Dem Gillespies v Warringah Council
[2002] NSWLEC 224
•11/26/2002
Reported Decision: 124 LGERA 147
Land and Environment Court
of New South Wales
CITATION: Dem Gillespies v Warringah Council [2002] NSWLEC 224 PARTIES: APPLICANT:
RESPONDENT:
Dem Gillespies
Warringah CouncilFILE NUMBER(S): 10537 of 2001 CORAM: Bignold J KEY ISSUES: Development Application :- Proposed development for housing for older persons etc-in non-urban area adjoining urban area-whether development consistent with desired future character of area. LEGISLATION CITED: Warringah Local Environmental Plan 2000 CASES CITED: Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276;
Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 ;
Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185;
Hornsby Shire Council v Malcolm(1986) 60 LGRA 429;
Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190;
Hunt v Blacktown City Council (2001 116 LGERA 356;
Mackenzie v Warringah Council (2002) NSWLEC 131;
Maxwell v Hornsby (2002) 121 LGERA 186;
Momentum Architects Pty Ltd v Hornsby Shire Council (2002) NSWLEC 192;
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21;
Schroders Australia Property Management Ltd v Shoalhaven City Council (2002) NSWCA 74DATES OF HEARING: 28-31/10/02 DATE OF JUDGMENT:
11/26/2002LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr M Tobias QC with Ms S Duggan, Barrister
SOLICITORS
Day Dockrill
Mr D Wilson, Barrister
SOLICITORS
Wilshire Webb
JUDGMENT:
IN THE LAND AND
Matter No. 10537 of 2001
ENVIRONMENT COURT OF
Coram: Bignold J.
NEW SOUTH WALES
26 November 2002
DEM GILLESPIES
Applicant
v
WARRINGAH COUNCIL
Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the Council’s determination refusing development consent to an application to carry out housing for older people or people with a disability (comprising 117 self care dwellings and associated facilities) on land known as Nos 83/85 Booralie Road, Terrey Hills comprising two adjoining lots having an aggregated site area of 3.875 hectares (the development site). In its amended form the proposed development creates 112 self care dwellings.
2. In its Notice of Determination given pursuant to the EP&A Act, s 81 the Council stated 14 grounds or reasons for its determination refusing consent. These reasons included what was to become the principal focus of the hearing of the appeal, namely the assertion that the proposed development was “not consistent with the Desired Future Character Statement of the A2 Booralie Road Locality” included in the Warringah Local Environmental Plan 2000 (the LEP). In this respect, it is common ground that cl 12(3)(b) of the LEP which requires the consent authority to be “satisfied that the development is consistent with the desired future character described in the relevant Locality Statement” operates in the nature of a condition precedent to the granting of any development consent to the proposed development: cf Schroders Australia Property Management Ltd v Shoalhaven City Council (2002) NSWCA 74. I shall presently return to consider this all important question.
3. However, it is first necessary to note that another of the grounds or reasons for the Council’s determination refusing development consent was that the proposed “sewage treatment facility” for the proposed development was relevantly “designated development” in terms of the EP&A Act and the Environmental Planning and Assessment Regulation 2000 (the Regulation) for which development s 78A(8) the EP&A Act required the development application to be accompanied by an environmental impact statement, and that no such environmental impact statement had accompanied the Applicant’s development application.
4. The Applicant’s ultimate response to this particular ground or reason for the Council’s determination was to lodge with the Council a further development application accompanied by an environmental impact statement for the sewerage infrastructure proposed for the development. This decision was apparently made, for more abundant caution, after it became aware of the recent decision of Pain J in Maxwell v Hornsby (2002) 121 LGERA 186 where her Honour held that where a proposed development (in that case a retirement village comprising 120 residential units, a nursing home and community centre and facilities) included a sewerage facility infrastructure which fell within the category “sewerage systems or works….” included in Part 1 of Schedule 3 to the Regulation which specifies “designated developments” then it was “designated development” and it was irrelevant to that conclusion that the sewerage infrastructure was subservient or subordinate to the proposed residential development.
5. In the present case, what is proposed to be development by way of sewerage infrastructure on the development site is an underground holding tank to which all sewerage from the proposed residential development will be initially directed and be held, until it is pumped via pipes to the nearest appropriate component of the existing reticulated sewerage system provided by Sydney Water, which component is located some kilometre to the south of the development site.
6. At the outset of the hearing, the difficulty by virtue of the existence of this separate development, posed for the Applicant in prosecuting its present appeal was immediately encountered It was simply this—how could the Court determine the development application, the subject matter of the appeal, by ignoring the fact that its consideration of the proposal necessarily would not include the element of essential sewerage services to the residential development? Alternatively, how could the Court consider the sewerage infrastructure component of the development when there was no pending appeal against the Council’s determination of that separate development application. Indeed, at the time, there had not even been a determination by the Council of that development application.
7. Faced with this dilemma, a number of solutions were canvassed by the parties, short of simply adjourning the hearing until such time as the separate development application for the sewerage infrastructure had been determined and been appealed and was thereafter joined to the present appeal (which course was not preferred by the Applicant). Fortunately for the Applicant, the Council adopted a most accommodating stance by agreeing that the hearing of the present appeal might immediately proceed in a manner that would defer consideration of the question of the proposed sewerage infrastructure to the proposed housing development to a future date, at which time the necessary processes and documentation in respect of the pending separate development application for that sewerage infrastructure would be completed so that the Court would be seised with jurisdiction to determine that application in conjunction with the completion of its consideration of the present appeal. All these necessary actions having been taken during the course of the hearing, the Court at the conclusion of the present hearing, by consent of the parties, adjourned the further hearing on the deferred question of the sewerage infrastructure to 3 December 2002 which is the same date that it allocated for the expedited hearing of the Applicant’s recently lodged appeal (Matter No 10833 of 2002) against the Council’s refusal of the separate development application for the sewerage infrastructure.
8. Simultaneously with the completion of the hearing on 31 October 2002 Talbot J in Momentum Architects Pty Ltd v Hornsby Shire Council (2002) NSWLEC 192 decided not to follow the decision of Pain J in Maxwell, preferring instead to apply a number of earlier decisions of this Court and of the Court of Appeal in holding that a proposed housing for older people development comprising 140 residential units and associated communal facilities which development included a sewerage infrastructure of a kind similar to that proposed in the present case (ie sewerage storage facility for ultimate discharge via pipelines to the closest available reticulated sewerage facility provided by Sydney Water) was properly characterised as “a SEPP5 development”.
9. In so concluding, his Honour held at par 23 that “the proposal for sewerage storage is not such that it should be regarded as separate development. It is subsumed as a matter of fact and degree in the overall development”.
10. It remains to be seen, in the light of the Court’s subsequent decision in Momentum Architects Pty Ltd, what positions the parties to the present proceeding will take at the adjourned hearing. In this respect, it should be noted that the Applicant in the present case expressly reserved its position as to the correctness of the Court’s decision in Maxwell, noting that it had only lodged the separate development application for the sewerage infrastructure in the present case because of the decision in Maxwell (which was subsequent to the Council’s determination of the development application in the present case) but had only done so precautionarily, and was prepared if necessary, to argue that Maxwell should not be followed in the present case.
11. Notwithstanding these arrangements for the completion of the present proceedings in conjunction with the hearing of the separate appeal in respect of the development application for the sewerage infrastructure, both parties have invited the Court to consider the planning merits of the case and if possible to determine the case upon that basis only, in advance of the adjourned hearing date on 3 December 2002.
12. Both the parties acknowledge that if the Court’s determination on the planning merits were to be favourable to the Applicant, the pronouncement of that determination would not take the form of a final determination because of the need for a future adjudication on the outstanding and deferred question of sewerage infrastructure to the proposed housing development (on which issue the parties are presently in dispute) whereas if the Court’s determination on the planning merits were to be unfavourable to the Applicant, the pronouncement of that determination could take the form of final orders because such an outcome would necessarily require the dismissal of the appeal and refusal of development consent because it is obvious that a determination on the only outstanding issue of sewerage infrastructure could not possibly alter that outcome. If the latter outcome were to emerge, it would also spare the parties additional costs in respect of the deferred question and of the allocated hearing on 3 December 2002.
13. In view of the foregoing considerations, I propose to proceed to my determination of the disputed planning merits of the proposed development. In doing so, I acknowledge the assistance I have received from Commissioner Brown pursuant to the Land and Environment Court Act 1979, s 37(1).
14. However, before considering the planning merits of the proposal, it is necessary to note in some detail the relevant provisions of the LEP as they apply to the development site and to the proposed development, because it is these provisions that principally inform the evaluation of the proposed development that is required to be made by the EP&A Act s 79C.
B. THE DEVELOPMENT SITE AND THE PROPOSED HOUSING DEVELOPMENT AND THE RELEVANT PROVISIONS OF THE LEP
15. I adopt the following extracts from the Report of (Exhibit C) of Mr Neil Ingham, Planning Consultant as adequately describing both (i) the development site and its environs; and (ii) the proposed development—
- (i) THE SITE DEVELOPMENT AND ITS ENVIRONS
The site is known as No’s 83 and 85 Booralie Road, Terrey Hills. The site comprises lots 51 in DP 651178 and lot 2 in DP 530145. (See Figure 1 – Location and Figure 2 – Site).
The site has a frontage of 151.11 metres to Booralie Road, a frontage of 252.21 metres to Laitoki Road, a frontage of 150.78 to Tooronga Road (an unformed road), and a western boundary of 258.53 metres. The total area of the site is 38,750 sqm.
The site falls from the north-western corner of the site towards a watercourse located in the south-eastern corner of the site and then rises slightly to the south-east of the site. The fall from the north-western corner of the site to the creek is about 11 metres and from the creek bed to the south-eastern corner is about 3.6 metres. The watercourse itself has a depth of about 3 metres and is clearly defined on the site by its banks and the configuration of it.
There are some areas of the site on which tree groupings exist being primarily towards the north-eastern corner of the site and towards the south-eastern corner of the site on the south-eastern side of the creek.
There are three existing dwellings on the land, two being generally towards the Booralie Road frontage of the site and one being close to the creek towards the south-eastern part of the land. A number of sheds exist on the site associated with the dwelling houses.
The site slopes towards the south-east at about a slope of between 1 in 20 and 1 in 30.
There are existing points of access to the land both from Booralie Road and from Laitoki Road.
Fronting Laitoki Road adjacent to the site are dwelling houses which are both one and two storey in height and located to the west of the site is a rural residential lot containing a dwelling house. In addition, on the northern side of Booralie Road is land developed with dwelling houses at a very low density.
The two sites have been used as rural residential properties in the past.
The site is located on a site which is adjacent to suburban residential development to the east. The development to the north, west and south is primarily rural residential interspersed with some market gardening. The Terrey Hills shopping centre is located about 0.9 km to the east along Booralie Road and the Terrey Hills Golf and Country Club about 3 km to the west. In addition, at least two schools exist to the west and the Terrey Hills Public School exists to the south east. It is to be noted that each of these schools is located within a rural residential area.
(ii) THE DEVELOPMENT PROPOSAL
The proposal is to erect on the site a residential community for older people or people with a disability. It is intended that there be 112 two bedroom self contained units on the site clustered in six clusters of three buildings, together with one cluster of two buildings and one additional building being located to the central north of the site and a club house being located towards the south-east corner of the site. Each of the clusters containing three buildings, the predominant form is two storeys in height. There are three buildings which are three storeys in height located more centrally than the majority of buildings on the site.
The details of the proposed development are found on the drawing indicated in Appendix G.
A copy of Figure 1 (location) referred to in the extract from Mr Ingham’s Report is annexed hereto and marked “A”. This location map shows the location of the development site on the eastern front of the A2 Booralie Road Locality—separated from the Terrey Hills Village Area by Laitoki Road. It also shows the extent of the A2 locality and the surrounding Ku-Ring-Gai Chase National Park (which the LEP designates as Locality A6).
A copy of the site plan showing the proposed development is annexed hereto and marked “B”. It shows the footprint of the proposed residential buildings which are arranged in seven clusters of three contiguous buildings, generally of two storeys, except for three buildings which are three storeys. Underground carparking is located under three of the clusters with the other clusters providing above ground parking. Because of the detail on the site plan, I have shaded the footprint of the proposed buildings to better appreciate the site layout.
(iii) THE RELEVANT PROVISIONS OF THE LEP
16. The LEP, which came into force on 5 December 2000 and applies to the whole local government area, is in a distinctive format and structure which are quite different from the conventional format of local environmental plans that have been made under the EP&A Act. Some unconventional provisions of the LEP may be noted.
17. Clause 4(1) provides that the “plan has effect for two years commencing with the day on which it takes effect”. (Apparently, it is intended to extend the life of the LEP.)
18. Clause 5 excludes the application to the land to which the LEP applies of a number of specified State Environmental Planning Policies (including SEPP No 1 and SEPP No 5) but the LEP itself contains counterpart provisions to these two SEPPs.
19. Clause 3 states the “purposes of the plan” as follows:
- The purposes of this plan are:
(a) as far as possible, to integrate into one document all environmental planning instruments affecting the development of land in Warringah and ensure that this plan is the sole environmental planning instrument applying to the land to which it relates, and
(b) to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places, and
(c) to establish limits to the exercise of discretion with regard to the control of development, and
(d) to provide decision-making processes appropriate to the nature and extent of discretion to be exercised.
20. The LEP is divided into the following Parts—
- Part 1 Introduction
Part 2 Control of development
Part 3 Reservations
Part 4 General Principles of development control containing the following Divisions—
- Division 1 General
Division 2 Health and safety
Division 3 Public domain
Division 4 Site planning and building design
Division 5 Traffic, access and parking
Division 6 Soil and water management
Division 7 Heritage
Dictionary
Appendices A to H
21. A very important innovation of the LEP is its non-adoption of the conventional zoning approach to development controls. Instead, it adopts “Locality Statements” in respect of some 73 separate designated “localities” depicted upon the LEP map.
22. The Dictionary to the LEP adopted by cl 6(1) includes the following definitions—
- locality means a discrete area of land (or water) listed as a locality in an Appendix to this plan and identified on the map.
Locality Statement means a Locality Statement set out in an Appendix to this plan.
The map means the maps marked Warringah Local Environmental Plan 2000 as amended by the maps (or specified sheets of the maps) marked as follows—
……………
……………
……………
23. The LEP contains the following Appendices which designate the aforesaid 73 localities as sub-groups of the eight areas listed in the Appendices as follows—
- A Cowan Creek Catchment Locality Statements
B Narrabeen Lagoon Catchment Locality Statements
C Middle Harbour Locality Statements
D Collaroy Beach Catchment Locality Statements
E Dee Why Locality Statements
F Curl Curl Lagoon Catchment Locality statements
G Manly Lagoon Catchment Locality Statements
H Harbord Locality Statements
24. Of the 73 localities shown on “the map” there are 7 separate localities comprising Appendix A (Cowan Creek Catchment). The development site is included in Locality A2 “Booralie Road” which locality is adjoined on its eastern front by Locality A3 (Terrey Hills Village) the existence of Laitoki Road (a constructed residential road) physically separating the two Localities.
25. It should also be noted that the Appendices to the LEP containing the 73 separate “Locality Statements” constitute the great bulk of the content of the LEP. The Appendices comprise pages numbered 134 to 576 of the written text of the LEP (ie nearly 80 per cent of the entire document).
26. There is a common structure and the format of each of the Locality Statements. That format and structure generally includes the following content for each of the Locality Statements—
(i) Desired Future Character
(ii) Land Use —comprising Category One, Category Two, Category Three Development
(iii) Prohibited Development
- (iv) Built Form
- specifying requirements for “ housing density ” “ building height ” and “ front building setback ”
(vi) Heritage Items
27. Before considering the relevant content of the locality statement for locality “A2 Booralie Road” I should identify the provisions of the LEP which give legislative effect to the Locality Statements in terms of controlling or prohibiting the carrying out of development on land within each locality.
28. Clause 7 of the LEP declares that “all development requires consent” (except for “exempt development” identified in Schedules 1 and 2 to the LEP).
29. Clause 10 declares the following development to be prohibited:
(a) development identified as being prohibited within a Locality Statement; and
(b) signs of the type listed in Schedule 4.
30. Clause 12 is the pivotal provision controlling development that may be carried out with consent and does so principally by reference to the content of the Locality Statements. It is in the following terms:
- 12 What matters are considered before consent is granted?
(1) Before granting consent for development the consent authority must be satisfied that the development is consistent with:
(a) any relevant general principles of development control in Part 4, and
- (2) Before granting consent for development, the consent authority must be satisfied that the development will comply with:
(a) the relevant requirements made by Parts 2 and 3, and
(b) development standards for the development set out in the locality Statement for the locality in which the development will be carried out.
(3) In addition, before granting consent for development classified as:
(a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or
(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement.
31. Clause 14 is auxiliary to cl 12 in that it prescribes the three categories of development for which development consent may be granted. For present purposes, it is sufficient to recite only cl 14(1) which provides as follows:
- (1) For the purposes of clause 12, development of land within a locality is classified by the relevant Locality Statement as being within one of three following categories:
(a) Category One,
(b) Category Two
(c) Category Three
32. Clause 18 likewise incorporates the content of the Locality Statements in prescribing the controls operating in respect of the “built form” of development. It provides as follows:
- How will the built form of development be controlled?
(1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement.
(2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.
33. It is to be noted that the LEP does not itself contain a definition of “development standards”. The meaning of that term contained in the EP&A Act, s 4(1) would accordingly apply: see the EP&A Act, s 34(1) and the Interpretation Act 1987, s 11.
34. Clause 20 which qualifies the operation of cl 12(2)(b) also incorporates some relevant content of the Locality Statements.
35. It provides as follows:
- 20 Can development be approved if it does not comply with a development standard?
(1) Notwithstanding clause 12 (2) (b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.
(2) In localities A2, A4, A5, A7, B2, B9, C8 and C10, the minimum area per dwelling required by the housing density standard is deemed to be the minimum allotment size for allotments created by subdivision.
(3) Where consent is granted for development that does not comply with one or more development standards, the Council is to ensure that the circumstances of the case and reasons for granting consent are included in a public register of such consents.
36. Clause 22 which imposes a requirement for consideration of “site analysis” also incorporates some content of the “locality statements”. Schedule 8 to the LEP contains more extensive detail of the purposes of a site analysis and the contents of a site analysis. The detail of the purposes of the site analysis is stated as follows:
- The purpose of a site analysis is to identify and explain graphically:
· The key influences on the design, and
· The site planning for the proposal and how the development will relate to the immediate locality.
- A site analysis must be to scale and should identify development opportunities and constraints. It should influence the design to minimise negative impacts on the amenity of adjoining development and to complement the desired character of the locality.
37. It is now opportune to refer to the relevant contents of the Locality Statement for Locality “A2—Booralie Road”: That content includes the following statement of the “Desired Future Character”:—
- The Booralie Road locality will remain a non-urban area consisting of houses in distinctly non-urban settings and occasionally business or community uses that are compatible with the non-urban nature of the locality and predominant scale of existing development.
The impact of new development on views from the adjacent national Park will be minimised by the use of articulated building forms, generous landscaped spaces around buildings and building materials that blend in with the colours and texture of the natural landscape.
Emphasis will be given to protecting and where possible enhancing the natural landscape, including landforms and vegetation. The increased planting of indigenous canopy trees will be strongly encouraged.
38. Under the hearing “Land Use”, “Category One, Two and Three” Developments are specified as follows:
- Category One
Development for the purpose of the following:
· housing
· agriculture
- Category Two
Development for the purpose of the following:
· animal boarding or training establishments
· child care centres
· community facilities
· health consulting rooms
· housing for older people or people with disabilities (on land described in the initial paragraph (b) under the heading “Housing density” below)
· retail plant nurseries
· veterinary hospitals
· other buildings, works, places or land uses that are not prohibited or in Category 1 or 3.
- Category Three
Development for the purpose of the following:
· bulky goods shops
· business premises
· entertainment facilities
· further education
· heliports
· hire establishments
· hospitals
· hotels
· industries
· medical centres
· motor showrooms
· offices
· places of worship
· primary schools
· recreation facilities
· registered clubs
· restaurants
· service stations
· shops
· short term accommodation
· vehicle repair stations
· warehouses
39. Under the heading “Prohibited Development” the following is stated:
- Development for the purpose of the following is prohibited within this locality:
· brothels
· extractive industries
· housing for older people or people with disabilities (other than on land described in the initial paragraph (b) under the heading Housing density below)
· potentially hazardous industries
· potentially offensive industries
· vehicle body repair workshops
- Canal estate development is also prohibited within this locality.
40. Under the heading “Built Form” the following is included:
- Housing density
The maximum housing density is 1 dwelling per 2 ha of site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent), except:
(a) where this standard would prevent an existing allotment accommodating one dwelling or
housing for older people or people with a disability” and the development complies with the minimum standards set out in clause 29.
- However, consent may be granted for development that will contravene these housing density standards but, if by more than 10 per cent, only with the concurrence of the Director.
The matters which shall be taken into consideration in deciding whether concurrence should be granted are:
(a) whether non-compliance with the development standard in issue raises any matter of significance for State or regional environmental planning, and
- To measure housing density:
· the site area is divided by the number of dwellings proposed on the site, including any existing dwellings which are to be retained, and
· the site is the allotment which existed on the day this plan came into effect, and
· granny flats are not considered to be a dwelling and are limited to one per allotment.
- Building height
Buildings are neither to exceed 2 storeys nor 8.5 metres.
Buildings must comply with both the maximum height measured in storeys and the maximum height measured in metres.
To measure the height of a building:
· the maximum height in metres is the distance measured vertically between the topmost point of the building (not being a vent or chimney or the like) and natural ground level below,
· a storey is the space between two floors, or the space between any floor and its ceiling or roof above,
· foundation spaces, garages, workshops, store rooms and the like which do not project more than 1 metre above natural ground level (at any point) are not counted as storeys, and
· the number of storeys is the maximum number of storeys which may be intersected by the same vertical line, not being a line which passes through any wall of the building.
- Buildings are not to exceed 2 storeys in height except where on significantly sloping land and if the additional storey:
· does not exceed 2 storeys in height except where on significantly sloping land and if the additional storey:
· is designed and located to minimise the bulk of the building, and
· has minimal visual impact when viewed from the downslope sides of the land.
- Front building setback
Development is to maintain a minimum front building setback.
The minimum front building setback is 20 metres.
The minimum front building setback area is to be landscaped and free of any structures, carparking or site facilities other than driveways, letterboxes and fences.
41. In relation to the “housing density” provisions of the “A2 Booralie Road” Locality Statement, it is to be noted that the present case has been conducted upon the commonly agreed basis that (i) the development site is relevantly land “that adjoins a locality which is primarily used for urban purposes”; (ii) the proposed development is “housing for older people or people with a disability”; and (iii) the proposed development complies with the minimum standards set out in cl 29.
42. The expression “minimum standards” does not in fact appear in cl 29 but it is tolerably clear that its contents are capable of operating as “minimum standards”.
43. Clause 29 is in the following terms:
- On what grounds can applications for housing for older people or people with disabilities not be refused?
(1) This clause does not apply to land within the B6 War Veterans locality.
(2) Consent for development fort he purpose of housing for older people or people with disabilities cannot be refused on the grounds of:
(a) building height: if all proposed buildings are 8 metres or less in height when measured vertically from any ponit on the ceiling of the topmost floor of the building to the ground level immediately below that point, or
(b) density and scale: if the density and scale of the buildings, when expressed as a floor space ratio is:
(i) 0.5:1 or less, except as provided by subparagraph (ii), or
(ii) 0.75:1 or less, for hostels and residential care facilities located within 400 metres walking distance of a public transport node (being a public transport facility such as a railway station, but stop, or ferry wharf, that is serviced on a frequent and regular basis in daylight hours), or
(c) landscaped area: if minimum of 35 m2 of landscaped area per dwelling and 25 m2 of landscaped area per hostel or residential care facility bed is provided, or
(d) parking: if at least the following is provided:
(i) in the case of a hostel or residential care facility, at least 1 parking space for each 10 beds in the hostel or residential care facility, an 1 parking space for each two persons to be employed in connection with the development and on duty at any one time, and 1 parking space suitable for an ambulance, and
(ii) in the case of dwellings, at least 0.5 car space for each bedroom where the development application is made by a person other than the Department of Housing or a local government or community housing provider, or 1 car space for each 5 dwellings where the development application is made by, or is made by a person jointly with, the Department of Housing or a local government or community housing provider, or
(e) visitor parking: if, in the case of development that comprises less than 8 dwellings and is not situated on a clearway, no visitor parking is provided within the development, or
(f) landscaped areas: if, in relation to that part of the site (being the site, not only of that particular development, but also of any other associated development to which this clause applies) that is not built on, paved or otherwise sealed, there is soil of a sufficient depth to support the growth of trees and shrubs on an area (preferably located at the rear of the site) of not less than the width of the site multiplied by 15% of the length of the site, or
(g) private open space for in-fill housing: if:
(i) in the case of a single storey dwelling or a dwelling that is located, wholly or in part, on the ground floor of a multi-storey building, not less than 15 square metres of private open space per dwelling is provided and, of this open space, one area is not less than 3 metres wide and 3 metres long and is accessible from a living area located on the ground floor, and
(ii) in the case of any other dwelling, there is a balcony with an area of not less than 6 square metres, that is not less than 1.8 metres in length and that is accessible from a living area.
44. Clause 40 of the LEP prescribes further requirements to be provided in a development comprising housing for older people or people with disabilities—such requirements being (i) the provision of support services; (ii) the provision of wheelchair access; and (iii) the additional standards and principles prescribed by Schedule 16 to the LEP.
45. The term “housing for older people or people with disabilities” is defined by the Dictionary to the LEP as follows:
- housing for older people or people with disabilities means residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with disabilities, whether or not it is also used to accommodate people who live with older people or people with disabilities, or staff who are employed to assist in the administration of and provision of services to such housing. Housing for older people or people with disabilities may consist of a residential care facility, a hostel or a grouping of 2 or more self-contained dwellings, or a combination of these, but does not include a hospital or a group home.
46. Whereas there are other relevant provisions contained in the LEP it is commonly accepted that these provisions are satisfied by the proposed development except for two provisions in respect of which the parties are in dispute.
47. These disputed provisions are cl 50 and cl 66 which are in the following terms:
50 Safety and security
- Development is to maintain and where possible enhance the safety and security of the locality.
In particular:
· buildings are to overlook streets as well as public and communal places to allow casual surveillance.
· service areas and access ways are to be either secured or allow casual surveillance.
· there is to be adequate lighting of entrances and pedestrian areas.
· after hours land use activities are to be located along primary pedestrian routes.
· Public toilets, telephones and other public facilities are to be located so as to have direct access and to be clearly visible from well trafficked public spaces, and
· Entrances to buildings are to be from public streets wherever possible, and
· Buildings and structures are to be robust and durable to discourage vandalism.
Buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces, unless the applicable Locality Statement provides otherwise.
In particular:
· side and rear setbacks are to be progressively increased as wall height increases.
· large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief, and
· appropriate landscape plantings are to be provided to reduce the visual bulk of new buildings and works.
C. THE EVALUATION OF THE PROPOSED DEVELOPMENT
48. In evaluating the proposed development pursuant to s 79C of the EP&A Act, I shall do so by focussing attention on the issues contained in the Council’s Statement of Issues that remained in contention at the end of the hearing. These remaining issues (as formulated in the Council’s Statement of Issues) are as follows:
1. Whether the proposed development is consistent with the desired future character statement described in the A2 Booralie Road Locality Statement in Warringah Local Environmental Plan 2000 (WLEP 2000).
- ……….
3. Whether the proposed development is an overdevelopment of the site in that there is inadequate building separation , inappropriate streetscape and presentation, and poor residential amenity.
……………..
5. Whether the proposed development is inconsistent with the general principles of development control in WLEP 2000 and specifically:
(b) Clause 50 – Safety and security and relevant DUAP Guidelines;
- 6. Whether the proposed development should be refused having regard to the weight and substance of the resident objections in the circumstances of the case.
49. I shall separately consider each of these issues.
(i.) Is the proposed development consistent with the desired future character of Locality “A2 Booralie Road”?
50. As earlier noted, it is common ground that development consent can only be granted to the proposed development if the Court is satisfied that the proposed development is relevantly so consistent.
51. On this ultimate issue (which is a question of fact or a mixed question of law/fact) the Court has received a considerable body of competing expert opinion evidence.
52. For the Applicant, Mr Ingham, Consultant Town Planner, in his Report (Exhibit C) expressed the opinion that the proposed development “is totally consistent with the intentions of the A2 Booralie Road Locality Statement”: p 14.
53. The reasons for Mr Ingham’s opinion are set forth at p 13 of his Report and include the following:
- The fact that the proposed development is not for dwelling houses in a distinctly non urban setting is covered by the locality statement where the maximum housing density that is permitted is covered by the comment that on land which adjoins a locality which is used primarily for urban purposes, housing may be for housing for older people or people with a disability subject to the development complying with the minimum standards set out in Clause 29. It is difficult to understand how the proposed development does not accord with the character of the locality when it is specifically provided for in the locality statement. It appears to specifically allow the character of one locality to encroach upon an adjoining locality, for the purpose of housing for aged and disabled persons.
54. Competing opinions were expressed on behalf of the Council by Mr Keenan, Consultant Town Planner in his Report (Exhibit 4) and by Mr Harrison, Consultant Urban Designer and Town Planner in his Report (Exhibit 5).
55. It was Mr Keenan’s opinion that the proposed development was “significantly at odds” with the “Desired future character” statement in the “A2 Booralie Road Locality Statement”: p 20 of his Report. The reasons for Mr Keenan’s opinion are stated at pp 10 and 11 of his Report and include the following:
- The medium to high density nature of the proposed development is not, in my opinion, consistent with the Desired Future Character of the A2 Booralie Road locality as it:
- is not development consisting of houses in distinctly non-urban settings, and
- does not seek to protect or enhance the natural landscape, including landforms and vegetation.
56. It was Mr Harrison’s opinion that the “proposal gives no regard to the primary statement of (desired) future character of the area as described in the LEP” (p 7 of his Report). The reasons for his opinion are expressed at pp 6 and 7 and include the following:
- The LEP Locality Statement calls for development on the site to comprise of houses in a non-urban setting. The LEP also allows housing for older people on the site at a density which cannot be refused of 0.5:1 FSR and height up to 8m. The challenge is to design a development that achieves older people housing in a non-urban setting.
The appropriate non-urban setting to be achieved is a balance of bushland (eg near the creek), open parkland (to respond to the adjacent paddocks), large landscape setbacks from the public streets, and buildings set amongst trees.
The proposal does not achieve this balance.
57. The reasons for these competing opinions were more fully developed in the full text of the expert’s Reports and in the course of their oral testimony under cross-examination. However, there is no need for me to further elaborate upon the expert’s competing opinions or the reasons for them, because the extracts from their respective Reports that I have quoted adequately encapsulate the essence of the competing expert opinions and the reasons therefor.
58. Speaking conceptually, and at the risk of oversimplification, I would regard the competing opinions as ranging over a wide spectrum of planning evaluation of the proposed development with Mr Ingham’s opinion at one end (namely that both the development site and the proposed development could fairly be viewed as being an isolated and exceptional, but nonetheless legitimate, intrusion of, or encroachment by, an urban setting and urban development into the non-urban setting) and Mr Keenan’s opinion at the opposite end of the spectrum (namely that an urban development of the nature and scale of the proposal was “significantly at odds” with the non-urban setting) and Mr Harrison’s opinion being somewhere in the mid range of the overall spectrum (namely that there had to be a finely tuned balance between the decidedly urban character of the proposed development and its decidedly non-urban setting). Stated more succinctly, Mr Ingham emphasises the legitimacy of an urban development of the development site as if it were an urban setting whereas Mr Keenan emphasises the non-urban setting as not accommodating an urban development and Mr Harrison seeks a balance of solution by way of an urban development blending with the non-urban setting.
59. Moreover, I see these starkly competing planning evaluations as reflecting a fundamentally different understanding by each of the experts of the function within the operation of the LEP of the Locality Statement for the A2 – Booralie Road locality generally, and more particularly of its function in relation to the development site and the proposed development.
60. Indeed, on this very score, Senior Counsel for the Applicant submitted that the opinions of Mr Keenan and Mr Harrison were “not conformable” to the relevant test created by combined effect of cl 12 of the LEP and the relevant A2 – Booralie Road Locality Statement.
61. This at once brings me to a consideration of the true effect of the relevant provisions of the LEP. In this respect two fundamental issues were in contention namely—
(i) what is the true meaning of cl 12 of the LEP;
(ii) what is the true meaning and effect of the A2 – Booralie Road Locality Statement and in particular the statement therein of “Desired Future Character” for that locality.
62. As to (i) the principal issue in contention concerns the meaning of the word “consistent” in its context in cl 12(1) and cl 12(3) of the LEP.
63. Senior Counsel for the Applicant drew attention to the following passage in the recent decision of Pain J in Mackenzie v Warringah Council (2002) NSWLEC 131:
- 98. The application of the term consistency has been addressed by the Court on a number of occasions and was found to mean not antipathetic, nor incompatible or inconsistent with. (See Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (at 27), Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 (per Clarke JA at 192), Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 (at 439), Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190, and Kanne Pty Ltd v Botany Bay City Council [2001] NSWLEC 163 at par [25] – [28])).
64. Although this statement was made in respect of cl 20(1) of the LEP (which has been quoted earlier) its application to cl 12 of the LEP may be thought to be a natural extension particularly since most, if not all, of the cases which her Honour cited were cases which had considered a clause in a planning instrument in similar terms to cl 12(3)(b) but expressed in reference to stated objectives of a particular zone rather than to the “Desired future character” of a locality as in the present case.
65. Particular reliance was placed by Senior Counsel for the Applicant upon the decisions of the Chief Judge in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and in Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190. In Schaffer her Honour, after citing a passage from the judgment of Clarke JA in Coffs Harbour Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185, because she considered it to provide “some guidance” to the task of construction (at 26) expressed the following opinion at 27:
- The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
66. In Hospital Action Group the Chief Judge put the matter a little differently when she said at 264:
- It is also important to bear in mind that consistent does not mean conform to or promote and it does not require a positive finding of compatibility: Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27 and Bodyline Spa and Sauna (Sydney) Pty Ltd v South Sydney Council (1992) 77 LGRA 432 at 439.
67. Her Honour’s latter statement that a positive finding of compatibility is not required for a proposed development to be consistent to a stated zone objective is, in my respectful opinion, to be understood merely as an adoption by reference, of what Stein J had held in Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 where his Honour had to determine whether a proposed development “by virtue of its type, function, scale, services provided or the nature of the environment in which it is proposed to be located in, in the opinion of the Council, is consistent with the objectives of the zone”: see at 439.
68. One of the zone objectives required the proposed development to be “compatible with existing or planned residential development……” (see at 438). It was in relation to a submission that in order to comply with that zone objective, “a positive finding of compatibility is required” that Stein J said at 439:
- In my opinion, it may be concluded that this development is compatible with the existing residential development in the zone. I so find on the evidence notwithstanding that I do not accept that a positive finding of compatibility is required. Looked at objectively, and in the planning context, what is required is a finding that the development—taking account of its type and scale—is not incompatible or inconsistent with the residential development.
……..Taking into account all of the factors relevant to determine the compatibility of the proposal with the residential development, I am confident in the positive conclusion that it is compatible and does not conflict with the residential objectives of the zone.
69. Whereas it is the case that his Honour expressly rejected the submission that “a positive finding of compatibility was required” his Honour nonetheless held that what was required was a finding that the development is “not incompatible or inconsistent with” the residential development. That remains a positive finding though expressed via a double negative and with great respect I do not for myself see much difference between a requirement that there be a finding that a proposed development is “consistent with” a zone objective and a requirement that there be a finding that a proposed development is “not inconsistent with” a zone objective.
70. With the benefit of the survey of the decided cases on the meaning that has been given to the word “consistent” in clauses in planning instruments that require an opinion by the consent authority that a proposed development be “consistent with the zone objectives”, I would for myself, conclude that the word ‘consistent” appearing in cl 12(3)(b) of the LEP, assumes its ordinary and natural meaning. That meaning in my respectful opinion is not confined to the notion of the proposed development “not being antipathetic” to the desired future character of the Locality.
71. The dictionary meaning of the word “antipathetic” (eg the Macquarie Dictionary: “having a natural antipathy, contrariety or constitutional aversion”) indicates a far stronger, but narrower, connotation than the connotation of the word “inconsistent”. Clearly, there can be an “inconsistency” with a stated object which does not involve any element of “antipathy” to that object.
72. When Clarke JA in Coffs Harbour Environment Centre Inc stated at 193 that whatever be the precise ambit of provisions in a local environmental plan which prohibited all development “unless the Council was satisfied that the carrying out of the development is generally consistent with one or more of the stated objectives of the zone” (and concurrently permitted development other than that which was prohibited) “the provisions do not permit an antipathetic development…”, his Honour was simply propounding the view that he had already expressed at 192 that the construction under land zoned “Public Recreation” of a sewerage treatment plant “could not possibly be regarded as being compatible with public recreational use of the land”. His Honour had deliberately eschewed any attempt to define the ambit of the relevant planning provisions and his conclusion that they did not permit the carrying out of “antipathetic” development was nothing more than postulating an obvious and unarguable proposition that such a development could not qualify as being “generally consistent” with the zone objectives.
73. Accordingly, it is clear in my opinion that whereas something that is antipathetic to a stated object is obviously inconsistent with that object, antipathy is not a true synonym of inconsistency and the meaning of inconsistency is not to be confined to the meaning of antipathy. Inconsistency can arise without any antipathy.
74. On the other hand, “compatibility” in my judgment may reasonably be regarded, a synonym of “consistency” and the meanings of these words is very similar, although in Coffs Harbour Environment Centre Clarke JA at 192 rejected as “too expansive” an argument that “consistent” meant “compatible” and one of the dictionary meanings of the latter word was “mutually tolerant”. I would respectfully agree with Clarke JA’s conclusion that that particular meaning of “compatible” was too expansive in the context of its application to the statutory provision requiring the consent authority’s opinion that the proposed development be “generally consistent” with the zone objective. However, the primary dictionary meaning of “compatible” (the Macquarie Dictionary: capable of existing together in harmony) is in my judgment, both apt and applicable to the interpretation of the word “consistent” in its context in cl 12(3)(b) of the LEP.
75. In so concluding, that the ordinary and natural meaning of the word “consistent” in its statutory context is to be applied as being appropriate to the true meaning of cl 12(3)(b) I have had regard to the function and effect within the LEP of the Locality Statements and of those components of such Statements that state the “desired future character” of each of the localities. I have earlier drawn attention to the particular provisions of the LEP that either incorporate or contain reference to the Locality Statements and those components of those Statements that state the Desired Future Character of each of the localities. The function within the LEP of the Locality Statements is self-evidently significant. I have also had particular regard to cl 18 earlier recited where subclause (2) declares that “compliance with development standards, however, does not guarantee that the development is consistent with….the desired future character of the locality”. This provision, in my opinion, is a reinforcement, and perhaps even an apt commentary upon, the true effect of the joint operation of the requirements of cl 12(2)(b) and cl 12(3)(b).
76. Finally, and perhaps most importantly, I have had regard to cl 3 of the LEP which expressly states the purposes of the LEP and in particular to purpose (b) which “describes the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places” ( my emphasis). This particular provision, is in my judgment, of considerable importance inasmuch as it confirms the legitimacy of according to the word “consistent” in its context in cl 12(3)(b) its ordinary and natural meaning, in preference to a meaning (eg “not antipathetic” as pressed by the Applicant’s argument) which “would not best meet the purposes” (cf “objects”) stated in the LEP: see s 25(3) of the EP&A Act which states:
- (3) Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred.
77. For the foregoing reasons, I am quite unable to accept the Applicant’s argument that the word “consistent in its context in cl 12(3)(b) means “not antipathetic”. Rather I would hold that it has its ordinary and natural meaning (eg as in the Macquarie Dictionary: “1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistently adhering to the same principles, course etc”).
78. In leaving this question, I should also note the Applicant’s related argument that the word “consistent” where appearing in cl 12(1) and cl 12(3) was used in deliberate distinction to the expression “will comply” employed by cl 12(2), and that the requirement of subclause (1) that the proposed development be “consistent” with “any relevant general principles of development control in Part 4” did not require “compliance” with those controls. Again, it was submitted that the requirement of subclause (1) for the proposed development to be relevantly “consistent with” the relevant principles was no more than a requirement for it to be “not antipathetic” to those principles.
79. With great respect, this submission does not, in my judgment, illuminate the true meaning of cl 12(3)(b) but in any event, I would not adopt the Applicant’s construction of cl 12(1) of the LEP. The flaw in the Applicant’s argument can be readily tested by an example which is relevant to the present case. As earlier mentioned cl 40 imposes requirements in respect of the provision of “support services” and of “wheelchair access” in development for housing for older people or people with disabilities. In my judgment, cl 12(1)(b) requires the provision of such services and access before a development consent for a proposed development for housing for older people or people with disabilities may be granted. To submit, as must the Applicant in support of its argument, that development consent could be granted to a proposed development lacking those mandatory services and access provided that that lack could be reasonably described as “not being antipathetic” to those mandatory requirements, is self-evidently unconvincing. I would reject the Applicant’s contentions which seek to read down the word “consistent” where appearing in cl 12(1) and cl 12(3) of the LEP.
80. The second issue in contention concerns the true meaning of the statement of the “Desired Future Character” contained in the “A2 Booralie Road” Locality Statement. The terms of this statement have been set out in par 37. In my opinion, the true meaning of the statement is reasonably clear. It must of course be appreciated that the statement is describing the character of the locality. When the statement says that the area “will remain a non-urban area consisting of housing in distinctly non-urban settings….etc” it is referring to both the existing character of the locality and to its future character by virtue of the application to new development of the controls imposed by the LEP. The close relationships between (i) the controls on development; and (ii) the desired character of the localities is one of the express purposes of the LEP—vide cl 3(b).
81. The principal point of contention between the parties concerns the Applicant’s attempt to distinguish between (i) the A2 Booralie Road Locality generally; and (ii) the development site in particular to vindicate the proposition that if the proposed development is carried out on the development site, the A2 Locality generally “will remain a non-urban area consisting of houses in distinctly non-urban settings…” (regardless of the existence of that development).
82. The Applicant’s argument goes a little further than to simply rely upon the distinction between the general and the particular by fastening upon the fact (which gains some support in the evidence) that the opportunities for similar types of developments in the A2 Locality to the proposed development on the development site are necessarily limited so that the end result of the carrying out of the present development on the development site, taken in combination with the limited possibility of other similar developments on other sites in the A2 Locality, will not disturb or undermine or prejudice the attainment of desired future character of the A2 Locality understood generally.
83. In my judgment this argument, despite its ingenuity, betrays a misunderstanding (albeit subtle) of the true meaning and effect of the statement of the Desired future character contained in the A2 Booralie Road Locality Statement as applied by cl 12(3)(b) of the LEP.
84. Clause 12(3)(b) requires as a condition precedent to the granting of development consent for a Category Two development (such as is the proposed development) the satisfaction by the consent authority that the development “is consistent with the desired future character” described in the relevant locality statement.
85. The requirement in respect of relevant “consistency” must necessarily include the proposed development site, which forms part of the A2 Locality. The Applicant’s construction in effect excludes the development site from the requisite consideration whereas the relevant condition precedent in terms, integrally relates the proposed development on the development site located within the A2 locality to the desired future character of that locality. Adoption of the Applicant’s construction of the statement of the desired future character of the locality would effectively defeat the express purpose (vide cl 3(c)) of the provisions of cl 12(3) and cl 18 which clearly give effect to that express purpose.
86. The present case is not a case where the proposed development on the development site is the only case where such development may be permitted in the A2 Locality.
87. But even if it were the only development site that could possibly be developed by a development comprising a housing for older people or people with disabilities, consideration of the effect of the development of that site in terms of being consistent with the desired future character of the locality would nonetheless be required in fulfilment of the mandatory terms of cl 12(3)(b) of the LEP.
88. For all the foregoing reasons, I would not adopt the Applicant’s proffered construction of the true meaning of the statement of the desired future character in the A2 Locality Statement.
89. The consequences of my rejecting the Applicant’s principal arguments on the true meaning of cl 12(3)(b) of the LEP and the statement of the desired future character of the A2 Locality Statement means that I do not accept the Applicant’s submission that the opinions of the experts called by the Council are fundamentally flawed (as reflecting a wrong understanding of the relevant provisions of the LEP that I have just analysed).
90. This means that I am left with the starkly competing planning opinions that I have earlier noted.
91. In my judgment, the opinions of Mr Keenan and Mr Harrison more accurately reflect, and more sensitively relate to, the relevant provisions of the A2 Locality Statement and the statement of the desire future character for that locality than does Mr Ingham’s competing opinion. As I have earlier noted, Mr Ingham’s opinion essentially fastens upon the fact that the proposed development is classified Category Two development by the A2 Locality Statement and in his opinion that fact necessarily impacts the true meaning and effect of the statement of the Desired future character of the locality. Since that impact is clearly not reflected in the text of the statement of desired future character, Mr Ingham’s view is that it must necessarily be implied into it.
92. However, in my judgment Mr Ingham’s opinion encounters insurmountable problems caused by the text of the LEP (quite apart from the absence from the statement of Desired future character of any indication that that character will not be adversely affected by development such as is proposed by the Applicant’s development of the development site). The most obvious problem is the intractable text of cl 12(3)(b) itself, which requires the consent authority to be satisfied that the proposed development be consistent with the desired future character described in the relevant Locality Statement. That reference can only mean the text of the relevant statement, properly construed. Although this does not exclude the possibility of the implication into that text of some form of accommodation of the proposed development, it highlights the importance of there being a justification to make that implication. Mr Ingham proffers the reason that it is because the proposed development is classified by the LEP as Category Two development that justifies the implication. However, that reason fails to have regard to the fundamental distinction between the provisions of the LEP which so classify the development as being one that may be carried out in the locality (with development consent) and the provisions of cl 12(3)(b) which require, as a condition precedent to the grant of any such development consent, the satisfaction on the part of the consent authority that the proposed development “is consistent” with the relevant desired future character of the locality. The relevant distinction, and the potential consequences of it, are clearly stated by cl 18 of the LEP.
93. Moreover, the basis for Mr Ingham’s opinion that it would be inconsistent and contrary for the LEP to classify the proposed type of development as Category Two development but nonetheless to insist upon consistency with the statement of desired future character for the A2 Locality, is undermined by the manner in which the Courts have interpreted clauses of local environmental plans requiring the consent authority to be satisfied that a proposed development be consistent with a zone objective, as not being provisions that declare prohibited development, but as provisions which limit the power of a consent authority to grant development consent. The latest case so holding is the decision of the Court of Appeal in Hunt v Blacktown City Council (2001) 116 LGERA 356 at 374.
94. For the abovementioned reasons, I have not been persuaded that there is any justification for implying into the text of the statement of desired future character for the A2 Locality Statement an accommodation of the type of development as is proposed for the development site. In so concluding, there are a number of features of the LEP that apply to the proposed development that indicate the exceptional nature of the permissibility of the proposed development on the development site, these being the following:
(i) Housing for older people and people with disabilities is declared by the A2 Locality Statement as being either Category Two Development (permissible with development consent) or Prohibited development. It will be the former if “ it complies with the minimum standards set out in cl 29 ” and it will be the latter if it does not so comply;
(ii) Even housing for older people or people with disabilities which is Category Two development operates as an exception to the housing density stipulated by the Locality Statement of one dwelling house per 2 hectares.
(iii) Moreover, the exceptional permissibility of development referred to in (ii) is only permitted on land that “adjoins a locality which is used primarily for urban purposes”.
- In the case of the present development site, it comprises two separate lots, only one of which fronts Laitoki Street and in that sense “ adjoins a locality… ” etc: see Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276 and Hornsby Shire Council v Malcolm (1986) 60 LGRA 429.
95. In my judgment, there is no irreconcilable inconsistency or contrariety in the text or operation of the A2 Locality Statement in relation to the proposed development or the development site. The proposed development is undoubtedly category Two development (albeit operating as a permitted exception to the prescribed housing density standard) but in order for it to be approved, the Court must be satisfied that the proposed development is consistent with the desired future character of the A2 Locality: vide cl 12(3)(b).
96. In my judgment, once the true effect of cl 12(3)(b) and the statement of desired future character for the A2 Locality are appreciated, as I hope I have already demonstrated, it follows that there is nothing in the Applicant’s case (once I have rejected Mr Ingham’s opinion) that enables me to be satisfied of the condition precedent created by cl 12(3)(b) of the LEP and there is much in the Council’s case (in the opinions of Mr Keenan and Mr Harrison and in the multitudinous resident objections, including the testimony given by a handful of those objectors) that precludes me from being satisfied of the condition precedent created by cl 12(3)(b).
97. I have already noted that I consider the opinions of Mr Keenan and Mr Harrison to more accurately reflect the true meaning and effect of the A2 Locality Statement in relation to the proposed development on the development site.
98. In particular, I think that Mr Harrison’s opinion on the desirable balance between the character of a development of housing for older people etc and the character of the non-urban setting of the development site is particularly apposite. That opinion is not simply a matter of one preferred urban design solution for a proposed development than another. Rather, it goes to the fundamental requirement of the LEP that a Category Two Development comply with the desired future character of the A2 Locality Statement.
99. In particular, I accept his views (which also had the support of Mr Keenan) that the proposed development quite clearly fails to achieve or create the requisite character of housing (even exceptionally permitted housing for aged people etc) in a distinctively non-urban setting. The proposed development probably would be designed no differently if it were located in a locality developed for urban purposes, such as the adjoining Terrey Hills Village Locality “A3”. More importantly, the proposal simply fails to achieve the required result of an urban type development in a non-urban setting. This result, I am quite sure, is no accident. Rather, it reflects the view undergirding Mr Ingham’s opinion that the true effect of the A2 Locality Statement was to create the development site something of “an urban enclave” in a non-urban setting.
100. For the reasons I have given, that is not the true effect of the A2 Locality Statement.
101. In leaving this subject, I should say something of the complicating, if not beguiling effect, assigned to cl 29 of the LEP by the expert witnesses to one degree or another. All experts ultimately appeared to embrace the view that because of the existence of cl 29, development of the intensity and scale prescribed by that provision so that development consent could not, on that account be refused, somehow or other meant that a development of that scale and intensity must necessarily be accommodated on the development site.
102. The flaw in this assumption is that it does not give full force and effect to cl 12(3)(b) of the LEP. Unless that requirement be satisfied the limitations imposed by cl 29 on the power of the consent authority to refuse development consent simply do not even need to be encountered.
103. To accord primacy to cl 29 and not to cl 12(3)(b) is to “put the cart before the horse” and represents a misunderstanding of the true effect of cl 12(3)(b) and the interplay between those two provisions of the LEP .
104. For all the foregoing reasons, I am not satisfied that the proposed development is consistent with the desired future character of the A2 Locality Statement.
105. It follows that the Court has no power to grant consent to the Applicant’s development application.
106. For this reason, the appeal must be dismissed and development consent must be refused.
107. I have given consideration to whether, in the light of this conclusion, I should proceed to further consider the planning merits of the proposal, if I be wrong in so concluding that the condition precedent created by cl 12(3)(b) has not been satisfied in this case.
108. Ultimately, I have concluded that no good purpose would be achieved if I were to consider the planning merits of the proposal upon the assumed basis that the condition precedent had been satisfied. This is because of the unbridgeable gulf between the Applicant’ case as to the meaning and operation of the A2 Locality Statement in the present case and what I have held, in rejecting that case, to be the true meaning of the Locality Statement in the operation of the LEP.
109. For example if Mr Ingham’s view be correct, namely that the effect of the A2 Locality Statement was to create “an urban enclave in a non-urban area”, that view would inevitably constrain any criticism of the proposal on the ground that it does not create or maintain the distinctive non-urban settings of housing in the A2 locality.
110. This, of course, does not mean that the proposal would be immune from a proper planning critique but it would mean that that critique would necessarily be circumscribed by the underlying legal framework of that enterprise.
111. In the circumstances, I propose to go no further than I have gone in concluding that the proposed development is not consistent with the desired future character of the A2 Locality Statement and that in consequence, cl 12(3)(b) precludes the grant of development consent to the proposed development.
D. ORDERS
112. For all the foregoing reasons, I make the following orders:
1. Appeal be dismissed.
2. Development consent be refused.
3. Exhibit be returned.
4. No orders as to costs.
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