29 January 2017
NSW planning control: a prohibition or a development standard?
The recent case of Principal Healthcare Finance Pty Ltd v Council of the City of Ryde  NSWLEC 153 considers the recurring question of whether a specific planning control is prohibition or a development standard. While the law is relatively settled in this area, this case highlights that issues still continue to arise when applying the relevant principles.
This matter involved an appeal of a decision of the Sydney East Region Joint Regional Planning Panel to refuse a development application prepared on behalf of Principal Healthcare Finance Pty Ltd (Applicant). The development application sought approval to demolish an existing nursing home facility with 72 beds and construct a new ‘high care’ residential aged care facility with 141 beds in West Ryde. On 8 June 2016, Pain J of the Land and Environment Court of NSW ordered that the Court independently deal with the question of whether clause 26 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) is a development standard amenable to clause 4.6 of the Ryde Local Environmental Plan 2014 or a prohibition, prior to the commencement of the main hearing. This decision considers that separate question.
In its submission to the Court, the Applicant argued that clause 26 of the SEPP HSPD is a development standard, as distinct from a prohibition. The Applicant submitted that the matters set out in the SEPP HSPD were not essential preconditions, but rather a set of standards relating to how the permissible use (that being seniors living, or the use of the site as a residential care facility) is to be carried out.
The Court considered a number of clauses in the SEPP HSPD and reiterated clause 26 should be considered in the context of the instrument as a whole. The Court applied the ‘two-step’ approach as outlined in the case of Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 which required firstly, a consideration of whether the proposed development is prohibited under any circumstances pursuant to clause 26 of SEPP HSPD, and secondly, if it is not prohibited, a consideration of whether clause 26 of SEPP HSPD specifies a requirement or imposes a standard in relation to an aspect of the proposed development.
In relation to the first step, the Court confirmed that despite clause 26 of the SEPP HSPD having the flavour of a prohibition, it was not so when read in the context of the whole instrument. It was noted that the SEPP HSPD does not act to prohibit developments, but rather permits them when certain criteria are met.
The Court also found that the criteria in clause 26 of the SEPP HSPD are not essential conditions, and to consider them so would defeat the purpose of the SEPP HSPD by discouraging the establishment of these types of facilities. The definition of ‘seniors housing’ contained in clause 10 of the SEPP HSPD covers a wide range of developments, from self-contained dwellings to high care residential facilities, each established for residents with different needs. With this in mind, the Court found that the criteria in clause 26 of the SEPP HSPD does not necessarily cater for those who would reside in the Applicant’s proposed facility, i.e. frail persons not capable of independent living.
With respect to the second step, the Court highlighted that the definition of ‘development standards’ in section 4 of the Environmental Planning and Assessment Act 1979 (NSW) essentially has three elements. Firstly, the relevant provision must be in relation to the carrying out of development. Secondly, the relevant provision must specify requirements or set standards in respect of an aspect of the development. In relation to these elements, the Court indicated that the empirical criteria contained in clause 26 of the SEPP HSPD (i.e. the gradient measurements and minimum access distance of 400m), both specify requirements and set standards for the proposed development. According to the Court, the third element was also satisfied, adding further comfort. The Court therefore determined that clause 26 of SEPP HSPD both falls within the definition of ‘development standard’, and confirmed that it meets the second step in the two-step test.
This decision provides a useful reminder of the complexities involved in determining whether a planning control is a prohibition or a development standard. It is an appropriate reminder of the prevailing law in this area and the relevant considerations for the Court.
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