Asset Based Securities Pty Limited v Hornsby Shire Council
[2001] NSWLEC 276
•10/31/2001
Land and Environment Court
of New South Wales
CITATION: Asset Based Securities Pty Limited v Hornsby Shire Council [2001] NSWLEC 276 PARTIES: APPLICANT:
Asset Based Securities Pty LimitedRESPONDENT:
Hornsby Shire CouncilFILE NUMBER(S): 10488 of 2001 CORAM: Talbot J KEY ISSUES: Development Application :- application of SEPP 5 - access to amenities and facilities LEGISLATION CITED: State Environment Planning Policy No 5 cl 9, cl 10, cl 11, cl 12, cl 12(1), cl 12(2), cl 12(2)(a), cl 25(f)
Hornsby Local Environmental Plan 1994CASES CITED: DATES OF HEARING: 30/10/2001, 31/10/2001 EX TEMPORE
JUDGMENT DATE :
10/31/2001LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr DJ Baird (Solicitor)
SOLICITORS:
Pricewaterhousecoopers Legal
Mr PM Jackson (Solicitor)
SOLICITORS:
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND Matter No. 10488 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 31 October 2001
Respondent
1. HIS HONOUR: The proceedings have been conducted over the last two days on the basis that the application is for development consent to the construction of housing pursuant to provisions of the State Environmental Planning Policy No 5 (“SEPP 5”). Issues have been resolved, either by an earlier decision by Senior Commissioner Jensen or by Hornsby Shire Council (“the council”) becoming satisfied that particular matters are no longer an issue.
2. The outstanding issue is whether or not the proposed development is unacceptable in terms of the access to, and availability of, the facilities such as are provided at the Beecroft railway station shopping area, namely banks, financial institutions, doctors and general shopping facilities whilst having regard to the convenience, the circumstances, the location of the site and the availability of pedestrian access or transport facilities.
3. The development, as I have already inferred, is in all relevant respects identical to the development considered by Senior Commissioner Jensen. A number of objectors have given evidence. Their concerns were primarily directed towards traffic issues. The concerns related to entry and exit from the site and associated matters. They also referred to the general issue of the location and its relationship to the facilities upon which the occupants of the development are likely to rely.
4. I do not propose to disturb the findings of the Senior Commissioner in relation to the matters raised by the resident objectors. He has dealt with them in an adequate and proper way. There is no apparent reason why they should be revisited.
6. The land on which the development is proposed is zoned under the Hornsby Shire Local Environmental Plan 1994 (“the LEP”) as Residential AS (Low Density - Sensitive Lands). Within that zone development for housing for aged or differently abled persons is permissible with development consent. The dictionary defines housing for aged or differently abled persons as meaning residential accommodation which may take any building form, and may be or include a hostel, and which is or is intended to be used as housing for the permanent occupation of –5. The pretext for this further appeal, on the basis of the re-lodgement of the same development application, is said to be based upon the amendment made to SEPP 5 in cl 12(2)(a). At the end of that subclause the word “and” has been deleted, and the word “or” inserted in lieu thereof. The Senior Commissioner appeared to make his determination on a set of criteria which did place some significance on the use of the word “and”. The applicant now seeks, in effect, to have the determination reconsidered following that amendment.
- (1) Persons over 55 years of age.
(2) Persons of any age who as a result of having a mental, physical or sensory impairment either permanently or for an extended period have substantially limited opportunities to enjoy a full and active life.
7. I mention that because the drafters of the LEP have, at face value, managed to create a circumstance where the development to be controlled by the plan is relatively well defined and understood. That, so far, has not been my experience with SEPP 5.
8. Clause 9 of SEPP 5 indicates that the objective of Pt 2 is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active, as well as those who are frailer, and other people with a disability regardless of their age.
9. Clause 10 allows development for the purpose of any form of housing for older people or people with a disability, despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with the Policy. The SEPP 5 also contains a dictionary where there is a definition of housing for older people or people with disabilities as meaning residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with a disability which may consist of a residential care facility, a hostel or a grouping of two or more self-contained dwellings, or a combination of these, but does not include a hospital. Older people are defined as people aged 55 years or over.
10. Clause 11 provides that the development allowed by Pt 2 may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.
11. The present application has been made within the ambit of SEPP 5. Both parties have proceeded to deal with the application on that basis.
12. In the circumstances, I have not taken the trouble to try and resolve the dilemma which was initially apparent when I came to address the effect of SEPP 5 for the purposes of these proceedings. It does not need to be resolved to determine the present application.
13. The intention of the parties is that they will bring in conditions which clearly define what is approved. Limitations can be imposed in such a way that at least the intent and objective of SEPP 5 is recognised.
14. As I said, the remaining issue that is outstanding between the parties is whether the proposed development is acceptable on the basis that there is access to shops, banks, community services, medical practitioners and the like.
15. There has been a lot of discussion throughout the hearing about the effect of cl 12 of SEPP 5. The Court’s view is that it sets alternative minimum criteria for access to retail and community services, recreational facilities and the practice of a general medical practitioner.
16. Clause 12(1) constrains the grant of consent, unless the minimum criteria is satisfied. However, the establishment of the minimum criteria does not thereupon discharge the consent authority from otherwise having regard to the wider issue of access to facilities and services. It does not, in my opinion, preclude the consent authority from considering all other aspects of the access on the merits.
17. Clause 25(f) establishes a set of distinct principles which must be considered. The principles identified by cl 25(f) have to be regarded as part of the process of assessment of the development generally. It would be farcical if the authority had no outstanding power to refuse consent for a development that satisfied the minimum numerical requirements of cl 12(2), yet presented other obstacles which prevented reasonable practical access for the frail and marginally disabled.
18. Satisfaction of the criteria in cl 12(2) does not of itself dispose of the issue of access to facilities and support services. It nevertheless has an important function, namely to set the threshold test for permissibility. Once the tests in cl 12(2) are satisfied then the caveat against refusal of consent is lifted but no more than that.
19. That having been said, it is not necessary, in the Court’s view, for the convenience and amenity of all persons who fall within the category of occupants recognised by SEPP 5 to be satisfied. Nevertheless, there must be a recognition of the general class of potential future occupants. In that context it is apparent that the subject site is not an ideal site.
20. The Court recognises that the pedestrian and wheelchair route to the Beecroft railway station shopping area is far from satisfactory. If that were the only criteria, the development could be found to be located at a totally unacceptable site. Persons dependent upon wheelchairs for mobility will not be fully catered for at this site. However, for reasons that I will outline, others such as older persons with limited or no disability can be catered for. Persons with limited mobility will be dependent upon what has been described as the HACC service, being a facility provided by the Hornsby Ku-ring-gai Community Aids Disabled Transport Service Incorporation, or taxis for access to the local amenities and facilities.
21. The prospect that there will be no care facilities located on the site of course, as Mr Jackson says, makes the issue of access to offsite services all the more critical. It is not suggested by Mr Baird, on behalf of the applicant, that the prospect of a reasonably able-bodied person walking the 1.4 to 1.5 kilometres to Beecroft railway station to use shopping facilities and other community type services is acceptable. Nevertheless, it is practicable.
22. The applicant’s case depends upon the Court accepting that the bus services provided by the Harris Park company are, generally in the context of the SEPP 5 development, an acceptable means of providing access to the essential facilities and amenities.
23. The evidence is that at least five bus services out of a total of sixteen provide a reasonable opportunity to travel to either North Rocks or Beecroft shopping areas. This is notwithstanding an hiatus in the timetable over approximately five hours from about 8.00am in one direction, and about 9.00am in the other.
24. The bus service solves nothing for persons who are disabled to the extent that they require the use of a wheelchair for mobility. The bus service does not provide wheelchair access.
25. Some of the evidence led suggests that the footpath provision between the site and Beecroft is inadequate, unsafe, unreliable, uneven, and generally unsuitable for people who may not have full mobility. However, the Court is satisfied that if that does prove to be a real problem it will not amount to a preclusion. One of the bus services has a stop immediately outside the premises. Furthermore, I am not entirely satisfied that the difficulties claimed in relation to access to the second bus stop are such that any person over the age of 55 is literally taking their life in their hands in order to use it.
26. As I have already said, this is not an ideal site but the test is not that the site be perfect. The test is firstly, whether the Court is precluded from granting consent as a consequence of cl 12. Once that hurdle is bridged, or overcome, then the Court needs to be satisfied that there is a reasonable opportunity for those persons who are within the contemplation of SEPP 5 to have access to not just their minimum daily requirements but their reasonable daily requirements.
27. It was appropriate for the council to raise the issue. Until I fully understood the extent of the bus service, and the ambit of it, the inclination I had was that the separation from an area such as Beecroft railway station and the shops associated with it was such that this location was unsatisfactory. Full appreciation of the bus service and the extent of it has satisfied me that, although not perfect, it is enough.
28. I know that SEPP 5 developments have been a matter of controversy for some time. It has not been the task of the Court on this occasion to confront many of the issues that arise from development applications for this type of development following the narrowing of the issues.
29. I reiterate, however, that I am not altogether satisfied that SEPP 5, in its present form, is as effective as those who drafted it may have intended. On the face of the instrument itself there are quite severe shortcomings of definition, application and control. No doubt those matters may arise as time passes by in other contexts; even in other development applications.
30. I propose to make an order in this case that the subject development application be determined by the granting of consent, subject to conditions, generally in accordance with exhibit 7, except for conditions 1, 2 and 3, which are recognised by both parties and the Court as being totally unsatisfactory. They are particularly unsatisfactory in light of the reservations that I have expressed in regard to the lack of any control imposed by SEPP 5 once development consent is granted.
31. Now it may be that the apprehension expressed by the Court is misconceived. When the matter is more fully analysed, explained and understood that apprehension may be allayed. I am encouraged, nevertheless, by the fact that the council has sought to draft conditions 1, 2, and 3 in exhibit 7 as if the Court’s apprehension is entirely justified. The controls, constraints, and directions that are contained in those conditions fill, what I perceive to be, the void in the provisions of the planning instruments.
33. It is appropriate for the exhibits to be returned. They can be resubmitted if it becomes necessary to do so at a further hearing. I return the exhibits.32. It has been agreed between the parties that further consideration must be given to the first three conditions of consent. Accordingly, the parties are granted leave to bring in an agreed set of conditions within fourteen days or either party is given leave to re-open within 14 days. Upon default the development application will be determined by refusal of consent. The intention of that self-executing order is to ensure that either the conditions are brought in within the 14 days or one or other of the parties makes an application within 14 days. If neither of those things happen the development application will be refused.
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