The Uniting Church in Australia Property Trust (NSW) v Warringah Council

[2000] NSWLEC 1

Land and Environment Court

of New South Wales

CITATION:	The Uniting Church in Australia Property Trust (NSW) v Warringah Council [2000] NSWLEC 1
PARTIES:	APPLICANT The Uniting Church in Australia Property Trust (NSW) RESPONDENT Warringah Council
FILE NUMBER(S):	10775 of 1999
CORAM:	Sheahan J
KEY ISSUES:	Question of Law :- Class 1 - SEPP 5 - construction - services to aged
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Hornsby Shire Council v Malcolm (1986) 60 LGRA 429
DATES OF HEARING:	22/12/99
DATE OF JUDGMENT:	01/07/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr J B Maston, Barrister SOLICITORS Slade & Manwaring RESPONDENT Mr J Ayling, Barrister SOLICITORS Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter No: 10755 of 1999

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 7 January 2000

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW)

Applicant

v

WARRINGAH COUNCIL

Respondent

JUDGMENT

Introduction

1. These Class 1 proceedings are listed for hearing before a Commissioner of the Court on 27 and 28 January 2000.

2. They came before me on 22 December 1999 pursuant to a Notice of Motion brought by and on behalf of the Council on 18 November seeking determination of the following three preliminary questions:

1. Whether or not the subject land at 1 Morgan Road, Belrose being Lot 936 in DP752038 (‘the subject land’) is land which is zoned or which adjoins land zoned primarily for urban purposes within the meaning of clause 4(1)(a) of SEPP5.
2. Whether or not the proposed development is for the purpose of any form of housing for older people or people with a disability within the meaning of clause 10 of SEPP5.
3. Whether or not the proposed development provides for an increase in the type and/or diversity of residential accommodation for aged persons or disabled persons within the meaning of clause 3(1)(a) of the SEPP5.

3. While there is no agreed statement of facts, whatever dispute there remains between the parties on factual matters is not germane to the major question currently before the court, and this judgment, for reasons which will become apparent after the relevant factual position has been sketched, is confined to the second question, which involves or requires the construction of SEPP 5 in the context of the subject development application.

SEPP 5

4. SEPP 5 was made on 2 January 1998 in its current form. Its correct title is “ State Environmental Planning Policy No.5 - Housing for Older People or People with a Disability ” and it commenced on 14 February 1998. A useful survey of its history, and the public policy underlying it, can be found in the judgments of Kirby P and Glass JA in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 (“ Malcolm ”).

5. The making of SEPPs is dealt with in sections 37-39 of the Environmental Planning & Assessment Act 1979. Such policies are made by the Governor on the recommendation of the Minister following a process overseen by the Director. Public consultation and submission are envisaged, and the Minister may make SEPP recommendations to the Governor only “ with respect to such matters as are, in his or her opinion, of significance for environmental planning for the State ”.

6. The aims of SEPP 5 are set out in cl 3 as follows:

(1) This Policy aims to encourage the provision of housing that will:
(a) increase the supply and diversity of housing that meets the needs of older people or people with a disability, and
(b) make efficient use of existing infrastructure and services, and
(b)(sic) be of good design
(2) These aims will be achieved by:
(a) setting aside local planning controls that would prevent the development of housing for older people or people with a disability that meets the development standards specified in this Policy, and
(b) ensuring that applicants and councils take into consideration the level of additional demand for support services for older people or people with a disability in the council’s area to be generated by the development when preparing and assessing development applications that are affected by this Policy, and
(c) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and location.

7. Its application is dealt with in cl 4 as follows:

(1) This Policy applies to 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) special uses including churches, convents, educational establishments, schools and seminaries.
(2) This policy does not apply to:
(a) land described in Schedule 1 (Environmentally sensitive land), or
(b) the land to which Sydney Regional Environmental Plan No 17 - Kurnell Peninsula applies.

8. Clause 6 gives effect to its dictionary in which the following relevant definitions appear:

‘hostel’ means residential accommodation for older people or people with a disability where cooking and dining, laundering, cleaning and other facilities are provided on a shared basis and where a person having nursing or social work experience or other similar experience provides services.

‘housing for older people or people with disabilities’ means residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with a disability which may consist of a residential care facility, a hostel or a grouping of 2 or more self-contained dwellings, or a combination of these, but does not include a hospital.

‘residential care facility’ means accommodation for older people that includes”
(a) meals and cleaning services, and
(b) personal care or nursing care, or both, and
(c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care,
not being a dwelling, hospital or psychiatric facility.

9. Relevantly the dictionary does not include definitions of the words “ accommodation ” or “ development ”, but “ development ” is defined in the EPA Act s 4 as follows:

(a) the use of land, and

(b) the subdivision of land, and

(c) the erection of a building, and

(d) the carrying out of a work, and

(e) the demolition of a building or work, and

(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

10. Part 2 of the policy (cls 9-19) deals with development criteria and clauses 9 and 10 provide as follows:

Objective
9. The objective of this Part is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer, and other people with a disability regardless of their age.

What this Part allows
10. This Part allows development for the purpose of any form of housing for older people or people with a disability, despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with this Policy.

11. Clause 12(1) provides that the consent authority must not consent to a development application made pursuant to Part 2 unless satisfied by written evidence that residents of the proposed development “ will have reasonable access to ” certain listed facilities, which include shopping and commercial services, community services and recreation facilities, health services, transport and:

where appropriate:

(e) home delivered meals, or

(f) personal care and home nursing, or

(g) assistance with housework, or

(h) on site communal meeting spaces (internal and/or external).

12. Clause 12(2) indicates the way in which the Council might determine “ reasonableness ” and lists the following considerations:

(a) the type of housing proposed and the needs of the people who are most likely to occupy that type of housing.
(b) whether the type or scale of housing proposed could, or may reasonably be expected to, provide some facilities and services on site in a cost effective manner.
(c) whether any relevant facility or service is or will be convenient to residents of the proposed housing in view of the walking distance and availability of public transport to and from the facility,
(d) the affordability of any relevant facility or service.

13. Clause 12(3) provides that the consent authority must be satisfied that any facility or service provided as a part of the development will be available to residents when the housing is ready for occupation.

14. Clause 13 deals with development standards, notably wheelchair access and heights of buildings.

15. Clause 14 deals with standards which cannot be used as grounds for refusal in certain prescribed circumstances.

16. Clause 7 provides that notes to the policy do not form part of the policy, but the Court believes that regard may be had to headings. In this context, cl 15 appears under the title “ Who can live in housing for older people or people with disabilities? ” and provides as follows:

Development allowed by this Policy may be carried out for the accommodation of the following:
(a) older people or people who have a disability,
(b) people who live with older people or people who have a disability,
(c) staff employed to assist in the administration of and provision of services to housing provided under this Policy.

17. Clause 18 deals with subdivision in the following terms:

Land on which development has been carried out under this Policy may be subdivided with the consent of the consent authority.

18. Part 3 of the SEPP 5 (cls 20-25) deals with design requirements and has as its objective the establishment of “ a process that encourages good design in residential development allowed by this Policy ”. It requires certain design aspects to be taken into account when a consent authority considers an application and provides for a site analysis and certain factors to be considered in the context of “ adequate regard ”.

The Facts

19. The subject land is No.1 Morgan Road, Belrose (lot 936 deposited plan 752038). It currently has upon it a brick cottage known as “ Tullawalla ”, a second (weatherboard) cottage, some boarding kennels, a swimming pool and associated out-buildings. It has an area of 13,946 square metres (approximately 1.4 ha), and lies approximately 150 metres to the east of the intersection of Morgan Road and Forest Way. It is served by electricity, reticulated sewerage and water, and telephone services. There is a substantial area of vacant land to the east and north-east of the current improvements, and a substantial frontage to Morgan Road. The vacant land is natural Sydney sandstone bushland.

20. The relevant development application (“ DA2018 ”) was lodged on 1 June 1999, supported by a statement of environmental effects by Bruce Taylor Architect Pty Ltd dated 27 May 1999 (“ SEE ”). The purpose of the development application was to change the use of the subject site to “C ommunity Aged Care Support Services Centre ”. No alterations or other building works were proposed. The SEE (at 9) says “ Whilst this usage will not house any additional aged persons in Wesley Gardens Georgian Aged Care Facilities, it will improve the ability of the organisation to offer support services to the wider community ”. The application envisaged that the six staff of the centre would work in the brick cottage, where they would use computer terminals, telephone, office furniture and bathrooms, during the intended hours of use, namely 8am-5.30pm Monday to Friday.

21. The Council’s statement of facts sets out clauses 3(1) and 4 of SEPP 5 and notes (in par 8) that under the Council’s 1985 Local Environmental Plan (“ LEP ”) “ the property is not zoned primarily for urban purposes ”. The land is, in fact, zoned “ non-urban 1(A1)” pursuant to cl 9 of the LEP. The Town Planner’s report to the Council stated that the proposed use is prohibited by cl 9. Permitted uses currently set out in cl 9 (all requiring development consent) are as follows:

Advertisements; advertising structures; agriculture (other than pig-keeping or poultry farming); child care centres; drainage; dwelling-houses permitted by clause 18(3) and (4); educational establishments; helipads; open space; roads; utility installations.

22. Under the draft new LEP the land will be zoned “ B2 Oxford Falls Valley ” within which zone the proposed development is not prohibited but permitted. The Council town planner’s report on DA 2018 sets out some relevant prior consents, namely consent 95/228 granted on 20 April 1995, for use of an existing swimming pool as an educational establishment to conduct private swimming lessons, and consent 97/274, granted on 17 October 1997, for the erection of a swimming pool for private use associated with the dwelling, and not for use in conjunction with the swimming school. The report notes that the use of the premises consistent with those consents has ceased, but the site has been used for the keeping of dogs and the provision of learn to swim lessons, with the most recent tenant having operated a learn to swim business from the site.

23. At the nearby Wesley Gardens Georgian Aged Care facility, at the corner of Morgan Road and Forest Way, the Uniting Church Trust operates a 72 nursing bed facility, a 200 person hostel, and a 46 bed dementia care unit. No.1 Morgan Road was purchased by the Trust in August 1991 as it offered potential for future expansion of Wesley Gardens.

24. Wesley Gardens now wishes to use only the brick cottage on the site “ as a base for support services it offers to the wider community ”. The SEE notes that there are 170 people in the region who are serviced by “ community aged care packages ”, which are administered by Wesley Gardens Georgian Aged Care.

25. The SEE contends that the operation of the brick cottage for this purpose will be covered by SEPP 5, as it requires Councils to take into account the level of support services for older people in the area and lists such relevant services in cl 12. There are no current proposals to house aged or disabled persons on the site.

26. There is no evidence yet before the court as to what these “ community aged care packages ” comprise, but the court accepts the assurance of Mr Maston on behalf of the applicant that there will be evidence in this respect at the hearing. He summarised the packages as comprising the provision of meals, personal care and the running of errands for aged and/or disabled people who continue to reside in their own homes. The support is provided free to recipients and is funded by the Commonwealth Government. The beneficiaries of the packages which are the subject of this development application are aged persons in their own homes, but no services of this type will be provided to the residents of Wesley Gardens, and, as noted above, no aged persons are proposed to be housed on the subject site.

27. As its “ Reasons for Refusal ” of DA 2018, the Council noted on 9 August 1999:

“ Pursuant to the provisions of section 79C(1)(a) of the Environmental Planning and Assessment Act, 1979, the proposal constitutes prohibited development under Warringah Local Environmental Plan 1985 and State Environmental Planning Policy No.5 - Housing for Older People or People With a Disability ”.

The applicant’s case on the appeal

28. In its statement of facts the Council notes (par 12):

12. The Applicants propose to use the existing residence on the property for office/administrative purposes, in particular for an administrative base for persons employed by Wesley Gardens Georgian Aged Care, who provide a range of services for older and frail people in the community.

29. In par 5 of the applicant’s response to that statement of facts it notes that it does not accept par 12 “ as an accurate or complete statement of the proposed use of the subject premises ”.

30. The applicant contends that the Council has the power to grant consent, not only on the basis of the provisions of SEPP 5, but, in the alternative, on the basis of existing use rights and, in the further alternative, on the basis of the “ imminent ” making of a new LEP (even though the making of that plan may raise questions of fact to be dealt with by the Commissioner.

31. For the purposes of SEPP 5 cl 4 (1)(b), the applicant argues (Statement of Facts par 17):

(a) Development for the purpose of certain dwelling houses is permissible on the land;
(b) Development for the purpose of educational establishments is permitted on the land;
(c) Development for the purpose of the existing dwelling house on the land is permitted;
(d) The land on the western side of Forest Way near the land is zoned Residential 2(a) under Warringah Local Environmental Plan 1985;
(e) Such land adjoins the subject land.

The questions posed in this motion

32. I now return to the questions in the Notice of Motion.

Question 1

33. Counsel for the parties agreed at the hearing before me that Question 1, namely the test of “ adjoining ”, is squarely determined by the application of the binding Court of Appeal decision in Malcolm, which held that for the purposes of cl 11(2) of State Environmental Planning Policy No.5 (“ SEPP 5 ”) land “ adjoins ” land zoned for urban purposes if separated from it by only a road or road reservation.

34. In Malcolm (at 443), Glass JA (with whom Mahoney JA agreed) said, in reference to the judgment at first instance of Bignold J:

The trial judge ruled that the word ‘adjoins’ in the statutory phrase ‘adjoins land zoned for urban purposes’ is used in its loose sense of ‘is near to’ and ‘is neighbouring on’ rather than its exact meaning ‘is conterminous with’. So construed the subject land which is separated from urban land zoned for urban uses by no more than a public road adjoined such land. Mr Hemmings argued for the construction of ‘adjoins’ as meaning ‘abuts’ or ‘is contiguous with’. He referred to s 90(1)(h) of the Environmental Planning and Assessment Act 1979 which distinguishes between adjoining land and land in the locality. In my opinion the word ‘adjoins’ is currently used in both senses and must take its colour from the context in which it appears. I do not find in the language of State Environmental Planning Policy No.5 any persuasive indication that land which immediately adjoins should be exempt whereas land which adjoins in the lesser sense is not. I see no error of law in the construction of the provisions of cl 11(2) which the trial judge adopted.

35. Kirby P said on the same issue (at 434):

… I am not at all convinced that the separation of the proposed development site from the Galston Village was such a distance as properly to fall outside the description of abutment. Roads and roadside reserves exist as a normal feature of urban development. In the present case there was no separate development between land undoubtedly zoned for urban use and the proposed development. But even if there were no strict abutment, because of the lack of physical contiguity, there is still a sufficient proximity to bring the proposed development within the word ‘adjoins’ in the context of cl 11(2)(a). Words in the English language are constantly changing their primary meanings as any dictionary demonstrates. The word ‘adjoins’ is no exception. Whereas originally it might well have connotated immediate physical contiguity, nowadays that idea tends to require the use of the adverb ‘immediately’ , such as ‘immediately adjoins’ . That adverb would not be necessary if the word itself invariably connotated immediate physical proximity.

It is not appropriate in the present facts to speculate upon what would be the case if there were a separation between land zoned for urban uses and the proposed development site other than a road and roadside reserve. The appellant called attention to the terms of s 90(1)(h). By the reference in that paragraph to ‘in the locality’ , it may be suggested that ‘adjoins’ in the policy means something considerably more proximate. But that argument can be conceded, and there is still a sufficiently close proximity in the facts of the present case to uphold the conclusion that the proposed development adjoined urban land. Accordingly, the first and second grounds of the appeal fail.

36. Accordingly, Question 1 in the Notice of Motion properly becomes a question of fact for the Commissioner at the merits hearing.

Question 3

37. It seems to be conceded by the Council that the third question posed, namely, whether the proposed development provides for an increase in the type and/or diversity of residential accommodation for aged or disabled persons, is also a question of fact for the Commissioner.

38. Accordingly, the only question for the Court to answer in this judgement is Question 2.

Question 2

39. The question “ whether or not the proposed development is for the purpose of any form of housing for older people or people with a disability within the meaning of cl 10 of SEPP 5 ” is a question of law requiring the proper construction of SEPP 5, and its application to DA2018.

40. In her report to the Council meeting which refused the application, the Council’s Town Planner, Kathryn Fadeev, disagreed with the applicant’s view that the proposal is covered by SEPP 5. The report says in this connection:

Firstly, the site does not meet the location criteria of clause 4 (1) of that policy. Whilst the site contains a dwelling, both the subject site and the wider locality are not zoned primarily for urban purposes. Rather, it is zoned Non-Urban 1(a1).

Secondly, the proposed use is not housing. It is an office/administration use. The purpose of the office is to facilitate the provision of support services to people within the community generally.

The competing arguments on Question 2

41. Mr Ayling on Council’s behalf submits that within the sense of SEPP 5 the “ services ” envisaged by cl 12 must be available to persons “ in the housing ” provided under SEPP 5.

42. SEPP 5 is concerned with provision of “ housing ”, which is defined in terms of residential accommodation; its aims (cl 3) focus on housing; the land (cl 4) must be urban, and zoned for purposes compatible with housing; the concepts and standards referred to in cls 9, 10, 13 and 14 and Part 3 of SEPP 5 relate to residential accommodation; “ development carried out under this policy may be subdivided… ” (cl 18); and, even though cl 15 speaks of the “ accommodation of … staff employed to assist in the administration of and provision of services to housing provided under the policy ” the heading speaks of “ who can live in housing for older people or people with disabilities? ” (my emphasis).

43. Mr Ayling also points out that the definition of “ residential care facility ” embraces the cl 12 “services” with housing “ not being a dwelling … ”.

44. As this application involves the provision of no housing , but the provision only of such services as Malcolm says must support a DA for the development of “ housing ”, under SEPP 5, Mr Ayling argues that SEPP 5 cannot cover a DA related only to those services.

45. Mr Maston, for the applicant, points out that SEPP 5 does not say that the services must not be based on land separate from the land on which the beneficiaries live. (References are to paragraphs in his written submissions). The subject proposal involves a facility “ which provides residential care in each of the categories (a), (b) and (c) of the definition of ‘residential care facility’” (par 3); the form of housing which the proposed development seeks to promote (par 7) is housing of older persons in their own homes ; cl 10 of SEPP 5 says that Part 2 “ allows development for the purpose of any form of housing ”, and this proposal meets SEPP 5 criteria by extending the useful term of old people’s occupancy of their own homes (cl 3(1)(a)). In such circumstances the development criteria are not relevant. Such housing also makes sufficient use of existing infrastructure and services (cl 3(1)(b)).

Consideration

46. The more effective provision and management of the services envisaged (by SEPP 5 cl 12) as needed by people housed pursuant to SEPP 5 may facilitate the development of SEPP 5 projects in the area. While that might well be desirable and in the community’s interest, we must focus here on the permissibility of the suggested use, not its possibly desirable consequences.

47. I can find nothing in SEPP 5, nor in the discussion of its underlying rationale in Malcolm , to bring DA2018 within its scope.

48. The availability of the relevant community services is essential, and the government packages require people to deliver and administer them, but, in the absence of a proposal for the building of aged/disabled housing on the subject land, to which the accommodation of such administrative functions may arguably be ancillary, there is no basis in SEPP 5 for this DA to be approved.

49. In response to Mr Maston’s submission regarding cl 10, I would remind him that cl 10 goes on to say “ if the development is carried out in accordance with this policy ”. The SEPP envisages active development of housing, whereas this proposal involves no works, but only a change of use of what is already housing .

Conclusion

50. I would, therefore, answer the question in Question 2 of the Notice of Motion in the negative .

51. The two exhibits should remain with the Court papers, and the matter is remitted for determination by the allocated Commissioner of the Court.