Braedan Riley v Gosford City Council

[2007] NSWLEC 166

Land and Environment Court

of New South Wales

CITATION:	Braedan Riley v Gosford City Council [2007] NSWLEC 166
PARTIES:	APPLICANT Braedan Riley Investments Pty Limited RESPONDENT Gosford City Council
FILE NUMBER(S):	10586 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- seniors living development - character - design - water supply - precedent - impact on Wamberal Lagoon - impact on endangered ecological community
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 State Environmental Planning Policy Seniors Living
CASES CITED:	GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 ; Project Venture Developments v Pittwater Council [2005] NSWLEC 191 ; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
DATES OF HEARING:	12-13/02/07, Submissions 9/03/07
DATE OF JUDGMENT:	30 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr C Legatt SC SOLICITORS G P Cummins Solicitors RESPONDENT Mr M Fraser, barrister SOLICITORS P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

30 March 2007

10586 of 2006 Braedan Riley Investments Pty Limited v Gosford City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application 28472/2005 by Gosford City Council (the council) for a seniors living development at 995 – 997 The Entrance Road, Forresters Beach (the site).

The site and surrounding area

2 The site is Lot 2 in DP 706892 and Lot 5 in DP 1082979. It is generally flat and trapezoidal in shape with a frontage of 242 m to The Entrance Road, a depth varying from 379.6 m on the southern boundary and 497.9 m on the northern boundary and a rear boundary of 224.0 m giving a site area of 9.611ha.

3 The site is largely clear of vegetation with the exception of a number of small stands of trees near the southern boundary. A putt putt golf course, golf driving range, practice putting greens and associated office building are located on the site.

4 The Forresters Beach residential area is located on the opposite side of The Entrance Road and comprises predominantly of single dwellings and a neighbourhood shopping centre. A seniors living development is located directly to the north of the site and will ultimately contain 285 villa units. The first stage has been completed and a number of dwellings are occupied. The land to the west and south of the site is densely vegetated and contains an endangered ecological community.

The proposal

5 The proposal provide for a seniors living development to contain the following accommodation:

• 40 single storey villas,
• 34 x 2-storey townhouses,
• 104 self-care apartments,
• 125 hostel care rooms and
• 166 residential care rooms

6 On-site facilities will include:

• a 25 metre outdoor swimming pool,
• community gymnasium,
• entertaining lounge and bar,
• community dining facility and community area,
• cafe and restaurant,
• internal walking paths,
• community garden and
• consulting and treatment rooms for visiting medical practitioners.

7 The proposal is to be constructed over 7 stages. The stages are:

• Stage 1 - main internal roads, gatehouses, 125 hostel units, 166 residential care units, on-site detention and nutrient controls,
• Stage 2 - 30 self-care units, central facilities and café,
• Stage 3 – 7 villas and 4 townhouses,
• Stage 4 - 10 villas,
• Stage 5 - 23 villas and 3 townhouses,
• Stage 6 - 27 townhouses and
• Stage 7 - 74 self-care apartments.

Relevant planning controls

8 The site is zoned part 1(c) Rural (Rural Purposes) and part 7(a) Conservation under Gosford City Council Interim Development Order No. 122 (IDO 122). The majority of the site is within the 1(c) Rural zone with the proposed development falling totally within this zone. Dwelling houses are a use that needs consent in the 1(c) Rural zone. The area of the site containing the 7(a) Conservation zoned land located in the south west corner of the site is not affected by the proposed development. Clause 70 provides that the site may be used for a tourist complex notwithstanding any other provision of IDO 122.

9 Development Control Plan No. 89 - Scenic Quality (DCP 89), Development Control Plan No. 159 - Character (DCP 159) and Development Control Plan No. 165 – Water Cycle Management (DCP 165) apply to the site.

10 State Environmental Planning Policy (Seniors Living) 2004 (SEPP SL) applies to the proposed development. Clause 4(b)(i) provides that the policy applies to land where dwelling houses are permitted. Part 2 provides site related requirements. There was no dispute that the proposed development satisfies the requirements in Part 2. Part 3 provides design requirements. The relevant requirement relates to Neighbourhood amenity and streetscape (cl 31). Part 4 provides development standards to be complied with. There was no dispute that the proposed development satisfies the requirements in Part 4.

11 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to some parts of the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

The issues

12 The council filed a Statement of Issues that contained 17 issues and a number of sub-issues. Following meetings between the respective experts, the submission of amended plans and additional conditions of consent Issues 1, 2 and 3, were deleted and Issue 6(1)(a) (cl 2(1)(b) of SEPP SL), Issue 6(1)(b) (cl 2(1)(c) of SEPP SL and SEPP 65), Issue 6(1) (c) (adequacy of general practitioners availability - SEPP SL), Issue 12 (s5A EPA Act) and Issue 13 (impact on Wamberal Lagoon) were not pressed by the council.

13 The remaining issues in dispute can be grouped into the following main areas:

1) whether the proposed development has adequate regard for the character, streetscape and scenic quality of the area and whether the provisions in IDO 122, DCP 159 and DCP 89 are relevant considerations (Issues 4, 4A, 5, 6(d), 7, 8, 8A, 10, 16 and 17),
2) whether the design of the proposed development is acceptable (Issues 5, 9 and 10),
3) whether there is an adequate water supply for the proposed development (Issue 15),
4) whether the proposed development will be a precedent for other applications (Issue 11), and
5) whether any issues raised by local residents warrant the refusal of development application (Issue 14).
The evidence

14 The applicant provided expert evidence from Mr Garth McKenzie on town planning and on site facilities issues, Mr Geoff Baker on urban design issues, Mr G Winning and Mr Phillip Conacher on ecological issues and Ms Louise Collier on stormwater and water supply issues.

15 The council provided expert evidence from Mr Robert Eyres on town planning issues, Mr Brett Newbold on urban design issues, Mr Shaun Driscoll on site facilities issues, Dr AnneMarie Clements on ecological issues, Dr John Laxton on stormwater issues and Professor Carolyn Taylor on water supply issues.

16 The following local residents provided evidence on site:

• Mr Tony Sweeney of 10 Peter Avenue Forresters Beach and President of the Forresters Bushrangers Community Group,
• Mr Adam Brown of 980 The Entrance Road Forresters Beach,
• Ms Marie Caleo – President of the Womberal Lagoon Conservation Society,
• Mr Robin Gin of 973 The Entrance Road Forresters Beach,
• Ms Denise Rumbel of 26 Yakoola Crescent Forresters Beach,
• Mr Ian Rumbel of 26 Yakoola Crescent Forresters Beach,
• Mr Ron Sinclair of 5 John Street Forresters Beach,
• Dr Robert Traynor of 73 Calico Avenue Forresters Beach,
• Ms Patrice Turner of 12 Dorset Close, Wamberal
• Mr Dave Proust of 33 Boos Street Forresters Beach,
• Ms Ruth Barsing of 16 Boos Street Forresters Beach,
• Councillor Malcolm Brooks of Gosford City Council, and
• Mr Mark Finnegan of 39 Malcana Avenue Forresters Beach.

17 The main issues not addressed as part of the council issues but raised by the residents and interest groups are:

• impact on Wamberal Lagoon,
• impact on endangered ecological community,
• flooding,
• insufficient medical facilities for the additional population, and

18 The Court also had the benefit of the submissions received by the council when the development application was advertised.

Character, streetscape and scenic quality
Clause 5(3) of SEPP SL

19 Mr McKenzie, Mr Baker, Mr Eyres and Mr Newbold agreed that the need for consistency with the objectives of the 1(c) Rural zone was not relevant because of the provisions of cl 5(3) of SEPP SL.

20 Mr Fraser, for the applicant, submitted that there is no inconsistency in making a development permissible under the provisions of SEPP SL and applying the terms of planning instruments, including zone objectives and other controls in the usual way. Because there are provisions in local planning instruments that require the aims and objectives of zones to be taken into account, it does not render those provisions "inconsistent" with SEPP SL.

21 As a matter of statutory interpretation, the objectives of the 1(c) Rural zone under IDO 122 and the relevant objectives in DCP 159 and DCP 89 are not ousted by the inconsistency clause in SEPP SL. The issue can be summarised as question of "fit"; i.e., does this proposal fit into this landscape as presently designed? Mr Fraser relies on the planning principles in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 and Project Venture Developments v Pittwater Council [2005] NSWLEC 191 to support his submissions.

22 Mr Fraser further submitted that even though the town planning and urban design experts have assessed the proposal as fitting into the development on the east side of The Entrance Road, they have ignored, overlooked or otherwise failed to assess the "compatibility" (as per the extended planning principle in Project Venture) with development to the west.

23 Clause (2)(a) of SEPP SL states that the aims of the policy will be achieved by "setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy". Clause 5(3) provides that if SEPP SL is inconsistent with any environmental planning instrument made before or after the policy, the policy prevails to the extent of the inconsistency.

24 As I understand, the submission by Mr Fraser is principally that the 1(c) Rural zone objectives and the requirements of DCP 89 and DCP 159 are relevant considerations and the character anticipated by these controls is so different to the character of the proposal that the application should be rejected.

25 The character anticipated by the local planning controls is found in a number of locations. The permissible residential type uses in the 1(c) Rural zone are limited to development such as bed and breakfast accommodation, dwelling houses and attached dual occupancies. The 1(c) Rural zone objectives are:

(a) to control the use and development of rural land, not being prime agricultural land, to allow a range of agricultural and other appropriate uses which do not detract from the rural landscape and character, and
(b) to provide an opportunity for extensive and low intensity land uses which are suitably located in a rural landscape.

26 The site falls within the Forresters Beach – Wamberal Land Unit of the North Coastal Geographic Unit in DCP 89. This section of DCP 38 provides details on the landscape character, scenic conservation issues, absorption capacity, visual sensitivity, a statement of significance and development objectives. Relevantly, Development Objective (2) states, in part,

Opportunities for increases in densities and scale are available in areas not subject to visibility constraints or other physical constraints. Visibility constrained areas include land along the beachfront,…. and as well as along main roads with the scenic protection and conservation zoned areas and within scenic protection zoned areas and conservation zoned areas.

27 The site falls within Forresters Beach 7: Recreation Centre in DCP 159. The Desired Character states, in part:

Ensure that new developments (including alterations to existing buildings and infrastructure works) do not dominate natural landscape settings or their predominantly low-rise residential surroundings. Surround buildings with landscape settings that maintain the scenic quality of prominent bushland backdrops or existing corridors of planted trees. Ensure that the height and siting of new structures also preserves levels of privacy, sunlight and visual amenity that are enjoyed by neighbouring dwellings and their private open spaces. Complement the bush land canopy by planting all setbacks, courtyards and parking areas with shrubs and trees that are predominantly indigenous. Along front boundaries, provide for surveillance and safety by planting hedges or using fences that are lower or see-through."

28 The character anticipated by SEPP SL can be found in Part 7. This part provides development standards that cannot be used as grounds to refuse consent. The intensity of development depends on the type of the facility to be provided under SEPP SL. Division 4 provides requirements for self-contained dwellings. This form of development is the least intensive of those forms of development available under SEPP SL and allows for a building height of 8 m and a floor space ratio (FSR) of 0.5: 1 in Part 7.

29 The types of development permitted by the 1(c) Rural zone and the character anticipated by DCP 89 and DCP 159 needs to be compared to that permitted by SEPP SL. The 1(c) Rural zone provides for a range of limited residential type uses which do not detract from the rural landscape and character and which are suitably located in a rural landscape. On the other hand, SEPP SL allows for a potentially far greater density. While any development is subject to other provisions in SEPP SL and there can be no guarantee that self-contained dwelling would be constructed to the density provided by the height and FSR requirements in cl 38, it nonetheless indicates a likely more dense and intensive form of development compared to that available under the 1(c) Rural zone.

30 DCP 89 and DCP 159 provide qualitative considerations for character and scenic quality. They provide no prescriptive requirements and few site specific controls. The requirements of DCP 89 and DCP 159 must complement the requirements of the 1(c) Rural zone. It is unlikely that seniors living developments would have been a serious consideration in the formulation of these documents because of the inability to predict where they would be located and also the overriding provisions of cl 5(3). For this reason, a degree of inconsistency must be expected in situations such as this where state policies are imposed on local planning systems. I note that Mr McKenzie, Mr Baker, Mr Eyres and Mr Newbold acknowledge that the proposal recognises details of the desired future character as stated by DCP 159.

31 The issue cannot, in my view, be summarised as question of "fit", as submitted by Mr Fraser but whether there is an inconsistency between local planning controls and SEPP SL. While the issue would be clearer if the dispute was over a development standard such as height or FSR, I see little reason to consider the question of character in a different way. Put simply, the local planning controls (including objectives) anticipate a different form and character to that anticipated by the development criteria and standards in SEPP SL and as such cl 5(3) dictates that the form and character anticipated by the development criteria and standards of SEPP SL must prevail.

Neighbourhood amenity and streetscape

32 Following amendments to the design, Mr McKenzie, Mr Baker, Mr Eyres and Mr Newbold agreed that the proposal provided a high standard of urban design through the distribution of buildings, landscaped area across the site, individual buildings in terms of their siting, form and design and by dimensions and configuration of landscaped area together with the extent of proposed landscaping.

33 They accepted that the built form and landscaping of the proposal recognises details of the desired future character in DCP 159. The proposed single storey main road frontage displays an appropriate residential character including extensive landscaped separation between buildings and a near continuous row of indigenous canopy trees.

34 The unacceptable impact on the character of the area was a significant issue raised by local residents on site and in the submissions sent to the council when the development application was advertised. The proposal was seen as too large and unacceptable for the area.

35 Clause 30 of SEPP SL states that consent must not be granted unless the consent authority is satisfied that adequate regard has been given to the design principles set out in Division 2. The relevant design principle is found in cl 31 and relates to neighbourhood amenity and streetscape. This clause relevantly states that a 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) ….

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing, and

(ii) using building form and siting that relates to the site’s land form, and

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and

(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and

(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and

(f) retain, wherever reasonable, major existing trees, and

(g) be designed so that no building is constructed in a riparian zone.

36 GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 establishes four principles for the specific case of medium density housing for older people fitting into the streetscape in a low-density housing area. These are:

• the medium density development does not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey;
• the scale of the medium density should be visually broken up;
• existing site characteristics that reduce visual dominance should be retained;
• where new materials and forms are introduced, this should be done with sensitivity to the existing forms and materials.

37 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 addresses the issue of compatibility of seniors housing with surrounding residential development and asks two questions.

• are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
• is the proposal’s appearance in harmony with the buildings around it and the character of the street?

38 The experts from both parties agreed that the proposal (after amendment) satisfactorily addressed cl 31. This however was contrary to Mr Fraser’s submissions and the residents who provided evidence on site and the submissions received by the council when the development was advertised.

39 On this issue, I agree with the conclusions of Mr McKenzie, Mr Baker, Mr Eyres and Mr Newbold. SEPP SL provides no restrictions on the size of a seniors living development only that it satisfies the requirements within the policy. A concern over the size of the development, per se, is not a valid reason for the refusal of the development application.

40 The context of the site is of some importance as it is raised in SEPP SL through cl 31 in terms of "current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character)". SEPP 65 requires a similar consideration.

41 In this case, The Entrance Road divides the immediate area and provides two different characters. To the east and on the opposite side of The Entrance Road, the character is predominantly single detached dwellings with some minor areas of open space and neighbourhood shopping facilities. A ridge, running parallel to The Entrance Road, visually dissects this area into two areas, one facing the site and the other facing the ocean. The form of development is consistent with the Residential 2(a) zoning. There is a considerable separation distance between the site and the residential development to the east. The Entrance Road also provides a barrier between the two areas.

42 The west side of The Entrance Road currently provides for a less dense form of development consistent with the Rural and Conservation and Scenic Protection zonings however the area is subject to a development consent for a similar development directly to the north for 285 villa units and the provisions of cl 70 of IDO 122 allow for a tourist complex on the site. The uses identified for the tourist complex include an aquarian centre, arts and craft stalls, tenpin bowling alley and roller and ice-skating rink. Based on the existing development consent for the adjoining site and cl 70, any reliance on the zone objectives as a determinate of the future character for the area is clearly unrealistic.

43 When considered in this context and having regard to the compliance with the numerical requirements in SEPP SL and the evidence of the experts, I am satisfied that adequate regard has been given the matters in cl 31 of SEPP Sl, the relevant Design Quality Principles in Part 2 of SEPP 65 and the planning principles in GPC No 5 and Project Venture.

Design

44 Mr Fraser submitted that buildings within the development had an “institutional feel” and that this was inconsistent with the character of the area. This was not a conclusion accepted by Mr McKenzie, Mr Baker, Mr Eyres and Mr Newbold for the reasons outlined in the previous paragraphs.

45 The design issue overlaps the issue relating to character, streetscape and scenic quality to some extent and for the reasons mentioned previously I have found that the development does not adversely affect the character of the area. In relation to building design, I was not taken to any specific examples where buildings were seen as having an “institutional feel”. While there are larger buildings within the site, I accept they are necessary as they provide for the different levels of care available on the site and are allowed for by SEPP SL. The impact of the larger buildings has been the subject to amendment by the town planning and urban design experts to minimise their impact through appropriate design, siting and landscaping. I am satisfied that proposed development appropriately addresses the question of design, considering the requirements in cl 31 of SEPP SL and the relevant Design Quality Principles in Part 2 of SEPP 65.

Water supply

46 Mr Fraser submitted that Level 4 water restrictions currently apply to the area as the water supply dam has a capacity of only 12.9%. A development of this size should not be considered until the water restrictions have been lifted. If this is not considered acceptable to the Court, a Deferred Commencement condition should be included on any approval to allow development only when the water supply dam has a reached a capacity of greater than 47%.

47 I did not understand this issue to relate to the requirements in cl 27 of SEPP SL relating to connection to a reticulated water supply.

48 Professor Taylor and Ms Collier produced a joint statement that included consideration of the council document WaterPlan 2050 Long Term Water Supply Strategy (the Strategy). They note that the key concern of the Strategy is to ensure that there is a secure yield of water that will exceed the demand for that water. To achieve this outcome, a staged program of augmentation works is to be developed and implemented to meet the growth in water demand. A summary of demand management measures for the water plan is provided however it does not include a limitation on development although it does include adjustments for population increases.

49 There was considerable agreement between Professor Taylor and Ms Collier on the matters raised in this issue. They reviewed the water use mitigation measures in the development application that included harvesting and reuse of stormwater through the use of rainwater tanks to supplement mains water supply. The water consumption estimates for the development provide for a savings of 72% on expected overall demand, well above the 40% benchmark. They agreed that the proposed development was extremely well planned and little additional water use mitigation measures need be undertaken.

50 Professor Taylor and Ms Collier however disagreed on whether the proposed development should proceed at this stage. Professor Taylor states that the inclusion of provisions for considering development issues should be noted and without these strategies the development should not proceed although a deferal should not be seen as a refusal. Ms Collier states that the development has complied, where possible with the relevant provisions of DCP 165 and exceeds the common target set for development in potable water demand reduction and therefore any form of deferred commencement is not warranted.

51 The Strategy is a document that is in its early stages of consideration. It is dated December 2006 and is marked as a Preliminary Working Draft with the exhibition of the Strategy closing only on 16 February 2007. Further, Professor Taylor and Ms Collier agree that the Strategy contains no clear policy statement that provides for restrictions in urban development as an option for balancing water supply and demand.

52 If only for a lack of certainty, it is not a document that should be given any significant weight in these proceedings. Of the currently applicable documents, the proposed development satisfies and exceeds the requirements in the DCP 165. The water use mitigation measures in the development application received support from both Professor Taylor and Ms Collier but with a recommendation of further harvesting of roof water. This additional requirement was accepted by the applicant

53 On the question of whether the proposal should proceed, I agree with Ms Collier. Even acknowledging the water restrictions that currently apply to the area, it would be unreasonable to stop or restrict the progress of this application without some sound technical basis. The Strategy does not advocate this approach even accepting that it is still in its early stages of development. There is also no formal council resolution to restrict development per se, as a means of addressing the issue of water supply. I also note that Professor Taylor and Ms Collier agreed that dam capacity was not an appropriate trigger to determine whether the development should proceed.

54 On this basis, the refusal or the imposition of a deferred commencement condition cannot be supported.

Precedent

55 Precedent is a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) although I am not satisfied that the particular characteristics of this proposal would necessarily be that similar to other potential applications that any reasonable comparisons could be drawn to support the precedent argument. In this case, I accept that precedent is not an issue that would support the refusal of the application.

Resident issues
Impact on Wamberal Lagoon

56 This issue raised the potential impact on Wamberal Lagoon from stormwater run off from the site. Dr Laxton and Ms Collier provided a joint report on this issue. Their comprehensive report addresses the available background information and technical reports, the characteristics of Wamberal Lagoon and available water quality data.

57 They agree that the proposed development is unlikely to result in adverse impact on Wamberal Lagoon and associated ecosystems due to changes in the hydrological regime. They also agreed that the precautionary principle should not be invoked, as there is sufficient scientific evidence on the dynamics of Wamberal Lagoon and its water quality to predict with some certainty that the proposal will not harm the lagoon.

58 In the absence of any scientific evidence to refute the conclusions of Dr Laxton and Ms Collier I accept that the proposed development is unlikely to adversely impact on Wamberal Lagoon.

Impact on endangered ecological community

59 The site contains three areas of vegetation totalling 0.5 ha consistent with Swamp Sclerophyl Forest on Coastal Floodplains Endangered Ecological Community (the endangered ecological community). Accordingly, an assessment under s5A of the EPA Act was required. The 7-part assessment was undertaken by Mr Conacher who concluded that the proposed development is not expected to have an adverse impact on the endangered ecological community with respect to habitat removal, an increase to run off volumes or nutrient loads generated by the proposed development such that the local occurrence of the endangered ecological community is likely to be placed at risk. Consequently, a Species Impact Statement is not required.

60 Mr Conacher, Mr Winning and Dr Clements provided a joint statement. There was considerable agreement between the experts however Dr Clements opposed the loss of any of the endangered ecological community on site and was concerned over potential edge effects on adjoining bushland.

61 To address the concerns of Dr Clements, the restoration and design of the on site detention/ constructed wetland was further discussed with the view of facilitating the growth of species characteristic of the endangered ecological community in this area. A condition was formulated that was acceptable to the applicant and as I understand, largely addressed the concerns of Dr Clements.

Flooding

62 Flooding was raised as an issue by some local residents although not by the council. Stormwater management was a significant issue in the proceeding because of the proximity to Wamberal Lagoon and has been thoroughly addressed by the council and various experts. I note that condition 53 requires stormwater flowing off-site must be maintained to council’s drainage standards.

Medical facilities

63 Concern was expressed that the proposed development would place unacceptable demands on existing medical facilities in the area. In response, the applicant submitted a Medical Services Agreement with a general practitioner to provide medical services from consulting rooms to be constructed on the property. I am satisfied this agreement satisfactorily addresses the issue of demands on existing medical facilities in the area.

Conditions

64 At the conclusion of the hearing a number conditions remained in dispute. The significant issues involved water/sewer augmentation and roadworks. Both matters needed additional instructions and evidence that could not be provided within the allocated time of the hearing. Directions were given for filing and serving submissions on the unresolved conditions and further discussions between the parties to attempt to achieve agreement.

65 On 2 March 2007 the council filed submissions on the outstanding conditions and further evidence. On 9 March 2007, the applicant advised the Court “the parties have further discussed and agreed on the draft conditions in the form of the attached draft conditions of consent”. The applicant’s submission further states that council has authorised the applicant to advise the Court that matters raised in the council’s submission on conditions filed on 2 March 2007 are addressed by the agreed draft conditions.

Orders

66 The orders of the Court are:

1) The appeal is upheld.
2) Development Application 28472/2005 for a seniors living development at 995 – 997 The Entrance Road, Forresters Beach is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 1, 12 and H.

__________
G T Brown
Commissioner of the Court