Young v Parramatta City Council - [2003] NSWLEC 198

Land and Environment Court

of New South Wales

CITATION: Young v Parramatta City Council [2003] NSWLEC 198

PARTIES:
APPLICANT:
Greg Young
RESPONDENT:
Parramatta City Council

FILE NUMBER(S): (1)0279 of 2002

CORAM: Bignold J

KEY ISSUES: Question of Law :- Whether notation of reference to Australian Standards in SEPP No 5 renders those standards mandatory requirements

LEGISLATION CITED: Interpretation Act 1987, s35
State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability cl 25(f)

CASES CITED:

DATES OF HEARING: 17/06/2003

EX TEMPORE
JUDGMENT DATE :
06/17/2003

LEGAL REPRESENTATIVES:

APPLICANT:
In Person
SOLICITORS:
n/a
RESPONDENT:
A Pearman (barrister)
SOLICITORS:
Storey & Gough

JUDGMENT:

IN THE LAND AND (1)0279 of 2002

ENVIRONMENT COURT Bignold J

OF NEW SOUTH WALES 17 June 2003

GREG YOUNG

Applicant

PARRAMATTA CITY COUNCIL

Respondent

Judgment

1 The Court has before it a Notice of Motion brought by the Applicant in a pending development appeal for the carrying out of a two dwelling housing project under State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability (SEPP 5) on a parcel of land situate at Epping. The proceedings have been allocated a hearing date for 9 and 10 September 2003.

2 The Applicant’s Motion raises the question whether the development standards contained in clause 25(f) (i), (ii) and (iii) of SEPP 5 are subject to the Australian Standards AS 4299 1995, (adaptable housing) and AS 1428.1 1992, 1993 (design for access and mobility).

3 Following some initial debate as to whether the question so formulated relevantly raised a question of law, it is preferable that the question be reformulated in the following fashion:

Whether Australian Standards AS 4299 - 1995 and AS 1428 - 1992, 1993 as referred to in the note to clause 25(f) of State Environmental Planning Policy No. 5 are mandatory requirements of that provision.”

4 So formulated, I am of the opinion that the question raised is a question of law and that it should be answered in advance of the hearing.

5 Clause 25 of SEPP 5 enunciates a number of design principles including in paragraph (f), the principles concerning accessibility. The clause goes on to state:

The proposed development should, where appropriate:

have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities; and

provide attractive yet safe environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors; and

where feasible involve site layout and design that enables people with a disability to access on one continuous accessible path of travel the street frontage, car parking and all buildings, facilities and open spaces within the site.

6 That and the various other principles enunciated in clause 25 have effect because the clause provides that “consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 198
Decision Date: 06/17/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Greg Young brought an application against Parramatta City Council regarding a development appeal for a two-dwelling housing project under the State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability (SEPP 5) at Epping. The applicant questioned whether the development standards in clause 25(f) of SEPP 5 were subject to Australian Standards AS 4299 1995 (adaptable housing) and AS 1428.1 1992, 1993 (design for access and mobility). The court needed to decide if the referenced Australian Standards in SEPP 5 rendered them mandatory requirements.

The court examined clause 25 of SEPP 5, which outlined design principles, including those concerning accessibility. The clause stated that consent for development could not be granted unless the proposed development demonstrated adequate regard for the principles. Clause 7 and section 35 of the Interpretation Act 1987 clarified that notes to provisions of the policy did not form part of the policy and were provided for understanding only. The court contrasted clause 25 with clause 13A of SEPP 5, which imposed development standards relating to access and usability, explicitly referencing Australian Standards and requiring compliance. However, clause 25 did not incorporate the Australian Standards by reference or otherwise into the principles dealing with accessibility. Therefore, the Australian Standards referred to in the note at the end of paragraph (f) of clause 25 did not form part of the principles stated in the clause.

Consequently, the court answered the question in the negative, finding that the Australian Standards were not mandatory requirements of the principles contained in clause 25(f). While the Applicant acknowledged that the Australian Standards were not irrelevant, they were not incorporated as mandatory requirements of the principles in clause 25(f). The court noted that the issues and particulars raised by the Council pertaining to clause 25(f) should be understood as necessarily confined by this determination.

Orders