Reported Decision : 162 LGERA 247 Land and Environment Court of New South Wales CITATION : Greengate Consulting (NSW) Pty Ltd trading as Greengate Property Group v Ashfield Municipal Council [2008] NSWLEC 253 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: Greengate Consulting (NSW) Pty Ltd trading as Greengate Property Group PARTIES : RESPONDENT: Ashfield Municipal Council FILE NUMBER(S) : 10421 of 2008 CORAM: Biscoe J Development Application :- whether development application lodged "on the basis of existing use rights" is incompetent - whether existing use rights under Division 10 of Part 4 of Environmental Planning and Assessment Act 1979 - provision of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 that an application to carry out development may be made only by or on behalf of Director-General of Department of Housing or a social housing provider - whether has the effect of prohibiting the use within the meaning of s 106(b)(i) of Environmental Planning and Assessment Act 1979 - whether "prohibiting the use" in s 106(b)(i) means prohibiting the use by particular classes of users. KEY ISSUES: Existing use - whether development application lodged "on the basis of existing use rights" is incompetent - whether existing use rights under Division 10 of Part 4 of Environmental Planning and Assessment Act 1979 - provision of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 that an application to carry out development may be made only by or on behalf of Director-General of Department of Housing or a social housing provider - whether has the effect of prohibiting the use within the meaning of s 106(b)(i) of Environmental Planning and Assessment Act 1979 - whether "prohibiting the use" in s 106(b)(i) means prohibiting the use by particular classes of users. Ashfield Local Environmental Plan 1985, cl 10 Environmental Planning and Assessment Act 1979 (NSW), ss 76B, 106, 108(1), 108(2), Pt 4 Div 10 Environmental Planning and Assessment Regulation 2000 (NSW), cl 42 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 10, 15, 16, 17, 18, 19, 20, 53(1), Chapter 3, Schedule 2 cl 3 LEGISLATION CITED: State Environmental Planning Policy No 1 State Environmental Planning Policy No 5 – Housing for Aged or Disabled Persons, cl 30 State Environment Planning Policy (Seniors Living) 2004 State Environment Planning Policy (Seniors Living) 2004 (Amendment No 2) Sydney Local Environmental Plan No 61 BYT Nominees Pty Ltd v North Sydney Council [2008] NSWLEC 164 Daniel v Manly Municipal Council (1975) 34 LGRA 14 Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363 Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95 Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472 CASES CITED: Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 McFadyen Architects Pty Ltd v Kogarah Council [2006] NSWLEC 736 Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 No Dump Residents Association Inc v Collex Pty Ltd (No 2) [2005] NSWLEC 136 P. D. Mayoh Pty Ltd v Burwood Municipal Council (unreported, NSWLEC, 11 February 1991, No 40275 of 1989) Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86 DATES OF HEARING: 22/08/08 DATE OF JUDGMENT: 5 September 2008 APPLICANT: Mr I. Hemmings SOLICITORS: Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT: Mr M. Craig QC SOLICITORS: Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 5 September 2008 10421 of 2008 GREENGATE CONSULTING (NSW) PTY LTD T/AS GREENGATE PROPERTY GROUP v ASHFIELD MUNICIPAL COUNCIL JUDGMENT 1 HIS HONOUR: This is the determination of preliminary questions of law in a merit appeal by Greengate Consulting (NSW) Pty Ltd t/as Greengate Property Group against Ashfield Municipal Council's refusal of a development application for alterations and additions to a retirement or aged persons' complex in Ashfield known as the Cardinal Freeman Village. 2 The essential question posed is whether, as the council contends, the applicant is not competent to maintain the development application. 3 The preliminary questions of law were originally formulated by reference to the provisions of an earlier version of the current State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors), namely, State Environmental Planning Policy (Seniors Living) 2004 (SEPP SL) in the form in which it existed between 29 November 2006 and 11 October 2007. However, during the hearing it became common ground that SEPP Seniors is applicable. I agree. The reasoning is as follows. Clause 53(1) of SEPP Seniors provides that a "development application made pursuant to Chapter 3 that was lodged with the consent authority (but not finally determined) before the commencement of" SEPP SL (Amendment No 2) "is to be determined as if that Policy had not been made". SEPP SL (Amendment No 2) commenced on 12 October 2007. The development application was lodged (but not finally determined) before then. However, as the Statement of Environmental Effects (which accompanied the development application) states that the "application is not lodged pursuant to Chapter 3" of SEPP SL and that it is submitted "on the basis of existing use rights", cl 53(1) is inapplicable. 4 Accordingly, I have reformulated the SEPP references in the preliminary questions of law as follows: 1. Is SEPP Seniors engaged by development application DA No 2007/177 lodged with council on 10 August 2007 in relation to Lot 7, DP 717644 and Lot 4 DP 717062 being part of the land known as Cardinal Freeman Village at 137 Victoria Street, Ashfield? 2. If the answer to (1) is yes: (a) Is the effect of clause 3 of Schedule 2 to SEPP Seniors to prohibit the use of Lot 7 in DP 717644 for the purpose of dwellings for aged persons so as to constitute the present use of dwellings on that lot an " existing use " within the meaning of s 106 of the Environmental Planning and Assessment Act 1979 ( EPA Act )? or (b) Is the effect of clause 3 of Schedule 2 simply to restrict the identity of those eligible to apply for development allowed by Chapter 3 of SEPP Seniors? The Village 5 The Village stands on a parcel of land of about 4.1 hectares bounded by Queen, Clissold, Victoria and Seaview Streets, Ashfield. The Village is operated by the owner of the Village site. The Village comprises 169 self care units, 48 serviced apartments, a 60 bed hostel facility, a 59 bed nursing home and associated facilities which include a heritage listed chapel. 6 One of the buildings within the Village, which provides self care accommodation, is known as "Building F". Its address is 102-102A Queen Street and it is erected on Lot 7 in DP 717644. Car parking for residents of Building F is available on an allotment which adjoins Lot 7 on the north east, being Lot 4 in DP 717062. This Lot is known as 4-6 Clissold Street. Building F is a two storey building containing 12 units which are made up of two studio units, eight 1 bedroom units and two 2 bedroom units. The development application 7 On 10 August 2007 the subject development application was lodged on behalf of the owner of the Village site with the council for development on the Village site, involving Building F. The development application describes the proposed work as "Alterations and additions to an existing Self Care Unit building (Building F) to provide additional 6 Units". The proposed use is described as "Seniors Housing" and the estimated cost of works as $3,900,000.00. 8 The Statement of Environmental Effects lodged in support of the development application summarises the work for which consent is sought as involving: 1 Alteration and additions to an existing independent living unit building including partial demolition, new façade treatments and the introduction of additional residential levels resulting in an increase in the number of independent living units at the site from 12 to 18; 2 The refurbishment of the building including alterations to the layout of the basement, remodelling of individual apartments, the installation of new fixtures and fittings and the installation of a new accessible lift; 3 Introduction of 6 new car parking spaces immediately to the north of Building F; 4 The introduction of hard and soft landscaping; 5 Installation of water retention tank for rainwater harvesting and re-use; 6 Installation of roof mounted photovoltaic cells. 9 The plans accompanying the application indicate that the alterations to Building F involve a further two storeys being added to the existing two storey building. They also indicate that six new car parking spaces and landscaping are to be located on Lot 4. Development and planning history 10 On 25 March 1985 development consent was granted by the council for the expansion of the then existing retirement village. This expansion involved the addition of new buildings and facilities. The development consent was modified on 19 November 1985. It was pursuant to this modified consent that Building F came to be lawfully erected and used for its present purpose. 11 At the time at which the modified consent was granted, the planning controls governing development upon the Village site were those contained in the County of Cumberland Planning Scheme Ordinance and State Environmental Planning Policy No 5 – Housing for Aged or Disabled Persons ) (SEPP 5). SEPP 5 was repealed and replaced in 2004 by SEPP SL. Current planning controls 12 Section 76B of the EPA Act provides: If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. 13 An environmental planning instrument controlling development upon the Village site is Ashfield Local Environmental Plan 1985 (Ashfield LEP). By reference to the map referred to in the Ashfield LEP, Lots 4 and 7 are zoned 5(a) Special Uses – Church. Clause 10 of the Ashfield LEP and the Table to that clause prohibit development for the purpose of aged persons' accommodation or seniors living on Lots 4 and 7. However, the Ashfield LEP is subject to provisions of SEPP Seniors applicable to land within the Ashfield local government area. That is because cl 5(3) of SEPP Seniors provides: If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency. 14 The development which is the subject of the development application can be characterised as "seniors housing" involving the provision of "self-contained dwellings" within the meaning of SEPP Seniors: cl 10. 15 The following provisions of Chapter 3, which is entitled "Development for seniors housing", of SEPP Seniors are relevant: 15 What Chapter does This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy: (a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and (b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing. 16 Development consent required Development allowed by this Chapter may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent. 17 Development on land adjoining land zoned primarily for urban purposes (1) Subject to subclause (2), a consent authority must not consent to a development application made pursuant to this Chapter to carry out development on land that adjoins land zoned primarily for urban purposes unless the proposed development is for the purpose of any of the following: (a) a hostel, (b) a residential care facility, (c) serviced self-care housing. (2) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purposes of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that the housing will be provided: (a) for people with a disability, or (b) in combination with a residential care facility, or (c) as a retirement village (within the meaning of the Retirement Villages Act 1999 ). Note . Clause 13(3) defines serviced self-care housing as seniors housing that consists of self-contained dwellings where meals, cleaning services, personal care and nursing care are available on site. Clause 42 requires the consent authority to be satisfied that residents of such housing have reasonable access to services. Clause 42 also provides that if services are limited to those provided under Government provided or funded community based care packages, this does not constitute reasonable access to services. 18 Restrictions on occupation of seniors housing allowed under this Chapter (1) Development allowed by this Chapter may be carried out for the accommodation of the following only: (a) seniors or people who have a disability, (b) people who live within the same household with seniors or people who have a disability, (c) staff employed to assist in the administration of and provision of services to housing provided under this Policy… 20 Special provisions concerning certain land to which this Policy applies (1) The provisions of Schedule 2 have effect despite any other provision of this Policy. Note . Schedule 2 contains provisions that restrict the persons who may make development applications pursuant to this Policy in respect of land located in certain local government areas. The Schedule should be consulted to determine whether any special provisions apply to land that is to be the subject of a development application made pursuant to this Policy. (2) The provisions of Schedule 2 cease to have effect on 31 December 2008. Schedule 2 Special provisions relating to certain land … 3 Development in Ashfield An application to carry out development allowed by Chapter 3 on land within the Ashfield local government area may be made only by or on behalf of: (a) the Director-General of the Department of Housing, or (b) a social housing provider. 16 Neither the applicant for development consent, nor the owner of the Village site, is now or was at the date of lodgement of the development application, a "social housing provider" as referred to cl 3 of Schedule 2. Discussion 17 In the absence of existing use rights, the development application is incompetent. That is because the development application states that it is not lodged pursuant to Chapter 3 but "on the basis of existing use rights" and because of the provisions of cl 20 and cl3 of Schedule 2 of SEPP Seniors. Definitions of existing use in s 106 of the EPA Act enliven the substantive existing rights provisions in ss 107 and 108. The applicant claims that there is an existing use within the definition in s 106(b), which provides: In this Division, existing use means: … (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 18 The reference to an "environmental planning instrument" in ss 106 – 108 is a reference to one that is currently in force: BYT Nominees Pty Ltd v North Sydney Council [2008] NSWLEC 164 at [23], [25] (Preston CJ). 19 Section 108 provides that the regulations may make provision for or with respect to existing use and that the provisions of any such regulations are taken to be incorporated in every environmental planning instrument. In the present case, if there is an "existing use" as defined in s 106, the applicant for development consent was entitled to lodge the development application to enlarge, expand and intensify that existing use under cl 42 of the Environmental Planning and Assessment Regulation 2000, which provides: (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 20 The applicant submits that there is a s 106(b) existing use on the following reasoning: (a) prior to 6 December 2002 SEPP 5 operated as an exception to the prohibition on aged housing development in the Ashfield LEP. The exception disappeared from 6 December 2002 by reason of the introduction of a new provision, cl 30. Clause 30 provided that in Ashfield an application to carry out relevant development may be made only by or on behalf of the Director-General of the Department of Housing or a local government or community housing provider. A similar provision appeared in SEPP SL when it replaced SEPP 5 and now appears in cl 3 of Schedule 2 of the current SEPP Seniors; (b) the effect of such a provision is to prohibit the use subject to an exception in favour of a limited class of persons who are permitted to make a development application: Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGERA 86 (CA); Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95 (CA); No Dump Residents Association Inc v Collex Pty Ltd (No 2) [2005] NSWLEC 136; (c) focusing on s 106(b)(i), development consent for the use of the subject land for the purpose of seniors housing was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting that use. From 6 December 2002 SEPP 5 (considered in the light of the Ashfield LEP) was the instrument having the effect of prohibiting that use. Later it was SEPP SL. Now it is SEPP Seniors; (d) alternatively to the above, " having the effect of prohibiting the use " in s 106(b)(i) of the EPA Act means having the effect of prohibiting the use by a particular class of user. In the present case, SEPP Seniors has the effect of prohibiting the relevant use by anyone other than a person or class referred to in cl 3 of Schedule 2. 21 I do not accept that there is an existing use within the meaning of s 106(b). In my opinion, in terms of s 106(b)(i), no provision of SEPP Seniors has the effect of prohibiting the current use of the land for the purposes of seniors housing, for which development consent was granted in 1985. Nor did any provision of the former SEPP 5 after 6 December 2002 or SEPP SL have that effect. Consequently, s 106(b) is not engaged. As the applicant for development consent was not within the class specified in cl 3 of Schedule 2 of SEPP Seniors, the applicant is incompetent to maintain the development application. My reasons are as follows. 22 SEPP Seniors Chapter 3 allows the development of seniors housing, but only with development consent, unless another environmental planning instrument allows that development without development consent (cl 16). In so doing, it also allows development to be carried out in accordance with SEPP Seniors despite the provisions of any other environmental planning instrument (cl 15). In McFadyen Architects Pty Ltd v Kogarah Council [2006] NSWLEC 736 at [16] Jagot J made the same observations in relation to the former SEPP SL Chapter 3 by reference to its identical (but differently numbered) clauses. 23 Clause 15 of SEPP Seniors states that Chapter 3 "allows" development for seniors housing. Clauses 16, 18, 19 and cl 3 of Schedule 2 all use the same language. There can be no doubt that if cl 20 and cl 3 of Schedule 2 did not exist, SEPP Seniors would not prohibit but would allow the use of the land for seniors housing with development consent – and therefore s 106(b)(i) could not apply. That was the situation in SEPP 5 prior to 6 December 2002 and, as the applicant accepts, at that time SEPP 5 did not prohibit that use but allowed it. The applicant's submission is that (a) this all changed on and after 6 December 2002 by the insertion of provisions in SEPP 5 equivalent to the current SEPP Seniors cl 20 and cl 2 of Schedule 3; and (b) consequently, the longstanding existing use of the land for seniors housing has been prohibited since 6 December 2002. I disagree. The development consent referred to in cl 16 of SEPP Seniors is referable to a past as well as a future development consent. Clause 16 allows the current use of the land for the purpose of seniors housing because the council consented to that development in 1985. Clause 20 and cl 3 of Schedule 2 only restrict the class of applicants that can make future development applications. They do not have the effect of prohibiting the current use of the land for seniors housing. 24 The cases cited by the applicant are distinguishable. In Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86 (CA) provisions of the Sydney Local Environmental Plan No 61 effected a prohibition on the development with which the case was concerned. However, State Environmental Planning Policy No 1 (SEPP 1) enabled a developer, who was able to satisfy its conditions, to invoke the discretionary power of the consent authority to grant consent despite the prohibition. Clarke JA (Priestley and Meagher JJA agreeing) held at 90: But the recognition that a consent authority is invested with power to grant consents in the face of the relevant provisions of the Sydney Local Environmental Plan No 61 does not, in my opinion, mean that the provisions of cl 11 and cl 17 do not effect prohibitions. All that it means is that the consent authority is vested with power under the State Environmental Planning Policy No 1 to grant consents despite those provisions of, and prohibitions in, planning instruments concerning development standards. 25 Similarly, in Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95 (CA) at 103 Stein JA (Powell JA agreeing) held: Clause 12 of the Pittwater Local Environmental Plan (the LEP) clearly contains a prohibition on the subdivision of land within the 1(a) zone containing any allotment of less than 2 ha. The fact that State Environmental Planning Policy No 1 (SEPP 1) may provide a means whereby the prohibition may be set aside, does not make it any less a prohibition. In my opinion, SEPP 1 does not assist the appellant in overriding the plain prohibition in cl 17(2)(a) of the LEP. 26 Vaniga and Healesville were concerned with development which was prohibited unless and until a consent authority exercised its power under SEPP 1 to grant consent if certain conditions were satisfied. The present case is quite different. 27 In No Dump Residents Association Inc v Collex Pty Ltd (No 2) [2005] NSWLEC 136 at [33] Talbot J held that a provision of a local environment plan did not "generally authorise the use of the land for a prohibited purpose but rather it allows a public authority or its successor to carry out development which is otherwise prohibited. The use therefore can be correctly described as a prohibited use". In No Dump a local environmental plan prohibited the relevant development but provided that a public authority or its successor was excluded from the prohibition. The present case is different because SEPP Seniors allows the development of seniors housing with development consent. 28 There is also no s 106(b) use even if, as the applicant alternatively submits, the words "prohibiting the use" in s 106(b)(i) were to be construed as "prohibiting the use by a particular class of user". That is because the use by anyone of the subject land for the purpose of seniors housing is not prohibited, but is allowed under cl 16 of SEPP Seniors by reason of the 1985 development consent. More fundamentally, however, I am unable to accept that the words "prohibiting the use" should be construed in the way proposed by the applicant. In my opinion, s 106 is not concerned with the identity of the user. Planning law "is concerned with the use of land – not with the identity of the user": House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [22] (CA), quoting Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. Existing use rights under Division 10 of Part 4 (ss 106-109B) of the EPA Act attach to land, not persons: Daniel v Manly Municipal Council (1975) 34 LGRA 14 at 20 (Rath J); P. D. Mayoh Pty Ltd v Burwood Municipal Council (unreported, NSWLEC, 11 February 1991, No 40275 of 1989) (Bignold J); Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363 at [47] (Lloyd J). Similarly, an extant development consent, which is another species of existing use rights, operates to create a right in rem so that it may be relied on (inter alia) by all later transferees: House of Peace at [23], [38]; Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446 (CA) at [13], cf on further appeal (2004) 220 CLR 472 at [51] – [53]. It is unnecessary in the present case to consider what, if any, qualification there may be to these principles arising from a different scenario of a prohibition on a use coupled with an exception in favour of a limited class, such as that considered in No Dump. Conclusion 29 For these reasons, I answer the preliminary questions of law set out at [4] above: 1. Yes. 2(a). No. 2(b). Yes. 30 The applicant is to pay the respondent's costs of the preliminary questions of law. The exhibits may be returned. 08/09/2008 - abbreviation in heading t/as changed to "trading as" - Paragraph(s) heading on cover sheet and citation 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. 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