The difference between a development standard and a prohibition in an environmental planning instrument was revisited in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde.
The applicant, Principal Healthcare, was seeking consent for the construction of a residential aged care facility. They relied on the State Environmental Planning Policy (Housing for Seniors and People with a Disability) (SEPP (HSPD)). Their application was refused by the Sydney East Region Joint Regional Planning Panel (JRPP).
The JRPP concluded that the development was prohibited, as it did not meet the requirements of clause 26 of the SEPP (HSPD). Clause 26 provides requirements for the location and accessibility of facilities like shops, retail and commercial services, and medical services.
The primary issue was whether clause 26 of the SEPP (HSPD) was a prohibition or a development standard.
Prohibitions are criteria which are essential considerations for determining the permissibility of the proposed development.
This contrasts to development standards, which relate to the carrying out of the development itself. A development standard must be something that is permitted or permissible in the circumstances.
If clause 26 was a prohibition, the development was correctly refused. If clause 26 were a development standard, it instead could be flexibly applied by the JRPP under the Ryde Local Environmental Plan 2014 (NSW).
The court found that the two-step approach in Strathfield Municipal Council v Poynting (2001) (Poynting) remains as the appropriate way to decide whether a clause is a prohibition or development standard. The two-step approach has been further developed in subsequent cases, but essentially involves:
Step 1 – determining whether a proposal is prohibited under any circumstances by the provision, construed in the context of the instrument as a whole; and
Step 2 – if the proposal is not prohibited, determining whether the relevant provision specifies a requirement or fixes a standard in relation to an aspect of the development.
Step (1) – Prohibitions
The court first looked at clause 26 itself. It was acknowledged that the words “a consent authority must not consent” appear to suggest that the clause is a prohibition. However, the clause must be read in in the context of the SEPP (HSPD) as a whole. In doing so, the court considered the overall purpose of the SEPP (HSPD). It found that the instrument does not act to prohibit developments, but rather permit developments if certain criteria are met.
The court also applied a practical approach by considering the needs of persons living in a residential care facility. It found that the different categories of housing would have different requirements, and to consider clause 26 as a prohibition would defeat the aims of the SEPP (HSPD).
As a result, the court found that clause 26 was not a prohibition because it does not act to prohibit developments in any circumstances.
Step (2) – Development Standards
The court then had to determine whether clause 26 fixed a development standard.
The court considered the definition of “development standards” in section 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The court comfortably found that reference to distances, gradients, location requirements and service provision requirements were all types of “development standards”.
Environmental planning instruments must be interpreted in a practical manner to ensure that the purpose of the instrument is achieved.
Importantly, consent authorities must go beyond the language of a clause when determining meaning. It is necessary to consider the surrounding provisions and the aims of the instrument as a whole.