Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251 (20 December 2011)

Last Updated: 17 January 2012

Land and Environment Court New South Wales

Case Title:	Dooralong Residents Action Group Pty Limited v Wyong Shire Council
Medium Neutral Citation:	[2011] NSWLEC 251
Hearing Date(s):	25 - 26 August 2011
Decision Date:	20 December 2011
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. The summons filed on 10 March 2011 is dismissed. 2. Costs are reserved. 3. Exhibits are to be returned.
Catchwords:	JUDICIAL REVIEW - whether development consent granted for a hospital under Wyong Local Environment Plan 1991 invalid - whether the proposed development properly characterised as partially or wholly for a prohibited purpose - proposed development properly characterised as for a hospital and not partially or wholly for a prohibited purpose - consent valid
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pt 4 s 79C, s 109B, s 123 Environmental Planning and Assessment Model Provisions 1980 cl 4 Interpretation Act 1987 s 32(1), s 33, s 34 Liquor Act 1982 Local Government Act 1919 s 118(7) State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 cl 9, cl 12 Wyong Local Environmental Plan 1991 cl 2, cl 6, cl 7, cl 8, cl 10, cl 26
Cases Cited:	Abret v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 Bentham v Kiama Municipal Council (1986) 59 LGRA 94 Berry v Wollongong Council [2008] NSWLEC 210 CB Investments Pty Ltd v Colo Shire Council [1980] 41 LGRA 270 Canterbury Municipal Council v Moslem Alawy Society Ltd [1987] HCA 8; (1987) 162 CLR 145 Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Federal Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 150 CLR 355 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 Grace v Thomas Street Caf Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57 Godfrey v Wollondilly Shire Council [2007] NSWLEC 33; (2007) 151 LGERA 207 Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 Hosking Munro Pty Ltd v Botany Bay City Council [2001] NSWLEC 255; (2001) 116 LGERA 451 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 ICI Australia Ltd v Federal Commissioner of Taxation [1972] HCA 75; (1972) 46 ALJR 35 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731 Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121; (2008) 71 NSWLR 306 Lennon v Gibson & Howes Ltd [1919] AC 709 Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 North Sydney Municipal Council v Sydney Serviced Apartments Pt Ltd (1990) 21 NSWLR 532 Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 Peters v Manly Municipal Council [2007] NSWCA 343 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1971) 25 NSWLR 541 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Sansom v Port Stephens Council [2006] NSWLEC 475; (2006) 147 LGERA 203 Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 State Chamber of Commerce and Industry v Commonwealth [1987] HCA 38; (1987) 163 CLR 329 at 348 Tankard v Albury City Council (1983) 49 LGRA 69 Tender Center Pty Ltd v Department of Fair Trading [2001] NSWSC 153 Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2010] NSWLEC 10 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 Warringah Shire Council v Raffles [1979] 2 NSWLR 299 Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
Texts Cited:	Macquarie Dictionary, 5th ed (2009) Macquarie Library (electronic resource)
Category:	Principal judgment
Parties:	Dooralong Residents Action Group Pty Limited (Applicant) Wyong Shire Council (First Respondent) The Salvation Army (NSW) Property Trust (Second Respondent)
Representation
- Counsel:	Mr A Galasso SC with Mr R Notley (Applicant) Mr P Larkin (First Respondent) Mr I Hemmings with Ms A Hemmings (Second Respondent)
- Solicitors:	Penford Dwyer (Applicant) Wyong Shire Council (First Respondent) Corrs Chambers Westgarth Lawyers (Second Respondent)
File number(s):	40211 of 2011
Publication Restriction:

JUDGMENT

1. The Dooralong Residents Action Group Pty Limited, the Applicant, seeks a declaration under s 123 of the Environmental Planning and Assessment Act 1979 (the EPA Act) that the approval of development application 771/ 2010 (the DA) lodged on behalf of the Second Respondent, The Salvation Army (NSW) Property Trust (the Salvation Army) is invalid.
   
2. The Salvation Army lodged the DA with the First Respondent, Wyong Shire Council (the Council), under Pt 4 of the EPA Act for land at 1467 Dooralong Road, Dooralong (being Lot 2232 in DP 811014) (the site). The site is zoned 7(b) (Scenic Protection Zone) under the Wyong Local Environmental Plan 1991 (the LEP) . The DA sought approval for a change of use for the site from "tourist accommodation" to "hospital", being a Salvation Army Recovery Centre. On 8 December 2010 the Council determined to grant development consent to the DA subject to conditions.
   
3. The Applicant challenges the validity of the consent on the grounds that, if properly characterised, the proposed use of the site is not for the purposes of a "hospital" but for one of the prohibited purposes of "housing for ... people with a disability" or "boarding house" or "commercial premises" . As these uses are prohibited within the Scenic Protection Zone in the LEP, the Council did not have power to grant development consent and it is therefore invalid.
   

Wyong Local Environmental Plan 1991

4. Clause 2 "Aims, objectives etc" of the LEP provides:

(1) In accordance with the objects of the Act, the overall aims of this plan are:

(a) to promote the management, development, conservation and economic use of the resources of the Shire of Wyong and to protect the amenity of its environment, and

(b) to provide a comprehensive planning instrument for the Shire that is clear and explicit but which provides flexibility in its application, and

(c) to facilitate and encourage ecological, economic and social sustainability.

5. Pursuant to cl 6 the Environmental Planning and Assessment Model Provisions 1980 (Model Provisions) are adopted for the purposes of the LEP, other than specified exceptions including cl 4 "Definitions".
   
6. Clause 7 "Definitions" provides:

commercial premises means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause.

boarding house means a building or place:

(a) where accommodation, meals and laundry facilities are provided to the residents of the building or place, and

(b) which is not licensed to sell liquor under the Liquor Act 1982.

hospital means a building or place used for providing professional health care services (such as preventative or convalescent care, diagnosis, medical or surgical treatment, care for people with developmental disabilities, psychiatric care or counselling and services provided by health care professionals) to people admitted as in-patients (whether or not out-patients are also cared for or treated there), and includes:

(a) ancillary facilities for the accommodation of nurses or other health care workers, ancillary shops or restaurants, and ancillary accommodation for persons receiving health care or for their visitors, and

(b) facilities situated in the building or at the place and used for educational or research purposes, whether or not they are used only by hospital staff or health care workers.

housing for older persons or people with a disability means residential accommodation, which may take any building form, which is or is intended to be used permanently as housing for the accommodation of aged persons or disabled persons, and which may consist of hostels or a grouping of 2 or more self-contained dwellings, or a combination of both, and which includes 1 or more of the following facilities provided for use in connection with that accommodation:

(a) accommodation for staff employed in connection with that accommodation,

(b) chapels,

(c) medical consulting rooms,

(d) meeting rooms,

(e) recreational facilities,

(f) shops,

(g) therapy rooms,

(h) any other facilities for the use or benefit of older persons or persons with a disability.

7. Clause 10(2) " Zone objectives and development control table" provides that except otherwise provided by the LEP, development may be carried out without development consent, with development consent or is prohibited as specified in the zoning tables. Subclause (3) provides that the Council, being the consent authority pursuant to cl 8, must not grant development consent unless "the proposed development is compatible with the objectives of the zone".
   
8. Item 1 of the table for zone 7(b) lists the objectives of the zone :

1 Objectives of zone

The objective is to restrict the type and scale of development which will be carried out on land possessing scenic values to that unlikely to:

(a) prejudice the present scenic quality of the land within this zone; or

(b) generate significant additional traffic or create or increase a condition of ribbon development on any road, relative to the capacity and safety of the road; or

(c) prejudice the viability of existing commercial centres; or

(d) have an adverse impact on the region's water resources.'

9. Item 2 states that only home occupations are permissible without development consent. Prohibited categories of development listed in item 4 include "commercial premises", "boarding houses", and "housing for ... people with a disability". Under item 3, development is otherwise permissible with consent unless it is for a purpose listed in items 2 or 4.
   
10. The parties agreed that development for the purposes of a "hospital" is permissible with development consent as an innominate use under item 3 to the zoning table in cl 10 for the Scenic Protection Zone .
    

The site

11. The site has an area of 140ha and is irregular in shape with the primary frontage being to Dooralong Road. It currently contains the main Lodge with 20 rooms and a restaurant, administration and reception area with 70 car spaces, 45 cabins, a cafe/restaurant and conference centre with 80 parking spaces, various recreation activities facilities and cattle and horse grazing: Statement of Environmental Effects (SEE) prepared on behalf of the Salvation Army by ADW Johnson Pty Ltd dated May 2010.
    

Development application for change of use

12. The SEE describes the DA in chapter 1.0 "Introduction" (exhibit A p 155):

No new buildings are proposed as part of this application. The Salvation Army intends to use the existing buildings on site, which includes up to 45 cabins in a combination of single and duplex style buildings; the existing Lodge which contains a restaurant and 20 accommodation units; a caf; conference centre; and administration building. All of these buildings, along with other infrastructure such as pools dams, roads, onsite sewerage treatment system and reticulated water formed part of the Dooralong Valley resort which had previously operated on the site.

The Salvation Army also propose to use the existing caf as part of their vocational training for participants, and as part of that training, intend to open the caf to the public, with that caf also offering for sale small items such as bread and milk for the local community.

13. The Salvation Army will transfer its current Bridge Program services (described at par 14 - 16 below) at the Lake Macquarie Recovery Centre in Morisset and Selah Farm Recovery Centre in Berkeley Vale to the site.
    
14. The intended operations at the site are described in the SEE, the Plan of Management prepared by ADW Johnson Pty Limited dated May 2010 (to a limited extent) and the Social Impact Assessment Report prepared by Frazer Howard & Partners (the SIA report), all of which accompanied the DA. The SEE in chapter 1.0 "Introduction" states (exhibit A p 155):

The Salvation Army intend to establish within the Dooralong Centre a "Recovery Centre - Rehabilitation Hospital for People with Addictions", where they will offer their internationally recognised "Bridge Program" to people who wish to overcome an addiction. This program typically operates for up to a ten month period, during which time the participants live on site, and undertake professional counselling, while also carrying out work/vocational training. The Bridge Program is a completely drug free, abstinence based approach to rehabilitation, using the "12 step" recovery model. As such, the site will be operated on a drug and alcohol free basis. All people taking part in the program do so on a voluntary basis.

...

The facility will offer rehabilitation services for up to 140 people who will be living on the site. Also on site will be case workers and other professional staff, with these and other staff working 24 hours a day in three x eight hour shifts. In some circumstances, a maximum of ten family groups will also be living on the site, where it is deemed appropriate in the particular case. This may include both parents needing rehabilitation, or where it is deemed appropriate to keep the family unit together. This figure will be in addition to the 140 previously referred to.

15. Chapter 3.0 "description of proposed development" of the SEE (exhibit A p 165) states that the existing buildings and infrastructure on site will be used for the "accommodation and treatment of participants". It further states at par 165 - 166:
    

Key Points Relating to the Operation Facility

Participation in the program is voluntary.

If a participant elects for any reason to leave prior to the completion of their treatment, they are able to do so. This exit plan involves a discussion with their case workers and if the participant still wishes to leave, the Salvation Army assist them with this ...

The majority of participants are self-referred, while others come through the 12 step recovery program, or allied community and health services. Approximately 16% of participants are Court referrals.

Applicants are screened off-site prior to admission. This involves a criminal history review, and people with a prior history of violent crime, paedophilia, or other sexual offences are not admitted.

All participants undergo detoxification prior to arrival on site.

The program is abstinence based, and accordingly does not involve any drug treatments, such as methadone.

Participants are regularly breath tested, and provide urine samples on a random basis for testing. A positive result for any of these test may result in the person being removed from the program.

After an initial six week period, participants are able to have day / week end leave. All movements are onto or off the site will be via a Salvation Army minibus or vehicle, unless prior arrangement with the Salvation Army. Most participants return home to their family for these visits.

Upon return from leave, participants are required to report to a staff member and are aware that they may be screened for alcohol and other drug use.

There will be staff on site 24 hours a day, seven days a week. During the night shift, there will be at least there designated "stand up staff" members, who will be available to assist participants ...

The facility is not a psychiatric facility ...

16. The SEE describes the phases of the Bridge Program (exhibit A p 168 - 169):

Assessment and Intake Phase

This phase will generally be undertaken at another Salvation Army site in Wyong, or closer to where the applicant lives, and involves the applicant being advised of what will be expected if they undertake the program. The applicant will receive a comprehensive medical assessment, and during this time will undergo detoxification - if required - in a Salvation Army, or other agency's detox unit. Detox will not be carried out at the Dooralong site. The applicant will also begin one-to-one and group support sessions, educational programs and attendance at 12-Step meetings.

This phase will also involve relevant criminal history checks. Should the applicant fail any of the assessment criteria, they will not be accepted into the program.

Assessment Phase

... the initial settling in period of the Bridge Program will be undertaken at the Dooralong site, and normally lasts for three weeks. The participant will be involved in alcohol and other drug education, group sessions, one-to-one support, work activities, chapel service and 12 step meetings.

Treatment Phase

This phase will be undertaken at the Dooralong site. During this phase, which can last for six to ten months, the participant will be involved in more in depth one-to-one and group support sessions with education presentations, discussions, 12-Step meetings, Chapel services and recreational and social activities. This is a stabilising time, during which the Salvation Army provide or help the participant to access vocational education and training (if required) in a range of areas to assist them in gaining employment upon completion.

Re-Entry Phase

This phase is also to be carried out at the Dooralong site, and is aimed at helping the participant to get ready to make the transition back to the wider community. This includes working on interpersonal relationships via one-to-one support, couple and family counselling.

The Salvation Army assists the participant to develop an exit plan which (if required) includes assistance with job seeking, accessing education and training, and finding appropriate accommodation. Participants are encouraged to continue attending 12-Step meetings, counselling, Chapel services and other groups during this phase and after treatment.

17. The SIA report confirms (exhibit A p 308) that the men and women currently housed at the Morisset and Berkeley Vale centres will be relocated to the site. It states that participants are "aged 18 to 78 years old with an average age of mid to late thirties. The majority of participants are self referred, others come through the Salvation Army's 12 Step recovery movement, and allied community and health services and approximately 16% come from court referrals." The SIA report (exhibit A p 308 - 310, 322, 325 - 326) details that the Salvation Army does not require licensing to operate the recovery services but has government contracts that require accreditation. The Salvation Army is in the process of getting accreditation with Australian Care (Council) Health Services. People referred to the Magistrates Early Referral into Treatment (MERIT) program are of low criminal activity, not people who have committed violent crimes, child sex offences, or are arsonists or career criminals. The most common mental health illnesses of participants are depression and anxiety. The Salvation Army only accepts residents who are stable on their medication and they work closely with local mental health services, and a resident's psychiatrist and other support workers. All medication is under supervision. The Salvation Army will employ psychiatric nurses and has psychologists and psychiatrists on site regularly.
    

Applicant's evidence

18. The Applicant read the affidavit of Mr Dwyer, solicitor for the Applicant, filed on 15 July 2011. Attached to the affidavit is a webpage from the Salvation Army's website describing the Bridge Program. Criteria for entry are a willingness to admit the person is powerless to overcome the problem and to commit to a new life. The program aims to provide a safe, drug-free environment to help establish a healthier lifestyle; focus on the problems that underlie addiction; provide a holistic treatment service that will help achieve physical, mental, emotional, social and spiritual wellbeing via medical treatment, one-to-one and group support, and pastoral support; and impart living skills to not only overcome the addiction but to lead a more meaningful and fulfilling life. Key features of the program are listed as long-term residential treatment program, 12 Step recovery model, group work, abstinence, spiritual framework, vocational training and education, gender specific programs, and family focus. The 12 Step recovery model involves admitting a person's powerlessness, coming to believe there is a power greater than a person who can help him or her, and making a commitment to hand a person's will and life over to the care of that Power. This is consistent with the Salvation Army's belief that "through God all things are possible". Another key feature is the spiritual framework. As it is a Christian organisation a spiritual base is essential to the Program and an important part of recovery is admitting a sense of powerlessness over the addictive behaviour.
    
19. The three phases of the program are also described:

The eight to ten month program is broken up into three phases.

Assessment phase This phase allows you to have a look at us and seriously consider what will be expected of you if you undertake the program. You'll receive comprehensive medical assessment over a period of around three weeks. During this time you'll go through detoxification, if required, in a Salvation Army detox unit or another agency's detox unit. You'll also begin one-to-one and group support sessions, educational programs and attendance at 12-Step meetings.

Treatment phase During this phase, which can last for six to eight months, you'll be involved in more in depth one-to-one and group support sessions with education presentations, discussions, 12-Step meetings, Chapel services and recreational and social activities. This is a stabilising time when we provide or help you to access vocational education and training in a range of areas to help you get a job when you finish the program.

Re-entry phase Finally, it's time to get ready to make the transition back to the wider community. That's what this phase is all about. It includes working on your interpersonal relationships via one-to-one support, couple and family counselling.

We will help you to develop an exit plan which includes assistance with job seeking, accessing education and training, and finding appropriate accommodation.

You're encouraged to keep attending 12-Step meetings, counselling, chapel services and other groups during this phase and after treatment.

20. In addition to the agreed tender bundle (exhibit A) the Applicant tendered (subject to relevance) a second bundle of documents (exhibit B) containing two of the Salvation Army's grant applications to the NSW Department of Health for the recovery centres in Morisset and Berkeley Vale dated June 2010 and June 2009, respectively. The Salvation Army indicates on these documents that the beneficiaries of their activities include people with a disability, among others (tab 4 p 5, tab 5 p 5). The Applicant also tendered a copy of a webpage entitled "The Twelve Steps of Alcoholics Anonymous" from the website of Alcoholics Anonymous Australia (exhibit C).
    

Salvation Army's evidence

21. The Salvation Army read the affidavits of Mr Byrne, Clinical Director of the Recovery Services division (Australian Eastern Territory) Salvation Army, filed on 17 May 2011, and Mr Alward, Territorial General Manager Property, Australian Eastern Territory, Salvation Army, filed on 13 May 2011. Mr Byrne and Mr Alward also gave oral evidence.
    
22. Mr Byrne has held his position for 12 years and is responsible for the oversight and development of the range of services including the Bridge Program, across NSW, ACT and Queensland. He has a certification IV in alcohol and other drug work, certification in psychotherapy, diplomas in social sciences, business and human resource management, and professional development certificates in clinical supervision. The Bridge Program is a residential treatment program which aims to assist people suffering from drug, alcohol, gambling and other addictions to overcome their addiction in a safe and drug free environment. Participation is voluntary and open to persons over the age of 18 years. If participants want to leave the recovery centre without completing their program, the Salvation Army will assist them. In cross-examination, Mr Byrne confirmed that the 12 Step program was drafted by authors of Alcoholics Anonymous (see par 20 above) or Narcotics Anonymous, not the Salvation Army and that it was faith-based. He stated that participants have to believe in a god and those who do not want to undertake a faith-based recovery program are referred elsewhere. A significant component of the program is religious activities.
    
23. The Salvation Army is accredited to provide recovery services at its two existing recovery centres and is seeking approval from the Australian Council on Health Standards for the services it will provide at the site. When fully operational the Bridge Program will service up to 170 participants (approximately 110 men, 40 women and up to 10 family groups). Four of these places will be for participants of the Local Court's MERIT program. On site accommodation is necessary as addicted persons need to be removed from their existing environment and placed in a safe and supportive environment whilst they undergo treatment and recover. Female participants will be accommodated in the 20 rooms in the Lodge and male participants in the 45 cabins (some of which contain kitchenettes). Approximately two thirds of the participants will share rooms/cabins. The participants are not permitted to cook their own meals in the cabins but will be able to prepare a continental breakfast. Lunch, dinner and morning/afternoon tea will be provided and eaten in the dining area in the Lodge. All participants will be required to do their own washing at central laundry facilities including washing machines and clothes lines in the Lodge and the Compound buildings.
    
24. Prospective participants must apply to the Salvation Army for admission into the program. The assessment will be undertaken off site and may involve them undergoing detoxification if required in a Salvation Army or other detoxification unit. If necessary, a criminal history must be provided. Prospective participants who fail to meet the assessment criteria will not be accepted into the program and will be referred elsewhere. Those who are accepted must enter into an admission contract prior to being admitted. This document, annexed to Mr Byrne's affidavit, stipulates that a person understands the program is dedicated solely to the spiritual regeneration and the physical and social rehabilitation of participants and agrees, inter alia, to abide by a code of conduct and to submit to urine and/or blood tests to ensure compliance with the program. Mr Byrne's affidavit confirms that random breath tests and urine samples of the participants will be taken on a regular basis and a positive result may result in removal from the program.
    
25. The program has three on site phases: assessment (approximately three weeks), treatment (approximately seven months and up to ten months) and re-entry (approximately two months). After detoxification off site, the participants are given education, awareness and skills around drug/alcohol refusal throughout the assessment phase. While they remain on site, in addition to doing their own laundry, participants will be required to clean their own rooms/cabins. This is part of the program's objective to provide people with life skills, discipline and a sense of personal pride and self--worth. During the treatment phase participants will have an individualised case plan targeting their specific needs to treat their addiction. To ensure that participants are actively engaged throughout their treatment, they will undertake a range of compulsory daily activities including one-to-one and group support, psycho-education, 12 Step meetings, chapel services and work activities. Work activities and vocational training ensure that once participants complete the program and return to the community they can obtain employment and lead a healthy lifestyle. As part of the vocational training some of the participants will work on a roster system as kitchen hands to prepare daily meals, which can contribute towards the them obtaining a certificate II in food handling/processing. This also provides participants with life skills such as how to cook and prepare healthy/nutritional meals. Sample weekly timetables for Morisset and Berkeley Vale recovery centres were annexed to Mr Byrne's affidavit. These will be adapted for delivery of the program at the site.
    
26. Mr Byrne acknowledged during cross-examination that the timetable for weekends is much less structured but explained that those participants who will not be away on day/weekend leave will be involved in ad hoc activities such as going to the beach or to the Forest of Tranquillity. With regard to the work sections in the Selah Farm recovery centre roster (which is different to the Lake Macquarie roster), he explained that the activities were aimed at contributing to the functioning of the community such as gardening and cooking. The activities were also aimed at the participants' personal improvement as they are always under supervision, are taught to be responsible for their jobs for which they receive appreciation for work well done and develop greater responsibilities when they achieve competence in a task. They are also taught how to have a good diet and maintain good hygiene. Events (such as movie night) were designed to develop social skills and allow interaction with people in an informal setting. While time was a factor in the recovery process, all the proposed activities have a therapeutic basis. Mr Byrne agreed with the Applicant's counsel's suggestion that it had a therapeutic basis by keeping the participants' minds off the substance addiction through activities but not necessarily treating them for their addiction. The Applicant's counsel suggested that the aim of the program was provide a living environment for addicts away from society's attractions. Mr Byrne responded that this was part of it but the Salvation Army wanted participants to retain contact with the broader community, their family, and any employer rather than recover in an isolated community.
    
27. Participants' travel will be restricted and they will not be permitted to leave the site without consent. During the first six weeks of treatment participants must stay on site at all times but after this time, they can apply for day/weekend leave and must record their details in a sign in/out book. Transport to and from the site even during leave will be via Salvation Army vehicles. Visiting family and friends must adhere to visiting protocols and times.
    
28. Depending on the participant numbers and needs, the Salvation Army expects to employ 30 - 40 staff, of which 25 - 30 will be professional staff such as caseworkers, support workers, nurses and an allied health worker (such as a social worker). Professional staff will have tertiary qualifications in health care, community services, nursing, psychology and allied health (such as social work) and caseworkers will have a certificate IV in alcohol and other drugs work or qualification in social sciences, welfare, counselling, social work or youth work. Staff will be on site 24 hours a day, 7 days a week. Those working at night, including at least three support workers, will monitor the site to ensure participants are safe and are provided with any support they require. There will be on and off site visits to general practitioners, psychiatrists, psychologists and other professionals, as required.
    
29. In cross-examination, the Applicant's counsel asked what the participants would do between 7:30pm and 11:00pm. Mr Byrne replied that there would be different activities each night, such as movie night.
    
30. A recovery centre's operating budget is funded by grants received from the NSW Department of Health and Commonwealth Department of Health and Aging (approximately 20 - 30 per cent); the Salvation Army (approximately 25 - 50 per cent); and participants contributing 80 per cent of their Centrelink benefit (or an equivalent amount for self-funded participants) for the provision of the service. The admission contract annexed to Mr Byrne's affidavit requires a person to agree to deductions to be taken from his or her Centrelink benefit. The Fees Agreement and Programme Commitment section states that if the person is not entitled to receive Centrelink payments, or if the entitlement is deferred for any period, he or she must pay fees from other available funds. Mr Byrne said during cross-examination that the costs of the program for participants who do not receive Centrelink benefits and could not afford payment were subsidised by the Salvation Army.
    
31. Mr Alward has held his position at the Salvation Army for one and a half years. He instructed ADW Johnson Pty Limited in the preparation and submission of the DA. He was not working for the Salvation Army when the property was purchased (in 2009) so he was not involved in the preliminary assessment of the site, nor the assessment of the various uses of the site. Mr Alward's knowledge of the proposal for the uses of the site as at the purchase time was gained from persons in Salvation Army operations.
    
32. Under his direction the property department will be responsible for implementing the development consent and all ongoing works, improvements and maintenance at the site. Buildings which will be used to deliver the Bridge Program include:
    

a.the meeting hall/church at the Dooralong Road entrance

b.the Lodge including the dining hall, 20 accommodation rooms, a meeting room and laundry facilities

c.a building containing administration and counselling rooms

d.a separate building containing counselling rooms

e.45 cabins comprising 28 duplex-style cabins and 17 individual cabins containing kitchenettes

f.4 accommodation buildings for Salvation Army officers

g.the Compound which contains laundry facilities

h.various leisure areas and sporting facilities.

33. Paragraph 8 of Mr Alward's affidavit states that the Salvation Army is still determining the exact number of cabins and rooms in the Lodge building which will be used to deliver the Bridge Program. During cross- examination by the Applicant's counsel, Mr Alward clarified that the majority of cabins and all the rooms would be used to deliver the Bridge Program but a couple of cabins probably will not be used as they are not in good repair. The accommodation will be shared.
    

Applicant's submissions

34. The principles relevant to characterisation were identified in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at 406 and Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 535 per Kitto J (Owen J agreeing), approved by the High Court in Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1. The need to identify the purpose at an appropriate level of generality was identified in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 per McHugh J (Hope and Samuels JJA agreeing). Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 160 per Glass JA (Samuels and Hutley JJA agreeing) held that where there are two uses the dominant purpose can be regarded as the whole.
    
35. Regardless of how a proponent may describe the proposed development, the true question is how one characterises what is proposed. The Council's submission that it is sufficient to look at the consent to construe what was approved is incorrect. In response to the Council's submissions at par 55 below, if the proposed use cannot properly be described in the way the consent describes it then the consent is invalid. Courts go behind the description in the consent in order to assess what is the true characterisation of the purpose: see Bentham v Kiama Municipal Council (1986) 59 LGRA 94; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 and Sansom v Port Stephens Council [2006] NSWLEC 475; (2006) 147 LGERA 203 at [15]. If the proposed use meets more than one description and one of those is a prohibited purpose within the zone, then the consent is invalid and it matters not what the use may also be characterised as: Abret v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 . However, if severable, the other part of the use may be permissible with consent as an innominate use.
    

Site to be used as housing for people with a disability

36. The Applicant's primary submission was that the proposed use of the site is for "housing for people with a disability" meaning residential accommodation intended to be used permanently as housing for the accommodation of disabled persons consisting of hostels which include one or more of the following facilities: accommodation for staff employed in connection with that accommodation, chapels, meeting rooms, recreational facilities, shops, and therapy rooms. The proposed use of the site is to assist people to overcome a disability such as drug and alcohol addiction by providing residential accommodation and other facilities, which clearly falls within this definition.
    
37. Residential accommodation/housing is use for human habitation: Berry v Wollongong Council [2008] NSWLEC 210 at [49] and Sansom at [17]. As people will be residing at this site for periods of between six and ten months, the first element of the definition of "housing for people with a disability", namely, residential accommodation, is satisfied.
    
38. The combination of the words "residential accommodation" and "permanently" is not meant to be read as "permanent residential accommodation", meaning a domicile, as used with the concept of a dwelling. The LEP defines "dwelling" as "a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile". A "dwelling house" means "a building containing one, but not more than one, dwelling". The cabins will not operate as separate dwellings as they will be shared. Consequently, the adverb "permanently" applies to the use of the facility as housing rather than being a qualifier of the accommodation of people. The place will be used permanently as housing for the accommodation of disabled persons rather than being used for permanent domiciles of disabled persons.
    
39. This is a hostel not two or more self-contained dwellings. Hostel is not defined in the LEP but is defined in cl 12 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) as "residential accommodation for seniors or people with a disability where meals, laundering, cleaning and other facilities are provided on a shared basis", and "at least one staff member is available on site 24 hours a day to provide management services". The Applicant accepted that the SEPP definitions do not automatically apply to the LEP but as both the SEPP and the LEP were created under the EPA Act, the SEPP definitions are a useful guide.
    
40. Hostel is also defined in the Macquarie Dictionary, 5th ed (2009) Macquarie Library (electronic resource) as "a supervised place of accommodation, usually supplying board and lodging" which properly describes this proposal.
    
41. The definition requires consideration of "disabled persons". Disability or disabled persons is not defined in the LEP. The Macquarie Dictionary defines "disability" as:

1. Lack of competent power, strength, or physical or mental ability; incapacity.

2. A particular physical or mental weakness or incapacity.

42. Clause 9 of the SEPP defines "people with a disability" as "people of any age who have, either permanently or for an extended period, one or more impairments, limitations or activity restrictions that substantially affect their capacity to participate in everyday life." That description complies with the general notion of disabled persons and the dictionary definition. The SEPP definition should be given weight.
    
43. Applying both the dictionary and SEPP definitions, drug and alcohol addiction is a disability and the participants in the Bridge Program are disabled persons for the purpose of zone 7(b) of the LEP. These conclusions are supported by the following facts:
    

i.62 of the 279 participants of the Bridge Program at the existing recovery services centres received the disability support pension

ii.the Salvation Army mentioned in its applications for funding to the NSW Department of Health (exhibit B tab 4 p 5) that the beneficiaries of its services in Morisset and Berkeley Vale included people with a disability. (While this is not an admission, it is a counterindicator.)

44. In relation to (a) to (h) of the definition, the site contains meeting rooms, a church, accommodation for Salvation Army officers, leisure areas and sporting facilities, and counselling rooms.
    
45. In reply to the Council's submission that medical/professional evidence is required to prove that addictions are a disability, the Applicant stated that it is not required to do so in a planning law context. It is general knowledge that people with addictions are disabled and a dictionary definition of disability is sufficient. The caution expressed in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 about the use of dictionaries in interpreting statutes, relied upon by the Salvation Army (at par 68 below), simply means that dictionaries can still be used but should not be given much weight. A disability is an impairment. Mr Byrnes said in cross-examination that addicted persons have a social impairment, and a mental weakness to excessively indulge in certain experiences. As a function of their disability, the addicted persons will be in a like environment, removed from proximity to drugs, alcohol, gambling and segregated from society.
46. With regard to the purpose of the proposed use, the Applicant submitted that the proponent's subjective intention is not the end to be served; Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 at 714G per Gleeson CJ and Abret at [62], [67] per Beazley JA.
    

Site to be used as a boarding house

47. Alternatively, the Applicant argued that the proposed use also satisfies the definition of "boarding house" in the LEP being a building or place where accommodation, meals and laundry facilities are provided to the residents. It is defined in the Macquarie Dictionary as "a place, usually a home, at which board and lodging are provided". Accommodation is to be provided in 45 cabins and in 20 rooms in the Lodge. Participants must pay "board", being a contribution of 80 per cent of their Centrelink benefit, or an equivalent amount for self-funded participants for the provision of the service. Participants will be able to prepare a continental breakfast but will be provided with other meals and will do their own washing in central laundry facilities.
    
48. Orally the Applicant submitted that even if the proposed use does not fall wholly within this definition, the accommodation component satisfies this definition and is therefore prohibited. If the treatment component is severable, it may be permissible with consent as an innominate use, but otherwise the proposed use would be prohibited.
    

Site to be used as a commercial premises

49. Alternatively, the proposed use is for commercial premises, being a building or place used as an office or for other business or commercial purposes. The definition means commercial premises and hospital are mutually exclusive. If the proper characterisation of the proposed use is for a hospital, then this submission is irrelevant.
    
50. The proposed use is for "an office or for other business or commercial premise" because a person must apply for admission into the Bridge Program; a prospective participant must enter into an admission contract with the Salvation Army; the program is funded by grants received from the NSW Department of Health and the Commonwealth Department of health and aging, funds provided by the Salvation Army, and by the participants; and the Salvation Army proposes to employ 30 - 40 staff. As the participants will have to pay for services and accommodation provided by the Salvation Army (exhibit B tab 4 p 8), these are transactions in business or commerce. It does not matter that the Salvation Army does not aim to make a profit because general notions of business or commerce do not require a profit to be made; one can still have a business with the intention of breaking even. The Salvation Army has a corporate structure and will be undertaking in the business/commercial operation of providing services which is an ongoing purpose. If this definition does not extend to the accommodation component, then that part of the use would fall within the purpose of boarding house.
    

Site not to be used for the purposes of a hospital

51. In order for the site to be characterised as a "hospital" as defined in cl 7 of the LEP, it must be used for providing professional health care services to people admitted as inpatients. Health care is not defined in the LEP but is defined as "medical and other services provided for the maintenance of health, prevention of disease, etc" in the Macquarie Dictionary . Hospital is defined in that dictionary as:

1. an institution in which sick or injured persons are given medical or surgical treatment.

2. a similar establishment for the care of animals.

3 . a shop for repairing specific things: a dolls' hospital.

52. There is no reference in any of the key features of the Bridge Program (see par 18 above) to the Salvation Army providing anything in the nature of "health care services". As assessment occurs off site the activities undertaken in the first phase are not relevant to determining the purpose for which the site is to be used. Having undergone detoxification the participants undertake an abstinence-based life as a disabled person which relies upon occupying time for weeks to months to keep their minds off their addiction. Education presentations and discussions, meetings, chapel services and recreational and social activities, which are part of the treatment phase, are not "health care services". If going to the movies, for example, is considered treatment, then so would sleeping. At par 39 of its written submissions the Applicant stated that while counselling which occurs in the re-entry phase may be considered a "health care service", providing assistance with job seeking, accessing education and training and finding appropriate accommodation, which is the focus of this phase, is not. In oral submissions the Applicant submitted that the phrase "psychiatric care or counselling" was meant to be read as psychiatric care or psychiatric counselling (TS61.40 - 48). The daily activities listed in the sample weekly timetables, annexed to Mr Byrne's affidavit, demonstrate that it is inappropriate to classify the use of the site as for the provision of "health care services". It is not a psychiatric facility as specifically eschewed by the Salvation Army. These factors take the development away from the definition of "hospital".
    
53. Admission as an inpatient at a hospital where professional health care services are provided is different to non-permanent residential accommodation for a disabled person, as is the case here.
    
54. The provision of health care services is contemplated in other uses in the LEP, such as "housing for people with a disability", and is not the exclusive domain of a "hospital". The proposed use does not meet the essential elements of the concept of a hospital, is contrary to contemporary concepts of health care provision and does not meet the concept of a hospital as defined in the LEP:
    • (i) participation is at the election of the participants who can leave if they choose.
    • (ii) participation extends to non-affected family members
    • (iii) participation involves an extensive residential component
    • (iv) the Bridge Program is essentially abstinence based (with ancillary support) and is effectively self-help with the ability to access health services when needed
    • (v) the treatment of detoxification occurs before entry to the Bridge Program
    • (vi) the site is not required to be licensed as a hospital.
      

Council's submissions

55. As a consent may only be lawfully given "to the application, either unconditionally or subject to conditions", given the terms of the DA, a consent could only lawfully be given to a "hospital", as defined: Mison v Randwick Municipal Council (1991) 23 NSWLR 734. The consent authorised a permissible use. It is an instrument which operates in rem and what it approves is a matter of construction. Pallas Newco is authority that the Court should look at the DA and form its own view about whether or not it can properly be characterised for a prohibited purpose and that matter is not a question of the construction of the consent. Upon that matter there is a complete evidentiary failure on the part of the Applicant. If there is a question of any other possible construction of the consent arising, being an instrument, it should be construed in conformity with s 32(1) of the Interpretation Act 1987.
    

Site not to be used for housing for people with a disability

56. The definitions of "housing for ... people with a disability", "boarding house" and "commercial premise" are mutually exclusive. The consent cannot be characterised as authorising any form of development which is prohibited in that zone because it authorised development of a hospital.
    
57. If the definitions are considered, the consent does not authorise use as "housing for persons with a disability" because the accommodation provided to inpatients and their visitors is neither used permanently nor residential in nature. The Applicant failed to address the purpose for which activities/uses serve: O'Keefe at 535. From a town planning perspective, the purpose of this definition is to provide permanent housing accommodation for disabled persons because left to its own devices, the market will strive to achieve the greatest profit.
    
58. Contrary to the Applicant's submission the word "permanently" cannot relate to the use of the built form because the development consent expects that this will be permanent, in the sense that the Applicant contends. The word must be directed towards the core purpose, namely, to provide a place for people with a disability to permanently live. The Applicant was in error to suggest that "permanently" connotes something less than a domicile, which concept is included in the definition of "dwelling". The test with regard to a dwelling/domicile is whether a building is in fact used or capable of being used for a permanent residence. "Housing for people with a disability" requires that the building in fact be used permanently for housing of disabled people. The site is not in fact to be used as a permanent residence.
    
59. The Applicant stated that people suffering an addiction are disabled but failed to produce evidence on this topic. The Applicant must adduce evidence to prove it is entitled to the relief claimed.
    

Site not to be used as boarding house

60. The consent does not authorise use as a "boarding house" because the inpatients are not residents; they remain residents of their usual places of abode to which they will return.
    

Site not to be used as commercial premises

61. As the Salvation Army submitted, one must construe the definition of "commercial premises" in the town planning context. The LEP is fundamentally different from statutes directed towards raising revenue for the Commonwealth or consumer protection and which might therefore warrant a wider interpretation of business or commercial premises. As warned by Mason J in Federal Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 150 CLR 355 at 378 - 379, there is ambiguity in expressions involving adjectives such as "commercial" and "business" as these must adapt to the different contexts in which they are used. Viewed from a town planning perspective, the site is not proposed to be used for business or commercial purposes.
    
62. The consent does not authorise commercial premises because the site is to be used for a purpose elsewhere specifically defined, namely, a hospital.
    

Site to be used for the purposes of a hospital

63. From a town planning perspective, the purpose of a hospital is a place for providing services to people admitted as inpatients. The DA sought approval for a hospital as defined in that it was for a building or place used for providing professional health care services (such as preventative or convalescent care, diagnosis, medical treatment, psychiatric care or counselling and services provided by health care professionals) to people admitted as inpatients, and includes ancillary accommodation for their visitors. The SEE which accompanied the DA, described the proposal as a recovery centre rehabilitation hospital for people with addictions offering the internationally recognised Bridge Program to those persons wishing to overcome drug or alcohol addiction. The proposed development comprises of the following elements: provision of on site temporary accommodation for up to ten months for participants; participants would be admitted as inpatients and provided with convalescent care, counselling and other services as part of their rehabilitation; these services are to be provided by persons trained as health care professionals; and ancillary accommodation for family members and partners of inpatients will be provided.
    
64. The Applicant asserted that the treatment for addiction is detoxification and is over before participants arrive at the site. The Salvation Army's evidence is that treatment requires more than detoxification and every aspect of that which will be done at the site is directed towards treatment. The fact that substantial time is allocated for sleeping or doing things that are not counselling, for example, does not mean that those activities are not convalescent or preventative care within the meaning of the broad definition of "hospital" in the LEP. Moreover, sleeping and staying for a period of time whilst convalescing happens in every hospital.
    
65. There was no evidence to suggest that the religious/spiritual aspects of the program do not have a proper medical or preventative purpose. In cross-examination Mr Byrne stated the spiritual model is one option for treatment. The relevant question is not whether there is a religious/spiritual underpinning but whether for town planning purposes the services might be regarded as preventative care, medical care or treatment or counselling.
    

Salvation Army's submissions

66. The Salvation Army accepted that the fact that "hospital" is a defined term within the LEP and is not listed as prohibited in item 4 of the zoning table is insufficient to make the development permissible with consent: Abret . It may nevertheless be prohibited if it falls within a nominated category of prohibited development even if characterised as a hospital. However, this problem does not arise because of the way the definitions work.
    
67. The Applicant's approach erroneously focussed on a detailed analysis of definitions and individual parts of a proposed use. Definitions only aid in construing the statute and are part of the text of the LEP. Construing the definition before its words are read into the LEP invites error. Definitions must be inserted into the LEP and then the LEP needs to be read as a whole: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] per McHugh J.
    
68. Section 34 of the Interpretation Act allows the use of extrinsic material to assist in the interpretation of legislation. The application of dictionary definitions to aid in the construction of a statutory provision is accepted by the Court. However, dictionaries can give the appearance of simplicity and are not the substitute for judicial determination of the interpretation and construction of statutes and other documents. The caution expressed by Mason P in House of Peace at 504 on the use of dictionaries in interpreting statutes must be heeded. As his Honour emphasised, the task is not a moral, societal or etymological task. It is to search for meaning of a term in a particular document (for a particular purpose of the end to be served).
    

Site not to be used for housing for people with a disability

69. The Applicant's approach ignored Chamwell and orthodox propositions. It is necessary to distinguish between use and purpose, being the end to be served: O'Keefe . The purpose of disability housing is housing whereas the purpose of the development is to provide professional health care services to the participants of the Bridge Program who will be accommodated as inpatients so that they can convalesce.
    
70. By "residential accommodation" the LEP means where people are going to live, which contrasts with providing accommodation for inpatients. The participants in the program are "in-patients" who are receiving accommodation strictly only for the duration of their professional health care services. Even if the accommodation of inpatients could be called "residential accommodation", it will neither be used for permanent housing nor for housing of disabled persons. Further, the provision of such temporary accommodation is ancillary to the purpose of providing the professional health care services in the "hospital" to the "in-patients": Foodbarn at 161 .
    
71. In CB Investments Pty Ltd v Colo Shire Council [1980] 41 LGRA 270 at 276 Reynolds JA (Hope JA concurring) recognised the role of the intention of the occupier of premises in assessing purpose. Having regard to the express words of the definition of "housing for older persons or people with a disability" the Salvation Army's intention in their use of the site is clearly relevant. As evidenced by the documents submitted with the DA, there is no intention to provide permanent accommodation to aged or disabled persons. The Salvation Army intends to provide professional health care services to people recovering from alcohol and drug addictions.
    
72. As a general principle town planning law is concerned with the use of the land and not the identity of the user ( Canterbury Municipal Council v Moslem Alawy Society Ltd [1987] HCA 8; (1987) 162 CLR 145 ). However, it is clear from the definitions in cl 7 of the LEP that the draftsperson intended to distinguish between certain defined uses for zoning purposes in the scheme of the LEP on the basis of the identity of the user. For example, a boarding house is accommodation provided to residents, a hospital is professional health care services and ancillary accommodation provided to inpatients, and housing for people with a disability is residential accommodation provided to disabled people. Consequently, the word "permanently" in the definition of "housing for people with a disability" applies to the people who will reside permanently because the purpose is for housing and there has to be a degree of permanency in that. The word does not apply to the consent because it is for a permanent use of land.
    
73. The Applicant incorrectly submitted that people with addictions are people with a disability. The phrase "people with a disability" is not defined in the LEP or the EPA Act. The following terms are defined in the Macquarie Dictionary :

disability: lack of competent power, strength, or physical or mental ability; incapacity; a particular physical or mental weakness or incapacity

disabled: those people who are incapacitated by permanent injury or disease

74. It was agreed that the definition of "people with a disability" in the SEPP does not apply to the site. There is a principle of statutory construction supporting a presumption that the legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection: Lennon v Gibson & Howes Ltd [1919] AC 709 at 711 - 712. However, "[o]ne must be careful in transferring the definition of a term in one Act into the meaning of an undefined term in another Act, particularly if they do not deal with precisely the same matters": Tender Center Pty Ltd v Department of Fair Trading [2001] NSWSC 153 at [19] per Windeyer J. The SEPP definition is specific to its context and purpose. In any case, the definition is not met in the context of the development. An addiction is not a disability, it is an illness which can be treated and has consequences such as causing a person not to function properly. People suffering from addictions are capable of fulfilling daily jobs and carrying out normal lives. If a person is hopelessly addicted to a substance, then he or she may be viewed as having a disability, but when that person has been detoxified and goes to a recovery centre for treatment, he or she deals with the illness. The Applicant cannot convince the Court in the absence of evidence that an addicted person is disabled. Ultimately the construction is for town planning purposes: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 per Kirby P at 59 and Grace v Thomas Street Cafe Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57 at [88] - [90] . Facilities required for disabled persons, such as ramps, and shops nearby, are not required for people with an illness. There is no connection in a town planning sense between a detoxified person being treated for an addiction and disability housing.
    

Site not to be used for a boarding house

75. The definition of "boarding house" in the LEP is so broad that it captures any building or place (unless the building or place is licensed to sell liquor under the Liquor Act 1982 ) where accommodation, meals and laundry facilities are provided to "residents".
    
76. Neither "in-patient" nor "resident" are defined in the LEP or in the EPA Act. These terms should be given their ordinary meaning. The Macquarie Dictionary defines the terms as follows:

inpatient: a patient who is accommodated at a hospital for the duration of their treatment.

patient: means someone who is under medical or surgical treatment.

resident: means someone who resides in a place

resides: means to dwell permanently or for a considerable time

77. The purpose of the development cannot be characterised as "boarding house" which is aimed at providing housing to boarders or residents. While the development may be described as residential, the participants are inpatients who will be temporarily accommodated, not residents or boarders. Potential participants will undergo a screening and admissions process including medical assessment and detoxification. Those who meet the assessment requirements will be admitted as inpatients ( the SEE, exhibit A tab 4 p168) . They will be required to adhere to the program requirements including undertaking regular testing for alcohol and drug use; having restricted day leave from the site; travelling to and from the site via a Salvation Army vehicle; and participating in alcohol and drug education, group sessions, one-to-one support, work activities, chapel service and 12 Step meetings: t he SEE, exhibit A tab 4 p 166. All visits by family, friends or associates of the participants of the Bridge Program shall be at designated visiting times: plan of management, exhibit A tab 5 p 191. If required, the Salvation Army will assist the participants to find permanent accommodation off site after completion of treatment.
    
78. This is a very different situation to that in Tankard v Albury City Council (1983) 49 LGRA 69 where the Court found that the development was not a "hospital" within the narrower meaning in cl 4 of the Model Provisions (as defined at that time) but for a "hostel" because the only requirement for entry to the development was a need for a bed for the night and therefore was not for the treatment of inpatients. Hospital was defined as "a building or place used as a hospital; sanatorium; health centre; nursing home; or home for aged persons, inform persons, incurable persons or convalescent persons, whether public or private, and includes a shop or dispensary used in conjunction with, but does not include an institution." Warlam Pty Ltd v Marrickville Council [ 2009] NSWLEC 23; (2009) 165 LGERA 184 concerned a different type of boarding house as it was a "house let in lodgings" so the payment of money/board was an inherent part of the definition.
    
79. The Applicant's argument that the residential component of the proposed use is so extensive that it can be characterised separately as a boarding house fails. The provision of "accommodation, meals and laundry facilities" is ancillary to the purpose of treating participants of the Bridge Program and does not transform the purpose in town planning terms into a "boarding house". Whether the use for accommodation is subservient to the purpose of a hospital or constitutes an independent use is one of fact and degree: Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211 at 216 - 217 and Peters v Manly Municipal Council [2007] NSWCA 343 at [21]).
    
80. Additionally, definitions in the LEP must be construed within the context of the LEP as a whole: Kelly at [103] and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] and [78]. The LEP discloses an intention by the definitions of "hospital" and "boarding house" to create two separate categories of use. The principles in Egan v Hawkesbury City Council (1993) 79 LGERA 321 or Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 do not apply as this is not a case where one use (such as rural industry or extractive industry) is an example or subset of another broader class of use (such as industry). This approach was applied by Jagot J in Godfrey v Wollondilly Shire Council [2007] NSWLEC 33; (2007) 151 LGERA 207 at [40] and Berry at [48] - [50].
    
81. Further, the provisions of an environmental planning instrument should be construed as if they have work to do and a purposive approach must be adopted ( Interpretation Act s 33). It would be difficult to envisage a hospital that did not provide "accommodation, meals and laundry facilities". If no distinction were to be made between "inpatient" and "resident" in the definitions in the LEP any development for the purpose of a "hospital" would be characterised for the purpose of a "boarding house". This would render the inclusion of the prohibition of "hospital" in zone 3(d) (Tourist Business Zone) redundant and a "hospital" would not be permissible in zone 7(b). Such an approach is contrary to the legislative intention as demonstrated by the operation of the zoning table to the LEP, and accordingly the rules of statutory construction would permit the avoidance of such an irrational result ( Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121; (2008) 71 NSWLR 306 at [52]).
    

Site not to be used for a commercial premises

82. As a consequence of the definition of "commercial premises", if the development is a "hospital" it cannot also fall within that definition. The Applicant faintly submitted at par 70 of its written submissions that the proposed use of the site is for an office or for other business or commercial purpose because the program is a service delivered by the Salvation Army for a fee, the participants must enter into a contract and the Salvation Army will employ staff.
    
83. It is important to construe terms within the appropriate legislative framework. Interpretation of the terms "business or commercial purposes" in the context of taxation legislation, for example, may lead to different results. It is necessary to focus on whether for town planning purposes, what is proposed by the Salvation Army is properly considered as commercial premises. Even if not satisfied that the development is not a hospital, it is not commercial premises. In Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 which concerned the use of the term "business" in s 118(7) of the Local Government Act 1919, Mason J observed at 8 that although it is given its ordinary meaning, courts have refrained from defining it, which was understandable because a dictionary contains many meanings for the term. His Honour said the popular meaning of the word is the carrying on of acts and activities which "possess something of a permanent character" and observed that the it is necessary to engage in a process of construction to arrive at the meaning of the term in its statutory context.
    

Site used for the purposes of a hospital

84. The development is properly characterised as a "hospital" for the purposes of the LEP. The LEP definition adopts a broad approach to defining the relevant "professional health care services ": Hosking Munro Pty Ltd v Botany Bay City Council [2001] NSWLEC 255; (2001) 116 LGERA 451 at [46]. In addition to "in-patient", the LEP does not define "outpatient", "professional health care services", "preventative or convalescent care" and "health care professional". Relevantly, the definition of "health care professional" in the Model Provisions is not adopted for the purposes of the LEP. These terms should be given their ordinary meaning. The Macquarie Dictionary defines outpatient as " a patient receiving treatment at a hospital but not being an inmate" and convalesce as "to grow stronger after illness; make progress towards recovery of health". (See par 76 above for the definition of inpatient.)
    
85. Having regard to the near identical definition of "hospital" in the Model Provisions, t he Court in Hosking Munro held that "in-patient" should be given its ordinary meaning. The LEP prohibits development for a "medical centre", which is distinguished from a hospital as the former may treat outpatients only, within the zone. By contrast a "hospital" may treat both inpatients and outpatients. The development is for the purpose of a "hospital" as it meets the "two essential factors" specified in Hosking Munro at [45]: there is to be the provision of professional health care services and the persons receiving those services will be inpatients.
    
86. The Applicant submitted that if a person is addicted to alcohol, for example, the treatment is detoxification, which occurs prior to going onto the site. However, overcoming an addiction takes a period of time and professional health care services to achieve, which will be offered at the site. These fall within the ambit of the specific examples in the definition itself of "preventative or convalescent care", "counselling" and "services by health care professionals". The webpage annexed to Mr Dwyer's affidavit evidences that the program will provide a safe drug free environment to establish a healthier lifestyle (preventative care); focus on the problems that underlie addiction (counselling); provide a "holistic treatment service" that will "help achieve physical, mental, emotional, social and spiritual wellbeing via medical treatment" (preventative care, convalescent care, counselling and general services); provide participants with one-to-one, group and pastoral support (counselling); and impart life skills to overcome the addiction (preventative care) and to lead a more meaningful and fulfilling life.
    
87. In oral evidence Mr Byrne described that the program attempts through an abstinence-based system to treat the addiction by changing the way a person lives using a combination of preventative care and counselling to help the person abstain while at the recovery centre and to make that part of their lifestyle so that they continue once they leave. During cross-examination Mr Byrne said that the vocational training and activities the participants would undertake are supervised and have therapeutic outcomes. Vocational training falls within the definition of "hospital" as it includes the provision of facilities for educational or research purposes. Having been detoxified, an addict needs to grow stronger and convalesce from the consequences of having been an addict, deal with the process of the addiction itself, and make progress towards recovery of health.
    
88. The faith-based system forms an important part of the way treatment is implemented. It requires recognition that the person is not able to deal with the addiction and needs help including through lifestyle counselling. Mr Byrne said in oral evidence that educational and vocational training are required so that a person can continue a normal lifestyle after dealing with the addiction and leaving the recovery centre.
    
89. With regard to the proper construction of the phrase "psychiatric care or counselling" in the definition, it is that inpatients may be provided with counselling or psychiatric care. In any case, the construction does not make any relevant difference if the patient is receiving is counselling, the purpose of which is to deal with the patient's illness, being an addiction. As evidenced by the SEE, Mr Byrne's oral evidence, and the affidavit of Mr Dwyer, counselling will be provided in a variety of ways through one-to-one support, group sessions and pastoral support.
    
90. As referred to in the definition, participants will be "admitted" as inpatients after going through a screening process and must adhere to the program, the requirements of which are identified at par 77 above.
    
91. One of the bracketed examples of professional health care services is "services provided by health care professionals". S taff providing the professional health care services will include case managers, support welfare workers, psychiatric nurses as well as visiting general practitioners, psychiatrists, psychologists and other professionals as the participants require: the SIA report, exhibit A tab 7 p 310; affidavit of Mr Byrne at par 46. Caseworkers and other health care professionals will be on site twelve hours a day in three eight hour shifts including three clinical staff at night: the SEE, exhibit A tab 4.
    
92. In relation to (a) and (b) of the definition, ancillary accommodation will be provided to inpatients, families and partners and professional health care staff. Inpatients are temporarily accommodated for the duration of their participation in the program, which is usually five to six months (the SIA report, exhibit A tab 7 p 308) but can be up to ten months (the SEE, exhibit A tab 4 p 165). Participants eligible for leave after the initial six week period usually return home to their family for day/weekend leave (the SEE, exhibit A tab 4 p 166).
    
93. The Applicant (at par 54 above) referred to the "concept of a hospital" in a traditional sense and "contemporary concepts of healthcare provision", rather than the LEP concept and then erroneously identifies six components which distinguish the development from a hospital. Firstly, participation is not at the election of the participant. An inpatient must participate and undergo treatment or leave if he or she no longer wants to participate. Secondly, participation can extend to nonaffected family members either in the Foodbarn sense or by par (a) of the definition which allows accommodation for visitors. Thirdly, as long as the people being treated are inpatients, which is a defining feature of a hospital, the period of accommodation is irrelevant. Fourthly, the LEP definition does not prevent the program being abstinence-based. Fifthly, detoxification is the treatment for a consequence of the addiction, not the addiction itself. Sixthly, there is no requirement in the LEP definition for a licence and if one were required, it would be specified, such as in the definition of "hotel" which refers to a hotelier's licence.
    

Consideration

94. The Applicant's judicial review proceedings challenge the characterisation of the use approved by the Council for the change of use of the site from tourist use to hospital in the development consent granted to the Salvation Army. The Applicant submitted, and the Salvation Army accepted, that the description in the DA is not determinative of the characterisation of a development, relying on Bentham , Pallas Newco and Sansom at [15] . The Council made a contrary submission that the character of the development is determined by the grant of consent. In this case development consent was granted for a hospital and that was submitted to be conclusive that the development is a hospital as recognised under the LEP. Mison was relied on for that submission. That case was concerned with, inter alia, whether a council's purported development consent had the effect of significantly altering the development for which the applicant requested consent, not with the characterisation of a use. The applicant requested consent to erect a building and provided detailed specifications but the council imposed a condition requiring that "Overall height of the dwelling-house" be "reduced to the satisfaction of Council's chief town planner". The Court of Appeal ( Priestley JA, Clarke and Meagher JJA agreeing) held that the purported consent was not a consent within the meaning of then s 91(1)(a) of the EPA Act which permitted the council to grant consent to an application "either unconditionally or subject to conditions".
    
95. In Class 4 proceedings where an applicant, a recipient of many consents over the years, sought a declaration that its operation of a caravan park was lawful , Sheahan J observed that " the question of characterisation of use is quite separate from the question of construction of consents": Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [ 2010] NSWLEC 10 at [31]. The issue of the characterisation of a use has been considered in numerous judicial review cases as a possible error in the construction and application of the terms of the relevant planning instrument. The legal basis for doing so in judicial review proceedings was identified by the Applicant and the Salvation Army as a question of jurisdictional fact, as held by the Court of Appeal ( per Spigelman CJ at [86], [88], Mason P at [139], Handley JA at [141] - [142], Sheller JA at [181] - [182] and Cripps AJA at [207], [219]) in Pallas Newco . That case was an unsuccessful appeal from the decision of Talbot J exercising the Class 4 jurisdiction of the Court. Talbot J determined that the characterisation of the nominated permissible use of drive-in take-away establishment, for which development consent was given, was a jurisdictional fact. Having found that the proposed use was not a drive-in take-away establishment and was prohibited under the relevant LEP, his Honour declared the development consent void. In considering whether characterisation of a use is a jurisdictional fact, Spigelman CJ stated:

[36] A person who carries out prohibited development contravenes the Act. A consent does not turn prohibited development into permissible development. That would constitute an amendment to an environmental planning instrument, without satisfying the procedural requirements of Pt 3.

[37] The use of the land for a prohibited use constitutes a contravention of s 76B. Accordingly, the person who carries it out commits an offence under s 125 of the Act.

96. In Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 this question was considered by Basten JA who expressed it as follows:

[130] In the present case, the challenge to the validity of the consent depended on whether the proposed use was one for which consent could be given: a question relating to the power of the public authority. That in turn depended on the characterisation of the proposed use, as identified in a development application which sought to engage a specific provision of the local environment plan. A preliminary question is to ask on whom the jurisdiction is conferred to decide this question authoritatively. No doubt the Council from whom consent is sought will need to satisfy itself that it has the power to grant the application. But if its opinion with respect to the application is challenged in a court, the question will be whether its opinion is reviewable only on the standard grounds on which judicial review is permitted, or whether the Court is required to decide the question of characterisation for itself, independently of any view formed by the Council.

[131] The answer to this question must depend upon the terms of the legislative instruments conferring power, in accordance with the principles set out in the authorities noted above and with special reference to the decision in Pallas Newco , dealing with a local environment plan under the EP&A Act.

97. At [132] - [137] his Honour reviewed the elements identified in Pallas Newco by Spigelman CJ as relevant to determining that issue. His Honour considered the structure of the Liverpool LEP in the context of the EPA Act and concluded, relying on Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 and Pallas Newco , at [142] that the characterisation of the use should be treated as a jurisdictional fact in the absence of a provision which identifies that the characterisation depends on the opinion of the Council. Handley JA held similarly at [6] that in the context of the particular clause in the LEP imposing a condition precedent to the existence of the Council's power to grant consent to a DA, compliance with the clause is a jurisdictional fact. At [6] his Honour held that characterisation is required by both the text of the clause and the principles identified in Enfield and Pallas Newco .
    
98. Given the structure and terms of the LEP in this matter, with the land use restrictions for each zone identifying prohibited uses in the table in cl 10 together with the definitions in cl 7, suggests a similar conclusion should be reached in this matter. This rebuts the Council's argument relying on Mison that the approval of a hospital use is conclusive of the purpose of the use. Further, the Council submitted at par 55 that no evidentiary basis for concluding that the development consent was not for a hospital was presented by the Applicant. This suggests it is necessary to determine the parties' arguments about characterisation. As the Applicant submitted, I am able to take into consideration the evidence before me and am not limited to what was before the Council: Pallas Newco per Spigelman CJ, Mason P, Handley and Sheller JJA, and Cripps AJA agreeing .
    

Characterisation principles

99. The parties were not in disagreement with the principles relevant to characterisation extracted in Chamwell at [27] - [50] and adopted in Abret at [49] - [54] . Characterisation must be done in a commonsense and practical way: Chamwell at [45]. The principles were correctly summarised in the Salvation Army's submissions. Firstly, a use must be for a purpose, being the end to which the use of the land can be seen to be put : O'Keefe at 535. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 at 508. Secondly, t he nature of the use needs to be distinguished from the purpose of the use: O'Keefe at 534 - 535 and Warringah Shire Council v Raffles [1979] 2 NSWLR 299. Thirdly, in determining whether land was used for a particular purpose, an inquiry into how that purpose could be achieved is necessary : C ouncil of the City of Newcastle at 499 - 500 . Fourthly, the characterisation of the purpose should be done "at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on", not "in terms of the detailed activities or processes" but not so general as to "embrace activities, transactions or processes which differ in kind from the use which the activities etc, as a class have made of the land" : Royal Agricultural Society of New South Wales at 310. The construction is for town planning purposes: Boyts Radio and Electrical at 59 per Kirby P and Grace at [88] - [90].
    
100. Where there is an ancillary land use to a dominant use (in relation to part or the whole of the land), the former is to be classified according to the purpose of the latter: Foodbarn . The question of whether the use for a particular purpose is subservient or incidental to another purpose, or whether it constitutes an independent use, is one of fact and degree: Lizzio at 216 - 217 and Peters at [21] . Whether the use should be considered in these terms is discussed further below (par 106).
     

Construction of the LEP

101. I adopt the Salvation Army's submissions at par 81 above that the provisions of an environmental planning instrument should be construed as if they have work to do and that a purposive approach must be adopted ( Interpretation Act s 33).
     
102. As submitted by the Salvation Army, relying on Kelly , definitions in the LEP must be construed within the context of the LEP as a whole. In Kelly at [103] McHugh J said that if a definition applies, the correct approach is to "read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome". His Honour warned that " [t]o construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment". In Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635 Barwick CJ, McTiernan and Taylor JJ stated:

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way ... the effect of the Act and its operation in relation to dividends as defined by the Act must ... be found in the substantive provisions of the Act which deal with 'dividends'.

103. The Applicant in particular referred to dictionary definitions to assist in the construction of definitions in the LEP. Courts often use dictionaries to aid in construing statutory provisions, see for example, State Chamber of Commerce and Industry v Commonwealth [1987] HCA 38; (1987) 163 CLR 329 at 348 . However, in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1971) 25 NSWLR 541 at 560 - 561 Mahoney JA identified the limits on the use of dictionaries in searching for meaning and cautioned that "d ictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents". Mason P similarly cautioned in House of Peace at [28] that dictionaries may give the illusion of certainty whilst confounding the task at hand as they "do not speak with one voice even if published relatively concurrently... [and] can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose".
     
104. His Honour explained at [30] that the task at hand was not "a philosophical, linguistic or etymological exercise probing the inner or outer limits" of a term in current Australian usage but "a search for the meaning of a particular document issued in a particular context". His Honour stated at [22] that the planning law context is concerned with the use of the land, not the identity of the user and at [24] that e nvironmental planning instruments and consents are concerned with physical use, environmental impact and amenity .
     
105. Definitions are not self-contained and may operate interdependently: Abret at [33]. If the proposed use falls within a prohibited purpose, it is prohibited and it is irrelevant whether it also falls within a separate permissible purpose: Egan at 328 per Mahoney JA (Cripps JA agreeing in a separate judgment, Meagher JA dissenting); Sammut at [23], [34] - [38] per Mason P (Powell JA agreeing, Young JA in Eq agreeing with additional comments) and Abret at [67] - [68] per Beazley JA (Campbell JA and Handley AJA agreeing). The Respondents submitted and I agree that the definitions under consideration in the LEP are intended to be mutually exclusive, in other words there is likely to be one use of the site as defined in the LEP and consequently the principles identified in Abret , inter alia, in relation to overlapping purposes is unlikely to arise. This construction arises from the operation of the separate definitions together with the prohibitions on certain uses identified in the table in cl 10. While the Applicant made submissions that parts of the development might be severable and satisfy the definition of a prohibited use it is important to consider the use of the site as a whole. Breaking the use of the site into separate components offends the principle in Royal Agricultural Society of New South Wales of identifying a use at a sufficient level of generality to encompass relevant activities.
     
106. The purpose of the use must also be identified, applying common sense in a town planning context. This issue will be considered in relation to each of the uses alleged to be the proper characterisation by the Applicant. T he Applicant submitted that the subjective intention of the proponent is not the purpose to be served relying on Woollahra Municipal Council at 714G per Gleeson CJ who stated:

In the context of planning law, a statement of the purpose for which land is being used is a description or characterisation of what is being done with, or upon, the land, not an account of the motives of the persons involved in that activity.

The Applicant also relied on Abret at [62] and [67] per Beazley JA who stated at [67] "even if the development is intended to be of dwellings for seniors, the purpose of the use is for dwellings as defined..." There is objective evidence identifying that the Salvation Army's purpose in using the site is to provide professional health care services to addicted persons: the SEE, the webpage annexed to Mr Dwyer's affidavit and Mr Byrne's evidence, see par 12 - 14, 18 - 19, 22 - 30. It is not appropriate to dismiss the stated purpose of the use in the DA, which must rely on being a permissible development under the LEP, as the Salvation Army's motive and subjective intention. The findings in Abret relied on by the Applicant to support such a statement do not suggest otherwise. As stated in Woollahra Municipal Council and CB Investments the purpose of the characterisation of the use is relevant. The stated intention of the Salvation Army to run a hospital is not conclusive of the characterisation of the use as a hospital but the intention to conduct activities directed to a certain outcome, here the treatment of people with addictions, is relevant to consider in relation to the purpose of the characterisation of the use under the LEP.

Whether site to be used as housing for people with a disability

107. The Applicant's primary submission is that the proposed use of the site is for "housing for people with a disability", a prohibited use. To satisfy the LEP definition, the proposed use must be characterised as residential accommodation intended to be used permanently as housing for the accommodation of disabled persons. The Applicant argued that the proposed use is residential accommodation as people will be living at this site for periods of between six to ten months, and residential accommodation is use for human habitation: Berry at [49] and Sansom at [17]. Further, "permanently" applies to the use of the facility rather than to indicate "permanent residential accommodation", meaning a domicile, as used with the concept of a dwelling. This was satisfied because the place will be used permanently as housing for the accommodation of disabled persons rather than being used as a permanent domicile.
     
108. In my view, the Applicant's interpretation of the definition is incorrect and does not, as the Respondents correctly submitted, take into consideration the purpose of the proposed use in contrast to the purpose of the definition of "housing for people with a disability": O'Keefe at 535. The Respondents correctly submitted that the purpose of the definition of housing for people with a disability from a town planning perspective is the provision of housing.
     
109. The Applicant submitted that residential accommodation broadly defined as human habitation is provided by the development. The Applicant referred to Berry which concerned a refusal of a DA for an ecotourism facility where the respondent council contended that the proposed use was for a dwelling house or a dwelling house and ecotourism facility. The definition of "ecotourism facility" in the relevant LEP permitted guest accommodation and a manager's residence. In characterising the development as an ecotourism facility, Jagot J said at [49] that "the essence of a dwelling house is its intended function as a separate domicile" and held that the manager's residence, while it was a type of residential building, was not necessarily a type of dwelling house. Her Honour quoted North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 537 - 538 which dealt with whether a proposed use of units was for a "residential flat building". The Court of Appeal referred to the definition of "residential building" in a planning control as " a building, other than a dwelling-house, designed for use for human habitation" and included descriptions of buildings involving different degrees of human habitation such as a hostel and a residential flat building. At 537 - 538 Mahoney JA stated (Priestley and Handley JJA agreeing):

The definition of "residential building" requires nothing more than use for human habitation. However, it includes within its terms descriptions of buildings or usages involving different kinds of human habitation. The kind of human habitation required to satisfy each of these will vary according to the nature of each of them and will, inter alia, require different degrees of permanency...

It is, I think, not inconsistent with the thrust of the definition that there should be within it a kind or category of residential building which envisages a significant degree of permanency of habitation or occupancy. The description of a flat as a "dwelling" or a "domicile" carries with it the notion of that degree of permanency.

110. Accepting that residential accommodation can be broadly defined and adopting the Court of Appeal in Sydney Serviced Apartments as requiring a certain degree of permanency, I do not consider inpatient accommodation of up to six to ten months duration suggests sufficient permanency to satisfy the requirement of residential accommodation. Indeed, the Applicant submitted correctly that the cabins are not capable of being used as separate domiciles.
     
111. The definition of "housing for people with a disability" includes residential accommodation which is or is intended to be used permanently as housing for people with a disability. While, this definition does not use the words "dwelling" or "dwelling house" to connote that this is intended to mean domicile, the ordinary meaning of the words "residential accommodation" and "permanently" was intended to convey residential buildings which will be used with a degree of permanence by the occupants. This is supported by the fact that the housing is for older persons or disabled persons. Such an interpretation is in accordance with the purpose of the definition. As submitted by the Salvation Army (par 72), the definitions in cl 7 of the LEP distinguish between certain defined uses on the basis of the identity of the user, supporting the construction that "permanently" applies to the disabled persons who will reside permanently. Upon this interpretation, the proposed use does not meet this part of the definition.
     
112. Further as a matter of fact based on the evidence, as indicated by the documents accompanying the DA, the webpage attached to Mr Dwyer's affidavit (par 18 - 19 above) and Mr Byrne's evidence summarised at par 22 - 25 above, the site will not provide permanent housing/accommodation. The existing buildings on the site will be used to treat participants of the Bridge Program and accommodate them for the duration of their treatment lasting up to ten months: the SEE, exhibit A p 155, 166; webpage annexed to Mr Dwyer's affidavit par 19 above; Mr Byrne's evidence par 22 - 23, 25 above. The reason for providing on site accommodation is to remove addicted persons from their existing environment and place them in a safe, drug free and supportive one whilst they undergo treatment (par 23 above). The program aims to help participants establish a healthier lifestyle; focus on the problems that underlie addiction; provide a holistic treatment service that will help achieve physical, mental, emotional, social and spiritual wellbeing via medical treatment, one-to-one and group support, and pastoral support; and impart living skills to overcome the addiction and to lead a more meaningful and fulfilling life: webpage annexed to Mr Dwyer's affidavit par 18 - 19 above. See also the SEE, par 16 above. Participation in these activities is compulsory: Mr Byrne's evidence par 25 above. Participants can leave the site prior to completion of the program but will otherwise return to the broader community after completion of treatment, presumably returning to their usual places of abode or finding alternative accommodation: par 15, 16, 19 above.
     
113. Further, the Applicant argued the Bridge Program participants are "disabled persons" based on the definition in cl 9 of the SEPP and the Macquarie Dictionary definition and complies with the "general notion of people with a disability". The SEPP does not apply in the context of the LEP. The Applicant argued that nevertheless its definition should be given weight because the instruments were created under the same legislation. The Salvation Army submitted that the Court must be careful about using a definition specific to the context and purpose of that instrument per Tender Center Pty Ltd at [19] per Windeyer J. In that case, counsel referred to definitions in various statutes to ascertain the meaning of a phrase in the relevant Act. Windeyer J referred to Lennon at p 711 and ICI Australia Ltd v Federal Commissioner of Taxation [1972] HCA 75; (1972) 46 ALJR 35 at 40 - 41 per Walsh J. At [20] his Honour considered the purposes of the different statutes and concluded, "I do not think the purposes are sufficiently similar as to justify bringing to the Act a defined meaning in another Act which I consider does not correspond with the ordinary meaning".
114. It is unsatisfactory to rely upon a dictionary definition, a definition in the SEPP which does not apply and the "general notions of people with a disability" in the absence of medical/professional evidence to support a conclusion that people with addictions are disabled. Ultimately the construction of the definition is for town planning purposes: Boyts Radio and Electrical at 59 per Kirby P; Grace at [88] - [90] . As noted above, c ourts may use dictionary definitions to aid in the construction of statutes. A s cautioned by Mahoney JA in Provincial Insurance Australia Pty Ltd at 560 - 561, "[d] ictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents". If applied the very broad definition of disability as meaning impairment contended for by the Applicant could include a very wide range of people with an illness who would not ordinarily be considered disabled in common parlance.
     
115. The Applicant relied upon Mr Byrne's evidence that the participants would have a social impairment and a mental weakness as suggesting impairment. Anyone with an illness is impaired at some stage, but that does not suggest they are disabled. As submitted by the Salvation Army, from a town planning perspective, people with addictions do not require facilities necessary for disabled persons such as ramps and shops nearby.
     
116. The facts relied upon the by Applicant that less than twenty five per cent of participants receive the disability support pension and that the Salvation Army stated in its grant applications that beneficiaries of its services include people with a disability, do not support a finding that people with addictions to alcohol, drugs or gambling are disabled. (With regard to grant applications, many boxes are ticked to indicate that beneficiaries of services include certain categories of people, one of which is disabled people.)
     
117. Further, I agree with the Salvation Army's submission that the task of construction does not require me to probe the inner and outer limits of "disability" in current Australian usage. The task is not a moral, societal or etymological task but a search for the meaning of a term in the LEP created for town planning purposes. I do not consider persons with addictions are disabled persons, for the purposes of the definition of "housing for people with a disability".
     
118. The Applicant has failed to establish that the proposed use of the site will be for the permanent residential accommodation of disabled persons. It is unnecessary to consider the remainder of that definition. I now turn to the Applicant's alternative submissions.
     

Whether site to be used as a boarding house

119. To meet the definition of "boarding house", the proposed use must be a building or place where accommodation, meals and laundry facilities are provided to the residents . This is a very broad definition as the Respondents submitted. The Applicant argued that this definition is met because the site will provide accommodation in cabins and rooms, meals (other than continental breakfast for those who will reside in cabins) and central laundry facilities for the participants. It relies upon the definition in the Macquarie Dictionary as "a place, usually a home, at which board and lodging are provided" and argued this is met because the participants will be required to pay money/board, being a contribution of 80 per cent of their Centrelink benefit, or an equivalent amount for self-funded participants for the provision of the service. As noted earlier, dictionary definitions while an aid used by courts in the construction of statutes are not definitive. Using a dictionary definition to interpret "boarding house" which is already defined in the LEP and is not ambiguous in its terms leads to confusion, runs the risk of the terms being taken out of context and is unnecessary: House of Peace per Mason P at [28]. For example, the LEP definition does not require the payment of money/board, so this aspect is not relevant.
     
120. Characterisation of the purpose must not be so general as to "embrace activities, transactions or processes which differ in kind from the use which the activities etc, as a class have made of the land" : Royal Agricultural Society of New South Wales at 310. It is true that the site will provide accommodation, meals and laundry facilities. However, characterisation of the proposed use as a boarding house does not cover the Salvation Army's treatment activities which are the significant component of the proposed use. As submitted by the Salvation Army it is difficult to envisage a hospital which does not provide "accommodation, meals and laundry facilities".
     
121. Moreover, I repeat my view in par 108 above that the Applicant's approach does not consider the purpose of the definition. The purpose of "boarding house" in town planning terms is to provide housing of that kind. As identified in par 112 above, the purpose of the proposed use is not to provide housing but the treatment of Bridge Program participants so that they can recover from addictions. During the assessment and intake phase, prospective participants will be screened and medically assessed, and will undergo detoxification if necessary. Those who fail to meet the requirements will not be admitted to the program: see par 15 - 16, 19 and 24 above. Those who are admitted to the program as inpatients will be required to adhere to the program requirements including participating in daily activities such as alcohol and drug education, group sessions, one-to-one support, work activities, chapel service and 12 Step meetings; undertaking regular blood/urine testing for alcohol and drug use; having restricted travel movements; travelling to and from the site via a Salvation Army vehicle; and reporting to a staff member after returning from leave : par 15, 17, 24, 25 and 27 above. Additionally, all visits by outsiders shall be at designated visiting times: plan of management, exhibit A tab 5 p 191; par 27 above. Such obligations and travel restrictions would not be imposed upon boarding house residents. The Salvation Army's submissions to that effect at par 77 are accepted. The cases relied on by the Salvation Army (par 78) of Tankard and Warlam where the definition of boarding house in each case was found to apply to the use in question identify by contrary analogy why the proposed use is not for a boarding house.
     
122. The definition refers to accommodation for "residents". The terms "reside" and "resident" are not defined in the LEP. The Macquarie Dictionary defines "resides" as to dwell permanently or for a considerable time and "resident" as someone who resides in a place. Although the participants of the Bridge Program will live on site for the duration of their treatment, this is temporary. Upon completion of the program the participants will return to their usual places of abode as residents, as the Respondents submitted. If they require accommodation afterwards, the Salvation Army will assist them to find accommodation off site. The participants are not residents for the purposes of the definition of "boarding house".
     
123. The Applicant argued that the definition is met at least in part because the residential component of the proposed use of the site is so extensive as to constitute an independent purpose. I have already rejected this approach above at par 105. In any event, t he site will be used to provide services for the treatment of people with addictions. Mr Byrne explained that the reason for providing residential accommodation on site is because addicted persons need to be removed from their existing environment and placed in a safe and supportive environment whilst they undergo treatment and recover: see par 23 above. In my view, and as submitted by the Salvation Army at par 70 above, the provision of accommodation, meals and laundry facilities is subordinate or ancillary to the purpose of providing treatment to the Bridge Program participants: Foodbarn at 161 .
     
124. It is not necessary to look at the second part of the definition concerning a liquor licence. I am not satisfied that the proposed use meets the definition of "boarding house" in the LEP.
     

Whether site to be used for the purposes of a hospital

125. Lastly, the Applicant argued that the proposed use is for a "commercial premises" meaning a building or place used as an office or for other business or commercial purposes. I will consider whether the proposed use falls within the innominate use of "hospital" first. If I find that the definition is satisfied, I do not need to deal with the prohibited use of "commercial premises" as that definition specifically excludes "a building or place elsewhere specifically defined in this clause ..." in other words, a hospital.
     
126. To satisfy the definition of "hospital" in the LEP, the site must be a building or place used to provide professional health care services to people admitted as inpatients. The other aspects of the definition are secondary in the parties' arguments. Hosking Munro considered the definition of hospital in the Model Provisions at that time as:

...a building or place (other than an institution) used for the purpose of providing professional health care services (such as preventative or convalescent care, diagnosis, medical or surgical treatment, care for people with development disabilities, psychiatric care or counselling and services provided by health care professionals) to people admitted as in-patients (whether or not out-patients are also cared for or treated there), and includes -

(a) ancillary facilities for the accommodation for nurses or other health care workers, ancillary shops or refreshment rooms and ancillary accommodation for persons receiving health care or for their visitors; and

(b) facilities situated in the building or at the place used for educational or research purposes, whether or not they are used only by hospital staff or health care workers, and whether or not any such use is a commercial use.

127. As submitted by the Salvation Army, Hosking Munro adopted a broad approach to the meaning of hospital in light of the broad definition in that case. A similar approach is appropriate in this matter in light of the LEP definition.
     
128. The LEP does not define the phrase "professional health care services" but the inclusion of specific examples (preventative or convalescent care, diagnosis, medical or surgical treatment, care for people with developmental disabilities, psychiatric care or counselling and services provided by health care professionals) provides guidance as to its broad meaning. That these examples are prefaced by the terms "such as" suggests the list is not exhaustive, further confirming it is a broad definition. The bracketed examples can overlap. For example, psychiatric care and counselling are usually provided by people who are trained in relevant fields of health care, meaning health care professionals. The Salvation Army submitted that the activities to be undertaken on site fall within "preventative or convalescent care", "counselling" and "services to be provided by health care professionals". These terms are also not defined in the LEP. Their ordinary meanings can be applied to the activities conducted by the Salvation Army, outlined in the evidence above.
     
129. The Applicant relied on the definition of "health care" in the Macquarie Dictionary as "medical and other services provided for the maintenance of health, prevention of disease, etc" but this definition is narrower than the specific bracketed examples in the LEP definition. Once again, the broader terms in the LEP should be paramount. With regard to the Applicant's reliance on the definition of "hospital" in the Macquarie Dictionary, I repeat my opinion at par 104 above to the effect that it is irrelevant to the broader LEP definition.
     
130. There was disagreement as to whether "psychiatric care or counselling" means psychiatric care and psychiatric counselling. Giving the ordinary meaning to the words and taking into account the broad scope of the definition, I consider the drafters intended that the professional health care services a hospital can provide include ordinary counselling services. Contrary to the Applicant's submission, the word "counselling" is not required to be read as qualified by "psychiatric". This reasoning is further supported by the use of the word "or", a disjunctive. Consequently the provision of counselling is included within professional health care services.
     
131. It was incorrect for the Applicant to assert that activities during the assessment phase are not relevant to the characterisation of the proposed use of the site because they take place off site. According to the SEE and Mr Byrne's evidence, while detoxification will occur off site, participants are required to undertake on site activities during the assessment phase including engaging in alcohol and other drug-use related education, group sessions, one-to-one support, work activities, chapel service and 12 step meetings: see par 16, 24 - 25 above. This supports the finding that these are professional health care services.
     
132. The Applicant argued that the treatment for an addiction is detoxification, which does not occur on site, but did not provide evidence demonstrating that the types of services to be provided on site do not have a therapeutic outcome and would not constitute treatment of an addiction. The Applicant focussed on the faith-based nature of the program to argue that the services to be provided were not in the nature of professional health care services and/or treatment. As the Council submitted at par 65 above, the relevant question is not whether there is a religious/spiritual underpinning but whether for town planning purposes the services might be regarded as preventative or convalescent care, medical care or treatment or counselling. The evidence demonstrates that these can.
     
133. The evidence of the Salvation Army includes that of Mr Byrne who stated that the program attempts to change the way participants live through abstinence and spiritual support. He stated (at par 26 above) that the services to be provided on site have a therapeutic base and his qualifications are outlined in his evidence. He is qualified to make this assessment and I accept his evidence. Contrary to the Applicant's submission, he stated that detoxification is not part of the treatment but this does not diminish the therapeutic nature of services provided.
     
134. As the Salvation Army's evidence demonstrates, the services to be provided on site are professional health care services. Providing a "holistic treatment service" that will "help achieve physical, mental, emotional, social and spiritual wellbeing via medical treatment" falls within preventative care, convalescent care, counselling and services to be provided by health care professionals. Group sessions, one-to-one support, alcohol and drug education, chapel services and 12 Step meetings, work activities and vocational training (par 12, 15 - 16, 18 - 19, and 25 - 26 above) fall within the ordinary meaning of "convalescent care" as they assist the participants to recover from their addiction and grow stronger and are aimed at assisting them to lead healthier lives. I also accept that the support sessions and educational programs fall within the ordinary meaning of "counselling" because they are aimed at assisting participants to deal with their addiction and underlying problems, overcome it and lead normal lives after leaving the site. These services, offered in a safe abstinence-based drug-free environment where participants are urine, blood and/or and breath tested regularly (see par 15, 17 and 24 above), fall within the meaning of "preventative care" as they are aimed at preventing the participants from accessing and needing to access their addictive substances and imparting life skills to help them establish healthier lifestyles. If participants fail these tests, they may be taken off the program. The services are to be provided by professional staff such as psychiatric nurses, case workers, support workers and allied health workers. Such staff fall within the ordinary meaning of "health care professionals". Additionally, the site will be used for providing medical treatment when general practitioners, psychiatrists, and psychologists, visit the site. Clearly these are services provided by health care professionals: Mr Byrne's evidence, par 28 above; SIA report, par 17 above.
     
135. The definition refers to "in-patient" which is not defined. The Macquarie Dictionary defines inpatient as "a patient who is accommodated in a hospital for the duration of their treatment" and outpatient as "a patient receiving treatment at a hospital but not being an inmate." In considering a similar definition of hospital in the Model Provisions, Bignold J observed in Hosking Munro at [20] - [21] that "in-patient" and "people admitted as in-patients" are used according to their ordinary meaning and this interpretation was supported by the purpose of the relevant LEP and its dependence on defined categories of development for controlling town planning. His Honour observed that the definition offered assistance in understanding the ordinary meaning of the term because it contrasted inpatient with outpatient by stating that the recipients of professional health care services in a hospital must include people admitted as inpatients "whether or not out-patients are also cared for or treated there". That reasoning applies in this case. As the participants must be assessed and undergo detoxification prior to admittance to the program, and must live on site as patients undergoing treatment for the duration of the program, they fall within the ordinary meaning of "inpatients" (see par 16, 19 and 24 above).
     
136. The Salvation Army highlighted that the LEP prohibits development for a "medical centre" which can only provide professional health services to outpatients. This underscores the distinction between inpatients and outpatients.
     
137. The Applicant's submissions in par 54 above which refer to a "concept of a hospital" and identify six reasons distinguishing a hospital from the proposed use are based on the Applicant's general notion of a hospital despite its oral submissions to the contrary. Its submissions refer to undefined "contemporary concepts of health care provision" and the Macquarie Dictionary definition of "hospital". None of the six reasons were based on the LEP definition. Each were competently rejected by the Salvation Army's counsel at par 93 above. Those submissions are adopted.
     
138. The proposed use also meets (a) and (b) of the definition. Accommodation will be provided for staff and for the participants, in the Lodge and cabins and there will be an ancillary cafe/restaurant: par 11 - 12, 23, 32 above. T here will be facilities on site for educational or research purposes as the buildings and rooms will be used for providing educational programs including on alcohol and drugs, and vocational education and training (par 16, 18 - 19, 25 above). Therefore, I am satisfied that the proposed use meets the broad definition of "hospital" in the LEP and that the development consent is valid. Consequently it is not necessary for me to address whether the proposed use is for the purpose of "commercial premises". I note that had it been necessary to consider that question I would adopt the Respondents' submissions (Council at par 61 and Salvation Army at par 82 - 83 above) in concluding that the site is not to be used for commercial purposes.
     
139. The Applicant's summons should be dismissed as it has failed to establish that the proposed use is prohibited under the LEP.
     
140. These are Class 4 proceedings and the usual costs order is that costs follow the event, meaning the Applicant should pay the Respondents' costs. I note there are two respondents in this matter. Such an order will be made on 7 February 2012 unless the parties advise seven days beforehand that an alternative costs order is sought. In the meantime I will order that costs are reserved.
     

Orders

141. The Court makes the following orders:

1. The summons filed on 10 March 2011 is dismissed.

2. Costs are reserved.

3. Exhibits are to be returned.