbour, who provided written objections in relation to various iterations of the proposed development in correspondence dated 6 April 2018, 17 February 2019 and more recently, 11 June 2019. Mr Rogers spoke of his remaining concerns, accepting that there had been a number of amendments to the plans. Without disrespect to the detailed material provided by Mr Rogers, his primary concerns related to design, streetscape, loss of privacy and amenity, errors in the landscaping proposal, geotechnical considerations and arboricultural impacts of the proposed development.

70. Given that the primary issue before the Court relates to the permissibility of the proposal and the recently amended plans address Council’s earlier merit concerns, the Court was informed that there would be no expert evidence called at the hearing. However, at the site inspection, the applicant had a number of experts in attendance who had been involved with the preparation of plans and reports, including Mr Andrew Minto, town planner, Ms Melanie Howden, arborist, and Mr Ian Jackson, landscape architect, each of whom explained (in the presence of Mr Rogers) details of the plans and how the present application sought to address the concerns raised by Mr Rogers.

71. While I accept that Mr Rogers’ concerns are bona fide, having considered the material before me (including the Architectural Plans (Exhibit A), Landscape Plans (Exhibit B), Stormwater Management Plans (Exhibit C), Arboricultural Impact Assessment Report (Exhibit D), Disability Access Report (Exhibit E), Geotechnical Report (Exhibit F) and the proposed conditions which were agreed between the parties (Exhibit 2)), and having attended the site and inspected Mr Rogers’ property, I consider that the present plans appropriately address a number of his concerns. Although I accept that Mr Rogers has remaining concerns, particularly in relation to privacy as a result of the increase in bulk on the site, I consider that the provisions made for privacy screens will go some way towards addressing these concerns.

72. In relation to Mr Rogers’ concerns regarding an error in the Landscape Plans which juxtapose the recording of vegetation types adjacent to the common boundary, I note that amended plans correcting the error have been filed. I also find that Mr Rogers’ concern regarding the ongoing stability of “tree 2” (a Ginkgo biloba which has some “decay present on the lower trunk” according to the Aboricultural Impact Assessment Report and which I note is situated either within Mr Rogers’ property or on the boundary between the properties) will be appropriately addressed through the measures suggested in the Aboricultural Impact Assessment Report and by the proposed conditions of consent, in particular conditions 46, 66, 70 and 71, each of which specifically provide measures to protect the tree. These conditions are addition to conditions 7, 9, 22, 68 and 73 which relate to various arboricultural matters.

73. On the material before me, and noting that Council did not raise any merit matters as discrete concerns or call any expert evidence at the hearing in relation to matters of merit or ecological concern, I am of the view that the residual concerns raised in the various other objectors’ submissions (and summarised in pars (19) and (23) of Council’s Contentions) have been satisfactorily dealt with by amendments made to the earlier plans and by the proposed conditions of consent.

Conclusion

74. In circumstances where I have found that the SEPP applies and that the objectors’ concerns have been addressed, it is appropriate to grant development consent subject to the conditions which have been agreed between the parties.

75. Due to the confined nature of the remaining issues and the agreement between the parties, the application of the various requirements in the SEPP (including but not limited to the development standards, site-related and other design requirements) and, understandably, the requirements in cl 6.3(3) and (4) of the LEP, were not raised as discrete issues. Insofar as these requirements are necessary to address, having regard to the material before the Court (including the reports in evidence referred to at [71] above, Council’s bundle of documents (Exhibit 1) including the Ecological Referral, the Statement of Environmental Effects (prepared by Minto Planning Services) (Exhibit H), the Design Statement (prepared by McCullum Ashby Architects) (Exhibit J) and the Ecological Impact Assessment (prepared by Keystone Ecological) (Exhibit K)), I am satisfied that the proposal addresses the matters therein.

Orders

76. The orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted for Development Application DA0063/18 to demolish existing dwellings and ancillary structures and construct a seniors living development comprising seven self-contained dwellings, basement car parking and associated works under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at Lot A within DP 372891 known as 116-118 Junction Road, Wahroonga in accordance with the amended plans, being Exhibit A, and subject to the agreed conditions annexed hereto and marked ‘A’.

**********

Agreed Conditions (470 KB, pdf)

Decision last updated: 25 June 2019