Crighton Properties Pty Ltd v Kiama Municipal Council - [2008] NSWLEC 1497

Land and Environment Court

of New South Wales

CITATION: Crighton Properties Pty Ltd v Kiama Municipal Council [2008] NSWLEC 1497
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Crighton Properties Pty Ltd
RESPONDENT
Kiama Municipal Council

FILE NUMBER(S): 11208 of 2007

CORAM: Tuor C - Taylor C

KEY ISSUES: Development Application :- Serviced self care housing and aged care facility
proper planning approach - weight to be given to planning instruments
character of the area and visual impact
social and amenity impacts
traffic

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 1994
State Environmental Planning Policy - Seniors Living 2004
Kiama Local Environmental Plan 1996
Illawarra Regional Environmental Plan No 1 and No 2
Draft Kiama Local Environmental Plan
Kiama Development Control Plan 36

CASES CITED: Crighton Properties Pty Limited v Kiama Municipal Council [2006] NSWLEC 297
Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180
Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41
Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council [2008] NSWLEC 284
Grove Group v Pittwater Council [2008] NSWLEC 1415
Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252
Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10
Flower & Samios Pty Limited v Shoalhaven City Council [2007] NSWLEC 372

DATES OF HEARING: 16/09 - 19/09/ 2008, 23/09 - 25/09/2008 and 30/09/2008
Further written submissions 23/10, 24/10, 31/10 and 13/11/2008

DATE OF JUDGMENT:
24 December 2008

LEGAL REPRESENTATIVES: APPLICANT
Mr P Tomasetti, SC with Mr J Johnston, barrister
SOLICITORS
Conditsis & Associates

RESPONDENT
Mr P Clay, barrister
SOLICITORS
Russell McLelland Brown

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C with
Taylor C

24 December 2008

11208 of 2007 Crighton Properties Pty Ltd v Kiama Municipal Council
JUDGMENT

1 COMMISSIONERS: This is an appeal against the refusal by Kiama Municipal Council of a development application (DA10.2005.418.1) under the Environmental Planning and Assessment Act 1979 (the Act) for a development under State Environmental Planning Policy – Seniors Living 2004 (SEPP SL) located on the corner of Churchill Street and Jamberoo Mountain Road, Jamberoo (the site).

2 The issues raised by Kiama Municipal Council relate principally to the impact of the proposed development on the rural character of the area and the social issues associated with providing aged person housing in the village of Jamberoo.

3 The parties agreed that the Court should consider the merits of the proposed development as an initial step and, in the event that it was found that consent should be granted, the parties should be given a further opportunity to address the Court on appropriate conditions.

The site

4 The site is lot 33 DP605608. It is irregular and roughly triangular in shape, with frontages to Churchill Street and Jamberoo Mountain Road and Drualla Road, which is an unformed road where it adjoins the site. It has an area of 26.61 ha and is located north of the township of Jamberoo. The site is currently vacant pastureland and used for grazing. An unnamed watercourse runs through the site from the southern boundary to Churchill Street and then on to the Minnamurra River. There is little vegetation on the site other than two discontinuous rows of Radiata Pine at the eastern end of the site and a small patch of remnant Illawarra Lowlands Grassy Woodland Endangered Ecological Community at the south western end of the site. The topography of the site is undulating, sloping down from the west to the east.

5 To the south the site adjoins two dwelling houses with frontages to Churchill Street; a cemetery and two houses with frontages to Drualla Road and pastureland. To the north, across Jamberoo Mountain Road, are pastureland and the Minnamurra River. To the east, across Churchill Street are houses and pastureland. Churchill Street is the main entry road approaching the village of Jamberoo from Albion Park and the north.

Background

6 The development application was lodged on 12 December 2005. Council formally rejected the application on the basis that it was not accompanied by information required by the Environmental Planning and Assessment Regulation (the Regulations). Preston CJ upheld the applicant’s appeal against this decision on 22 May 2006 (Crighton Properties Pty Limited v Kiama Municipal Council [2006] NSWLEC 297).

7 Council notified the application and received 412 submissions of which 72 were in support and 340 objected to the proposal. Council refused the application on 12 December 2006.

8 The applicant lodged an appeal on 30 November 2006 and leave was subsequently granted to amend the application. The amended application was notified and 856 submissions were received, of which 621 objected to the proposal and 235 were in support.

The proposal

9 The Statement of Environmental Effects submitted with the amended application provides details of the proposal. The proposal provides for serviced self care housing and a residential aged care facility (ACF), with communal facilities and landscaped open space. The proposal is to be known as Woodstock Village.

10 The original proposal before the Court provided 195 self care dwellings, of which 169 are detached with double garages and 26 are attached with single garages. The dwellings are all single storey and generally have three bedrooms plus a study. The dwellings occupy 19.5ha of the site. The number of dwellings was reduced to 191 during the hearing with the removal of four houses fronting Churchill Street.

11 The ACF is located towards the western end of the site and will occupy 2.8ha. The building is part one and part two storey in two wings. There are 36 visitor car parking spaces at the front of the building and 20 car parking spaces for staff at the rear of the building. The plans show a “proposed indicative location of ACF site boundary” although the application does not include subdivision.

12 The communal facilities are a group of mainly single storey buildings located in the centre of the site adjoining the watercourse. The facilities include dining and lounge areas, library and craft room, multi function auditorium, gymnasium, consulting rooms, administration, caretaker’s residence, swimming pool and workshop and maintenance store. The facilities occupy 0.8ha of the site.

13 Two vehicle entry points are proposed off Jamberoo Mountain Road with a third entry off Churchill Street. The internal roads are shared between pedestrians and vehicles and vary in width from 5m for secondary roads to 6m for primary roads. A footpath adjoins part of the primary road system and passes through the open space adjoining the watercourse.

14 The site is to be landscaped in accordance with a landscape masterplan, as amended. Landscaping will be provided along Jamberoo Mountain Road. The landscaping comprises shrubs and low ground covers interspersed with canopy trees to screen the development while maintaining views across the site to the escarpment. Low shrub planting is proposed to adjoining residential properties to maintain views and solar access. The remnant Illawarra Lowlands Grassy Woodland is to be supplemented with additional vegetation.

15 The existing water course which runs through the property is to be rehabilitated and revegetated.

16 The development is to be constructed in 5 phases, which will occur in 16 stages. Most of the village facilities, the consulting rooms and caretakers residence, perimeter landscaping, the waste water treatment facility, the rehabilitation of the eastern section of the watercourse and the primary road between the Jamberoo Mountain Road and Churchill Street entries will occur in Stage1 of Phase 1. A total of 42 dwellings will be provided in Phase 1 over a two year period.

17 The remainder of the village facilities and 40 dwellings will be provided in Phase 2. The swimming pool, rehabilitation of the remainder of the watercourse and 37 dwellings will be provided in Phase 3. The ACF and 37 dwellings will occur in the Phase 4. The final 39 dwellings will be provided in Phase 5. It is anticipated that the development will occur over a period of 6 years but the timing will be dependent upon demand.

Relevant planning framework

18 The site is within Zone No 1(a) Rural “A” under Kiama Local Environmental Plan 1996 (LEP 1996). The use is not permissible within this zone but gains its permissibility through the provisions of SEPP SL that was gazetted on 31 March 2004, and was in force at the time the development application was lodged on 12 December 2005.

19 SEPP SL was amended on 16 December 2005 and has subsequently been further amended. The amendments include a savings provision, which has the effect that a development application lodged, but not finally determined, before the commencement of an amendment to SEPP SL, is to be determined as if the amendment has not been made.

20 SEPP SL includes the following relevant provisions:

21 The aims of SEPP SL in cl 2 are:

(1) This Policy aims to encourage the provision of housing (including residential care facilities) that will:

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design.

(2) These aims will be achieved by:

(a) 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, and

(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.

22 Clause 4 specifies the policy applies to land that adjoins land zoned primarily for urban purposes. There was not dispute that SEPP SL applies as the site adjoins land zoned primarily for urban purposes.

23 Clause 5(3) provides that the policy prevails to the extent of any inconsistency with another environmental planning instrument.

24 Clause 11 defines a residential care facility as:

In this Policy, a

residential care facility

is residential accommodation for seniors or people with a disability that includes:

(a) meals and cleaning services, and

(b) personal care or nursing care, or both, and

(c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care,

not being a dwelling, hostel, hospital or psychiatric facility.

25 Clause 15 defines self-care housing as:

In this Policy,

serviced self-care housing

is seniors housing that consists of self-contained dwellings where the following services are provided on site as part of the development: meals, cleaning services, personal care, nursing care.

26 Clause 17 allows development on land that adjoins land zoned primarily for urban purposes for serviced self-care housing, a hostel or a residential care facility despite the provisions of any other environmental planning instrument if the development is carried out in accordance with SEPP SL.

27 Clause 19 specifies that consent may only be granted for serviced self-care housing, a hostel or a residential care facility on land that adjoins land zoned primarily for urban purposes.

28 Clause 25 provides that consent cannot be granted unless the consent authority is satisfied that that the residents will have access to facilities that comply with certain criteria.

29 Part 3 of Chapter 3 provides detailed design requirements for a development application. Clause 30 provides that:

A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.

30 The design principles in Division 2 include matters such as neighbourhood amenity and streetscape (cl 31), visual and acoustic privacy (cl 32), solar access and design for climate (cl 33), stormwater (cl 34), crime prevention (cl 35) accessibility (cl 36) and waste management (cl 37).

31 Clause 31 provides:

(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, and

(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.

32 The key issue in dispute between the parties was whether adequate regard had been given to the design principle in cl 31(a).

33 Part 4 of Chapter 3 includes development standards to be complied with for proposals under SEPP SL. The parties agreed that the proposal complied with these standards.

34 Part 5 of Chapter 3 includes specific requirements for development on land zoned primarily for urban purposes. These include reasonable access to facilities and transport services and the requirement that there be no less than 70 serviced self care dwellings.

35 Part 7 of Chapter 3 provides development standards that cannot be used as grounds to refuse consent. These include standards for serviced self contained dwellings (cl 81) such as building height, density and scale, landscaped area, and parking. There was no dispute that the proposal complies with these standards. However, there was disagreement over the weight that should be given to this compliance in the assessment of the application.

The proper planning approach to other planning instruments

36 Mr Clay, for the council and Mr Tomasetti SC, for the applicant provided detailed submissions on the proper planning approach to the assessment of the application. The key difference of opinion was the weight to be given to the provisions of:

Illawarra Regional Environmental Plan No 1 and No 2 (IREP 1) and (IREP 2).
Kiama Local Environmental Plan 1996 (LEP 1996)
Draft Kiama Local Environmental Plan (Draft LEP)
Kiama Development Control Plan 36 (DCP 36)

37 Mr Tomasetti submits that any provision in these instruments, which is inconsistent with SEPP SL, is a relevant consideration. Although he concedes that the instruments may be considered to glean an understanding of the desired future character of the locality for areas undergoing transition. Mr Tomasetti submits that SEPP SL covers the range of matters to be considered for development on the site and envisages a medium density form of development. In his submission there is no need to consider further matters in s 79C(1), although he recognises that matters such as social and visual impacts and public submissions may be of some relevance.

38 Mr Clay submits that the planning instruments are relevant in considering both the existing and future character and should be given weight. Further, the development is inconsistent with the planning for the locality contained in these instruments, which seek to maintain the rural character. He also submits that other matters under s79C(1) such as social and visual impacts and public submissions are relevant considerations.

39 Section 79C(1) provides:

(1) Matters for consideration-general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

40 SEPP SL is an environmental planning instrument and is clearly a relevant consideration under s 79C(1)(a)(i). The difference between the parties is the extent that other planning instruments and provisions of s 79C are of relevance. Mr Clay submits that:

Whilst certain provisions of SEPP SL may inform the manner in which the other matters identified in s79C are considered, they nevertheless give rise to considerations which the Court must take into account.

It is true that s 79C(1) requires the decision maker to determine which of the matters in s 79C(1) are “of relevance to the development”. That is, however, no more than the requirement to consider whether any of the considerations arise by virtue of a particular development. It cannot be said that the existence of SEPP SL means that the Court is not required to otherwise consider the likely impacts of the development, the suitability of the site for the development and the public interest, for example.

41 Mr Tomasetti accepts that s79C(1) contains matters for consideration but only those that are of relevance to the development. He submits that:

While it is generally for a decision maker to decide which matters are of relevance to a development application, that discretion is not at large and relevant and irrelevant matters are also determined by the SEPP and by the operation of law. For example, if the decision maker determined that the loss of prime crop and pasture land was relevant and unacceptable they would be falling into error as that matter is a relevant consideration under the LEP and the provision is inconsistent with the zoning of the land adjoining the urban zone for SEPP SL development.

42 Mr Tomasetti submits that SEPP SL is the “governing instrument that regulates development” and that the contentions (Contentions 6, 7, 9, 10, 11 and 12) in the Further Amended Statement of Fact and Contentions, which raise issues that the development is contrary to planning instruments, are not relevant. Where these instruments are inconsistent with SEPP SL they cannot be a reason for refusal. He referred to the decision of Pain J in Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180 where Her Honour held:

56 Lloyd J noted that there is a general reluctance by the courts to find that there is an inconsistency between two statutory provisions if both provisions can be given effect unless such an intention is clearly expressed, relying on Hume Steel Limited v Attorney-General for Victoria [1927] HCA 24; (1927) 39 CLR 455, per Higgins J.

57 I consider there is a clear intention identified in the SEPPSL that it is the primary instrument which applies for those developments which seek to rely on it at the expense of the application of planning controls in a LEP. I have noted above s 36(1)(a) of the EP&A Act concerning the general presumption that a SEPP prevails over a LEP if there is an inconsistency. The REP provisions before Lloyd J in Rothwell did not include the specific words of the SEPPSL in cl 2(2) and cl 17 that the achievement of the aims of the policy is to be by the setting aside of local planning controls. Clause 17(a) of SEPPSL (see par 14) applies so that no environmental planning instrument can prevent a development if it is carried out in accordance with the SEPPSL….

……..

59 While SEPPSL states in cl 5(3) that the policy prevails if there is an inconsistency with a LEP, suggesting that a LEP also applies subject to that provision, the other provisions referred to above are clear in identifying the primacy of the SEPPSL. In light of these provisions, I agree with the Respondent that there is a potential inconsistency between SEPPSL and the application of cl 8 of the TLEP. That inconsistency can be at a generalised level of “incompatibility, contrariety or opposition” as per Kirby J in Coffs Harbour Environment Centre. A clause in a LEP which when applied to the SEPPSL development could give rise to a refusal is inconsistent with the SEPPSL. The Applicant’s submission that there will be no inconsistency if both provisions can be given effect to does not take into account the specific provisions of SEPPSL in cl 17 which means that cl 8 cannot prevent this SEPPSL development if the clause is not satisfied.

43 Mr Clay did not dispute that to the extent that there is an inconsistency, SEPP SL would prevail over other planning instruments, but maintained that they still had a role to play, principally in relation to cl 31(a) of SEPP SL.

44 Mr Tomasetti’s approach to the planning framework under which the application should be assessed is more conservative. If the application fails under this approach it would fail if assessed under the more stringent framework advocated by Mr Clay. Clearly the proposed development does not meet the aims and requirements of the other planning instruments which envisage that the existing use of the site and surrounding land for rural purposes will be maintained and the urban boundary of the village of Jamberoo will not be extended.

45 We see no need to adjudicate on the competing submissions but we have assessed the application under the provisions of SEPP SL and the matters under s 79C(1) agreed by the parties that are relevant to the development being principally the social and visual impacts and the public submissions. The contentions (6, 7, 9, 10, 11 and 12) that raise issues that the proposal is contrary to other planning documents have not been considered.

Submissions on the proper approach to SEPP SL

46 Mr Tomasetti’s primary submission was that the development standards in cl 81 of SEPP SL envisage a medium density form of development and that this should inform an assessment of the regard to be given to the principles in cl 31.

47 Mr Clay referred to cl 78 of SEPP SL which explains the Inter-relationship of Part 7 with design principles in Part 3. It provides:

Nothing in this Part permits the granting of consent to a development application made pursuant to this Chapter if the consent authority is satisfied that the proposed development does not demonstrate that adequate regard has been given to the principles set out in Division 2 of Part 3.

Note.

It is considered possible to achieve good design and achieve density ratios set out in Division 2. Good design is critical to meriting these density ratios.

48 Mr Clay submits that:

(a) there is no “presumption” of an entitlement to the extent of the development standards set out in division 4 of part 7 (clause 81);

(b) the design principles have primacy over the development standards in clause 81;

(c) clause 31 operates effectively as a gateway which must be satisfied before later provisions of the SEPP are considered;

(d) local planning controls, at the very least can infom, the decision under clause 31(a).

49 Mr Clay supports his submission with reference to the decision of Lloyd J in Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41 where His Honour dealt with the provisions of cll 30 and 31(a) and the relationship with cl 79, which were standards that cannot be used to refuse consent for residential care facilities. His Honour said at [6]:

In the context of the present case, it can be seen that these provisions require the consent authority to go through a process which has a number of stages. The first stage, required by cl 31(a), is the recognition of the desirable elements of the location’s current character (or, in the case of precincts undergoing transition, where described in the local planning controls, the desired future character), “so that” the consent authority can then proceed to the second stage. The second stage, also required by cl 31(a), is to make an assessment of whether the new buildings “contribute to” the quality and identity of the area – that is, whether they contribute to the quality and identity of the desirable elements of the location which have been identified in the first stage. The third stage is to determine whether the proposed development satisfies the remaining sub-cll (b) to (g) of cl 31. The fourth stage is required by cl 30 – the consent authority must determine whether it is satisfied that adequate regard has been given to these principles and if not, then the development application must be refused. Finally, once the process of satisfying cll 30 and 31 has been completed, only then does the consent authority turn to the development standards and other criteria in Pt 7 of the Policy (including cl 79).

50 Mr Tomasetti accepted the staging process set out by Lloyd J but urged caution in reading cl 31 wider than its intended purpose.

51 Both Mr Clay and Mr Tomasetti referred to a number of cases, which have dealt with the interpretation of cl 31 in its various versions.

52 After the conclusion of the hearing, council sought leave to reopen the hearing to make further submissions in light of the decision of Preston CJ in Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council [2008] NSWLEC 284. The applicant did not oppose the grant of leave to reopen the hearing on the basis that it has the right to reply. We accept that the interests of justice are better served by allowing the application to reopen the hearing and have considered the further submissions made by the parties (see Urban Transport Authority of NSW v Nweiser (1990) 28 NSWLR 471 at [478].

53 The parties also made further submissions in response to the decision of Roseth SC in Grove Group v Pittwater Council [2008] NSWLEC 1415, which was handed down on 24 October 2008.

54 These cases also deal with the interpretation of cl 31(a). Mr Clay submits that the approach adopted by Preston CJ in Australian Lifestyles reinforces the council’s submissions on the correct approach to the assessment of the application, in that planning controls inform the character, both present and desired, and are a relevant consideration. He submits “it is wrong to simply accept as a matter of fact that there can be a change from rural character to an urban character by virtue of the permissibility of the development pursuant to SEPP SL”.

55 Mr Clay refers to Australian Lifestyles to support this submission where His Honour states:

81 The insertion into the site of a medium-density development, …… will affect the character of the site. The site will become urban in character…… 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.

……..

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.

56 Mr Tomasetti submits “the differences in Australian Lifestyles and this case are so great that there is little to be gained by attempting to extract principles from the judgment in Australian Lifestyles”. In applying the planning instruments to cl 31(a), Mr Tomasetti submits that that they are only relevant to the extent that they are not inconsistent with SEPP SL.

57 In Grove Group the Senior Commissioner stated at [14] that:

The desired character is set out in the DCP. In my opinion, this is not relevant, since the area is not undergoing transition. Indeed much of the opposition to this proposal stems from a desire to keep the character unchanged.

58 Mr Tomasetti submits that this approach is consistent with that adopted by the applicant. Mr Clay submits that the existing character is the relevant character, except where a locality is undergoing transition.

59 Lloyd J in Marina Bay Developments establishes the proper approach to cl 31(a). The first stage is to recognise the desirable elements of the locations’ current character (the parties agreed that the locality is not undergoing transition) so that the assessment in the second stage can be undertaken. The extent to which the planning instruments are used to identify the current character is to some extent a semantic argument. The existing character is there and can be seen and analysed by the observer. The area is not an area in transition and therefore the existing character can be assumed to remain. The planning instruments are useful to assist in describing the existing character and to confirm that it is not likely to change. They are not essential or required for the analysis required by cll 30 and 31(a).

60 The second stage is to make an assessment of whether the new buildings contribute to the quality and identity of the desirable elements of the location identified in the first stage. We do not accept that this assessment should be limited only to the buildings but would include aspects of the development including the relationship of the buildings to each other and their distribution over the site and in a wider contextual framework.

61 The third stage is to determine whether the proposed development satisfies the other principles in cl 31 (b) to (g). There was disagreement as to the extent that the proposal met cl 31(e) in relation to landscaping. The drafting of these principles would appear to be more relevant to an assessment of development within an urban context and are difficult to apply to development which extends into rural land. Nonetheless, we are generally satisfied that the proposal meets these requirements.

62 The fourth stage, required by cl 30, is to determine whether the proposed development demonstrates that adequate regard has been given to the principles and if not then the development application must be refused.

63 Finally, once the process of satisfying cll 30 and 31 has been completed, only then does the consent authority turn to the development standards in cl 81.

64 We therefore do not accept Mr Tomasetti’s submission that the form of development through the application of the standards in cl 81, which envisages medium density urban development, is inevitably the form of development to be expected on the site. The form of development must first and foremost contribute to the quality and identity of the desirable elements of the locality.

Expert evidence

65 The Court heard expert evidence for the Applicant from:

Mr M Waugh on traffic issues
Mr G Porter on social issues
Mr P May on planning issues
Mr P Andrews, the architect for the proposal, on visual impact

66 The Court heard expert evidence for the council from:

Mr C Millet on traffic issues
Dr J Stubbs on social and economic issues
Mr G Shiels on town planning issues
Mr G Britton on cultural landscape and visual impact

67 In addition the following experts provided expert reports and/or joint statements but were not required for cross examination:

68 For the Applicant

Mr C Houghton on agricultural issues
Mr C Dearling on cultural landscape issues
Dr D Martens on floodplain management and sewage treatment
Mr A Bond on floodplain management, sewage treatment and stormwater quality
Mr P Harvey-Walker on floodplain management and sewage treatment and connection
Dr M Lincoln-Smith on water quality issues
Mr A Dye on water quality issues
Mr M Relf on access issues

69 For the council

Ms W Goodburn on agricultural issues
Mr P Nichols on floodplain management, sewage treatment and connection and stormwater quality
Mr P Moy on floodplain management and sewage treatment and connection
Resident evidence

70 The following residents provided evidence on behalf of the, community group, Jroo Forum, at the hearing opposing the proposed development:

Ms L Faires, 28 Churchil Street, Jamberoo
Mr M McMahon, 44 Churchill Street, Jamberoo

71 The Court visited the adjoining properties and heard evidence from Mr and Mrs Condon (5 Churchill Street), Mr and Mrs Simpson (11 Drualla Road) and Mr A McGee (143 Jamberoo Mountain Road). The Byrnes Run Community Land was also visited and Ms E Burnett and Ms P Morris spoke on behalf of the community. A summary of their evidence on site is in Exhibit 32.

72 The following residents provided evidence at the hearing supporting the proposed development:

Mr J Phelan, 73 Curramore Road, Curramore
Mr G Boxsell, 63 Allowrie, Street, Jamberoo
Mrs L Brennan, 481 Jamberoo Road, Jamberoo
Mr K Jeffrey, 59 Burra Creek Road, Jamberoo
Mr S Keough, 94 Barney Street, Jamberoo
Mr S Toombs, 25 Tait Place, Jamberoo
Mr S Judd, Minamurra Road, Jamberoo

73 There have been two surveys of note that were conducted to ascertain the local support or otherwise for the development. The Jroo Forum reported results from a survey conducted after a town meeting in November 2005. Approximately 250 people attended and 217 responses were returned. Of the 217 responses 83 % (180) indicated they were opposed to the proposed ‘lifestyle resort of Crighton Properties’.

74 A subsequent poll was hand distributed to nearly all the households in the village as well as to some closer rural addresses. Evidence from Mr Porter and Dr Stubbs revealed that the 2006 ABS census recorded a population for the Jamberoo township of 936 people in 315 private dwellings. The Jroo survey results returned some 560 adult responses of which 13 % were in favour and 87 % against.

75 The Jroo forum made a lengthy submission to the Court. The forum formed after Crighton Properties began to formalise their application in 2005. Jroo is a community group and consists of a core membership of 20 people. Jroo’s main points of contention were encapsulated by the various individual resident concerns. The forum summarised their concerns under 10 headings: community opinion; social impact; disability access; transport; community inclusion; information about the ACF; traffic flow; visual impact and heritage, water and sewerage and waste management. In addition to the survey, residents of Jamberoo provided a range of written and oral evidence as to their support or objection to the proposed Woodstock village. The objections to the proposal were broadly consistent in their particulars.

76 The development as a whole was perceived to cause visual and environmental impacts that would not be in keeping with the rural surrounds. It was also argued that it would be incompatible with IREP 2, one of the aims of which is to protect the rural nature and scenic amenity of the Jamberoo valley area. Views were undertaken from residents who were immediately adjoining the proposed development at 5 Churchill Street and 11 Drualla Road to ascertain how the visual impact from the proposal would alter their outlook. In essence, the objectors stated that rural views would be altered and/or impaired and that this would result in a loss of rural character for the area. In addition, it was also contended that the proposal would result in the loss of prime agricultural land.

77 The size and scale of the proposed development also raised concerns. It was stated by the residents that it was over sized and that this not only affected the visual amenity from the northerly and westerly approaches to Jamberoo but the effect of street, house and car lights would contribute to its total impact, especially at night.

78 There were also concerns relating to increased traffic around the village and how that might negatively impact on parking and general traffic management issues. Also there was the concern that public transport was already below what was acceptable for the existing population of Jamberoo and that the proposed large additional increase in population would exacerbate the existing shortage for local residents.

79 Flowing on from the impacts arising from the size and scale of the development were other concerns that the village of Jamberoo would not have sufficient medical services available to support the needs of a development of this magnitude. Concerns were also expressed about how the changes and resulting demand for services arising from such a large influx of elderly citizens might compete with the existing needs of the Jamberoo population.

80 Integration of the two villages was also raised as a concern given that the distance and the lack of safe footpaths might well mean some elderly members of the new community would have limited access to services and businesses in the village.

81 In reference to environmental capacity issues, the resident objectors raised two main concerns. First, they were concerned that the development might impact upon the Minnamurra River by way of alterations to runoff and related chemical and nutrient impacts on the river system. In addition, although the town had connected recently to the Sydney Water sewerage system, residents were concerned that the additional houses plus the ACF would be beyond the capacity of the system. Further, concerns were expressed that the development would limit future development within the existing village because any additional potential future capacity generated from the connection to the sewerage network would have been absorbed by the proposed development.

82 There were several written submissions in addition to oral evidence from local residents who were in support of the proposal. Several of these residents had visited Crighton Properties Tea Gardens over 55 development to inform themselves more clearly of how such development might appear and how it might operate.

83 It was noteworthy that several of the residents including objectors made comment that facilities of some form of aged care were required for the township. However, there were differences of opinion as to what would be an acceptable size and scale of such a facility. Supporters of the development argued that the size of the proposed development would mean that a sustainable ACF could be constructed. Further, it was argued that because the development was proposed in phases the impacts would be incremental, which would allow more time for existing residents to accept the changed outlook in this part of the village. Although it was noted by some supporters that the development would alter the outlook, it was considered that landscaping would ameliorate any such visual impacts.

84 In contrast the supporters suggested the location was ideal for a range of reasons. Firstly, it was argued that the land upon which the proposal was planned was not of high agricultural quality and its use for the development would not constitute a significant loss in terms of land for food production. Secondly, the development would be accessible by good, existing roads. Thirdly, the location of the housing would take advantage of the rolling hills and rural landscape surrounding Jamberoo.

85 Traffic impacts arising from the development were considered by some of the supporters to not be a significant problem and that the friendly community of Jamberoo would more than likely mean that transport to the shops would be offered to those without vehicles.

86 Those who were in favour of the development highlighted the positive economic, social and cultural aspects of the development. Several residents noted that the influx of new residents would help sustain and grow businesses, social and recreational clubs. It was suggested that supply would follow demand in that services would grow, which would be a positive factor for the local economy.

87 The desire and need for a development like Woodstock was emphasised strongly. Several supporters of the development commented that they were long-term residents of Jamberoo or its immediate hinterland and that the new village will provide much needed choice in addition to the high density over 55 development at Blue Haven apartments or the medium density development at Gerringong. It was suggested by supporters that Woodstock Village offered a lifestyle that was unobtainable in other over 55 type developments. This made it an attractive proposition and as a consequence several supporters said they would consider moving to it in due course, presuming it was built.

88 Perhaps of more significance to the supporters was that the availability of such accommodation in the later years of their lives would offer stability and security at a time when large life-changes were not handled so easily. The development would allow long-term residents to stay in the village and also remain close to family. On this point, Mr Judd expressed in oral evidence the strong sentiments of many villagers who did not want to have to leave the village in their later years of life because of lack of accommodation. Mr Judd had lived in Jamberoo for 55 years. His preferred outcome in retirement was to move into one of the ILUs. If he was then unable to live independently he wished to be moved to the proposed ACF. His final wish was that he “would like to end up in the cemetery”, which is adjoining the proposed development to the south along Drualla Road.

Character

89 The key disagreement between the parties was whether adequate regard had been given to the design principle in cl 31(a) of SEPP SL which provides that development:

90 Mr May, Mr Andrews, Mr Shiels and Mr Britton agreed that the precinct is not undergoing transition and it is therefore not necessary to refer to the planning controls to understand the desired future character. However, Mr Shiels and Mr Britton considered the planning controls were relevant to understand the existing character of the area.

91 The experts disagreed on the desirable elements of the locations’ current character, particularly whether it was rural in nature. The experts also disagreed on whether the new buildings contribute to the quality and identity of the area.

92 Mr Shiels and Mr Britton stated that the various planning controls highlight, maintain and reinforce the rural character of the site and of Jamberoo Valley. These documents support their opinion that the character of the site and the locality is rural and should remain so. Mr Britton and Mr Shiels considered the desirable elements of the location’s current character to be the rural characteristics of rolling hills and open paddocks with generous setbacks to the rural dwellings, interspersed with vegetation.

93 Mr Britton describes the site and its context as being:

..of open rural land bounded by, and adjoining, Churchill Street and Jamberoo Mountain Road to the east and north respectively, and the Jamberoo General Cemetery and Drualla Road to the south.

In this prominent location, the site provides an important rural landscape gateway to the village of Jamberoo as well as important contextual scenery for visitors en route to tourist attractions of State significance….Together with Jamberoo Road, Jamberoo Mountain Road is the main travel route between Kiama/Gerroa/Gerringong part of the coast and the Southern Highlands.

Apart from adjoining well-frequented roads, the site’s prominence is also reinforced by its topographic elevation. The smoothly rolling hills ascend to high points at the western end and around the cemetery to the south east. When travelling east along Jamberoo Mountain Road the site’s open paddocks feature noticeably in the serial experience of views to the village and in helping to define a sharp juxtaposition between the small, compact urban area and the adjoining rural landscape.

Owing to its central valley location and sheer size the site is readily appreciated as an inseparable part of a broader rural landscape continuum and should be read within this context. Jamberoo Valley’s picturesque mosaic of paddocks across rolling landforms represent one of its chief scenic attributes.

A further distinguishing attribute is the effect of the enclosing and strongly contrasting, forested escarpments around the southern and western sides of the valley. It is this strong juxtaposition between cleared, undulating paddocks and steep, forested escarpments that largely defines the valley’s considerable scenic qualities.

94 Both Mr Britton and Mr Shiels gave weight to the local and regional planning controls, which seek to maintain and encourage the retention of the rural character of the area, to reach the conclusion that within the context of these planning controls the rural character of the site should be maintained.

95 Mr Britton and Mr Shiels considered the development to be urban in character and an attempt to extend and replicate the existing village of Jamberoo. They considered that the proposal did not respond successfully to the desirable elements of the existing village, nor did it form an appropriate transition between the village and the rural character of the area.

96 Mr Shiels stated that:

The proposed development will…inevitably change the character of the area from rural to urban and provide for a built form, which presently does not exist. The curvilinear streets and general building footprints bear no relationship to the grid pattern and building layout found in the Jamberoo 2(a) Residential Zone.

97 Mr Britton considered that the size of the development, the street pattern, allotment sizes, planting and inward looking nature of the development were inconsistent with the traditional form of the village.

98 Mr May and Mr Andrews agreed that the existing character of the site and its surrounds is rural but also considered the existing village to be an important part of the character of the area. They held different opinions to those of Mr Britton and Mr Shiels as to the desirable elements of the location’s current character.

99 Mr May considered that SEPP SL envisages an urban form of development and that therefore only the desirable elements of the village character were relevant to consider under cl 31(a). He acknowledged that the rural elements would be lost as Woodstock Village would extend the existing village, but that it would remain a village in a rural setting. In his opinion the main constraints to extending the village were the provisions in SEPP SL such as FSR, height and setbacks. In his opinion these controls established the urban character of the development. He stated that if these controls are met then it follows that the proposal has given adequate regard to the requirements of cl 31(a). The proposal meets these controls being single storey with an FSR of 0.15:1. where cl 81 provides that a development cannot be refused on the basis of a FSR of 0.5:1 or less.

100 Mr May considered that Woodstock Village would appear as a ‘low medium density style development’ because the proposed dwellings are not located on individual subdivided allotments. He estimated that if the open space areas and communal facilities were excluded the site density would be one dwelling per 1000sqm (this figure includes the internal roads and driveways). He estimated that the average lot size in Jamberoo Village is 1250sqm. He concluded that the density of the development is more consistent with single dwellings than medium density.

101 Mr Andrews stated that his site analysis for the development recognises that the fact that:

the site is adjacent [to] the existing village and is a transition into the rural setting. The design attempts to recognise this transition by adopting different treatments for different parts of the site perimeters.

102 Mr Andrews said that:

The design of the proposal adopts desirable architectural and landscape characteristics of the existing village and rural landscape.

103 Mr Andrews considered that the proposal had responded to the desirable features in the existing village such as pitched corrugated iron rooves, verandahs, varied materials, setbacks and landscaping. The proposed dwellings are single storey separated by space and landscaping. The street pattern, building form and siting relate to the site’s landform. The dwelling densities are consistent with those in the village but the proposal incorporates more communal open space to private open space.

104 Mr Andrews also considered that the proposal had responded to the desirable features of the rural environment by providing rows of landscaping both within the site and along its perimeter, maintaining and enhancing the riparian zone and maintaining views to the escarpment. In his opinion the housing type was also rural in character and that sufficient building setbacks are provided to both Churchill Road and Jamberoo Mountain Road. He noted land to the east of the site would remain rural and that Jamberoo would remain a village in a rural setting.

Visual impact

105 The experts held different opinions on the visual impact of the proposal. This difference of opinion is largely based on the premise of whether the rural character of the site should be maintained or whether the proposal should extend the urban character of the village.

106 Mr Shiels and Mr Britton considered Woodstock Village would have an unacceptable visual impact when viewed from the main approaches to the village from the north and the west, as well as adjoining residential properties. They also considered that the proposal would have an adverse visual impact on the rural setting of Jamberoo village.

107 Mr Britton and Mr Shiels considered Woodstock Village to be too big in relation to the existing village, particularly as the existing village had grown incrementally over a period of 150 years.

108 Mr Britton considered that the site is in a prominent location and a “gateway” to the village. To maintain the scenic quality of the village and the valley, the size of the village needs to remain small and compact within a rural setting. In his opinion Woodstock Village would be visible for a considerable distance along Jamberoo Mountain Road and from Churchill Street. Views from these roads adjoining the site have been traditionally open rural landscapes which are an important part of the village setting. Mr Britton contends that the proposal will impact adversely on this landscape quality and the setting of Jamberoo village. He accepted that the amended landscape treatment around the perimeter of the site was an improvement on the original proposal to screen the development with “windbreaks”. However, he still considered the amended proposal would have an unacceptable visual impact due to the extent and scale of the development, which would be visible through the landscaping.

109 Mr Andrews acknowledges that the proposal creates a different view to what already exists but states that this defines the edge of Jamberoo village more clearly. In his opinion planting along the river, the Jamberoo entry sign and landscaping obscure the view to the site from the north. Any views from this direction would be of limited duration. The landscaping around the perimeter and within the site would soften the views of the development from both Churchill Street and Jamberoo Mountain Road and in his opinion the proposal would have an acceptable visual impact. He considered that the rural setting of Jamberoo village would be maintained and that the site is not prominent when viewed from the existing village or major public places in the valley.

110 Mr Shiels, Mr Britton and Mr Andrews agreed that the views from 5 Churchill Street and 11 Drualla Road would be changed. They disagreed on the degree of visual impact. Mr Andrews stated that landscaping would largely screen the development and that the views of the escarpment would be maintained. In his opinion the impact was acceptable. Mr Britton and Mr Shield considered that a large extent of the development would be visible and that the change to the outlook enjoyed by these properties would be unacceptable.

Findings – character and visual impact

111 The experts agreed that the existing character of the site itself is rural but disagreed on the extent to which the existing character of the locality included the existing village. They therefore held different views on the desirable elements of the location’s current character. Mr Shiels and Mr Britton considered the desirable elements to be the rural characteristics of rolling hills and open paddocks with generous setbacks to the rural dwellings, interspersed with vegetation. Mr May considered the desirable elements to be only the urban character of the village. Mr Andrews considered the desirable elements included both the urban and rural character.

112 The existing character of the site itself is clearly rural but cl 31(a) requires an identification of the wider locality. Land to the north, east and west is rural in character whereas land to the south, where the site adjoins dwelling houses at the edge of the village, is urban in character. Mr Tomasetti summarises the character as being a village in a rural setting and contends that this character will be maintained by Woodstock village. Further he submits that the development standards in SEPP SL envisage an urban form of development for the site, which will appear as an extension to the village.

113 We accept Mr Andrew’s opinion that the desirable elements of the location’s character include those from both the village and its rural setting. The question is whether Woodstock village will contribute to the character of a village in a rural setting. We note that the local and regional planning controls envisage clearly that the future character of the site and its locality will be rural with limited expansion of the existing village of Jamberoo. However, we have adopted Mr Tomasetti’s submission in relation to the weight to be given to these planning controls, therefore the feasibility of maintaining a rural character on the site while permitting a SEPP SL development is unrealistic. This does not mean that the rural setting of the village should not be maintained or that the development should not achieve an acceptable visual impact.

114 In Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252, Roseth C and Moore C in dealing with the impact on rural character under the predecessor to SEPP SL said:

14. LEP 94, the Rural DCP and the Rural Lands Study contain objectives and principles relating to the Shire’s rural areas. These may be summed up as the maintenance of rural character. SEPP 5, under which this application is made, permits medium density housing on rural land, provided the occupants are old or disabled people. Thus, while the local controls permit one dwelling on this site, SEPP 5 permits in the order of 130 dwellings. We do not think therefore that it is valid to criticise this proposal on the basis that it is not rural in character. If it had only half as many dwellings as it does, it would still not appear rural in character.

15. The issue is made more complex by the fact that SEPP 5 appears to be drafted mainly for the assessment of housing in residential areas. Clause 25, which deals with the design of residential development, fails to mention the word rural. While it contains numerous guidelines and principles for fitting into residential areas, it says nothing about designing medium density housing in a rural environment.

16. Having said this, we believe that housing, even at medium densities, within a rural area should acknowledge its location and have a different design and appearance from housing in a residential area. While SEPP 5 provides no guidance, s79C(b) of the Environmental Planning and Assessment Act 1979 requires us to have regard to the proposal’s impact on the natural and built environment. The visual impact on the rural environment is therefore a matter that we must consider in the assessment of this application.

115 The applicant’s case relies heavily on the fact that the proposal meets or is below the provisions in cl 81 of SEPP SL and that these dictate a form of development that can be achieved on the site. We do not accept that this is consistent with the decision of Lloyd in Marina Bay which states that only once cll 30 and 31 are satisfied do the development standards in cl 81 become relevant. It would appear that the assessment of whether the new buildings contribute to the quality and identity of the area must be undertaken independent of the development standards in cl 81. Nonetheless it is not unreasonable to assume that a SEPP SL development will be urban in nature but should form a transition between the existing village and the rural area.

116 Mr Andrews considers that the proposal has achieved this transition as it responds to desirable elements from both the urban and rural character. Mr Britton and Mr Shiels consider that this has not been achieved.

117 We accept the opinion of Mr Britton and Mr Shiels. While the building designs have responded to some degree through the use of verandahs, pitched rooves landscaping etc. the overall design has not achieved an appropriate transition nor does it maintain the rural setting of the village.

118 Put simply the proposal is too big. The proposal will increase the urban footprint of the village by between 35 - 65% (depending upon whether the Golf Club is included) as part of the existing village. It will increase the number of houses by 191 from 350 to 541, an increase of about 55%.

119 The proposal would introduce urban development further to the west than the existing village. It will also result in two parts to the village; the existing village centred around Allowrie Street and a new village centred around Churchill Street and Jamberoo Mountain Road.

120 The set back of the proposed houses along Jamberoo Mountain Road is generally about 7m. This is considerably less than the set back of houses adjoining the site to the south. A setback of 7.6m is the minimum specified for the dwellings along Churchill Street and 15m is the minimum for the dwellings in Drualla Street under DCP 36. The minimum setback for rural areas in DCP 36 is 15m. While the DCP controls do not apply to this development they are relevant to the extent that they define the future character of other sites and therefore the locality. We note that dwellings adjoining the site appear to have larger setbacks than the minimum in DCP 36. We are not satisfied that the proposed development demonstrates that adequate regard has been given to this desirable element of the locations character. The setback of the new buildings along Jamberoo Mountain Road will not contribute to the quality and identity of the area as required by cl 31(a).

121 Due to the number of dwellings along Jamberoo Mountain Road and their proximity to each other considerably larger setbacks from this road (in the order of 30m) in our opinion would be required to satisfy cl 31(a). A larger setback would enable the open pastureland character of the area to be better maintained along the road as well as providing greater area for more informal planting within areas of open space to screen the development. The semi continuous screen planting over the length of Jamberoo Mountain Road, although an improvement upon the continuous hedge planting originally proposed, is not characteristic of the area and creates a foreign element in the landscape.

122 The removal of the dwellings along Churchill Road has provided a setback in the order of 30m, which has lessened the impact of development from the approach to Jamberoo Village from the north. Substantial setbacks along both Churchill Street and Jamberoo Mountain Road would better achieve a transition between the urban and rural areas and assist in maintaining the rural setting of the village.

123 The overall density of the development is consistent with that of houses in the village. However, this is largely due to the large areas of communal open space and the landscaping between different parts of development. The density of the dwellings themselves in relation to their open space appears to be considerably greater than that of the four dwellings which immediately adjoin the site to the south. These are the only dwellings or urban land which adjoin the site (by which the development gains its permissibility). We consider that the density of these dwellings and the relationship of built form to open space is a desirable element of the locality. While we acknowledge that although this density would not be feasible throughout the development we consider it is important to respond to it where the development adjoins these dwellings and along the two public roads. This could be achieved by the greater setbacks discussed above and greater space between the houses where they adjoin the road.

124 The development will be clearly visible, particularly along parts of Jamberoo Mountain Road, which extends about one kilometre in length past the development. Jamberoo village with the addition of Woodstock village will appear considerably larger and of greater density. The rural setting of the village from this direction will be considerably compromised. The small compact village in a rural setting is a desirable element of the location’s current character. We do not consider that the degree of extension to the existing village will contribute to the quality and identity of the village in a rural setting.

125 We therefore find that adequate regard has not been given to the principle in cl 31(a) of SEPP SL and on this basis the application must fail.

126 Further, we find that the visual impact of the proposal when viewed from the approach to the village along Jamberoo Mountain Road is unacceptable. While the landscaping in and around the site will screen the development to some extent, the rooves and massing of the buildings will be visible clearly along sections of the road. The rural setting of the village will be largely lost. While it can be argued that it is inevitable that the rural nature of the site itself can be changed through the application of SEPP SL we do not accept that the rural setting of Jamberoo Village as a whole should be altered to the extent proposed by the development. The visual impact of the proposal is unacceptable and on this basis the application must fail.

127 The visual impact of the proposal on 5 Churchill Street and 11 Drualla Road will be significant. Although screened by landscaping, the extent of the village will be visible and the rural outlook from these properties will change to urban. Reducing the height of the nearest houses and maintaining views of the escarpment is not adequate to mitigate this impact to an acceptable level. Although we accept Mr Tomasetti’s submission that, of itself the impact on these two properties alone would not be a reason to refuse the development.

Demographic impacts

128 Dr Stubbs and Mr Porter agreed that the proposal, including the ACF, would generate 365 to 425 additional people at peak occupancy. The average age of the people entering the proposed independent living units (ILUs) would be around 70 and about 85 for the ACF.

129 There were different estimates from the experts regarding the source areas for the in-migration of people to the proposed facility. Dr Stubbs suggested that 95 % would come from outside the Jamberoo village; 92 % from outside the Jamberoo village and hinterland combined; 75 % from outside the Kiama Local Government Area (LGA) and around 50% from outside the Illawarra Region, which she and Mr Porter agreed would be the Wollongong and Kiama LGAs . Dr Stubbs stated that a substantial portion of the in-migrants would come from the Sydney region, who would be drawn to the ‘lifestyle resort’ aspects of the proposal and its price, which she estimated would be above the average house price in the region ($ 477,000 based on 25 February 2008 figures).

130 Mr Porter estimated that 75-90 % would come from within the Illawarra region. Mr Porter stated that the estimated local house price in Jamberoo village and hinterland is around $650,000-700,000 and therefore is comfortably more than the estimated average cost of $500,000 for dwellings in the development. However, he accepted that the development would be unaffordable to most people from the Illawarra region. Nevertheless, he stated that there would be sufficient demand from across the Illawarra region because of the number, not percentage, of the Illawarra population for whom the proposal would be affordable.

131 Irrespective of the disagreements over the origin of the migrants to the proposal, both experts agreed that the facility would be attractive to buyers and would be occupied.

132 Dr Stubbs estimated the development would result in the 55+ age group being 45-48 % of the total population of Jamberoo village which is nearly double the NSW predicted population for the 55+ age group in 2011 (26.5 %) and 2016 (28.5 %). In addition, Dr Stubbs estimated that the total population of the Jamberoo village would increase by around 40% over 5-7 years as the village is developed.

133 Using ABS Census tables and the Kiama Council Social Plan 2004 coupled to occupancy projections for the development, Mr Porter calculated that by 2016, Woodstock residents would comprise about 20 % of Jamberoo’s population or 9% of the population of the district. He estimated that based upon the population figures recorded in the 2006 census, Jamberoo and its environs would have some 31.1 % (634) of the 55+ population without the development. In contrast, with the development Jamberoo and its environs would have a 55+ population of 39.4 % or 964 people.

Size of the development

134 It was agreed by Mr Shiels, Dr Stubbs and Mr Britton, Mr Andrews, Mr May and Mr Dearing that the development will significantly expand the footprint of Jamberoo village. Dr Stubbs estimated that the Woodstock village development would increase the urban footprint by between 35 – 65% (the exact figure varies according to whether or not the Jamberoo golf course is included).

135 Dr Stubbs states that the proposal would increase the number of dwellings in Jamberoo village by 56 %, a figure based upon 350 current dwellings and 197 ILUs at the proposed village. Mr Porter and Mr May considered the figure would be lower if estimates for development on urban zoned land and future urban land were included.

Integration of the proposed development with the existing village

136 The social planners agreed that the intention of a retirement village was to create a community of older people, which would likely result in stronger internal community compared to a conventional residential sub-division.

137 Both Dr Stubbs and Mr Porter accepted that some residents of the new village would use existing facilities in Jamberoo village and the local golf and bowls club. Arising from this use would be some social interaction between the two groups of residents.

138 There were several areas of disagreement in relation to the long-term physical and social integration of the new village with the existing Jamberoo community. Although it was agreed that the development would not be a ‘gated community’, Dr Stubbs stated that there would be a lack of permeability to the existing urban area in part due to the limited proposed entrances or connections to the development from the outside. The proposal contained three vehicle access points (two on Jamberoo Mountain Road and one on Churchill Street) and two footpath entrances (one off Churchil Street and one on Drualla Road). The accessibility of the footpaths is considered below. However, Dr Stubbs argued that its size, dislocation from the current village centre and distance (0.9 – 1.7 km) would produce a ‘new’ community with a strong internal cohesion, sitting alongside the present Jamberoo community.

139 Mr Porter took a different view and stated that significant social impacts would be unlikely and that the proposal would have a number of positive impacts including a significant injection of social, business, recreational and community aspects to the current village of Jamberoo. Mr Porter stated that the new residents would integrate into the community for reasons which include:

Similar cultural and economic status of existing and incoming residents
A sizeable minority of Woodstock residents would be derived from Jamberoo and its environs
Most of the incoming residents would have local connections since older people prefer to be close to family and friends.
Participation in the community
Residents of Woodstock will be present during the day and will be in and about in Jamberoo, which will mean they will interact and become friends with the existing [non-working] residents
It is anticipated, following the experience of Crighton’s Tea Gardens 55+ development where 80% are members of external clubs and associations that the Woodstock residents will behave in a similar manner.
It is anticipated that many of the residents will engage in volunteer work or service akin to the residents at Tea Gardens, where 47% work for a charity or community organisation.

140 Mr Porter noted that the developer will instigate a number of measures to encourage community integration, including community access to the health care and well-being lectures and other health facilities that will be offered at the village and community access to some of the clubs and activities offered on site. In addition, and as it is not proposed to have a shop within the development local traders will not be impacted, which will require residents of the new village to enter town to access local services.

141 Dr Stubbs commented that the inward turned design, distinctiveness and separation of the development from the current village in both a physical and psychological sense would foster a strong and essentially inward looking community. This was, according to Dr Stubbs, one of the attractions of such a development to older residents.

142 In terms of the current Jamberoo residents accessing the open space and facilities of the proposed village, Dr Stubbs contended that the site would not be accessed frequently by the current residents of Jamberoo because of its limited permeability, its location to the north of the current village and the distant location of the open space near the ACF facility (at the westerly edge of the development). These factors, plus the fact that it is a retirement village would create psychological barriers to its general use. While Dr Stubbs acknowledged that current Jamberoo residents might make use of health care facilities and occasional hiring of the function centre, she stated that this would not lead to significant social interaction.

Transport and access

143 In considering the integration of the proposed development with the current Jamberoo village the issue of physical access was considered. The subject site is 0.9 to 1.7 km from the Jamberoo village where the public bus service to Kiama town centre is located.

144 With regard to cl 75 of SEPP SL, that there should be a bus service with a capacity for least 10 passengers that it should operate at least twice per day, it was agreed between the experts that there was “literal compliance with the SEPP”.

145 Mr Porter noted that the village bus will have 22-24 seats and will take residents to and from Jamberoo and Kiama, where higher level services are available. He anticipates that demand will be quite low because services and facilities are so close and that the main requirements will be from people who cannot walk to Jamberoo or cannot drive. If demand exceeds supply, the bus will run more frequently and its ongoing provision will be protected by the NSW Retirement Villages Act 1999, which will require it to be listed (a) in the Disclosure Statement and (b) in the Resident’s Contract. Mr Porter identified and reviewed three other similar sized villages, which revealed that none had bigger buses. Consequently, he determined the bus capacity would be adequate.

146 Dr Stubbs contended that the village bus was inadequate given the scale, location and inaccessibility of public transport. She agreed that some of the services required would be available in Kiama, but that others would only be available at the major centres of Shellharbour and Wollongong, which could take up to 3 hours each way on public transport.

147 Dr Stubbs stated that a proportion of residents would cease to own or would not be able to drive a car after the age of 70 and that the bus service was therefore insufficient. Dr Stubbs supported her arguments by stating that the inaccessibility of the public bus service to the site (the public bus service goes to the centre of Jamberoo village), the scale of the development and the need to access the range of services likely to be required by the residents of the village would generate a greater demand than being offered.

148 Dr Stubbs considered that the distance of the Woodstock village from Jamberoo and the likely inadequacy of the proposed bus service would exacerbate the sense of isolation from the wider community and the range of services likely to be required by an aging population.

149 There was evidence relating to the accessibility of Jamberoo village from the development on foot. Dr Stubbs said that the distance between the proposed village and Jamberoo (0.9 to 1.7 km) would be too great for most people 55 years old or older. In addition, Dr Stubbs went further and noted the following in regard to the main thoroughfare between the two sites:

Churchill St is an unsuitable and unsafe route for the target group to walk into town due to steep topography, distance, surfaces and lack of footpaths long much of its length.

150 In response to this Mr Andrews noted:

The applicant has identified possible linkages to the existing footpath network, and possible refuge island to improve safety for pedestrians crossing Churchill Street.

The gradients on the existing footpath system are not as steep as the footpath gradients to the existing retirement villages of Mayflower and Blue Haven.

151 Mr Andrews detailed the survey assessment of the pedestrian links carried out by Scarratt and Associates and noted the following:

Whilst the gradients along Churchill Street or Tate Place do not comply with SEPP SL disabled access standard, non compliance with access for disabled persons along public footpaths is not uncommon in many existing areas around shopping centres.

Notwithstanding this, the proposal complies with SEPP SL with respect to access to services.

152 However, the experts agreed that:

Some people would be able to walk to Jamberoo Village.

…….

Access from the site to facilities to Jamberoo does not comply with the criteria under SEPP SL Clause 25 (2) (a) with respect to 400 metres distance or gradients.

153 Nonetheless the experts agreed that the proposal achieves technical compliance with SEPP SL through the provision of the private bus service.

Adequacy of services

154 The suitability of the location of the proposed development with respect to access to medical and related health services was also disputed. In summary Mr Porter’s view was:

….Woodstock will generate limited demand for off-site services and facilities and the impact on the local community will not be substantial. There will be little or no noticeable impact for several years, by which time residents will be included in service planning. In large part, this will be a result of the availability of onsite services.

155 One of the main reasons why Mr Porter estimated that there would be limited impact on the demand for services was because he projected that 75-90 % of the new population of the proposed Woodstock Village would come from the Illawarra region. He also argued that any extra demand would be negligible because:

a) demand will be spread across a wide range of services only a few residents will ever need a particular service; and

b) Woodstock will be built over a number of years and the additional residents will arrive over an extended period.

156 Mr Porter included a letter from the Terralong Surgery in Kiama indicating that demand for general practitioner (GP) services will be met on site, reducing the need and demand for residents to travel to access GP services. The applicant submitted a further supporting letter for the provision of GP services on site during the proceedings.

157 Mr Porter assessed the likely impact of the development on the Home and Community Care (HACC) services provided by State and Federal government agencies. It was his view that the provision of on-site services at the proposed development would be instrumental in reducing reliance on HACC services. With the exception of centre-based day care and social support, he noted that the applicant would provide on site: domestic assistance; meals (home or at a centre); nursing (home or at a centre); transport; allied health; home maintenance and personal care.

158 Research findings from a Federal Government pilot project (Retirement Village Care Pilot (Partners in Care), Dept of Health and Aging) were cited by Mr Porter to indicate very low levels of HACC usage in recently developed villages. He also noted that private sector villages offering onsite support services also experienced low levels of usage. Mr Porter said the likely government and agency responses to the impacts of population structure change is that funding will track demographics and demand over time for the Commonwealth services of HACCs, along with Community Aged Care Packages (CACPs) and Extended Care at Home (ECH) services.

159 Part of the applicant’s proposal is to build a 90 bed ACF at the western edge of the site, which will have the effect of providing the infrastructure to support an ageing village population as well to provide a centralised location from which these services can be delivered. The need for an additional ACF in the region was not in itself a contention, since a proportion of an ageing population will require access to more intensive care facilities in the latter years of their lives. The proposal for the ACF is that it is estimated to be built in phase 4 (year 5) of the development, though the applicant noted that the precise timing would be determined by market demand. Dr Stubbs assessed the demand for high care (ACF equivalent) places. She estimated that the oversupply of places would likely continue until 2011 or 2016, by which time the proposed ACF would either have been or be about to be constructed. However, Dr Stubbs questioned whether this was the appropriate location for an ACF which is likely to meet the predicted regional demand for such a facility. She considered this size of ACF would be better located close to public transport and services, such as a hospital and ambulances.

160 Dr Stubbs considered the development would increase the projected additional demands for key services of GPs, HACC and residential aged care places by 2016. She estimated that the resulting effect of the additional demand for key services plus those arising from the development by 2016 would be as follows:

( natural increase & planned development plus Woodstock Development)

i) GP services:

7.9

+ 1.3 to 1.5 = TOTAL 9.2 to 9.4

ii) HACC services:

200

+ 90 to 105 = TOTAL 290 to 305

iii) ACF places:

+ 27 to 31 = TOTAL 85 to 89

161 The major difference in the projected impact arises out the different expectations of the origin of the potential population for Woodstock Village. Dr Stubbs argued that Woodstock retirement village meets a ‘desire’ or ‘demand’ for ‘resort style living’ rather than meeting a need for more appropriate accommodation that would meet social goals more efficiently and sustainably.

162 Dr Stubbs estimated that some 75 % of the residents would come from outside the Kiama area and 50% from outside the region but that the principle demand would be drawn for the Sydney area. Dr Stubbs contends that as a result there would be a cumulative impact on demands for services in addition to those that are projected to occur due to a naturally aging population. In addition to the demand effect, Dr Stubbs noted that access to services could also be problematic. She noted that the applicant relies on Kiama Town Centre as the main service hub for the development whereas she contends more comprehensive shopping and medical services could only be accessed in Shellharbour and Wollongong. Aside from the costs of using taxis for transport to Shellharbour and Wollongong ($60 and $120 return, respectively), residents who were otherwise restricted to public transport, had to face journey times of 1.3 to in excess of 3 hours to access these facilities.

163 In regard to the capacity of services to withstand the future demand, Dr Stubbs assessed a range of HACC services offered by Kiama Council in order to ascertain current and future potential capacity. In summary six of the HACC services rated themselves as having capacity for growth, but that capacity was limited to small number of additional clients (typically 2-10). In particular, the HACCs services, ‘Home Care Service NSW’ and ‘Home Maintenance’ were determined from her research to be operating at near full capacity or unable to take on new clients.

164 As part of her assessment of the development, Dr Stubbs undertook a cost of living exercise to ascertain the affordability of accessing the private services proposed to be provided by the Woodstock Village. The underlying aim of this assessment was to determine whether or not residents would use the fee-for-service facilities or would rely upon HACC services. Her assessment concluded:

the cost of services, management fees and purchase price of the home itself means a reasonable proportion of residents of the development are likely to rely upon HACC services over time.
………

In this context, I consider that demand for a range of public funded services is likely to be significant, despite private service arrangement proposed by the Applicant (and to some extent because of other proposal including the ACF).

165 A principal concern of Dr Stubbs was the size of the facility. If the demand for services were to be met it would locate a regional facility in an area that is not the best location for such a facility due to its limited public transport, particularly train service.

Findings

166 Clause 2(1) of SEPP SL includes the aim to encourage housing that will:

(b) make efficient use of existing infrastructure and services,

167 Clause 2(2) provides that this aim is to be achieved by:

…..

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.

168 Clauses 25, 74 and 75 and 76 of SEPP SL include provisions for access to services for land adjoining land zoned primarily for urban purposes.

169 In addition the parties agreed that the social impacts of the development are a relevant consideration under s79C(1)(b) of the Act.

170 Social impacts were defined in Dr Stubbs as:

the consequences to human populations of any public or private actions that alter the ways in which people live, work play, relate to one another, organize to meet their needs and generally cope as members of society. The term also includes cultural impacts involving changes to the norms, values, and beliefs that guide and rationalize their cognition of themselves and their society (The US Inter-organizational Committee on Guidelines and Principles for Social Impact Assessment, 1994, p1).

171 Dr Stubbs and Mr Porter elaborated on the broader meaning of social impact, particularly in regard to amenity effects. Dr Stubbs noted these included practical issues that affect people, which may include external manifestations such as parking, shadowing and the like. There were also psychological issues to be considered including perceptions or feelings. Mr Porter contended that social effects need to be tangible and did not include psychological aspects, which are more intangible.

172 Dr Stubbs explained that social impacts have the potential to alter the quality of life for an individual. Tangible effects of social impacts may include a reduction in health, increased crime rates, or less parking for example. Intangible effects include emotional and psychological responses and could include fear, sense of community, friendliness. Dr Stubbs contended that these social and psychological issues are closely intertwined.

173 Dr Stubbs and Mr Porter also examined the concept of amenity. Dr Stubbs in her written evidence provided a definition of amenity that was guided by a range of planning decisions (inter alia, Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10). She noted amenity has tangible and intangible dimensions:

Tangible dimensions include the physical characteristics of an area, such as its visual or scenic qualities, the form of the natural or built environment, its urban footprint and relationship between land uses, and other physical media including pedestrian and traffic movement and way of life of the community. The latter includes the residents’ subjective perception of their locality in relation to matters such as the quality of life, community identify and culture, sense of place, social relationships and community cohesion.

174 It is clear that there is interconnectedness between amenity and social impacts and effects. Indeed, in submissions both Mr Clay and Mr Tomasetti considered the two concepts collectively.

175 In submissions Mr Clay noted:

The social effect is real where significant change is imposed upon a community in the way explained by Dr Stubbs. If there is such a dramatic change in a cohesive rural village as would be effected by this development then the quality of life of the existing residents is altered. That is the social impact or effect. It is the reduction in the quality of life.

176 Similarly, Mr Tomasetti in his submissions noted:

Where there are tangible impacts, including impacts on visual amenity, as a basis for concern, then the “social impacts” will be as a result of the environmental impacts. For example, traffic noise which disturbs the sleep may cause social problems. However, there can be intangible social impacts quite apart from tangible environmental impacts. These are most often associated with the nature of the development in the particular locality…..

There is no separate “social impact” discernible from the environmental impacts of a change to the way Jamberoo will look over time if this development proceeds. Some people will like it and some will not.

177 Mr Clay and Mr Tomasetti referred to a number of cases to explain the framework in which social and amenity impacts should be considered and the weight that should be applied, particularly to the concerns of residents about impacts on their amenity.

178 Preston CJ in Telstra v Hornsby provides a useful summary on the law and principles in this regard at [189] to [196]:

Perceptions of effects on amenity and health
189 In the determination of a development application the consent authority (and this Court on a merits review appeal) must consider the effect of the proposed development on the amenity of the locality.

190 The concept of the amenity of the locality is wide and flexible. Some aspects of amenity are practical and tangible. Examples are traffic generation, noise, nuisance, appearance and way of life in the neighbourhood. Other aspects of amenity are intangible and subjective. They include the standard or class of the neighbourhood and the reasonable expectations of a neighbourhood: Broad v Brisbane City Council (1986) 59 LGRA 296 at 299. Amenity may embrace the effect of a place on the senses and the residents’ perception of the locality. Knowing the use to which a particular site is, or may be, put may affect a person’s perception of amenity: Broad v Brisbane City Council (1986) 59 LGRA 296 at 305. See also Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGRA 67 at 69; Novak v Woodville City Corporation (1990) 70 LGRA 233 at 236-237; and Optus Communications Pty Ltd v Corporation of the City of Kensington and Norwood [1998] SAERDC 480 (29 May 1998) at 6.

191 The very wide concept of amenity expounded in cases like Broad v Brisbane City Council applies with even greater force in a statutory scheme like the EPA Act which in s 79C(1) gives effect to the widest conceivable scope of ‘likely impacts’ of a proposed development, including environmental, economic and social impact, without employing the term amenity: Perry Properties Pty Ltd v Ashfield Council (No. 2) (2001) 113 LGERA 301 at 318[64].

192 In determining the nature and scope of amenity and the impact of a proposed development on it, the consent authority may consider the community responses to the proposed development as set out in the submissions made to the consent authority: s 79C(1)(d) and (e) of the EPA Act. The community responses are aspects of the public interest within the meaning of s 79C(1)(e) in securing the advancement of one of the express objects of the Act “to provide increased opportunity for public involvement and participation in environmental planning and assessment”: s 5(c) of the EPA Act. See also Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 at 415; and New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[58].

193 However, in considering the community responses, an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the locality.

194 In Broad v Brisbane City Council (1986) 59 LGERA 296 at 304, de Jersey J stated:

“In determining the likely effect on a proposed development on the amenity of a neighbourhood the Local Government Court is clearly entitled to have regard to the views of residents of the area. The question is whether a resident’s view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use.
In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little, if any, weight. In forming his own view on the likely effect of a proposed development on the amenity of an area a judge would, I think, ordinarily prefer views from residents which find justification in specific, concrete, likely effects of the proposed development”:

See also Dixon v Burwood Council (2002) 123 LGERA 253 at 264[53] and New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[61] and 317[63].

195 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EPA Act: Newton v Wyong Shire Council, unreported, LEC No. 40135 of 1982, 6 September 1983, McClelland J, pp 110, 111; Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79 at 92; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 22]; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[62]. “Mere local prejudice” or “the resistance of uninformed opinion to innovation” is not a basis for rejecting a proposal: Cecec (No. 8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251 at 263; Foreman v Sutherland Shire Council (1964) 10 LGRA 261 at 269.

196 In this case, the residents’ perceptions of an adverse effect on the health and safety of residents and on the environment by exposure to RF EME emitted from the proposed base station are without justification in objective, observable, likely consequences. The claimed effects are unsubstantiated and without reasonable evidentiary foundation.

179 Unlike the Telstra case, while not dealing with health concerns, the residents’ perceptions of adverse amenity impacts are supported by expert evidence and by facts. The proposal will increase the population and demographics of older people by a significant amount relative to the exiting population. The proposal will increase the size of the village and change its visual setting. Woodstock will be a new village which will be integrated only to limited varying degrees with the existing village. The proposal will increase the demand on services in the longer term. These considerations should be given weight and are assessed below.

180 We accept that for a number of residents the cumulative effect of the changes resulting from the development would effect their quality of life. This does not diminish the genuine suppport for the proposal from a number of residents or their opinion that the development would fulfill a real need for appropriate seniors accommodation in the village in which they have lived their lives. We accept that there is a demand and a need for appropriate aged care accommodation within the village but we do not accept that this justifies a development of the size and scale proposed.

Demographic impacts

181 In terms of the demographic impacts, it is clear the development will result in a significant increase in population and an upward adjustment to the average age in the village. It was not evident precisely how the increase in population and age of the new incoming residents would materially affect the amenity of the existing village. However, it is likely to alrer the social ambiance of Jamberoo. It is clear that the age distributions in the community would be skewed with around 50 % of the population being over 55 years of age by 2016 as compared to the projected average of 28.5 % for NSW.

182 Mr Porter put forward evidence that the addition of a large number of people with a significant amount of recreation time would contribute positively to local clubs and societies as well as provide useful voluntary help within the community. He contended that this is the experience of the Tea Gardens community, he estimated that the increased population will result in an additional $3 million dollars per year being spent in the community, which will provide a substantial boost to the local economy. With regard to the question demographics, Mr Tomasetti submits that:

To the extent that there is a change in or “skewing of the demographic” the argument may be discriminatory against the aged. There is no evidence that merely by reason of a person’s age that person cannot perform a significant contributory role in the community.

183 We accept that the increase in population will bring many positive social and economic benefits to the community. However, we also recognise that the percentage increase in relation to the existing population may have adverse amenity impacts for some members of the community who choose to live in a small village which will become a larger village. The age of demographics of the population whether this be a large number of 55+ or of pre schoolers, also has the potential to change the dynamics of the community. However, on balance there are limited negative tangible demographic impacts that will arise from the proposal that would cause the development to be refused soley on this basis.

Size of the development

184 The development will significantly extend the size of the village, both in area and the number of houses. Residents were concerned that this would affect their amenity and sense of place. A number of submissions stated that they lived in Jamberoo because it is a small village in a rural setting. As discussed earlier in the Judgement, the setting of Jamberoo will be changed by the development and it will have an adverse visual impact. These are tangible impacts, which will impact on the amenity for some residents.

Integration

185 Based on the evidence of Mr Porter regarding the Crighton Village in Tea Gardens, it is highly likely that some of the residents would become closely engaged with the current Jamberoo village and its social, cultural and recreational activities. However, the design, distant location and distinctiveness of the development and its internal operations are likely to lead to a large degree of separation between the two villages. These effects are real and will be tangible in the physical and practical sense and will in themselves amount to a social impact. The evidence from the residents indicated that the current village of Jamberoo is close knit and cohesive community. We are satisfied that this development will not add to this cohesion, since its design and structure and intent will do exactly the opposite. As noted by Mr Clay in his submissions:

If there is such a dramatic change in a cohesive rural village as would be effected by this development then the quality of life of the existing residents is altered. That is the social impact or effect. It is the reduction in the quality of life.

186 Further, the design and operation of the village is such that it is likely to develop a strong sense of internal community and cohesion. As noted by Dr Stubbs, this is a good outcome for the village but it does not necessarily foster integration with the exisiting village of Jamberoo.

187 The physical isolation of Woodstock village will operate in both directions. While it will not be a “gated” community in the sense that Jamberoo residents will be free to walk around the proposed complex, the distance and lack of public services to the village means that it is highly unlikely that significant interaction of this type will occur. In either case, it is likely that movements to and from the proposed Woodstock Village will be dominated by vehicular transport.

188 Further, it is likely that older, more infirm residents of the Woodstock Village will have to rely of taxis or the generosity of their neighbours to access the services at Jamberoo or Kiama and beyond, if travel times do not coincide with twice daily on site bus service. This may have the effect of enhancing the internal community at Woodstock through the fostering of relationships, but it could also lead to a sense of isolation for some residents. Thus, while it is likely that some members of Woodstock will become involved in Jamberoo’s social, recreational and cultural activities, we are satisfied that the limited access will emphasise its separateness and distinctive nature and in this sense the development will have a social impact and has the potential to create two separate villages of roughly equal size.

Transport and access

189 Another aspect relating to the social amenity of the development was the provision of transport to access specialised services in the village and beyond, such as at Kiama, Shell Harbour and Wollongong. While it is clear the proposal meets the minimum requirement for the provision of transport under cl 75(1) of SEPP SL, there remains an issue for satisfactory pedestrian access to and from the development.

190 The proposed development is some 0.9 to 1.7 km from the village of Jamberoo and the pedestrian footpaths between the two exceed the gradients in cl 25 (2) (a) of SEPP SL. Consequently, it is likely that that movement between the two locations will be primarily by vehicles, which may be a significant disadvantage for persons who are unable to drive. Thus, for non-driving residents of the old and new villages, the development may well feel isolated and reduce opportunities for social interaction between the two villages. This would represent an amenity impact.

191 Preston CJ came to a similar conclusion in Australian Lifestyle Corporation at [104] when he noted:

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.

192 Dr Stubbs provided significant evidence that the costs and or time involved in accessing the more distant services available in the larger urban centres of the Illawarra by public transport would be problematic. Indeed, for some residents it is likely to be prohibitive.

193 During the hearing a letter from the local public bus service was tendered which indicated that the public bus service could be extended into Woodstock village. We have given this letter little weight beyond that it indicated that the public bus service could be extended at some later stage. However, this would depend on factors such as the width of the internal roads to accommodate the public bus, the time taken to traverse the internal roads due to the 10km speed limit and the staging of the development.

194 Restrictions of access to services and limited transport choices is a sub-optimal situation for older and less self-reliant persons, some of whom are likely to be inhabitants of the proposed Woodstock Village.

195 While we accept that some medical services will be provided on site, a great deal more services will be required including inter alia, specialists, retail, commercial and recreational that will necessitate travel beyond the Jamberoo village. Notwithstanding literal compliance with SEPP SL, access to these services may be restricted due to the location of the Woodstock village away from public transport and the difficulties and cost in accessing Kiama, Shell Harbour or Wollongong where a larger range of facilities are located.

Adequacy of services

196 Aside from the issue of transport access to services beyond Jamberoo village (discussed above), a range of matters relating to the potential future impact of the proposal on the demand for medical services, HACC services, and the likely affordability of equivalent services provided on a fee for service provision were raised by the social planners.

197 It was contended by Mr Porter that the impact on services would be neglible because most of the population (75-90 %) for the new village would be drawn from the Illawara region. As a result there would only be a minor impact on services and any impact that did occur would be spread over a number of years as the development proceeded. Dr Stubbs disgreed and estimated that 75 % would probably come from outside Kiama and 50 % from outside the region, with the bulk being drawn from the Sydney area. Part of her argument for the large number of people likley to come from the Sydney region was that the Woodstock development was generating a demand rather than fufilling the needs of the local population (estimated by Dr Stubbs to be 50 households from Jamberoo village).

198 Mr Porter relied frequently upon the experience of the Tea Gardens developmnet as a corollary for the Woodstock proposal, particularly in terms of resident integration into the local community. Analysis of this development by BBC Planners, indicates that contrary to the oral evidence given by Mr Porter, that 40 % of the residents come from Sydney, Central Coast and greater NSW; 20 % from the surrounding region (the Hunter) and 25 % from the local township (Tea Gardens/ Hawks Nest). This data parallels broadly those modelled by Dr Stubbs for the projected Woodstock development. The effect of such an in-migration on services was calculated by Dr Stubbs and shown to be significant, particulalry in terms of impacts on HACC services. In response to the projected increased demand for HACC services, Mr Porter argued that the residents of the proposed Woodstock village would make limited use of these services and that there would be minimal impact as a result as:

Most services are available on-site;
Housing is specifically designed to meet their needs and requires minimal maintenance or up keep; and
Social isolation (the source of many of the support needs among people living dispersed in the community) is reduced or eliminated by virtue of the social and recreational options available.

199 However, evidence provided by Dr Stubbs revealed that the total costs associated with the purchase price, management and service fees would be high, relative to the forecast median weekly income of residents. Consequently, this would mean many of the residents may not be able to afford the development’s private services and would default to reliance on the publicly funded equivalent. In addition to these costs, it is also necessary to consider the aforementioned expense of accessing essential medical services that cannot be provided on site through a GP. If these have to be accessed via taxis the costs may be as much as $120 return to Wollongong. Such costs could be prohibitively expensive, particularly for residents with limited financial resources. Collectively, these charges would be onerous for residents and in some cases unaffordable meaning that some may not be able to access or purchase essential services.

200 Examples of research put forward by Mr Porter that showed recently built residential villages made minimal use of HACCs services may be erroneous because, as acknowledged by both social planning experts, the uptake of such services is likely to be negligible in the immediate term but will accrue over time as residents age.

201 Thus, while we accept that the development is likely to have limited impact in the near term on a wide range of services, it is very likely that this will increase over time.

202 The demand over time on HACCs services will place an incremental strain on HACCs services, in an area that is already undergoing increased population growth of older people. Watts C and Tuor C came to a similar conclusion in Flower & Samios Pty Limited v Shoalhaven City Council [2007] NSWLEC 372 at [129]:

The increased demand would be incremental and provide greater opportunity for HACCs services to apply for funding. The needs of the development would not be met solely by HACCs services but would also rely on private providers. However, it would place a demand on HACCs, which are stretched and given the demographic predictions for the Shoalhaven LGA are likely to remain so.

203 We note that the proposal includes some estimates of costs for the services. In considering the accessibility of services it is necessary to contemplate cl 74(1) of SEPP SL and what constitutes ‘reasonable access’. The costs of providing a full meal service from the ACF (assuming full operation) was estimated at 55 % of the single age pension. The costs for a full laundry service, also operating from the proposed ACF, was estimated to be 8 % of the single age pension.

204 In Flower & Samios, the Commissioners were required to consider a previous version of the seniors living policy, their consideration of Clause 12(2A) of SEPP5 has direct parallels with respect to Clause 74 of SEPP SL. In Flower & Samios, Watts C and Tuor C found that at [131]:

Clause 12(2A) of SEPP5 places an obligation on the consent authority to be satisfied by ‘written evidence’ that adequate access to services is available. We consider that ‘adequate access’ includes the concept that services are provided by the facility or exist in the area, arrangements can be made to access the services and that this will be at a reasonable cost.

205 The same principles applied in Flower & Samios are relevant to this development proposal.

Traffic

206 The only remaining issue in dispute between Mr Waugh and Mr Millett was whether a third entry off Jamberoo Mountain Road was required due to safety concerns. The entry is near the western part of the site and would provide access primarily to the ACF which is to be provided in Phase 4 of the development. The entry is outside the current town zone with a speed limit of 80km/hour. It is on the crest of a hill, and while there are acceptable sight lines for cars approaching from the west, Mr Millet was concerned that cars exiting the site would be travelling a speed below the limit and not be visible as they dropped off the crest of the hill. Both he and Mr Waugh agreed that these safety concerns could be mitigated by proposed works to the intersection, including the construction of a BAR intersection and lowering the crest of the hill to reduce its curve.

207 During the hearing Mr Waugh provided drawings of the proposed intersection works which Mr Millett agreed would be acceptable, in principle to the RTA.

208 However, Mr Millet maintained his concern that while the proposed changes would minimise safety concerns these would not be eliminated all together and that intersections onto main roads always pose an increased risk. He referred to the RTA Guide to Traffic Generating Development (RTA Guide).

209 Mr Millet considered it more appropriate for the traffic expected to use the entrance to travel though the development and use an alternate exit. He estimated the additional traffic to be up to 20 v/h at peak of which one vehicle is likely to be a service vehicle. He did not consider that such a small increase in traffic would adversely impact on the development. Mr Waugh agreed with the traffic estimate but disagreed that this should travel through the development. He considered the introduction of additional traffic posed a greater safety risk to the residents than that posed by cars exiting the development.

Findings

210 We accept Mr Millet’s evidence. While the risk to vehicles can be reduced there is still a risk while the 80km speed limit remains, particularly as tourists heavily use this area on the weekend. There is no certainty that the speed limit would be reduced to 50km once the development is constructed. The consequences of an accident in a high speed environment are greater than those when cars are travelling at significantly lower speeds such as the 10km/h indicated as being the speed limit within the development. The streets in the development are designed for a significantly greater number of cars than are likely to be generated by the development and the additional cars generated by the ACF are not likely to have a perceptible impact.

211 We note that the ACF is a later stage of the development and its construction is contingent on the success of the other stages. While we find that the additional exit is not required currently, if the application were to be approved without the third exit, it would be open to the applicant to apply at a later stage when revised information on traffic numbers, speed limits and users of the development are available.

Conclusion

212 For the reasons in this Judgment we have concluded that adequate regard has not been given to the desirable elements of the location’s current character so that new buildings contribute to the quality and identity of the area. In particular we find that the proposal does not provide an appropriate transition between the urban and rural character of the locality by providing adequate setbacks and separation of the houses along Jamberoo Mountain Road. This does not maintain adequately the rural setting of the village and results in an unacceptable visual impact. In addition, the proposal will result in adverse social and amenity impacts due to its size and location and access to services. For these reasons the application must fail.

213 The Orders of the Court are:

1) The appeal is dismissed.

2) The development application (DA10.2005.418.1) for a development under State Environmental Planning Policy – Seniors Living 2004 located on the corner of Churchill Street and Jamberoo Mountain Road, Jamberoo is refused.

__________________ __________________

Annelise Tuor Dr Mark Taylor

Commissioner of the Court Commissioner of the Court

24/12/2008 - amend paragraph number - Paragraph(s) 185

24/12/2008 - correct parragraph number - Paragraph(s) 185

11/02/2009 - spelling - Paragraph(s) 72

CITATION:	Crighton Properties Pty Ltd v Kiama Municipal Council [2008] NSWLEC 1497 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Crighton Properties Pty Ltd RESPONDENT Kiama Municipal Council
FILE NUMBER(S):	11208 of 2007
CORAM:	Tuor C - Taylor C
KEY ISSUES:	Development Application :- Serviced self care housing and aged care facility proper planning approach - weight to be given to planning instruments character of the area and visual impact social and amenity impacts traffic
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994 State Environmental Planning Policy - Seniors Living 2004 Kiama Local Environmental Plan 1996 Illawarra Regional Environmental Plan No 1 and No 2 Draft Kiama Local Environmental Plan Kiama Development Control Plan 36
CASES CITED:	Crighton Properties Pty Limited v Kiama Municipal Council [2006] NSWLEC 297 Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180 Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41 Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council [2008] NSWLEC 284 Grove Group v Pittwater Council [2008] NSWLEC 1415 Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252 Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 Flower & Samios Pty Limited v Shoalhaven City Council [2007] NSWLEC 372
DATES OF HEARING:	16/09 - 19/09/ 2008, 23/09 - 25/09/2008 and 30/09/2008 Further written submissions 23/10, 24/10, 31/10 and 13/11/2008
DATE OF JUDGMENT:	24 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti, SC with Mr J Johnston, barrister SOLICITORS Conditsis & Associates RESPONDENT Mr P Clay, barrister SOLICITORS Russell McLelland Brown