Reported Decision : 136 LGERA 187 New South Wales Court of Appeal CITATION : DEM (Australia) Pty Limited v Pittwater Council [2004] NSWCA 434 HEARING DATE(S) : 31 August 2004 JUDGMENT DATE : 26 November 2004 JUDGMENT OF : Giles JA at 1; Santow JA at 4; McColl JA at 5 DECISION : (1) Grant leave to appeal (2) Subject to the filing of the Notice of Appeal in the form of the draft provided in the papers, within 14 days of the date of this judgment, appeal allowed (3) Set aside Order 1 made by Lloyd J on 4 February 2004 and in lieu thereof answer Question 1 of the Preliminary Questions of Law dated 15 December 2003 in the affirmative (4) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if otherwise qualified. CATCHWORDS : ENVIRONMENTAL PLANNING - STATUTORY INTERPRETATION - clause in State Environmental Planning Policy No. 5 applying policy to land on which development for the purpose of dwelling-houses is permitted - whether policy applies to land on which development for the purpose of dwelling-houses is permitted under a local environmental planning instrument notwithstanding the presence of words in that instrument qualifying or limiting the circumstances in which dwelling-house development is permitted. (D) Environmental Planning and Assessment Act 1979 (NSW) s 25, s 33, s 36(2), s 39 Environmental Planning and Assessment Model Provisions 1980 LEGISLATION CITED : Land and Environment Court Rules 1996 (NSW) Pt 6 r 1 Pittwater Local Environment Plan cl 2, cl 6, cl 9 State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability cl 3, cl 3(2)(a), cl 4(1), cl 4(1)(a), cl 4(1)(b), cl 4(1)(b)(i), cl 5(2), cl 10 State Environmental Planning Policy (Seniors Living) 2004, cl 5(1), cl 6 Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623 Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 CASES CITED : DEM (Australia) Pty Ltd v Pittwater Council [2004] NSWLEC 70 ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18; (2004) 1 DDCR 259 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250; (2001) 117 LGERA 438 T C Punnett and Associates Pty Ltd v Warringah Council [2001] NSWLEC 152; (2001) 115 LGERA 314 Warringah Shire Council v T C Punnett & Associates Pty Ltd [2001] NSWCA 480; (2002) 122 LGERA 1 PARTIES : DEM (Australia) Pty Limited (Appellant) Pittwater Council (Respondent) FILE NUMBER(S) : CA 40135/04 COUNSEL : Mr B J Preston SC/Mr A E Galasso (Appellant) Dr G A Flick SC/Ms J M Jagot (Respondent) SOLICITORS : Deacons Lawyers (Appellant) Mallesons Stephen Jaques (Respondent) LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 11268/03 FILE NUMBER(S) : LOWER COURT Lloyd J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40135/04 LEC 11268/03 GILES JA SANTOW JA McCOLL JA Friday, 26 November 2004 DEM (AUSTRALIA) PTY LIMITED v PITTWATER COUNCIL FACTS The appellant applied for the respondent's consent to construct a development on land at Warriewood. The consent was sought pursuant to State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability ("SEPP No. 5"). The subject land is zoned "Zone No 3(e) (Office Business "E")" under the respondent's environmental planning instrument, the Pittwater Local Environment Plan (the "Pittwater LEP"). The development for which consent was sought is prohibited by the Pittwater LEP in that zone. The appellant appealed to the Land and Environment Court against the respondent's deemed refusal of the development application. Prior to the hearing of the appeal, Lloyd J heard three preliminary questions of law. This appeal concerns the first question, namely whether the subject land is land on which development for the purpose of dwelling-houses is permitted within the meaning of cl 4(1)(b)(i) of SEPP No. 5. Clause 2 in Zone No 3(e) of the Pittwater LEP permits, only with development consent, "dwelling-houses used in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted." Lloyd J determined that this additional location requirement took the subject land outside the description in cl 4(1)(b)(i) so that the subject land was not land on which development for the purpose of dwelling-houses is permitted. HELD per McColl JA (Giles JA and Santow JA agreeing), granting leave to appeal and allowing the appeal: 1. Clause 4(1)(b)(i) of SEPP No. 5 applies to land on which development for the purpose of dwelling-houses is permitted under a local environmental planning instrument notwithstanding the presence of words in that instrument qualifying or limiting the circumstances in which dwelling-houses are so permitted. T C Punnett and Associates Pty Ltd v Warringah Council [2001] NSWLEC 152; (2001) 115 LGERA 314; Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250; (2001) 117 LGERA 438 applied. Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623; ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18; (2004) 1 DDCR 259 referred to. 2. The subject land is land on which development for the purpose of dwelling-houses is permitted within the meaning of cl 4(1)(b)(i) of SEPP No. 5. ORDERS 1. Grant leave to appeal. 2. Subject to filing of the Notice of Appeal in the form of the draft provided in the papers, within 14 days of the date of this judgment, appeal allowed. 3. Set aside Order 1 made by Lloyd J on 4 February 2004 and in lieu thereof answer Question 1 of the Preliminary Questions of Law dated 15 December 2003 in the affirmative. 4. Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if otherwise qualified. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40135/04 LEC 11268/03 GILES JA SANTOW JA McCOLL JA Friday, 26 November 2004 DEM (AUSTRALIA) PTY LIMITED v PITTWATER COUNCIL Judgment 1 GILES JA: I have had the advantage of reading the reasons of McColl JA in draft. With one qualification, I agree with them. 2 I would prefer not to adopt, in determining the application of cl 4(1)(b) of SEPP No 5, the distinction between the purpose of a development and use for a purpose. The distinction has been made in other contexts, but I do not think it of value in this case. Use for a purpose does not appropriately describe a rider such as "ancillary to a permissible use" in Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438 or "situated on the land etc" in the present case. It is an unnecessary distinction, and it is enough that the rider does not cause the land to be any less land on which development for the relevant purpose is permitted. 3 Her Honour's other reasons fully support the orders proposed, with which I agree. 4 SANTOW JA: I agree with McColl JA, and I also agree with the remarks of Giles JA in [2] above. 5 McCOLL JA: This is an application for leave to appeal which was heard on full submissions so that, if leave was granted, the appeal could be determined without a further hearing. The respondent did not oppose leave to appeal being granted. As I am of the view that leave to appeal should be granted, I shall refer to the respective parties as the appellant and the respondent throughout this judgment. 6 The case raises the issue of what is the proper approach to be taken to identify land to which State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability ("SEPP No. 5") applies. The core controversy was whether a requirement in a local environmental planning instrument that dwelling-houses were permitted on land only when used in conjunction with, and located on the same land as, another particular use, meant that the land was not land on which development for the purpose of dwelling-houses was permitted for the purposes of cl 4(1)(b)(i) of SEPP No. 5. 7 Lloyd J held that such a requirement had that effect: DEM (Australia) Pty Ltd v Pittwater Council [2004] NSWLEC 70. In my view his Honour was in error. Clause 4(1)(b)(i) of SEPP No. 5 applies to land on which development for the purpose of dwelling-houses is permitted under a local environmental planning instrument notwithstanding the presence of words in that instrument qualifying or limiting the circumstances in which dwelling-houses are so permitted. Background 8 The appellant applied for the respondent's consent (the "development application") to demolish existing structures and construct a development comprising 106 units and an associated basement car park, community centre and a "healthy living" pavilion on land at No. 18 Jubilee Avenue, Warriewood (the "subject land"). The consent was sought pursuant to SEPP No. 5. The subject land is zoned "Zone No 3(e) (Office Business ''E'')" under the respondent's environmental planning instrument, the Pittwater Local Environment Plan (the "Pittwater LEP"). The development for which consent was sought is prohibited by the Pittwater LEP in that zone. 9 The appellant appealed to the Land and Environment Court against the respondent's deemed refusal of the development application. 10 Prior to the hearing of the appeal, the primary judge heard three preliminary questions of law as permitted by Part 31 r 2 of the Supreme Court Rules 1970, which applies in the Land and Environment Court: Part 6 r 1 of the Land and Environment Court Rules 1996. 11 This appeal concerns the first of the three questions which was: "Whether on a proper construction of cl 4(1)(b) of SEPP No. 5 the land is land upon which development for the purpose of dwelling-houses is permitted?" 12 Lloyd J determined that this question should be answered, "No". Legislative Background 13 Clause 3 of SEPP No. 5 relevantly provides: "3 Aims (1) This Policy aims to encourage the provision of housing that will: (a) increase the supply and diversity of housing that meets the needs of older people 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 older people or people with a disability that meets the development standards specified in this Policy, …" (emphasis supplied) 14 Clause 4(1) of SEPP No. 5 provides: "4 Where this Policy applies (1) This policy applies to land within New South Wales: (a) that is zoned primarily for urban purposes, or that adjoins land zoned primarily for urban purposes, and (b) on which development for the purpose of any of the following is permitted: (i) dwelling-houses, (ii) residential flat buildings, (iii) hospitals, (iv) development of a kind identified in respect of land zoned for special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries …." 15 It was common ground that the subject land satisfied cl 4(1)(a) at least because it was diagonally opposite land which was zoned for residential purposes and, therefore, for "urban purposes". 16 Section 36(2) of the Environmental Planning and Assessment Act 1979 (NSW) relevantly provides that a State environmental planning policy prevails over a regional environmental plan or a local environmental plan made before or after the policy to the extent of any inconsistency, if the policy expressly so provides. Clause 5(2) of SEPP No. 5 provides: "(2) 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 …" 17 Clause 10, which is found in Part 2 of SEPP No. 5 dealing with "Development Criteria", provides: " This Part allows development for the purpose of any form of housing for older people … despite the provisions of any other environmental planning instrument , if the development is carried out in accordance with this Policy." (emphasis supplied) 18 Clause 9 of the Pittwater LEP provides: "Development control table 9. Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which - (a) development may be carried out without development consent; (b) development may be carried out only with development consent; and (c) development is prohibited, are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone." 19 Clause 2 under the heading "Only with Development Consent" in Zone No 3(e) (Office Business "E") under the Pittwater LEP permits: "2 … dwelling-houses used in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted …" 20 Clause 6 of the Pittwater LEP adopted the Environmental Planning and Assessment Model Provisions 1980 save in certain respects not relevant to this judgment: s 33 Environmental Planning and Assessment Act 1979 (NSW). The Model Provisions defined "dwelling-house" to mean "a building containing 1 but not more than 1 dwelling". 21 SEPP No. 5 was repealed by State Environmental Planning Policy (Seniors Living) 2004, cl 5(1). Clause 6 of the new SEPP provides that SEPP No. 5 as in force immediately before its repeal continues to apply to and in respect of any development application made under that Policy on or before 18 February 2004, but not finally determined before the commencement of the new SEPP. The case was approached on the basis that the development application was to be determined by reference to the now repealed SEPP No. 5. Decision of the Primary Judge 22 It was an agreed fact before the primary judge that the development the subject of the development application did not include any commercial premises or industry and would not be situated on land on which commercial premises or industry was conducted. 23 Before the primary judge the appellant relied upon T C Punnett and Associates Pty Ltd v Warringah Council [2001] NSWLEC 152; (2001) 115 LGERA 314 and Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250; (2001) 117 LGERA 438, in support of its submission that cl 4(1)(b)(i) of SEPP No. 5 was satisfied. Both cases considered the application of that provision and, in particular, the significance of a clause in a local environmental plan qualifying the circumstances in which consent to use land for the purpose of dwelling-houses would be granted. 24 T C Punnett and Associates v Warringah Council concerned Warringah Local Environment Plan 1985 ("Warringah LEP"). Zone 6(b) (Private Recreation "B") permitted dwelling-houses and residential buildings when "required for use or occupation by persons employed in connection with a purpose permissible under this heading". McEwen AJ noted cl 9(1) of the Warringah LEP which was in substantially the same terms as cl 9 of the Pittwater LEP. McEwen AJ said (at 320, [24]): "… the use of dwelling-houses or residential flat buildings "by persons employed in connection with a purpose permissible under this heading" (viz those permissible under the land use table for zone 6(b) (Private Recreation B)) necessarily remains a use for the purpose of a dwelling-house or a residential flat building." 25 Accordingly, his Honour held (at [25]) that development in such a zone was permissible within the meaning of cl 4(1)(b)(i) of SEPP No. 5. An appeal from McEwen AJ's decision was allowed by this Court on a different ground. The Court did not address the present issue: Warringah Shire Council v T C Punnett & Associates Pty Ltd [2001] NSWCA 480; (2002) 122 LGERA 1. 26 T C Punnett and Associates v Warringah Council was followed by Pearlman J, the Chief Judge of the Land and Environment Court, in Q & R Developments Pty Ltd v Sutherland Shire Council. In that case the Sutherland Shire Local Environment Plan 1993 permitted "dwelling-houses ancillary to a permissible use" on land zoned 4(a) General Industrial. After referring to T C Punnett v Warringah Council, her Honour said (at 446, [35]): "In this case, development for the purpose of dwelling-houses is permissible on the site under the 4(a) General Industrial zone, so long as the dwelling-house is ancillary to a permissible use. The ancillary requirement does not make the development any less a development for the purpose of a dwelling-house." 27 In the present case the primary judge said (at [11]) that had cl 2 in zone 3(e) of the Pittwater LEP stopped at the requirement that the dwelling-house must be used in conjunction with commercial premises or industry, he would have applied T C Punnett v Warringah Council and Q & R Developments Pty Ltd v Sutherland Shire Council. He distinguished those cases (at [13]), however, because of the "second requirement" in cl 2 of zone 3(e) that the dwelling-houses used in conjunction with commercial premises or industry also be situated on the land on which the commercial premises or industry are or is conducted. 28 His Honour held (at [13]): "… that the additional conjunction or requirement under the zoning table is such as to take it outside the description in cl 4(1)(b) of SEPP No. 5. That is to say, the land is not land on which development for the purpose of dwelling-houses is permissible. It is land upon which dwelling-houses are only permissible if the dwelling house is situated on the same land on which the associated commercial premises or industry are or is conducted. That, I think, is sufficient to distinguish the facts in the present case from both Punnett and Q & R Developments , and must lead to the conclusion that the proposed development in the present case does not satisfy cl 4(1)(b) of SEPP No. 5. It follows that, as a question of statutory construction, the answer to question 1 is in the negative." Grounds of appeal 29 The appellant raises the following grounds of appeal: 1. Justice Lloyd erred in his interpretation and application of paragraph 4(1)(b)(i) of State Environmental Planing Policy No. 5 ("SEPP No. 5") and clause 9 of Pittwater Local Environmental Plan 1993. 2. Justice Lloyd misdirected himself by taking into account the particular facts of the proposed development in the interpretation and application of paragraph 4(1)(b)(i) of State Environmental Planning Policy No. 5 ("SEPP NO. 5") and clause 9 of Pittwater Local Environmental Plan 1993. 3. Justice Lloyd erred in holding that the answer to Question 1 of the Preliminary Questions of Law dated 15 December 2003 was in the negative. The appellant's submissions 30 The appellant submitted that the permissibility of "dwelling-houses" was the sole and simple criterion of cl 4(1)(b)(i) of SEPP No. 5. It contended that the fact that a local environmental planning instrument coupled that purpose either with other purposes or other uses or a location requirement did not detract from that conclusion. 31 The appellant further submitted that because cl 4(1)(b) specified the purpose of development as the sole criterion of applicability of SEPP No. 5 and not the manner of use for a purpose, it was important when considering the Pittwater LEP to distinguish between the purpose of development and the manner of use for that purpose in cl 2 of zone 3(e). 32 The appellant thus contended that the purpose of the development in Pittwater LEP zone 3(e) was "dwelling-houses" while the manner in which development for the purpose of dwelling-houses was permitted to be used was "in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted". The appellant submitted that the two criteria for manner of use did not impinge upon the purpose of development which remained "dwelling-houses", albeit subject to limitations. 33 The appellant argued that the primary judge's error was to inquire whether the proposed development satisfied the two criteria for the manner of use of the subject land. It said this error was manifested in two ways. 34 First, it submitted that cl 4(1)(b) of SEPP No. 5 does not prescribe any requirements as to the manner of use of land for one or more of the purposes specified in that provision. The sole criterion was that SEPP No. 5 land be land on which development for one or more of the specified purposes be permitted to be carried out. Hence, the primary judge had impermissibly added two criteria that cl 4(1)(b) of SEPP No. 5 did not itself require. 35 Secondly, the primary judge misdirected himself by taking into account the facts of the proposed development, namely, whether it would meet the two criteria governing the manner of use for the permitted purpose of dwelling-houses as stated in the development control table for zone 3(e). It was submitted that cl 4(1)(b) focussed on the zoning of the land on which the development was to be carried out rather than on the proposed development itself. It was the land which must satisfy the requirement, not the proposed development. The land must be land on which the applicable environmental planning instrument permitted development for one or more of the purposes specified in cl 4(1)(b). Whether the proposed development was permitted under zone 3(e) was irrelevant to determining the applicability of SEPP No. 5 to the land pursuant to cl 4(1)(b). 36 Accordingly, the appellant argued, even if the proposed development in this case did not satisfy the two criteria in the development control table for zone 3(e) concerning the manner of the proposed use, the land on which the development was to be carried out did satisfy the only condition prescribed by cl 4(1)(b) of SEPP No. 5 in that it was "land on which development for the purpose of … dwelling-houses" was permitted. 37 Finally, the appellant contended that in T C Punnett v Warringah Council and Q & R Developments Pty Ltd v Sutherland Shire Council, the Land and Environment Court correctly distinguished between the types of development permitted on the land under the applicable local planning controls (the relevant criterion under cl 4(1)(b) of SEPP No. 5) and any additional criteria in the controls concerning the manner of use of the permitted development, which criteria, the appellant submitted, did not affect the underlying purpose for which the land could be used. The precise manner of use of the proposed development was also correctly disregarded. 38 The appellant submitted that the distinction the primary judge drew was not correct and that his Honour erred in not following the approach adopted in those two cases. The respondent's submissions 39 The respondent submitted that SEPP No. 5 did not authorise recasting the zoning table of the Pittwater LEP. 40 Rather, the respondent contended that SEPP No. 5 preserved to the Pittwater LEP the determination and identification of the zoning of land and the development purposes permissible within that zoning. 41 The respondent further submitted that the Pittwater LEP determined, by cl 9 and each zone, the permitted purposes to which regard could be had to determine whether the land was caught by SEPP No. 5. It contended that the zoning table in the Pittwater LEP formed part of clause 9 so that the relevant permissible "purposes" within the meaning of clause 9 were those "purposes" specified in the zoning table. 42 The respondent therefore argued that the relevant "purpose" permissible with development consent in zone 3(e) was neither "dwelling-houses simpliciter" nor "dwelling-houses" the mere manner of use of which was constrained. Rather, the Pittwater LEP only made permissible, with development consent, a development "purpose" in a composite phrase – namely, dwelling-houses used in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted. It argued, in essence, that this composite phrase could not be deconstructed by isolating the words "dwelling-houses": cf Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 at 646 and 651. 43 Thus the respondent submitted that it was not a legitimate approach to the construction of the permitted development "purpose" in the 3(e) zone to characterise "dwelling-houses" as a permitted purpose on the land and the balance of the words in the zoning table as mere surplusage or criteria conditioning the manner of use of a dwelling-house separate from the so-called permitted dwelling-house purpose. The respondent contended that the primary judge was correct when he observed that the additional words in the composite phrase ("… and situated on the land on which the commercial premises or industry are or is conducted") dictated a contrary conclusion from that addressed by the appellant. 44 I later explain how the respondent sought to deal with T C Punnett v Warringah Council and Q & R Developments Pty Ltd v Sutherland Shire Council. Consideration 45 SEPP No. 5 was made pursuant to s 39 of the Environmental Planning and Assessment Act 1979 (NSW). In interpreting cl 4(1)(b) of SEPP No. 5, it is necessary, if it is genuinely capable of different interpretations, to prefer that interpretation which best meets its stated aims, objectives, policies and strategies: s 25 of the Environmental Planning and Assessment Act 1979 (NSW). 46 SEPP No. 5 is a species of delegated legislation – it is a statutory instrument. It should be interpreted in accordance with the general principles of statutory interpretation: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398. Accordingly, cl 4(1)(b)(i) must be construed so that it is consistent with the language and purpose of all the provisions of SEPP No. 5: see generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, 384 [69], [78] per McHugh, Gummow, Kirby and Hayne JJ. 47 SEPP No. 5 is also in the category of remedial or beneficial provisions which should be construed to afford "the fullest relief which the fair meaning of its language will allow": Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384 per Isaacs J; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 98 per Dawson J; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at 528 per Gummow J; ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18; (2004) 1 DDCR 259 at [349]. 48 Where a beneficial statute is expressed in general terms, so far as possible within the text, decision-makers will construe the legislation to advance and achieve those beneficial purposes - not to frustrate and defeat their attainment: Marks v GIO Australia Holdings Ltd at [124] per Kirby J; Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623 per Kirby J at [384]. This approach is reinforced in this case by the requirements of s 25 of the Environmental Planning and Assessment Act 1979 (NSW) to which I have earlier referred. 49 Thus the process of construction must begin by examining the context in which cl 4(1)(b)(i) is found. 50 SEPP No. 5 is intended to encourage the provision of housing for the elderly and disabled. It achieves that aim in the first instance by applying both to land which is zoned for urban purposes where housing would clearly be permissible and also to land which adjoins such land. Once cl 4(1)(a) is satisfied, the only additional requirement for SEPP No. 5 to apply to the relevant land is that development for any of the purposes which appear in cl 4(1)(b) is permitted on the land. 51 SEPP No. 5 starts from the premise that obstacles to its aims may be found in local environmental planning instruments and that it is to prevail notwithstanding. This is made clear in the aims (cl 3(2)(a)), the fact that it prevails where it is inconsistent with any other environmental planning instrument (cl 5(2)) and the fact that it allows development despite the provision of any other environmental planning instrument in certain circumstances (cl 10). 52 Thus, in the present context, the object of cl 4(1)(b) is to search for land on which the developments nominated in sub-cll 4(1)(b)(i) – (iv) are permitted, but on which it might be presumed, ordinarily, that development of the sort of housing required for the elderly and disabled would not be permitted. This is not least because development for the purposes of dwelling-houses would, as in the present case, generally be limited to the erection of a building containing "1 but not more than 1 dwelling": see [16] above. 53 Clause 4(1)(b) requires the identification of land on which development for any of the purposes in sub-cll (i) – (iv) is permitted. The expression "dwelling-houses" in cl 4(1)(b)(i) is not qualified in any manner; nor are the other purposes set out in sub-cll 4(b)(ii) – (iv). 54 It clearly cannot be the case that SEPP No. 5 only applies to land on which one of the purposes set out in sub-cll 4(b)(i) – (iv) is permitted without qualification. Rather, in my view cl 4(1)(b) assumes that land to which it applies will have a zoning permitting one of the purposes set out in sub-cll 4(1)(b)(i) – (iv) albeit that that permitted purpose may be qualified or limited in some manner peculiar to the applicable local environmental planning instrument. Such qualifications do not detract from the conclusion that once the land can be developed for the purpose of dwelling-houses, even on a qualified or limited basis, SEPP No. 5 applies. It is still land on which development for the purposes of dwelling-houses is permitted. 55 Where land is not zoned primarily for urban purposes it might be expected that the construction of dwelling-houses would only be permitted in limited circumstances and usually for a use associated with the zoning. Thus, as in this case, Zone No 3(e) (Office Business "'E") permits the construction of dwelling-houses "used in conjunction with commercial premises or industry". In T C Punnett and Associates Pty Ltd v Warringah Council, zone 6(b) (Private Recreation "B") of the Warringah Local Environment Plan 1985 permitted dwelling-houses and residential buildings when "required for use or occupation by persons employed in connection with a purpose permissible under this heading". In Q & R Developments Pty Ltd v Sutherland Shire Council the Sutherland Shire Local Environment Plan 1993 permitted "dwelling-houses ancillary to a permissible use" on land zoned 4(a) General Industrial. 56 The proposition that the cl 4(1)(b) purpose requirements can be satisfied notwithstanding the presence of qualifying words in the local environmental planning was fundamental to the decisions in T C Punnett and Q & R Developments. 57 The respondent initially accepted that the approach taken in T C Punnett and Q & R Developments was correct. 58 In argument, however, Dr Flick SC retreated from his original position and contended that, as McEwen AJ had not considered an argument about the overriding effect of a clause in the same terms as cl 9 of the Pittwater LEP (which he accepted was common to every local environmental plan), T C Punnett was distinguishable. 59 That submission is, in my view, untenable. As I have already noted, the Warringah LEP contained a clause in substantially the same terms as cl 9 of the Pittwater LEP to which McEwen AJ referred. Although McEwen AJ's decision did not expressly rely upon cl 9, it is clear that he did not regard it as creating a composite purpose in the manner for which the respondent here contends and which could not be unbundled in determining the application of cl 4(1)(b)(i) of SEPP No. 5. 60 I also accept the distinction, for which the appellant contends, between the purpose of development and use for a purpose. As the appellant submitted, the drafter of cl 2 in zone 3(e) has identified the purpose for which development can be permitted in that zone as including a dwelling-house as long as it is used in conjunction with another purpose with both being situated on the same land. However, the coupling of the purpose of a dwelling-house with another purpose or use does not cause the land to be any less land on which development for the purpose of a dwelling-house is permitted, thus satisfying cl 4(1)(b). This is, as I understand it, essentially the reasoning in T C Punnett and Q & R Developments. This approach allows SEPP No. 5 to do its work of identifying land to which the policy of increasing the supply of housing for the elderly and disabled can be applied. 61 The primary judge did not elaborate on the distinction he drew between the location requirement in cl 2 in Zone 3(e) and the qualifying words considered in T C Punnett and Q & R Developments. Apart from the fact that it was of a different nature (location as opposed to a use requirement) the location requirement was nevertheless a qualification or limitation on the dwelling-house purpose, as too were the words considered by McEwen AJ and Pearlman J. 62 I do not accept that the location requirement in cl 2 of Zone 3(e) was relevantly distinguishable from the qualifying words considered in T C Punnett and Q & R Developments. 63 The respondent's submission that cl 4(1)(b)(i) was not satisfied because cl 9 of the Pittwater LEP identified the purposes for which development may be carried out in zone 3(e) as being the composite phrase "dwelling-houses used in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted", would give primacy to the Pittwater LEP at the expense of SEPP No. 5. 64 I cannot accept that the respondent's approach is warranted. It would frustrate and defeat the attainment of SEPP No. 5's aims and would be inconsistent with its language and purpose. It would enable the Pittwater LEP to prevail over the plain language of cl 4(1)(b)(i). Rather than allowing SEPP No. 5 to operate so that it set aside local planning controls that would prevent the development of housing for older people or people with a disability, it would allow the terms of a local environmental plan to prevail over SEPP No. 5 by words qualifying or limiting the manner or circumstances in which the dwelling-house purpose was permitted. 65 This conclusion does not involve recasting the zoning table in the Pittwater LEP. It enables the respondent to determine where "dwelling-houses" whether alone or in conjunction with other purposes may be permitted. It does, however, involve setting aside the zone 3(e) purpose to permit the land to be developed to provide housing for the elderly or disabled. That is precisely how SEPP No. 5 is intended to operate. Such an interpretation best meets its stated aims. It is consistent with the language and purpose of all its provisions. 66 In my view, Lloyd J erred in concluding that the location requirement in cl 2 of zone 3(e) relevantly distinguished this case from T C Punnett and Q & R Developments. 67 The appellant should succeed on its first and third grounds of appeal. It is unnecessary to consider the second ground of appeal. Orders 68 I propose the following orders: (1) Grant leave to appeal. (2) Subject to the filing of the Notice of Appeal in the form of the draft provided in the papers, within 14 days of the date of this judgment, appeal allowed. (3) Set aside Order 1 made by Lloyd J on 4 February 2004 and in lieu thereof answer Question 1 of the Preliminary Questions of Law dated 15 December 2003 in the affirmative. (4) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if otherwise qualified. ********** Last Modified: 11/29/2004 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.