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
v

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 to the following principles”. Clause 25 appears in Part 3 which is headed “Design Requirements”.

7 Two other of the other enunciated principles also contain ‘Notes’, similar to the note appended to the principle contained in paragraph (f) namely the principle in paragraph (b) “visual and acoustic privacy” where the note is to Australian Standard 2107 1987 and Australian Standard 3671.

8 A similar note is made in relation to the principle contained in paragraph (c) “Solar Access and Design for Climate” where the note relevant refers to the AMCORD document for residential development 1995.

9 In each case the note relevantly cites the external document and adds that it should be “referred to” for design in considering people with a disability in the case of the principle enunciated in paragraph (f).

10 Clause 7 of the SEPP 5 provides that “notes to provisions of this Policy do not form part of this Policy, they are provided to assist understanding”. As the Applicant pointed out section 35 of the Interpretation Act 1987 is to similar effect.

11 Accordingly, the contents of the notes to the various principles enunciated in clause 25, including the principle dealing with accessibility in paragraph (f), do not form part of the text. In this respect it is to be contrasted clause 13A of the SEPP 5 which imposes various development standards relating to access and useability. Those standards do, in terms, refer to Australian Standard 1428 in a number of provisions and Australian Standard 4299 requiring compliance with the relevant requirements of those standards and it is clear that the development standards enunciated in clause 13A where they adopt by reference relevant standards or provisions of the Australian Standards, do so in a manner which translates those standards or imports those standards into the mandatory requirements of the particular clause. However clause 13A, as I have said, stands in stark contrast with clause 25 which is the clause that the present question focuses attention upon.

12 In my opinion, the two Australian Standards referred to in the note at the end of paragraph (f) of clause 25, do not form part of the relevant principles dealing with accessibility therein stated in as much as the Australian Standards are not relevantly incorporated in (by reference or otherwise) those principles. Accordingly the question should be answered in the negative.

13 That determination of the question of law does not of course mean (and this is a matter that the Applicant has readily accepted in the course of argument) that the two Australian Standards referred to in the note to paragraph (f) of course, 25, are simply irrelevant or have no bearing in the outworking of that particular clause. However the Applicant has sought to establish, and has successfully done so, that the Australian Standards therein referred to are not given mandatory effect in the enunciation of the relevant principles contained in paragraph (f) to clause 25.

14 Following my determination of the question of law as reformulated, the Applicant asked me to strike out or to amend a number of the statements of issues which have been filed by the Council in the proceedings, pointing out that Justice Lloyd has in the past, following determination by him of a number of questions of law earlier raised in the proceedings, taken that course of action.

15 I think in the circumstances (and again the Applicant accepts this position) it would be preferable that the Statement of Issues stand, but to the extent to which they raise either in themselves or by the particulars that have been supplied by the Council’s Solicitor in response to the Applicant’s request for particulars of those issues, matters either as issues or particulars relevant to clause 25(f) of SEPP 5 the matters so raised are necessarily confined in their scope and ambit by virtue of my determination that the two Australian Standards are not incorporated as mandatory requirements of the principles contained in clause 25(f). However, because of the overlapping or potentially overlapping application in some respects of the standards for wheelchair access prescribed by clause 13A of SEPP 5, it might be unintentionally misleading to strike out the issues which have been raised which may be within the provenance of clause 13A in addition to their provenance under clause 25(f).

16 Accordingly, it is sufficient to note that consequent upon my determination of the question of law in a manner favourable to the Applicant, that the issues and particulars raised by the Council pertaining to cl 25(f) are to be understood as necessarily confined by my determination of the question of law.