Land and Environment Court of New South Wales CITATION : Goodwin & Southwell v Ku-Ring-Gai Municipal Council [1989] NSWLEC 166 APPLICANT Goodwin & Southwell PARTIES : RESPONDENT Ku-Ring-Gai Municipal Council FILE NUMBER(S) : 10279 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act, 1979 Environmental Planning and Assessment Act CASES CITED: Woollahra Municipal Council v. Banool ((1973) 129 CLR 138) ; Civic Constructions Pty. Ltd. v. Ku-ring-gai Municipal Council (Land and Environment Court, Unreported 19 January 1989) DATES OF HEARING: DATE OF JUDGMENT: 03/09/1989 LEGAL REPRESENTATIVES: RESPONDENT Mr. Craig JUDGMENT: HIS HONOUR: The following question of law was referred to me for determination in accordance with s.36(5) of the Land and Environment Court Act, 1979. The question is:- "Whether wheelchair access for the purpose of Clause 10(3) of State Environmental Planning Policy No. 5 may include a lift as a necessary part of travel between two points." The question concerns the interpretation of cl.10 of State Environmental Planning Policy No. 5 - Housing for Aged or Disabled Persons (SEPP 5). In particular, cl.10(3) of the Policy provides:- "(3) The consent authority shall not consent to development for the purpose of housing for aged or disabled persons unless - (a) not less than 50 per cent of the total number of hostel beds, if any, and not less than 50 per cent of the total number of self-contained dwellings, if any, to which the development application relates, shall incorporate wheelchair access to each of them from the alignment of the road adjoining the proposed development; (b) not less than 5 per cent of the total number of hostel beds, if any, and not less than 5 per cent of the total number of self-contained dwellings, if any, to which the development application relates shall incorporate - (i) wheelchair access to each of them from the alignment of the road adjoining the proposed development; and (ii) wheelchair access to all essential areas and facilities associated with the occupation of the hostel bed or self-contained dwelling, being areas and facilities capable of being occupied and used by a person confined to a wheelchair; and (c) the proposed development shall incorporate such wheelchair access as is necessary to enable disabled persons to occupy and use areas and facilities (other than residential accommodation) connected with the development which, in the opinion of the consent authority, it would be reasonable to make available for the use or benefit of disabled persons." Clause 10(1) contains a definition of "wheelchair access" as follows:- "in relation to any 2 points, means a continuous path of travel between those points which can be negotiated by a person confined to a wheelchair." It is the submission of the respondent Council that clause 10(3) requires the provision of an unbroken or uninterrupted way by which all persons confined to and travelling in a wheelchair may at all times move between two points. These two points include a person's unit of accommodation and the adjoining street (sub-clause 3(a)). Mr. Craig, on behalf of the Council, submits that the interposition of a lift provides a substantial break in the path of travel such that it cannot be seen as "continuous". It is submitted by the Council that the purpose of cl.10(3) is to ensure that those confined to wheelchairs should, at all times, be able to move within the development and from their unit to the street "by resort only to such means as they use to propel such wheelchair". The respondent submits that a lift is dependent upon the provision of electrical power and proper mechanical functioning. Malfunctions do occur and SEPP 5 was not intended to permit wheelchair access to be dependent upon the vagaries of such obstacles. The respondent further submits that cl.10(3) is also intended to cater for emergencies such as fire and the potential occurrence of lift breakdown giving rise to a need for emergency evacuation which cannot be ignored. The applicant submits that the object or purpose of cl.10(3) is to provide for access which is capable of being negotiated by a person confined to a wheelchair without any impediment which would interrupt or disturb the access to such a person. However, Mr. Gyles, Q.C., on behalf of the applicant, submits that a lift is not such an impediment to travel but rather a facilitation of travel. Since the operation of a lift is within the capacity of a person confined to a wheelchair, it meets the object of cl.10. Indeed, a lift may provide a superior form of access to multi-level residential retirement complexes than do ramps. The applicant submits that the Council's construction is "highly technical, literal and legalistic and ignores the real context". It is also said that the respondent's concept of "continuous" is too narrow. Access obviously cannot be available for every minute of every day at all points along the "path". For instance, a retirement village may have a security door which is accessed by buzzer, speaker or the release of a catch. Surely, it is argued, an interruption of a closed door would not mean that the path of travel was not "continuous". Another example given by the applicant is a temporary blockage at a point along a ramp requiring clearing or repairs. Such a temporary interruption would not mean that the ramp ceased to provide a continuous path of travel for a person confined to a wheelchair. The applicant also submits that the safety issue raised by the Council is a red herring because SEPP 5 is not directed to safety issues as such. These are the province of other regulations, e.g., Ordinance 70,the Hosplan safety code and the Private Health Establishments Regulation, 1988. In my opinion the submissions made on behalf of the applicant are correct. One must not lose sight of the fact that the document under consideration is a State Environmental Planning Policy made by the Minister under s.39 of the Environmental Planning and Assessment Act. The relevant context is to be found in the aims and objectives of SEPP 5 set forth in cl.3. I accept that the phrase "continuous path of travel" in the definition is to be derived having regard to the ordinary meaning of the words used and in the light of the context of the Policy. But in my opinion "continuous" should not be given as literal an interpretation as urged by the respondent Council If one ascribes to the definition the notion of a totally unbroken path of travel without any possibility of a break or interruption, then it is difficult to see how any closed door provided between the street and the accommodation could ever qualify as wheelchair accessible under the Policy. SEPP 5 must have contemplated that doors capable of being opened by persons in wheelchairs along a path of travel would not prevent that 'path' being properly regarded as "continuous". So too, in my opinion, is a lift capable of being operated by a person confined to a wheelchair. That a lift may break down at some time does not, in my view, detract from it providing part of a continuous path of travel unless the interruption is more than a temporary one. It seems to me that no path of travel, even by a ramp, is capable of providing 100% continuity in access for wheelchair users. A myriad of possibilities may temporarily interrupt the continuous path of travel. So long as the interruption is temporary in nature, then the path may still be said to provide a means of continuous travel within the definition in cl.10(1). In Woollahra Municipal Council v. Banool ((1973) 129 CLR 138) Mason J., as he then was, considered the meaning of "the continuance of the use" in s.309 Local Government Act. At page 144 he said:- "The expression "the continuance of the use" in its natural and ordinary sense may be conveniently rendered as "the continued use". So understood the expression connotes neither a use which is commenced afresh after prior termination or abandonment, nor a continuity of use which is necessarily uninterrupted or unbroken. Rather does it suggest a use which is still continuing, notwithstanding that it may be marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use." The Court acknowledged that some interruption or break in the use did not necessarily prevent it being regarded as a continued use. While the present context is quite different, nevertheless Banool is indicative that the requirement of continuity may allow for the possibility of some breaks or interruptions. Cl.10(3) is not directed in so many words to emergencies such as fire. These and other safety considerations are more specifically dealt with by other regulations. However, issues of safety and emergency egress may still arise for consideration under cl.10 in particular factual situations. But I am unaware of the particular facts before the Assessors in this application and in any event factual issues are matters for them. In my opinion the question should be answered in the affirmative. I do not see that the definition in cl.10(1) of the Policy precludes the interposition of a lift in the travel path required for the purposes of cl.10(3). Indeed, I accept the remark of Senior Assessor Jensen in Civic Constructions Pty. Ltd. v. Ku-ring-gai Municipal Council (Land and Environment Court, Unreported 19 January 1989), that a lift may provide "a far superior form of access to a multi-level residential development than do ramps". It all depends on the particular factual circumstances. A lift may actually facilitate a continuous path of travel. On the other hand there may be factual situations where the interposition of a lift actually restricts or interrupts a path of travel so as to take it outside the definition of "wheelchair access". Such factual considerations are matters for the Assessors. However, I make it plain that in my opinion, as a matter of law, the definition in cl.10(1) of the Policy does not bar the provision of a lift along the path of travel between two points which can be negotiated by a person confined to a wheelchair. I remit to the Assessors the answer to the question referred together with my reasons, so that they might continue to dispose of the proceedings before them. 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.