Land and Environment Court of New South Wales CITATION : De Stoop v Ku-ring-gai Council [2009] NSWLEC 28 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Lindy de Stoop PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10352 of 2008 CORAM: Sheahan J KEY ISSUES: QUESTION OF LAW :- Preliminary question arising in Class 1 appeal; construction of provisions in local and State instruments; is a SEPP 1 objection required Ku-ring-gai Local Environmental Plan 194 Ku-ring-gai Local Environmental Plan 200 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance State Environmental Planning Policy 1 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Friends of Pryor Park Incorporated v Ryde Council & Anor [1995] NSWLEC 160 Keay & Anor v Wollongong City Council [2008] NSWLEC 243 CASES CITED: Matic v Mid-Western Regional Council [2008] NSWLEC 113 North Sydney Council v Phillip Perrie and Associates Pty Limited [1995] NSWLEC 115 T C Punnett & Associates Pty Ltd v Warringah Council [2001] NSWLEC 152, (2001) 115 LGERA 314 DATES OF HEARING: 27 October 2008 DATE OF JUDGMENT: 16 March 2009 APPLICANT Ms S Duggan SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr J Ayling SC with Mr A Pickles SOLICITORS HWL Ebsworth JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 16 March 2009 10352 of 2008 De Stoop v Ku-ring-gai Council JUDGMENT Introduction 1 His Honour: These Class 1 proceedings involve a development proposed for 1574-1578 Pacific Highway, Wahroonga in respect of which Council has refused Development Application 652/07. 2 The appeal was commenced on 11 April 2008, and a Question of Law has arisen for preliminary determination, in the following terms: " Whether in the context of sub-clause 40(4) of SEPP (Housing for Seniors of (sic) People with a Disability) 2004, residential flat buildings are not permitted on the land known as 1578 Pacific Highway, which is zoned 2(c2) Residential ?" Background 3 The parties have agreed on a Statement of Facts, filed on 22 October 2008, the pertinent contents of which may be summarised as follows: 4 The land at 1574-1576 Pacific Highway is zoned 2(c) "Residential" under the Ku-ring-gai Planning Scheme Ordinance ("KPSO"). In the zoning table to that zone, column 2 contains exempt development, column 3 contains the development that may be carried out only with development consent and column 4 contains prohibited development. Any development not specified in columns 2 or 4 is taken to fall into column 3. "Residential flat buildings" are listed in column 4 in the Residential (c) zone. 5 No.1578 Pacific Highway is zoned 2(c2) "Residential" under KPSO. In the zoning table to that zone, permissible development other than exempt development is listed in column 3, and all other development is prohibited development in column 4. "Residential flat buildings" are not listed in column 3, but "Apartment conversions" are. 6 "Residential flat building" is defined in clause 4 as "a building or group of buildings containing two or more flats", and a "flat" is defined as "a room or suite of rooms occupied or used or so designed, constructed or adapted as to be capable of being occupied or used as a separate domicile and includes a group dwelling but does not include a dwelling house". 7 "Apartment conversions" are defined in cl 25B as: "The creation of a residential flat building containing not more than four dwellings within an existing dwelling house, where the residential flat building maintains the appearance of a single house in a garden setting that is common to all dwellings in the building". 8 The applicant proposes to construct a multi-storey residential flat building comprising 39 self-contained seniors living dwelling units and associated carparking on the site comprised of 1574-1578 Pacific Highway. 9 At 1574-1576 Pacific Highway there is a heritage listed two-storey dwelling, which is proposed to be retained to provide communal facilities for the seniors living development and two dwelling units at the first floor. The heritage building is to be connected to the proposed seniors living development, which is in the form of a residential flat building. At 1578 Pacific Highway there is an existing two-storey dwelling which is proposed to be demolished. 10 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ('the SEPP') relevantly applies to the whole of the subject land by virtue of clause 4(1) of the SEPP. 11 There is an issue between the parties as to whether the proposed development on Lot A in Deposited Plan 334713 (the land at 1578 in the 2(c2) zone, having an area of 1,910m2) is one to which the provisions of the development standards in clause 40 of the SEPP applies. 12 If clause 40 of the SEPP applies to the development, the proposal: (a) exceeds the height referred to in cl 40(4)(a); (b) exceeds the number of storeys referred to in cl 40(4)(b); and (c) exceeds one storey in height for the rear 25% of the site, and the development application would require a dispensation under SEPP 1. 13 At the present time no SEPP 1 objection has been filed in respect of 1578. 14 For the purposes of cl 25A of the KPSO, Lot A is edged heavy red on the Ku-ring-gai Local Environmental Plan ("KLEP") 194 – zoning map. The relevant provisions 15 Clause 40 of the SEPP imposes development standards on development for housing under the SEPP, and sub-clause (4) imposes particular standards in zones where residential flat buildings are not permitted. The SEPP contains a series of definitions in cl 3, but there is no definition of "residential flat building", and the SEPP adopts no other source of a definition for the term, such as the model provisions. The sub-clause of cl 40 which is of particular relevance to the present matter is cl 40(4), which provides as follows: "(4) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less, and Note. Development consent for development for the purposes of seniors housing cannot be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48(a), 49(a) and 50(a). (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. (c) a building located in the rear 25% area of the site must not exceed 1 storey in height". 16 In the Development Application the Applicant relies upon the permissibility of "apartment conversions" to argue that, for the purposes of cl 40, "residential flat buildings" are permitted in the 2(c2) zone. The KPSO (as amended 30 March 2007) contains the following relevant definition (in cl 4 at p18): "' Residential flat building' means a building or group of buildings containing two or more flats ." 17 In the Zoning Table (cl 23 at pp33ff of the KPSO) it is made clear that in the 2(c2) zone apartment conversions and dwelling houses are permissible, but residential flat buildings are not. By comparison, in the residential 2(d3) zone, dwelling houses and residential flat buildings are permissible, but apartment conversions are at least not specifically made permissible. 18 Division 1 of Part IIIA of the KPSO (inserted by KLEP 194 on 28 May 2004) makes clear (in cl 25A on p47) that Part IIIA applies to "the land in the vicinity of the North Shore Railway/Pacific Highway corridor and the St Ives Centre, as shown edged heavy red on the" zoning maps in KLEP 194 and KLEP 200. 19 Division 2 makes specific provisions in respect of zones 2(c1), 2(c2) and 2(d3). Clause 25B contains some definitions, including (p49) a different definition of "residential flat building" from that contained in cl 4, namely that in this Part it means "a building containing three or more dwellings". "Apartment conversion" is defined in cl 25B (p47) to mean "the creation of a residential flat building containing not more than 4 dwellings within an existing dwelling-house, where the residential flat building maintains the appearance of a single house in a garden setting that is common to all dwellings in the building". "Multi-unit housing" (cl 25B at p49) means "three or more dwellings on one allotment, whether attached or not". 20 Clause 25C in Division 3 (p51) then sets out the aims and objectives of the Part, and Division 4 (commencing on p53 with cl 25E) deals with "controls on development". 21 Clause 25E itself is headed "Dual occupancies and multi-unit housing on land to which this Part applies", and relevantly provides as follows: "(1) Consent may be granted to development for the purpose of an attached dual occupancy, a detached dual occupancy, a residential flat building, three or more townhouses or villas or any other form of multi-unit housing on land to which this Part applies only if the land has an area of at least 1,200 square metres." 22 All those terms in cl 25E(1) are defined in cl 25B, but it is to be noted that there is no reference in cl 25E to the term "apartment conversion". 23 Clause 25F deals with "dual occupancies" in Zone 2(c2), and cl 25G with "apartment conversions" in that zone. These two clauses set out various development standards. Clause 25F does not contain a control regarding minimum allotment size, but cl 25G does – see cl 25G(2)(b) (namely 1500m2 for apartment conversions in the 2(c2) zone). Both cl 25F and cl 25G are in Division 4 of Part IIIA, along with cl 25E and cl 25H (the latter of which deals with subdivision in residential zones, with consent). Further controls are to be found in Division 5, but are not relevant to this matter. Clause 25G requires the apartment conversion to retain the appearance of a single dwelling, but the dwelling itself can be expanded to accommodate the number of units. The Council's submissions 24 Having put all these provisions before the Court, Mr Ayling SC, for the Respondent, went on to explain the problem facing the parties in these terms (T7, LL18ff): "The question is, in the 2(c2) zone in which residential flat buildings are not an expressly stated permissible purpose of use but apartment conversions are, do the controls in cl 40 of the SEPP apply?" "Residential flat building" is not defined in the SEPP, but has various definitions in various parts of the KPSO. "[T]he question is whether the fact that in the 2(c2) zone apartment conversions are permissible is sufficient to justify the conclusion that in the 2(c2) zone, residential flat buildings are permissible". 25 His submission (at T8, LL13-26) is that Division 4 draws: "a distinction between a residential flat building as a specifically permissible purpose of use within the only zone in which it is permissible specifically in the instrument, that is 2(d3) and an apartment conversion which is a separate and distinct purpose of use albeit one in which the definition of which the use of the words 'residential flat building' occurs and for that reason, for the purposes of the policy, this local environmental plan does not permit residential flat buildings in the 2(c2) zone. It permits something called an apartment conversion but it doesn't permit residential flat buildings and for the purposes of the instrument, the principal instrument, the policy in our submission, there is a distinction to be drawn bearing in mind the fact that the words 'residential flat building' in the policy are ambulatory in meaning between a residential flat building per se as a permissible form of development, cl 4, and an apartment conversion as a permissible form of development that attracts certain specific constraints". 26 Division 4 must be read as a whole. It requires site areas of 1200m2 for a residential flat building and 1500m2 for an apartment conversion. Mr Ayling describes this as "a clear indication" that where cl 25E uses the words "residential flat building" they are used in the defined sense, but where they are used in the definition of "apartment conversion", carried through to cl 25G, they are used in a different sense. The two forms of development are, for planning purposes, different, as well as being different in form. The outcome must be that in the SEPP the undefined term "residential flat building", where it appears in cl 40(4), means or is used in the context of zones in which residential flat buildings as such are permissible, but does not include development in zones where residential flat buildings as such are not permitted, while apartment conversions, (not for the purposes of this instrument residential flat buildings) are indeed permitted. "If that is correct, then the development standards contained in sub-clause (4) apply" (see T9, LL 9-16). 27 In Mr Ayling's submission (T9, LL20-30), cl 40 of the SEPP "is clearly directed to a requirement that the erection of a new residential flat building not have unnecessarily severe impact upon the amenity of other buildings within an area where residential flat buildings as such … [are] not permitted. The effect of it in a nutshell would be that if you have an area where you can't have new residential flat buildings but you can have SEPP HS development, the height of the buildings must be such and the distances from the boundaries must be such as to respect the existing forms of development other than residential flat buildings" in the locality, notably "ordinary residential building dwellings, … so that there isn't an adverse impact on those dwellings". 28 Although the notes to cl 40 do not form part of the clause (see cl 4(3)), they can assist in its construction, and the note to 40(4)(b) makes clear that the purpose of that subclause is to avoid an abrupt change in the scale of development in the streetscape. The purpose and interpretation of cl 4, in turn, require the term "residential flat building" to be construed differently from its use in cl 40. Mr Ayling noted that instruments frequently use terms in different senses in different provisions or parts. 29 Mr Ayling's fundamental position is that you cannot interpret the SEPP by reference to specific provisions in the LEP. One looks to the object and purpose of the SEPP or its relevant provision, and accepts that the draftsman must have had a reason for not ascribing to "residential flat building" in the SEPP either the definition in the model provisions or a specific definition anywhere else. There would be no point in placing controls on permissibility in cl 23, which has primary application, and taking them out again two pages later in cl 25E. The Applicant's submissions 30 On behalf of the Applicant, Ms Duggan of counsel submitted that if land is in a residential zone where residential flat buildings are not permitted, the development standard in cl 40(4) applies, but if the land is in a zone where they are permitted, it does not. Ms Duggan submits that in cl 4 you ask if residential flat buildings are permitted, but in cl 40(4) you ask if they are not. 31 She went on to address the "general understanding", and various definitions, of the term "residential flat building" – ie what meaning is "generally accepted" (submissions par 12). The model provisions define it as a building with two or more dwellings, and a "dwelling" (like a "flat" elsewhere) is defined as a "room or suite of rooms occupied or used or so constructed or adapted as to be capable of use" as a separate domicile. She conceded that specific definitions can be "idiosyncratic" (T13, LL8-12). 32 Ms Duggan submits that an "apartment conversion" is a "residential flat building" in both the KPSO and in the model provisions. She mounts a genus/species argument (see Friends of Pryor Park Incorporated v Ryde Council & Anor [1995] NSWLEC 160, especially at 161), and sees no reason to interpret "residential flat building" differently in each of cl 4 and cl 40. One looks to the zoning table to determine if the land is zoned for urban purposes, and then to the instrument as a whole to decide the permissibility of use on particular land. The SEPP focuses on the question of permissibility, not form. An "apartment conversion" is to be seen as a species of the genus "residential flat building", and a particular LEP may well split up the species within the genus. 33 Her argument rests upon the proposition that the zoning table is not the only source of permissibility or prohibition (submissions par 18, and see cl 23, which is stated to operate "subject to the other provisions of this Ordinance"). 34 Ms Duggan submits that clauses 23 and 25E permit a residential flat building on the subject land and the zoning table permits an apartment conversion on the land so they are permissible, and cl 40(4) does not apply. Division 4 of Part IIIA delineates the development as set out in the zoning table. Clause 25E clearly states that if you have 1200m2 you may have wider uses because the land is mapped. She also argues (submissions par 20) that cl 25H overrides the zoning table to render apartment conversions and residential flat buildings permissible with consent. 35 In this case residential flat buildings are permissible (even if only by apartment conversion or the operation of cl 25E). Alternatively, she argues that, as apartment conversions are permitted, and, as they are residential flat buildings, residential flat buildings are permissible. Discussion 36 The correct principles to apply in construing environmental planning instruments are well established. They were helpfully collected and summarised, with relevant authorities cited, by Jagot J in Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [7]-[9], and repeated by Her Honour in Keay & Anor v Wollongong City Council ("Keay") [2008] NSWLEC 243 at [20]. 37 I am content to adopt and apply the principles as Her Honour stated them, with the consequence that I find Mr Ayling's submissions preferable to Ms Duggan's. 38 Counsel for the parties disagree on the applicability of the authority established by T C Punnett & Associates Pty Ltd v Warringah Council ("Punnett") [2001] NSWLEC 152, (2001) 115 LGERA 314. In Punnett dwellings and residential flat buildings were permitted, but only if they were to be used to accommodate workers employed in a permissible use. McEwen AJ (at [11]-[25]) held that such a limited use still remained a use for the purpose of a dwelling house or a residential flat building. 39 I agree with Council's written submissions (pars 9 and 10) that the correct view of what Punnett decided supports its case, rather than the Applicant's. Clause 4 is facultative and cl 40 restrictive, being concerned more with building type than use. See North Sydney Council v Phillip Perrie and Associates Pty Limited [1995] NSWLEC 115, and Keay at [30]ff. I certainly cannot accept Ms Duggan's submission (par 20) giving an expansively facultative meaning to cl 25H (see [34] above). 40 The question is not so much whether a species or the genus is permissible, but whether development for the purpose described in the Development Application is permitted. I agree with the Council's written submissions (par 6) that it is intended that only the species "apartment conversions" is permissible in the 2(c2) zone, and (par 7) that the object and purpose of cl 40(4) is to limit the scale of buildings in certain zones. 41 I am fortified in my conclusion by the exercise Mr Ayling did in his reply (at T21, LL19-42), where he invited the court to read into the definition of "apartment conversion" one formulation of the definition of "residential flat building" rather than the other, with the result that while a residential flat building can comprise three or more dwellings (with no maximum stipulated), a residential flat building created by an apartment conversion can have no more than four. 42 "Apartment conversion", therefore, cannot be a species or subspecies of the genus "residential flat building", in the key instrument applying to this case, but must be a separate, specific and distinct form of use, which is not a residential flat building for the purposes of the SEPP. Conclusion 43 I have concluded that cl 40(4) applies to that component of the subject land which remains in dispute (1578 Pacific Highway), and that a SEPP 1 objection is required. 44 Exhibit A1 and Exhibit C1 may remain with the court file pending the further disposition of these proceedings. 45 The matter is returned to the Registrar for further case management and directions aimed at its final disposition. 17/03/2009 - Legal representatives alteration - Paragraph(s) nil DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.