Touma v Liverpool City Council
[2018] NSWLEC 1635
•27 November 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Touma v Liverpool City Council [2018] NSWLEC 1635 Hearing dates: 26 – 27 November 2018 Date of orders: 27 November 2018 Decision date: 27 November 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: (1) The appeal is dismissed;
(2) The exhibits are returned, except for Exhibits A and 2.Catchwords: DEVELOPMENT – residential flat building containing affordable housing pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) – jurisdiction - is the site within an accessible area – a single bus stop Legislation Cited: Interpretation Act 1987 (NSW)
Passenger Transport Act 1990 (NSW)
State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW)Cases Cited: 4nature Incorporated v Centennial Springvale Pty Limited (2017) 95 NSWLR 361; [2017] NSWCA 191
DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40
Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379Category: Principal judgment Parties: Joseph Touma (Applicant)
Liverpool City Council (Respondent)Representation: Solicitors:
G McKee, McKees Legal Solutions (Applicant)
A Seton, Marsdens Law Group (Respondent)
File Number(s): 2017/355976 Publication restriction: No
EX TEMPORE Judgment
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COMMISSIONER: Before the Court is a Class 1 appeal from Liverpool City Council’s refusal of a development application for a six storey residential flat building containing 26 units on land at 24-26 McKay Street, Moorebank (“site”). Ten of the units are proposed to be dedicated as affordable housing under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (“SEPP”). The Council maintains that the SEPP does not apply because the site is not within an “accessible area” as defined in cl 4(1)(c) of the SEPP. This pivotal question of law arises from the following facts.
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Clause 4 of the SEPP provides:
(1) In this Policy:
accessible area means land that is within:
(a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or
(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or
(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.
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Clause 10 of the SEPP provides:
10 Development to which Division applies
(1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:
(a) the development concerned is permitted with consent under another environmental planning instrument, and
(b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.
(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.
(3) Despite subclause (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use, or within a land use zone that is equivalent to any of those zones.
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It is agreed by the parties that the site is not within 400 metres walking distance of a bus stop used by a regular bus service within the meaning of the Passenger Transport Act 1990 (NSW) (“PT Act”) that has at least one bus stop per hour servicing the bus stop between 06.00 and 21.00 hours each day Monday to Friday, both days inclusive, and 08.00 to 18.00 hours on each Saturday and Sunday.
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Despite this, the applicant relies on the fact that there are two bus stops relatively close to each other to engage jurisdiction under the SEPP. The first is bus stop ID 217038 identified as “Nuwarra Public School, Maddecks Avenue”, which is located on the northern side of Maddecks Avenue, west of the intersection with Lucas Avenue. It is approximately 255 metres from the site. The second is bus stop ID 217054 identified as “Maddecks Avenue opposite Nuwarra Public School”, located on the southern side of Maddecks Avenue, west of the intersection with Lucas Avenue. It is located approximately 286 metres from the site.
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Each bus stop provides a “bus service” within the meaning of the PT Act, and collectively, that is, combining the service attending each, it is agreed that they provide an hourly bus service as required by cl 4(1)(c).
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The Council submits that the clause should be construed and interpreted with the specific aims of the SEPP in mind and, as such, two bus stops cannot be relied upon to qualify the site as within an accessible area. In particular, the Council refers me to the first aim in the SEPP, which it says seeks “(a) to provide a consistent planning regime for the provision of affordable rental housing” and to that end, supports a construction of the text in context that says it is one bus stop. Furthermore, in aiming “(b) to facilitate the effective delivery of new affordable housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards”, the Council emphasised that the location for this development opportunity is defined with particularity in cl 4(1)(a), (b) and (c) and constrained by cl 10(2).
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Furthermore, the Council submits that in applying an ordinary meaning to the words in the context, the Court will find that the jurisdiction is only engaged if, a singular bus stop provides the requisite hourly service. It submits the clause states as much and, in that case, the specific words of subclause (1)(c) displace an interpretation in accord with s 8(b) of the Interpretation Act 1987 (NSW) (“Interpretation Act”) to read plural. The specific words in the clause are the indefinite article “a” to nominate a particular bus stop and the subsequent definite article “the” that identifies the aforementioned bus stop. As subclause (c) only contemplates the one bus stop offering the requisite hourly servicing, then it must be accepted that the text sets out a contrary intention to a reading of "plural", and thereby s 5(2) of the Interpretation Act is engaged.
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After careful consideration of the cases relied upon by the parties and their submissions, it is my view that this is not a case where the language is unclear in a situation where it may be appropriate to give rather less weight to precise textual considerations as discussed in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54] to [55].
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The parliamentary drafter has not been “less than careful”, indeed has been precise in their choice of language and this delegated legislation must be interpreted in accordance with the statutory rules as discussed in 4nature Incorporated v Centennial Springvale Pty Limited (2017) 95 NSWLR 361; [2017] NSWCA 191 at [106] - [107] (per Leeming JA); DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173. There is no general proposition that the task of ascertaining the legal meaning of delegated legislation differs from the construction of primary legislation.
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Mr McKee submits that “the manifest intention of a statue must not be defeated by too literal an adherence to its precise language”: Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 at [20]. However, this submission does not assist me in the present case given my interpretation of the text of the clause in context. Nor do I accept his submission that my interpretation produces irrationality or absurdity. It simply precludes an approval of this application. Even if I harboured any doubt, which I don’t, a purposive approach dictates the outcome as outlined because a different outcome is not available on the current draft of the clause. This is not a case where two meanings are open in statutory interpretation. The words are not ambiguous and therefore the provision must be given its ordinary meaning. This interpretation, in my view, assists to provide a consistent planning regime for the provision of affordable rental housing.
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Accordingly, I have decided that the site is not within an accessible area as defined in cl 4(1)(c), and therefore cl 10(2) of the SEPP precludes me from entertaining this application. I have no jurisdiction.
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The orders of the Court are:
The appeal is dismissed;
The exhibits are returned, except for Exhibits A and 2.
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S Dixon
Senior Commissioner of the Court
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Decision last updated: 07 December 2018
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