Land and Environment Court of New South Wales CITATION : Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41 APPLICANT: Marina Bay Developments Pty Limited PARTIES : RESPONDENT: Pittwater Council FILE NUMBER(S) : 10447 of 2006 CORAM: Lloyd J KEY ISSUES: Appeal :- s 56A of the Land and Environment Court Act 1979 – question of law – meaning of "contribute to" the quality and identity of the area – a State of Environmental Planning Policy is subordinate legislation and should not be construed in a strict or over-technical way but rather in a practical, reasonable and commonsense way – construction should meet the aims of the Policy – words of the Policy must be read in context – strict approach to interpretation not appropriate for subordinate legislation – the appeal court should not adopt a "fine-tooth comb" approach to decisions of lay commissioners – the words used in the decision should not be examined in an overly critical and pernickety way – determining relevant "area" involves its application in the particular context – no error of law found Environmental Planning and Assessment Act 1979 s 25(3) Land and Environment Court Act 1979 s 56A LEGISLATION CITED: Seniors Living Policy: Urban Design Guideline for Infill Development State Environmental Planning Policy (Seniors Living) 2004 cll 2, 29, 30, 31, 79 State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability (superseded) Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 ; Carstens v Pittwater Council (1999) 111 LGERA 1; Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380; Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 ; Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180; [1963] 1 WLR 929; GPC No. 5 (Wombarra) Pty Ltd v Wollongong City Council (2003) 131 LGERA 383; GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51; CASES CITED: Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322; Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266; K Richardson & Associates Pty Ltd v Yarrowlumla Shire Council (2002) 122 LGERA 189; Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289; North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247; Page v Parkes Shire Council (1991) 72 LGRA 97 ; Port Stephens Shire Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226; Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 DATES OF HEARING: 08/12/2006 DATE OF JUDGMENT: 6 February 2007 APPLICANT: Mr C W McEwen SC SOLICITORS: LEGAL REPRESENTATIVES: Staunton Beattie RESPONDENT/APPELLANT: A S Bell SC and G B Furness (barrister) SOLICITORS: Mallesons Stephen Jaques JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Tuesday, 6 February 2007 LEC No. 10447 of 2006 MARINA BAY DEVELOPMENTS PTY LTD v PITTWATER COUNCIL [2007] NSWLEC 41 JUDGMENT 1 This is an appeal by the respondent, Pittwater Council, against a decision of Commissioner Watts. The commissioner upheld an appeal brought by the applicant, Marina Bay Developments Pty Limited against the deemed refusal by the council of a development application to construct six apartments under State Environmental Planning Policy (Seniors Living) 2004 ("the Policy"). This appeal may only be made on a question of law: s 56A, Land and Environment Court Act 1979 ("the Court Act"). 2 The council alleges that the commissioner erred in law as follows: (a) finding that the proposed development satisfied the requirements of clauses 30 and 31(a) of the State Environmental Planning Policy (Seniors Living) 2004 (" SEPP SL ") even though the proposed development involved a change of character; (b) finding that the " area " within the meaning of clause 31 was the Church Point and Bayview locality; (c) misdirecting himself as to the question to be determined under clauses 30 and 31(a) by (i) finding that they permitted the granting of consent to a proposed development which resulted in a change of character; and (ii) by applying an incorrect and impermissibly broad meaning to the word "area". (d) misconstruing the requirements in clauses 30 and 31(a) by adopting a "compatibility test" derived from the superseded State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability ("SEPP 5") rather than the requirement that the consent authority must be satisfied that the proposed development demonstrates that adequate regard has been given to the desirable elements of the location's current character so that new building contributes to the quality and identity of the area; (e) failing to give any reasons which sufficiently demonstrate whether the Commissioner was satisfied that adequate regard had been given to the principle in clause 31(a); (f) failing to separately address the requirements in clauses 41(a) and (c) as the test to be applied under each subclause differs; (g) taking into account the development being compliant and satisfactory within the development standards in clause 79 SEPP SL as a factor in satisfying himself that the development is appropriate against design principles in clause 31 of SEPP SL. 3 It can be seen from these grounds of appeal that the attack on the commissioner's decision is mainly directed to his consideration of cl 31 of the Policy. Before turning to cl 31, however, cl 30 is relevant: 30 Design of residential development A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. 4 Division 2 of Pt 3 of the Policy is headed "Design Principles". Clause 31 appears in Div 2 and is as follows: 31 Neighbourhood amenity and streetscape The proposed development should: (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone. 5 Ground (g) of the grounds of appeal refers to cl 79 of the Policy, which is as follows: 79 Standards that cannot be used to refuse development consent for residential care facilities A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a residential care facility on any of the following grounds: (a) building height: if all proposed buildings are 8 metres or less in height, or (b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 1:1 or less, (c) landscaped area: if a minimum of 25 square metres of landscaped area per residential care facility bed is provided, (d) parking for residents and visitors: if at least the following is provided: (i) 1 parking space for each 10 dwellings in the residential care facility (or 1 parking space for each 15 dwellings if the facility provides care only for persons with dementia), and (ii) 1 parking space for each 2 persons to be employed in connection with the development and on duty at any one time, and (iii) 1 parking space suitable for an ambulance. 6 In the context of the present case, it can be seen that these provisions require the consent authority to go through a process which has a number of stages. The first stage, required by cl 31(a), is the recognition of the desirable elements of the location's current character (or, in the case of precincts undergoing transition, where described in the local planning controls, the desired future character), "so that" the consent authority can then proceed to the second stage. The second stage, also required by cl 31(a), is to make an assessment of whether the new buildings "contribute to" the quality and identity of the area – that is, whether they contribute to the quality and identity of the desirable elements of the location which have been identified in the first stage. The third stage is to determine whether the proposed development satisfies the remaining sub-cll (b) to (g) of cl 31. The fourth stage is required by cl 30 – the consent authority must determine whether it is satisfied that adequate regard has been given to these principles and if not, then the development application must be refused. Finally, once the process of satisfying cll 30 and 31 has been completed, only then does the consent authority turn to the development standards and other criteria in Pt 7 of the Policy (including cl 79). The council's submissions 7 Mr A S Bell SC and Ms G B Furness, appearing for the council, rely upon the following submissions: (a) Clause 31(a) requires that new buildings should "contribute to the quality and identity" of the desirable elements of the area's character. The commissioner, however, adopted the wrong test – that is, he asked the wrong question – whether the building would be "compatible with" or would "fit in" with the area. The words "contribute to" in cl 31(a) involve a different concept and denote something positive: does it make a positive contribution and enhance the quality and identity of the area? The compatibility test adopted by the commissioner, on the other hand, was in the sense of "can we live with it?" In adopting the wrong test and in asking the wrong question the commissioner erred in law. (b) In adopting the "compatibility" test the commissioner applied the planning principles explained in GPC No. 5 (Wombarra) Pty Ltd v Wollongong City Council (2003) 131 LGERA 383, which was based upon the superseded policy – State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability – rather than the present policy and which were thus no longer relevant. (c) There was no finding by the commissioner that the new building would "contribute to" the quality and identity of the area's current character. (d) The "area" to which cl 31(a) refers is the immediate locality of the proposed development. The commissioner wrongly construed this to mean the wider Church Point and Bayview area. In choosing the wrong area the commissioner made the wrong enquiry. In so doing the commissioner erred in law. (e) Since the commissioner adopted the wrong tests, or asked the wrong questions, in applying cl 31(a), then he could not have been satisfied that adequate regard had been given to those principles as required by cl 30 and as a consequence there was no power to grant the consent. (f) The commissioner erred in accepting the evidence of an expert witness, Mr Juradowitch, which primarily considered the development standards in cl 79, and in so doing the commissioner accepted that compliance with these standards resulted in the design complying with the whole of the Policy. The applicant's submissions 8 Mr C W McEwen SC, appearing for the applicant (respondent to the appeal), relies upon the following submissions: (a) The council's submissions adopt an inappropriate " fine-tooth comb " approach to the decision of the commissioner (citing Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Page v Parkes Shire Council (1991) 72 LGRA 97 at 103, Carstens v Pittwater Council (1999) 111 LGERA 1, and K Richardson & Associates Pty Ltd v Yarrowlumla Shire Council (2002) 122 LGERA 189). (b) A development can "contribute to" an area simply by "fitting in" or being "compatible". It is sufficient for there to be a contribution to the quality and identity of an area that it be neutral. The concept does not amount to an obligation for a positive enhancement. (c) Moreover, cl 29 of the Policy requires the consent authority to take into consideration the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development ("Design Guideline"), published by the Department of Infrastructure, Planning and Natural Resources in March 2004. That document in turn states, inter alia: "New development should contribute to the overall character of the area, or, in the other words, have a good "neighbourhood fit"… (d) The commissioner was entitled to consider the question of compatibility of the proposed development, and considered that it did not have an adverse consequence for the character of the local area; and this was not an impermissible consideration (citing Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119). (e) The question regarding the "area", referred to in cl 31(a), is irrelevant. The council put to the commissioner, and there was general agreement, that the immediate locality was no different in context or character to the wider Church Point and Bayview locality – that is, the immediate vicinity was typical of the wider locality. (f) A fair reading of the commissioner's decision does not indicate that he was diverted from the requirements of cll 30 and 31 because of any compliance with cl 79. Conclusions 9 The commissioner's reasons do not contain any finding that the new building would "contribute to" the quality and identity of the area, or its character. 10 The commissioner does, however, make findings that the proposal would "fit in" with the neighbourhood and with each nearby dwelling; that it would be "compatible" with the streetscape; that the Church Point and Bayview locality would "remain" a low-density residential area; that it would "reflect" the predominant scale and setbacks of existing development; that it would "integrate" with the natural landscape and topography; that its bulk and scale would be "compatible" with the streetscape; and that it would "fit in" with the existing and desired future character of the area. 11 These findings are those which are clearly required by cl 31(c), which states that the development should "maintain" reasonable amenity and appropriate residential character in the various ways prescribed by that subclause. The various ways prescribed by cl 31(c) use language which is consistent with the concept of "maintaining" reasonable neighbourhood amenity and appropriate residential character, by the use of words "compatible" and "in sympathy" with referred to in cl 31(d). 12 The commissioner's findings are also consistent with the language of the planning principles set out in the case of GPC No. 5 (Wombarra) Pty Ltd, which were formulated under the superseded policy; in particular the first of those principles – that buildings do not have to be single-story to be "compatible" with the streetscape even where most existing buildings are single-storey. 13 The draftsperson of cl 31(a), however, has used different language. Rather than the word "maintain" the draftsperson has chosen the use of a stronger word – "contribute" (to the quality and identity of the area). It is also different language to that which was used in the former policy: "remain", "compliment", "harmonise", and "maintain" (cl 25 of the former policy). One's initial assumption is that the choice of words was deliberate and intended to convey a different meaning. 14 There is thus some force in the council's submission that cl 31(a) sets a new and different requirement – that new buildings should make a positive contribution and enhance the quality and identity of the area, rather than merely "maintain", "fit in with", "reflect", "integrate", or be "compatible with" the area's current character. 15 The requirement of cl 29 to take into consideration the provisions of the Design Guideline, which in turn states that new development should "contribute to" the overall character of the area, reinforces the initial view that the choice of words in the new policy was deliberate and intended to convey a stronger meaning than the word "compatible". I note, however, that the Design Guideline, after the reference to words "should contribute to the overall character of the area", goes on to say, "or, in other words, have a good ''neighbourhood fit'". 16 I have noted Mr McEwen's submission that there can be a "contribution" simply by "fitting in" or being "compatible". It is not necessary, in his submission, for there to be a positive enhancement: for example, one can imagine a row of terrace dwellings with a building within the row that has to be removed because it has been burnt down; the replacement of that building with another terrace building would plainly contribute to the quality and identity of the area and yet it might be identical to the buildings which surround it. 17 Mr McEwen also relies upon the Design Guideline, which cl 29 of the Policy requires the consent authority to take into consideration, and in particular the following statement in the Design Guideline: "New development should contribute to the overall character of the area, or, in other words, have a good "neighbourhood fit" ". 18 I find the competing submissions nicely balanced. It must be remembered, however, that the Policy is subordinate legislation and not drafted with the particularity or specificity of a statute: it should not be construed in a strict or over-technical way but rather in a practical, reasonable and commonsense way: Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289 at 294, Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266 at 279. 19 It is necessary, therefore, to construe the Policy with the flexible and practical approach to construction adopted by Lord Reid in the House of Lords in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180; [1963] 1 WLR 929, an English building regulation case: I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry … So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament. 20 These comments of Lord Reid have been cited and adopted in applying and interpreting subordinate legislation, including planning instruments: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531, Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323, GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51; Port Stephens Shire Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 231. 21 The council's arguments focus on the words "contribute to" in the Policy. In North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247, Kirby P said (at 248): In Towne v Eisner 245 US 418 (1918), Holmes J, in the Supreme Court of the United States of America, said (at 425): "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used." 22 In the same case Kirby P called in aid the examination of the apparent policy of the instrument. Moreover, s 25(3) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") states: (3) Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred. 23 The aims of the Policy in the present case are set out in cl 2, which is as follows: 2 Aims of Policy (1) This Policy aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services; and (c) 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 seniors or people with a disability that meets the development criteria and standards specified in this Policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes. 24 I am inclined to the view that the construction for which Mr McEwen contends more effectively meets the aims of the Policy than does the construction for which the council contends, and, in particular, the reference in cl (2)(b) of the aims to achieve built form that "responds to" – rather than adds to – "the characteristics of its site and form". 25 The words of the Policy must also be read in context. The requirement of cl 29 that the consent authority take into consideration the Design Guideline demonstrates that the context in which the word "contribute" is clearly used is in the sense of "a good neighbourhood fit", as noted in par [15] above. 26 Looseness of expression and the interchangeability of words are not uncommon in subordinate legislation, often not drafted by lawyers, and the strict approach to interpretation for which the council contends is not appropriate. As noted by Kirby P, words may vary greatly in colour and content according to the circumstances in which they are used. 27 I have come to the view, therefore, that the applicant's submissions are to be preferred. In particular, I find the example given by Mr McEwen, which I have set out in par [16] above, to be compelling. It follows that, although the commissioner did not use the precise language of cl 31(a) – "contribute to" – the findings that he did make and which I have noted in par [10] above are consistent with the sense and meaning of that language in its context. 28 This finding is consistent with the approach of appellate courts to appeals on questions of law from a lay tribunal. The appeal court should not adopt a "fine-tooth comb" approach to decisions of lay commissioners by examining too narrowly the words used in the decision: Brimbella at 368; K Richardson & Associates at 49; Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at [17]-[18], [50]. Neither should the words used in the decision be examined in an overly critical and pernickety way: Brimbella at 368. 29 It is an error of law for a decision-maker to misdirect himself as to the question or questions to be determined: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. I am not persuaded, however, that this has occurred in the present case. 30 The next question, namely, what is the "area" to which cl 31(a) refers, is largely irrelevant. The commissioner, it seems, had regard to the wider Church Point and Bayview locality, rather than to the immediate area. In Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119, the Court of Appeal considered s 79C(1)(b) of the EP&A Act, which requires a consent authority to take into consideration the "social and economic impacts in the locality". In identifying "the locality", Basten JA (Giles and Santow JJA concurring) said that, in a particular case the question is often better understood as involving not the abstract construction of a term, whether a single word or a phrase, but its application in a particular context (at 130). His Honour then said (at 131): Subject to identifiable outer limits of connotation, the provision should be construed as leaving to the consent authority, or the Commissioner on appeal, the identification of what constitutes a relevant impact in a particular case and what constitutes the appropriate locality within which to consider the impact. 31 So too, in the present case, it was open to the commissioner to identify the appropriate area which gave it its current character. However, as noted above, the question is largely irrelevant since there was general agreement that character of the immediate area was no different to the wider Church Point and Bayview locality. 32 The final point raised by the council was that the commissioner accepted "the thrust" of the evidence of an expert witness (Mr Juradowitch) which evidence was primarily directed to a consideration of the development standards in cl 79 of the Policy. The Council submits that the commissioner, in accepting that evidence, was satisfied that the design of development satisfied the design principles in cl 31. 33 The submission is based upon what is said in pars [71] and [72] of the commissioner's decision. In paragraph [71] the commissioner sets out the evidence of the expert witness in relation to the development standards. The commissioner then states in par [72]: I accept the thrust of his evidence and I am satisfied that, although the proposal would be of a different visual character, its bulk and scale would be compatible with the streetscape and satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979 and under the requirements of SEPP-SL. I would not refuse the application for reason of its character and built form. 34 If read in isolation, it would seem that the commissioner's conclusions in par [72] are based upon the evidence which he set out in par [71]. The commissioner's discussion of the character of the area is, however, contained in the several paragraphs which precede par [71]. The commissioner's conclusion in par [72] – "I would not refuse the application for reason of its character and built form" – is apparently the culmination of the analysis set out in the many preceding paragraphs and is not limited to what is set out in the immediately preceding par [71]. I am thus not persuaded that the commissioner found that merely because the development satisfied the development standards in cl 79 of the Policy, it followed that the development was satisfactory under the design principles in cl 31. 35 The council has been unable to demonstrate any error of law in the commissioner's decision. It follows that the appeal must be dismissed with costs. Orders 36 The formal orders are: 1. The appeal is dismissed. 2. The appellant (the respondent below), Pittwater Council, must pay the applicant's costs of the appeal. I hereby certify that the preceding 36 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 6 February 2007 ********************** 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.