Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council

[2008] NSWLEC 284

Reported Decision: 168 LGERA 239

Land and Environment Court

of New South Wales

CITATION:

Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council [2008] NSWLEC 284

PARTIES:

APPLICANT
Australian Lifestyle Corporation Pty Limited

RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S):

11163 of 2007

CORAM:

Preston CJ

KEY ISSUES:

Development Application :- seniors housing development - land in special uses zone - applicability of former State Environmental Planning Policy (Seniors Living) - land surrounding by non-urban areas and separated from main service centres - impact of development on planning for and character of area - no pedestrian connectivity with urban areas

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 79C, s 80(1), s 97(1)
Land and Environment Court Act 1979 s 39(4)

CASES CITED:

DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187
Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182
Retirement by Design Pty Limited v Warringah Council (2007) 153 LGERA 372
Spic-n-Span Corporation Pty Ltd v Fredericks (1982) 50 LGERA 46
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195

DATES OF HEARING:

23, 24, 25, 26 and 27 June and 18 July 2008

 
DATE OF JUDGMENT: 

3 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso SC
SOLICITORS
Mallesons Stephen Jaques

RESPONDENT
Mr M Craig QC
SOLICITORS
B Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

3 OCTOBER 2008

11163 OF 2007

AUSTRALIAN LIFESTYLE CORPORATION PTY LIMITED V WINGECARRIBEE SHIRE COUNCIL

JUDGMENT

1 HIS HONOUR : There are three main urban centres in Wingecarribee Shire, being, from north to south, Mittagong, Bowral and Moss Vale. Although these centres are proximate to one another they have distinct identities. Their distinct character is currently maintained through separation of their respective urban areas by extensive bushland between Mittagong and Bowral and by floodplains and rural land between Bowral and Moss Vale. These areas of bushland, floodplain and rural land form “green belts” between the three urban centres.

2 One of the topographical features in the green belt between Bowral and Moss Vale is a hill in the bend of the Wingecarribee River. A considerable portion of this hill, about 10.7 hectares, is known by the name of the rural property on it, “Capernwray”. It comprises Lot 5 DP 775976 and is on Moss Vale Road, Burradoo. The original house “Wongabri”, built around 1939, still stands proud on the hill, looking north, surrounded by established trees and landscaping. In the 1970s, the rural property was converted to a bible college. Various other buildings, including staff and student accommodation, were added for the purpose of the bible college.

3 Australian Lifestyle Corporation Pty Ltd (“ALC”) proposes to carry out a seniors housing development on “Capernwray”. The proposed development would include constructing 73 free standing dwellings, alterations and additions to the original homestead “Wongabri” to provide for an Administration and Wellness Centre and medical consulting rooms, demolition of the bible college buildings and construction of roads, infrastructure and services on the site.

4 The introduction of this sizeable number of dwellings and associated buildings, infrastructure and services would result in a new medium-density urban area in a location which is part of the green belt between the urban centres of Bowral and Moss Vale.

5 Wingecarribee Shire Council refused ALC’s development application for the proposed seniors living development. ALC appealed to the Court under s 97(1) of the Environmental Planning and Assessment Act 1979 . The Court on the appeal exercises the functions of the consent authority to determine the development application.

6 Wingecarribee Shire Council opposes the proposed development on three main grounds:


(a) the proposed development is prohibited by Wingecarribee Local Environmental Plan 1989 (“WLEP”) and State Environmental Planning Policy (Seniors Living) 2004 (“SEPP (SL)”) does not apply so as to make permissible the proposed development;

(b) the proposed development introduces into a non-urban area an urban form which is inconsistent with present and future planning of the area;

(c) the proposed development is deficient as a seniors housing development because of distance from and lack of pedestrian connectivity with the existing urban centres of Bowral and Moss Vale.


Permissibility of proposed development

7 The site is zoned 5(a) Special Uses A under the applicable WLEP. In that zone, development that is permissible with or without consent is constrained. For this site, development permissible only with development consent is: the particular purpose indicated by black lettering on the map (in this case, place of public worship) or purposes ordinarily incidental or subsidiary to that purpose; drainage; roads; and utility installations (other than gas holders or generating works). Only recreation gardens are permissible without development consent. Development for any other purpose is prohibited. Accordingly, the proposed seniors housing development is prohibited in the 5(a) Special Uses A zone.

8 The site is surrounded by land zoned: to the east, 8(a) Existing National Parks and Nature Reserves (comprising the Cecil Hoskins Nature Reserve on the Wingecarribee River); to the south, 7(b) Environmental Protection (Landscape Conservation) zone; to the west, Moss Vale Road with slivers of 9(b) Local Road Proposed Reservation either side of the road, then to the west of that road, 7(b) Environmental Protection (Landscape Conservation) zone; and to the north, also 7(b) Environmental Protection (Landscape Conservation) zone.

9 To overcome this prohibition in WLEP, ALC relies on SEPP (SL) in the form that was in force at the time it made its development application. ALC submits that SEPP (SL) applies to the site and allows the proposed seniors housing development to be carried out with development consent.

10 After ALC’s development application was made, SEPP (SL) was amended and renamed State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“SEPP (HS)”) with the consequence that the Policy would no longer apply to this site. Nevertheless, SEPP (HS) has a savings provision. By cl 53, a development application, made pursuant to Chapter 3 and lodged with a consent authority (but not finally determined) before commencement of the amendment to the Policy, is to be determined as if that amendment has not been made. As the present development application was made on 22 December 2006, before the commencement of the amendment to the Policy on 12 October 2007, cl 53 has the consequence that the provisions of the Policy, in the form that it took immediately prior to 12 October 2007, are relevant to be considered in order to determine whether the Policy has applicability to ALC’s development application.

11 Clause 4(1) of SEPP (SL) in force at the time ALC’s development application was lodged provided:
“(1) This Policy applies to land within New South Wales:
(a) that is zoned primarily for urban purposes or that adjoins land zoned primarily for urban purposes, and
(b) on which development for the purpose of any of the following is permitted:
(i) dwelling-houses,
(ii) residential flat buildings,

(iii) hospitals,

(iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries.”

12 In relation to para (1)(a), the site could not be said to adjoin land zoned primarily for urban purposes. The adjoining lands, zoned 8(a), 7(b) and 9(b), do not answer the description of being land zoned primarily for urban purposes. Rather, ALC relies on the site being zoned 5(a) Special Uses A which, ALC submits, is a zone primarily for urban purposes. This is contested by the Council.

13 In relation to para (1)(b), ALC submits that development of the kind identified in sub-para (iv), namely development for the purpose of public worship, is permitted with consent on the site. WLEP, cl 6, adopts the definition of “place of public worship” in the Environmental Planning and Assessment Model Provisions 1980 namely:
“place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training”.

14 That definition is wide enough to include churches, convents, religious educational establishments and seminaries. Hence, development of a kind specified in sub-para (iv) would be permitted on the site and paragraph (1)(b) would be satisfied. This was common ground between the parties.

15 Accordingly, the contest between the parties is whether the site can be described as being “land zoned primarily for urban purposes” so as to satisfy para (a) in cl 4(1) of SEPP (SL) as then in force.

16 The parties agreed that, in the phrase “zoned primarily for urban purposes”:


(a) the land is “zoned” by WLEP as zone 5(a) Special Uses A;

(b) “primarily” means “chiefly” or “principally”; and

(c) “urban” means “pertaining to, or constituting a city or town”: Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 447 [12] and Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182 at [23].


17 The parties disagreed, however, as to whether the 5(a) Special Uses A zone effected a zoning of the site primarily for urban purposes.

18 ALC submitted that:


(a) the special use of place of public worship is an urban purpose;

(b) the site is “zoned” for the special use of place of public worship; and

(c) the zoning is “primarily” for the special use of place of public worship because:

(i) the label of the zone is Special Uses A;
(ii) the objective of the special uses zone is “to make provision for the purposes of a variety of special uses identified on the map…[in this case, place of public worship] and to make provision for any purposes ordinarily incidental or subsidiary to those uses”;
(iii) the special use of place of public worship the subject of the special use zone is specifically identified; it ranks ahead of the other uses, whether by reference to the label for the zone, its objectives, or the fact that it is the first use identified;
(iv) supplementing the special use of place of public worship are “purposes ordinarily incidental or subsidiary to that purpose”, which compound the importance of the identified special use;
(v) the limited range of other uses permissible within the special uses zone with consent, namely drainage, roads and utility installations, are either urban in character, being normal features of urban development, or alternatively are neutral in that they are not unequivocally non-urban in character; and
(vi) the single use that is permissible without consent, namely, recreation gardens, which is a private garden associated with a dwelling house open for inspection by the public for a maximum of 21 days each year, also does not speak against the special uses zoning being for urban purposes.
19 The Council submitted, to the contrary, that:


(a) the permitted purpose of recreation garden is not necessarily associated with development in a town or city; it is consistent with a garden associated with a dwelling house on a rural property;

(b) neither of the permissible purposes of “drainage” or “roads” are activities that are principally or chiefly pertaining to a town or city; they are equally forms of land use that resonate with development in non-urban areas;

(c) the permissible purpose of utility installations is not intrinsically or usually associated with a city or town development; utility installations can equally be in non-urban areas;

(d) the permissible special use of place of public worship is not intrinsically associated with urban development; places of public worship are not infrequently found in relatively isolated locations within country areas; and

(e) when one considers, in their totality, the permitted and permissible purposes within the special uses zone, as it applies to the site, the above analysis suggests that the principal or chief purpose of the zone does not pertain to city or town uses or development.


20 The classification of land as meeting the criterion of being “zoned primarily for urban purposes” in cl 4(1)(a) of SEPP (SL) must depend on the construction of the particular environmental planning instrument that zones the land in question. The classification by the Court in another case, involving a different instrument and different zonings and uses, cannot be dispositive of the question in the subject case.

21 In this case, I consider that the better view is that the site should be considered to be “land zoned primarily for urban purposes” for the purposes of SEPP (SL) as in force at the time of the development application. My reasons are essentially those put forward by ALC and summarised above.

22 A flaw in the Council’s argument is that it employs, and seeks to make dispositive, the test of whether each use permitted or permissible with consent in the zone in question is intrinsically or usually associated with city or town development and conversely not with non-urban development. If a use can be undertaken in a non-urban area, whether or not it can be undertaken in a city or town, then it cannot be said to be principally or chiefly pertaining to a city or town. The problem with such a test is that there would be very few uses which could ever meet this test. Even quintessential urban uses such as dwelling houses and shops, can be located in non-urban areas. Hence, it would be difficult to ever pass the Council’s test.

23 The approach of ALC is a preferable one to determine whether the site is zoned primarily for urban purposes.

24 The subject site is subject to a site specific zoning. As noted, the land has been used for a bible college, being development of a kind falling within the rubric of a place of public worship, since the 1970s. It was especially zoned for this special use under WLEP.

25 The particular development of place of public worship identifies, defines and confines the character of the particular category of special use zone. It identifies the character by being indicated on the map as the special use for the zone; it defines the character through the definition in the Environmental Planning and Assessment Model Provisions 1980, incorporated in WLEP, of the particular development of “place of public worship” and by being a nominate permissible purpose of development; and it confines the character by excluding other special uses, these being prohibited in the zone by not being nominated as permissible. In short, it is what makes the zone this particular special use zone.

26 The objective for the 5(a) Special Uses A zone provide guidance in illustrating the primacy of the special use of place of public worship and the purposes ordinarily incidental or subsidiary to that use: see Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 448 [15].

27 Zone 5(a) Special Uses A expressly permits development for the purpose of place of public worship. This special use for the purpose of place of public worship gives that zone its unique character. Development for the purpose of place of public worship ranks as the chief or principal purpose. Use for the purpose of place of public worship is a use of an urban nature.

28 Collectively, these factors relating to the special use of place of public worship cause land within the 5(a) Special Uses A zone properly to be characterised as being zoned primarily for urban purposes.

29 The other types of development permissible or permitted in the 5(a) Special Uses A zone do not detract from this conclusion. Drainage, roads and utility installations can be of an urban nature. At least, they can not be said to be necessarily or obviously of a non-urban nature. There are no other uses permissible or permitted in the 5(a) Special Uses A zone that are necessarily or obviously for non-urban purposes. The inclusion of non-urban purposes in the zone, such as agriculture or other rural pursuits, can be an indication that land is not zoned primarily for urban purposes: see Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 448[18] – 449[20], Retirement by Design Pty Limited v Warringah Council (2007) 153 LGERA 372 at 388-389 [97] and Spic-n-Span Corporation Pty Ltd v Fredericks (1982) 50 LGERA 46 at 50.

30 Accordingly, reference to the name of the zone, its objectives, and each of the nominate permissible or permitted purposes of the 5(a) Special Uses A zone reveals that land in the zone can properly be characterised as being “zoned primarily for urban purposes” for the purposes of cl 4(1)(a) of SEPP (SL).

31 This conclusion, however, is limited to the SEPP (SL) that was in force at the time of the making of this development application and which continues to apply to this development application by virtue of the savings provision in the current SEPP (HS). A different conclusion would be required for any future development application which would be governed by the provisions of the currently in force SEPP (HS). Clause 4 of SEPP (HS) provides:
“(1) This policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if:
(a) development for the purpose of any of the following is permitted on the land:
(i) dwelling-houses,
(ii) residential flat buildings,

(iii) hospitals,

(iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries, or
(b) the land is being used for the purposes of an existing registered club.
…

(5) For the purposes of this Policy (and for the avoidance of doubt), a consent authority must not treat:
(a) land on which development for the purposes of special uses is permitted, or
(b) land that is being used for the purposes of an existing registered club,
as being land zoned primarily for urban purposes unless it is satisfied that most of the land that it adjoins is land zoned for urban purposes”.

32 Having regard to the earlier identification of the zoning of the land that immediately adjoins the site on all sides, namely the 8(a), 7(b) and 9(b) zones which are not primarily for urban purposes, it is apparent that by operation of cl 4(5), the chapeau of cl 4(1) would not be satisfied (the land would not be zoned primarily for urban purposes) and SEPP (HS) would not apply to the site.

Location of site in non-urban area

33 The above conclusion that SEPP (SL) in force at the time of making the development application, applies to the site has the consequence that the seniors living development proposed in ALC’s development application becomes permissible with development consent despite the provisions of WLEP which prohibit such development: cl 17(8) and cl 18 of SEPP (SL) and see DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 at 195 [51]. In this sense, SEPP (SL) is facultative – it enables the making of a development application for SEPP (SL) development on the site (because the seniors living development is permissible rather than prohibited) and the exercise by the consent authority of the discretionary power under s 80(1) of the Environmental Planning and Assessment Act 1979 to determine that development application.

34 However, a distinction needs to be drawn between the existence of the power and the manner of exercise of the power. The fact that SEPP (SL) enlivens the power of a consent authority to determine a development application for a seniors housing development on land to which SEPP (SL) applies does not necessitate that such a power be exercised in only one manner, namely to grant consent to the seniors housing development. The consent authority has a discretion, to be exercised in accordance with law and having regard to the merits of the particular development in the development application.

35 In exercising the discretionary power under s 80(1) to determine the development application, the consent authority must consider the matters of relevance to the development application in s 79C(1) of the Environmental Planning and Assessment Act 1979 .

36 First, a consent authority must consider the provisions of any environmental planning instrument of relevance (s 79C(1)(a)(i)). This includes, for this development application, SEPP (SL). SEPP (SL) contains provisions precluding a consent authority from granting consent unless it is satisfied that the proposed development will comply with certain site-related requirements, including, of relevance to this case, the requirements in cl 25 concerning location and access to facilities; and certain design requirements, including, of relevance to this case, the requirement in cl 30 that the proposed development demonstrate that adequate regard has been given to the design principles in Div 2 of Pt 3 of SEPP (SL) such as those in cl 31 concerning neighbourhood amenity and streetscape and in cl 36 concerning accessibility.

37 Part 7 of SEPP (SL) specifies development standards that cannot be used as grounds to refuse consent. However, cl 78 states that nothing in Pt 7 permits the granting of consent to a development application for seniors housing made pursuant to Chapter 3 of SEPP (SL) if the consent authority is satisfied that the proposed development does not demonstrate that adequate regard has been given to the design principles set out in Div 2 of Pt 3.

38 Another environmental planning instrument to be considered under s 79C(1)(a)(i) is WLEP. However, in any such consideration of WLEP, the paramountcy provision in cl 5 of SEPP (SL) needs to be borne in mind. Clause 5(3) provides that if SEPP (SL) is inconsistent with any other environmental planning instrument made before or after SEPP (SL), SEPP (SL) prevails to the extent of the inconsistency. As cl 5(3) makes plain, the paramountcy is only invoked where there is inconsistency between the instruments and then only to the extent of the inconsistency.

39 Another matter of relevance under s 79C(1) is any draft environmental planning instrument (s 79C(1)(a)(ii)). In this case, there are two draft environmental planning instruments of potential relevance. The first would be SEPP (HS). Clause 53 of SEPP (HS) provides that a development application that was lodged with a consent authority (but not finally determined) before the commencement of the amendment that resulted in SEPP (HS) is to be determined as if that amendment had not been made. However, this does not make the amendment irrelevant; it may still be considered, either under s 79C(1)(a)(ii), if published as a draft SEPP or, in any event, under s 79C(1)(c) under the public interest: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 209 [76], [80].

40 The second draft environmental planning instrument is draft Wingecarribee Local Environmental Plan 2007 (“draft WLEP 2007”) which zones the site and surrounding lands E3 Environmental Management and also includes the site and surrounding lands in a heritage conservation area called the Burradoo Landscape Conservation Area. Again, draft WLEP 2007 can be considered, subject to any inconsistency with SEPP (SL).

41 There are also the relevant, general matters in s 79C(1)(b), “the likely impacts of [the] development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”; s 79C(1)(c), “the suitability of the site for the development”; and s 79C(1)(e), “the public interest”.

42 In addition, on an appeal under s 97 of the Environmental Planning and Assessment Act 1979 to the Land and Environment Court, the Court is obliged under s 39(4) of the Land and Environment Court Act 1979 to have regard to the Land and Environment Court Act 1979 and any other relevant Act (obviously including the Environmental Planning and Assessment Act 1979 ) and any instrument made under such Act (including SEPP (SL) and WLEP), the circumstances of the case and the public interest.

43 Hence, although SEPP (SL) gave power to the Council at first instance, and gives power to this Court on appeal when exercising the powers and functions of a consent authority, to determine ALC’s development application for seniors housing development on the site, it does not mandate that development consent be granted. The Council and the Court respectively have a discretion to be exercised, in accordance with law, having regard to the merits of the particular seniors housing development proposed in ALC’s development application.

44 The Council, at first instance, exercised the discretionary power to refuse consent and then submitted on the appeal that the Court too should exercise the discretionary power to refuse consent to the proposed development as it would be inconsistent with the planning for and character of the locality. This planning for and character of the locality are manifest in the local and State planning instruments and strategies.

45 Under WLEP, the site and surrounding lands are zoned in such a way as to preclude the establishment of an urban area. The site’s zoning as 5(a) Special Uses A precludes residential, retail and commercial development characteristic of an urban area. The Cecil Hoskins Nature Reserve to the west, zoned 8(a), prohibits development other than for purposes authorised under the National Parks and Wildlife Act 1974 and utility installations, again precluding residential, retail and commercial development characteristic of an urban area. The 9(b) Proposed Local Road zone prohibits development other than drainage, open space, roads, widening of roads and utility installations, thereby also precluding development of an urban area.

46 The remaining surrounding lands are zoned 7(b) Environmental Protection (Landscape Conservation). That zone permits a variety of developments, primarily of a non-urban nature but some development of an urban nature, such as dwelling houses, is permissible. However, consent can only be granted to development if the carrying out of the development would be consistent with the zone objectives (cl 9(3) of WLEP). The objectives of the 7(b) zone emphasise that the zone identifies and protects the rural scenic landscape of the area and only permits development which is compatible with that landscape. Planning controls also regulate the density of development in the zone. On land in the 7(b) zone adjoining the site, the minimum allotment size for subdivision and for the erection of a dwelling house is 4ha (see cl 51B of WLEP). Consequently, the objectives, permissible uses and controls on development in the 7(b) zone operate to preclude the development of an urban area in the 7(b) zone.

47 The draft WLEP 2007, through its zonings of the site and surrounding lands and the objectives, permissible uses and controls on development in these zones, continues to preclude the development of an urban area on the site and surrounding lands.

48 The site and surrounding lands are part of a “heritage conservation area” under WLEP (known as the “Bowral Landscape Preservation Area”). The site and the surrounding lands are also part of a “heritage conservation area” under the draft WLEP 2007 (known as the “Burradoo Landscape Conservation Area”). Both the WLEP and draft WLEP recognise the lands in these conservation areas as “having special landscape value as a visual buffer between the Bowral/Burradoo and Moss Vale urban areas. The area is significant in helping to define separation of the two urban areas” (Burradoo Precinct Plan, Exhibit 4, p 2). In the plan attached to the Burradoo Precinct Plan, the site and surrounding lands were hatched with the words “maintain rural separation buffer between Burradoo and Moss Vale” written over the hatching.

49 In the Sydney-Canberra Regional Strategy 2006-2031, published by the New South Wales Department of Planning (draft in September 2007 and final in July 2008), the site and surrounding lands are also identified as forming a needed buffer between the urban centres of Bowral and Moss Vale. The Regional Strategy notes that the three adjoining centres of Mittagong, Bowral and Moss Vale have “distinct identities”, although they play a complementary role. The Regional Strategy states:
“All three centres play a complementary role, although their distinctive character needs to be reinforced through the separation of their respective urban areas by extensive bushland, floodplain and rural land. It is critical to maintain this distinction and not allow these towns to be joined by development” (Exhibit 38, p 32).
50 Amongst the actions advocated by the Regional Strategy for settlement and housing are that:
“• Local environmental plans and other statutory planning controls will align with the Regional Strategy’s settlement hierarchy (as shown on the Strategy Map) to contain the spread of urban development, efficiently utilise existing services and infrastructure, and protect areas of high conservation value…
• The local environmental plan for Wingecarribee will identify and appropriately zone land that provides a clear separation between the urban areas of Mittagong and Bowral and Bowral and Moss Vale” (Exhibit 38, p 39).
51 In relation to the natural environment, the Regional Strategy identifies as an action that:
“Local environmental plans will identify and zone land of landscape value (including scenic and cultural landscapes) to protect those values” (Exhibit 38, p 44).
52 In relation to implementation, the Regional Strategy states that it:
“will provide the framework and context to guide the preparation of all new local environmental plans. All six local councils in the Sydney-Canberra Corridor Region [including Wingecarribee Shire Council] will be required to prepare a new local environmental plan within the next three years. These plans will guide future development and must be consistent with the outcomes and actions in the Sydney-Canberra Corridor Regional Strategy” (Exhibit 38, p 51).

53 The new local environmental plan being prepared by the Council, draft WLEP 2007 (amended in 2008), is consistent with these principles, outcomes and actions in the Regional Strategy. The site and surrounding lands are zoned E3 Environmental Management and are also within the Burradoo Landscape Conservation Area. The objectives, permissible uses and controls applicable to the zone maintain the distinction and separation of the urban areas of Bowral/Burradoo and Moss Vale. They identify and zone land of landscape value in the buffer to protect those values. The resolution by the Council on 30 April 2008 to seek an urgent certificate under s 65 of the Environmental Planning and Assessment Act 1979 to enable re-exhibition as soon as possible of the draft LEP concerned matters other than, but did not detract from, the fundamental planning principles that the zoning and its objectives, permissible uses and controls implement.

54 The current SEPP (HS) is compatible with the planning principles, outcomes and actions in the Regional Strategy, WLEP and draft WLEP 2007, by not making SEPP (HS) applicable to land and hence not allowing seniors housing development on land where most of the land it adjoins is not zoned for urban purposes: see cl 4(5) of SEPP (HS). This requirement cannot be satisfied where the land, as is the case with this site, is in the middle of a landscape and visual buffer between distinct and separate urban centres.

55 The local and State planning for the site and surrounding lands is consistent and persistent in identifying and protecting the landscape conservation area as a buffer between the urban centres of Bowral/Burradoo and Moss Vale and in precluding the development of an urban area within the landscape conservation area.

56 Turning to SEPP (SL) as in force at the time of making the development application, the consent authority is precluded by cl 30 from granting consent to a development application for seniors housing development unless it is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Div 2 of Pt 3, including cl 31. Of relevance are the principles that the proposed development should:
“(a) recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area; and
(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan”.

57 Both ALC and the Council called experts to describe the location’s current character and the values of the heritage conservation area, and to opine as to the impact ALC’s proposed seniors housing development might have on that character and those values. Emeritus Professor Webber, Mr Betteridge and Mr Chambers gave evidence for ALC and Mr Malloy gave evidence for the Council.

58 There was a considerable degree of accordance between the experts that the current character of the locality is dominated by landscape elements rather than the built environment.

59 Professor Webber said that the character of the locality is of gently rolling landscape with, on the flat, the Wingecarribee River winding around. There is a dominance of landscape elements rather than the built environment. Buildings are very subservient to the beautiful landscape of the area. To the north and south are the boundaries of the towns [Bowral/Burradoo and Moss Vale respectively] which clearly define the extent of the urban area. Professor Webber stressed that the current character is to do with the landscape theme.

60 Mr Betteridge described the current character as being a very well treed landscape near Burradoo, opening out towards the Wingecarribee River. The knoll, on which “Capenwray” sits, is prominent in the landscape conservation area. The landscape, rather than buildings, is dominant but there are instances where some buildings are prominent, such as the Briars and Christ Church. There is a mix of landscape and plantings, particularly exotic plantings, as well as heritage items such as the Briars and Christ Church.

61 Mr Chambers described the current character as having a high quality landscape that dominates, with some buildings but within a landscape setting. There are substantial lines of trees that punctuate the landscape. Trees screen existing dwelling houses. Some buildings, for example the Briars, are more prominent. The topography is of an open floodplain giving way to more elevated areas that are more densely treed. There are trees along the road.

62 Mr Malloy described the locality as having a small farm, rural character, maintained by the 4ha minimum lot size; an open spatial character; and a non-urban character. The heritage items of the Briars and Christ Church provide an historic village context [the former historic village of Bong Bong]. The dwellings in the locality are low-scale, not grandiose. There is scattered landscaping. The road through the buffer area is rural in nature, being two lanes, as opposed to the four land road in the urban area of Burradoo past Chevalier College. The Cecil Hoskins Nature Reserve on the Wingecarribee River contributes to the character of the locality. Driveways of properties joining Moss Vale Road are discrete rural crossings.

63 These descriptions of the current character of the locality are consistent with both the existing planning (as reflected in WLEP) and desired future planning (as stated in the Regional Strategy and draft WLEP 2007). The current character is a reflection of the absence of an urban area within the locality and, conversely, the existence of a landscaped buffer between the established urban areas of Bowral/Burradoo and Moss Vale.

64 The parties’ respective experts disagreed, however, as to the impact that the proposed seniors housing development would have on the current character of the locality and heritage conservation area. ALC’s experts, Professor Webber, Mr Betteridge and Mr Chambers, whilst acknowledging that the proposed seniors housing development, with its 73 dwellings and associated facilities, would be a form of medium density development, nevertheless were of the opinion that the proposed development, by reason of the height, scale, design, finishes and other features of the buildings, the siting of the buildings around the knoll, the setbacks of buildings from roads and boundaries, and the abundant use of landscaping to screen the buildings, will be hardly visible, although there will be glimpses of buildings from a limited number of viewing points.

65 Professor Webber was of the opinion that the new buildings would fit into the landscape discreetly and would not dominate the landscape. The landscaping proposed for the site retained many existing trees and strongly reinforced the degraded landscape of the site. Professor Webber believed that the new buildings would be hardly perceptible, even though some dwellings would be able to be seen. There are a limited number of viewing points where there will be glimpses of the new buildings between landscape. Professor Webber recognised that it is important for the amenity of the development to ensure that glimpses out of the site are retained. This, of course, would mean glimpses into the site of buildings could occur.

66 Professor Webber did not consider that the upgrade of the intersection at the entrance to the site, although making the entrance more prominent, would result in the development being read as an urban development. Lighting at the entry is necessary to satisfy RTA requirements. Bollard lighting of internal roads and paths is desirable, however, there would be minimal impact on the site. There would be some lighting from the dwellings but it would be minimal and not visible.

67 Mr Betteridge considered that the proposed development would be low scale with sympathetic architecture with recessive finishes. There is a significant setback from Moss Vale Road. The development would be screened by the retained and proposed landscaping, with a balance between views into and out of the site. Mr Betteridge considered that the road works at the entrance intersection would not read as urban development. The road works are necessary to make a safer entrance for the seniors housing development.

68 In terms of lighting, there is presently considerable lighting north and south of the site and at the Briars, and low key lighting up the existing driveway. Mr Betteridge considered that the aesthetic of a “black belt” [the dark environment at night between the urban areas] is not as important as the “green belt” [the landscape buffer between the urban areas].

69 Mr Chambers considered the buildings would fit in the landscape. Each dwelling is single storey, follows the contours, and is well set back from Moss Vale Road and from each of the boundaries. The buildings are placed within a landscape setting and would not predominate. Mr Chambers considered the buildings contribute to, not diminish, the quality and character of the landscape.

70 Mr Chambers noted that there is existing lighting at the Briars, opposite the site, and on the site there is bollard lighting along the existing driveway and lighting for buildings of the bible college. The lighting for the proposed new entrance and the estate lighting for the development would be a little different. The lighting in the dwellings will not be as discernable as if they were in proximity to Moss Vale Road, due to their setback and the screening by landscaping.

71 Mr Chambers considered that proximity to a roadway is a general dictator of how an area is perceived and because the proposed seniors housing development would be set back from Moss Vale Road, it would not be perceived as an urban area.

72 The Council’s expert, Mr Malloy, disagreed with ALC’s experts’ assessment of extent of visibility of the proposed development and its impacts. Mr Malloy considered that there would be filtered views of dwellings from more viewing locations and in particular from Moss Vale Road proximate to the site. He also considered that there would be other visible indicators of the urban form created by the development.

73 The roadworks necessary to upgrade the intersection to the RTA’s requirements would result in four lanes in front of the site for approximately 250 metres instead of the two-lane, rural road that currently exists. This increased width of road would be combined with the intersection lighting and other upgrade works, including a 15 metre wide excavation area. Together, these works combine to make a person realise that there is something different, something urban, in a non-urban area.

74 Mr Malloy considered that the lighting that would come from 73 separate dwellings, the other buildings on the site, the internal street lighting and pedestrian path lighting, would impact on the current, dark environment that is characteristic of the locality. Such lighting would create a twinkling, Christmas tree lights effect on a prominent hill.

75 Mr Malloy also considered the signage for the proposed development at the entranceway would be more consistent with an urban area than a small farm.

76 Mr Malloy considered that the landscaping will itself result in a change in the character of the site. He considered that the balance between open space, built form and vegetation, which is achieved currently in the rural break/green belt between the established urban areas, is not achieved with the proposed seniors housing development, due to the applicant’s attempt to hide the visual impact of a medium density residential development in a rural locality.

77 Mr Malloy considered that the visual impact of the new dwellings will be greater than is currently stated. Future marketing of the development will promote views from the site to the attractive landscape of surrounding areas and, therefore, in turn, dwellings will also be visible from surrounding properties and Moss Vale Road.

78 More fundamentally, Mr Malloy considered that the proposed landscaping is merely a “mask” disguising an inappropriate scale of development, an urban form in a rural setting. The increase from 16 buildings (for the bible college) to 73 is substantial.

79 I generally accept the evidence of Mr Malloy, in preference to ALC’s experts, in relation to the impact of the proposed seniors housing development on the character of the locality and the heritage conservation area.

80 In this case, the fundamental aspects of the site’s current character, as well as its future character, as described in the Regional Strategy, WLEP and draft WLEP 2007, is that it is not part of an urban area but rather is part of a landscape and visual buffer between the urban areas of Bowral/Burradoo and Moss Vale. It is also part of a landscape conservation zone where the landscape predominates over urban form.

81 The insertion into the site of a medium-density development, comprising 73 dwellings, the extended building of “Wongabri”, associated roads and paths, infrastructure and services, together with the consequential upgrade of Moss Vale Road at the site’s entrance to cater for the traffic generated by the development, will affect the character of the site. The site will become urban in character and, in so doing, will also affect the heritage conservation area. Such an urban character would be inconsistent with the planning principles, actions and outcomes in the Regional Strategy, WLEP and draft WLEP 2007.

82 Although ALC has endeavoured to design the buildings, to locate them and to place landscaping around them, to minimise their obviousness and intrusiveness in the landscape, the fact remains that an urban area will be inserted in a location where State and local planning has consistently and persistently determined that an urban area should not be located.

83 The buildings will not be invisible; they will be able to be viewed, to different extents, from different vantage points around the locality. The views of buildings on the site from different vantage points, even though the actual buildings viewed will differ from different vantage points, will combine in the viewer’s perception to describe the development being viewed as an urban development.

84 From some vantage points, such as along Moss Vale Road proximate to the site, the number of dwellings, their proximity to one another, and the associated roads, paths and facilities, will read more obviously as an urban form. The landscaping proposed will not wholly screen the built form. Indeed, by its ornamental garden nature, its locational relationship to dwellings to be screened and the density of plantings, the landscaping may corroborate a conclusion of urban form. The greater setback from the road does not negate a conclusion that the development is urban in character - it simply means the urban area is set back more than might be typical.

85 The proposed seniors housing development is also not just a static collection of buildings; it is an area in which residents of the seniors housing development will live, staff will work, and doctors, health care providers and other service providers, tradesmen and visitors will come and go. It will generate activity and movement.

86 One manifestation of this activity and movement will be traffic generated by the development. As a consequence of the increased traffic to be generated by the development, the RTA requires the intersection of the site’s entrance with Moss Vale Road to be significantly upgraded. The four lanes required, the excavation of the bank, the lighting of the intersection and the intersection’s design, all will signify that the development the intersection serves is of a size and intensity different from the small farms and rural residential dwellings in the locality. The traffic actually using the intersection, including the vehicles of residents and their visitors, the public bus, the development’s courtesy bus, the community bus, vehicles of staff, visiting medical, health care professionals and other service providers, delivery vehicles and tradesmen’s vehicles, will provide on-going indicators of the urban development on the site.

87 The lighting of the intersection, the internal driveways and paths, and the dwellings will be visible to varying degrees from different vantage points. Mr Malloy’s description of twinkling Christmas tree lights - of lights alternating between visible and non-visible, as the viewer’s position moves, lights are turned on and off and as vegetation moves - is evocative of the likely effect of the lights of the development. The point is not that no lighting currently exist on the site or in surrounding lands, clearly there is lighting, but that the development will increase the lighting on the site and, by its density and proximity of lights to one another, it will have a different character, more consonant with an urban area. It is another indicator of the site containing an urban area.

88 The development will have signage. It might be discreet and tasteful signage, but it will still announce the development and will be located at the upgraded intersection. The viewer would understand that the development announced by the signs and accessed by the significant intersection is of a size and intensity different to the small farms or rural residential properties, with their discreet signs and rural crossings, elsewhere in the locality. The Briars, of course, is an exception, but that is not characteristic of the locality.

89 There can be no doubt that once built, the wider community will know that an urban area, created by the seniors housing development, is located on the site within the buffer between the two urban centres of Bowral/Burradoo and Moss Vale.

90 In these circumstances, I am not satisfied that the proposed development, having regard to its size, location and other features, demonstrates adequate regard to the design principles in cl 31(a) and (b) of SEPP (SL).

91 I also consider that the proposed development is unacceptable having regard to other matters in s 79C(1) of the Environmental Planning and Assessment Act 1979 including: the impact of inserting an urban area created by the seniors housing development into the landscape and visual buffer and the heritage conservation area; the suitability of the site for such development; and the public interest in that it is counter to the Regional Strategy, WLEP and draft WLEP 2007 which aim to retain the separation between the urban areas of Bowral/Burradoo and Moss Vale and preserve the landscape character of the buffer in between.

Isolation of development from urban areas

92 The consequence of the applicant locating the seniors housing development in the middle of the landscape and visual buffer separating the two urban centres of Bowral/Burradoo and Moss Vale is that the development is physically isolated from those urban centres. One of the critical considerations for seniors housing development is having reasonable access to and availability of the usual facilities and services of urban areas. This explains why SEPP (SL) applies to land that is zoned primarily for urban purposes or adjoins land that is zoned primarily for urban purposes. Such land is more likely to have facilities and services that residents may reasonably require: see Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 447-448 [13].

93 SEPP (SL) itself contains two indicators of the necessity for adequate access to facilities and services.

94 First, cl 25 provides that a consent authority must not consent to a development application for a Seniors Living development unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access to retail and commercial services, community centres and recreation facilities and medical facilities. Access is deemed to comply with this requirement if it satisfies the requirements in sub-clause (2).

95 Secondly, cl 30 provides that a consent authority must not consent to a development application for a Seniors Living development unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in, amongst other matters, cl 36. Clause 36 provides:
“The proposed development should:
(a) have obvious and safe pedestrian links from the site that provide access to public transport services and local facilities, and
(b) provide attractive, yet safe, environments for pedestrians and motorists with convenient access and parking for residents and visitors.”

96 The Council does not dispute that the proposed development will technically comply with cl 25 in that there will be a public bus service, together with a courtesy bus operated by the proposed development and a community bus. These bus services will transport the residents who will occupy the proposed development to the urban centres of Bowral/Burradoo and Moss Vale to gain access to the various services and facilities they might require.

97 The Council also does not contest that the proposed development will technically comply with cl 36. There will be, within the site, pedestrian links that might be satisfactory to provide access to the public and private transport services.

98 However, the fact remains that the site is an urban island surrounded by a sea of non-urban land. There is no pedestrian access from the site to either of the urban centres of Bowral/Burradoo or Moss Vale. The nearest of these urban centres is almost 1 kilometre away. There is no footpath from the site to either urban centre nor is there a safe walking area beside Moss Vale Road to either urban centre.

99 The only facility within walking distance is the Briars opposite the site on Moss Vale Road. Even that facility is not easily accessed because of the necessity to cross Moss Vale Road, a busy road connecting the urban centres of Bowral/Burradoo and Moss Vale. Whilst a pedestrian refuge could be provided as part of the upgrade of the intersection, in the middle of Moss Vale Road, this is still not a satisfactory solution, bearing in mind the residents of the seniors housing development and their walking ability.

100 Both of the experts called by the parties, Dr Stubbs for ALC and Mr Malloy for the Council, expressed concern at older residents safely crossing Moss Vale Road to access the Briars. Dr Stubbs considered the problem would be mitigated by the residents being able to catch the courtesy bus to the Briars or to other restaurants, cafes and hotels in Bowral or Moss Vale. However, the fact remains that the only facility providing meals and drinks within walking distance of this site, the Briars, is still inaccessible to pedestrians. The residents will be dependent on motorised transport to reach it.

101 The consequence is that the only means of access for the residents of the proposed seniors housing development on the site to services and facilities of the urban centres will be by way of motorised transport. Dr Stubbs and Mr Malloy did not disagree with this inescapable fact; there is no pedestrian connectivity with the main service centres. As Dr Stubbs conceded, “the inability of the site to be walkable to the main service centres is not mitigable”. Dr Stubbs also accepted that it would be positive if the proposed development were to have been within walking distance of an existing urban centre.

102 Mr Malloy noted that it would be far preferable from a strategic planning perspective to locate seniors housing development within easy walking distance of shops and services. Mr Malloy considered that locating seniors housing development in and adjacent to urban areas enables pedestrian access which, in turn, allows interaction between residents of the seniors housing development and residents of the urban areas along walking routes. This is a positive social benefit.

103 Notwithstanding the development’s lack of pedestrian connectivity with the main service centres, Dr Stubbs nevertheless considered that the social impacts arising from the separation of the site are likely to be mitigated by the public and private transport services available to the development.

104 However, provision of motorised transport to access the services and facilities of urban areas is only part of the access that is desirable. There ought to be both types of access – access by motorised transport as well as pedestrian access. To provide only access by motorised transport is sub-optimal; it reduces choice, flexibility in timing of access, the opportunity to exercise whilst accessing the service centres, and the opportunity for social interaction whilst walking.

105 These problems of isolation are a product of the site not being in reality an urban area (regardless of how it might be classified for the purposes of SEPP (SL)) and not adjoining land that is an urban area that provides the required services and facilities and social interaction. The problem is avoided with the current SEPP (HS) which would preclude such a site from being developed for seniors housing: see cl 4(5).

106 I consider that this isolation of the proposed seniors housing development from the main service centres and the lack of pedestrian connectivity to any of those centres is unacceptable having regard to the matters in s 79C(1) of the Environmental Planning and Assessment Act 1979 and in particular the suitability of the site and the public interest.

Conclusion

107 Other matters have been raised by the objectors in opposition to the proposed development. It is unnecessary that I address these matters having regard to my conclusions above that the development is unacceptable in its location and the consequences of such a location.

108 For these reasons, the orders of the Court are:


1. The appeal is dismissed.

2. Development application no LUA 06/1457 for a seniors housing development at “Capernwray”, Lot 5 DP 775976, Moss Vale Road, Burradoo is determined by refusal.

3. The exhibits may be returned.
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