Flower & Samios Pty Limited v Shoalhaven City Council

[2007] NSWLEC 372

Land and Environment Court

of New South Wales

CITATION:	Flower & Samios Pty Limited v Shoalhaven City Council [2007] NSWLEC 372
PARTIES:	APPLICANT: Flower & Samios Pty Limited RESPONDENT: Shoalhaven City Council
FILE NUMBER(S):	10587 of 2005
CORAM:	Watts C at 1 - Tuor C at 1
KEY ISSUES:	Development Application :- Whether the proposal adequately contributes to the character, identity and neighbourhood amenity of the area. Whether the proposal provides adequate access to existing services and facilities.
LEGISLATION CITED:	Shoalhaven Local Environmental Plan 1985, (SLEP) State Environmental Planning Policy No 5, Aged and Disabled Persons Housing, (SEPP5) Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Momentum Architects Pty Ltd v Hornsby Shire Council, [2002] NSWLEC 252; Punnett and Associates v Shoalhaven City Council [2004] NSWLEC 656
DATES OF HEARING:	21, 22, 23, 24, and 25/05/2007 and 29/05/2007
DATE OF JUDGMENT:	22 June 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Craig, QC, with Mr D Wilson, barrister, instructed by Mr M McDonald, solicitor SOLICITORS: Mark McDonald & Associates RESPONDENT: Mr P Clay, barrister, instructed by Ms N Zrno, solicitor SOLICITORS: Morton & Harris, Nowra

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts and Tuor CC

22 June 2007

10587 of 2005 - Flower & Samios Pty Limited v Shoalhaven City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Shoalhaven City Council (the council) to refuse a development application to erect a 226 self-care State Environmental Planning Policy No 5 (SEPP5) development at Lot 203, DP 883494, located off Main Road, Cambewarra (the land). During the hearing the number of self-care units was reduced to 221 after 5 units were removed for bush-fire reasons.

2 We visited the land in company with the parties on the first day of the proceedings and residents gave evidence.

3 We have concluded that the application should fail for reason of the adverse impact of the proposal on neighbourhood character, amenity and for social impacts.

The land

4 The land is situated to the west of the Cambewarra Village, with the rear yards of dwelling houses in Nooramunga Avenue abutting its eastern boundary; with pastureland to the west; and Cambewarra Public School, dwelling houses and grazing land to the south. The land abuts bushfire prone land to the north and west.

5 The 26.17ha parcel of land forms part of a larger allotment of 44.09ha. The subject land is of irregular shape with an access handle 56.5 metres wide and 160 metres long at the southern end providing vehicular and pedestrian access linking with Main Road. Reservoir Lane is located in the northeastern corner of the land and separates the development site from the balance of the allotment, which is not part of this proposal. No vehicular access is proposed to link with Reservoir Lane.

6 The land is used presently for grazing and is largely cleared. The northern part of the land drains to a depression across the northwest corner, which traverses part of the adjoining property before discharging into Browns Creek, a perennial watercourse, to the west. The southern part of the land drains to Main Road.

Relevant planning controls

State Environmental Planning Policy (Seniors Living) 2004, (SEPP-SL)

7 The SEPP-SL was gazetted on 31 March 2004, and provides new State guidelines for the provision of housing for seniors or people with a disability. SEPP-SL does not apply to rural land adjoining land zoned for urban purposes and the proposed development would not be permissible under the provisions of SEPP-SL. However, the transitional arrangements in cl 6 of the SEPP-SL provide that SEPP 5 continues to apply to any application lodged but not finally determined before 18 February 2004. The subject application was originally lodged with the council on 31 July 2003 and amended in December 2003 and is therefore to be assessed under the SEPP5 and not SEPP-SL.

State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability, (SEPP5)

8 SEPP5 commenced on 14 February 1998 and applies to land that is zoned primarily for urban purposes, or that adjoins land zoned primarily for urban purposes and on which dwelling houses, residential flat buildings, hospitals or development identified in respect of land zoned for special uses (such as churches, schools etc) are permitted. The subject land adjoins land zoned Residential 2(al) and 5(a) Special Uses (School) and therefore SEPP5 applies to it and the proposal is permissible with consent.

9 Clause 3 of SEPP5 aims to encourage the provision of housing that will:

(a) increase the supply and diversity of housing that meets the needs of older people or people with a disability;

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

(c) be of good design.

10 Clause 3 of SEPP5 also states that the above aims will be achieved by:

(a) setting aside local planning controls that would prevent the development of housing for older people or people with a disability that meets the development standards specified in this Policy, and

(b) ensuring that applicants and councils take into consideration the level of additional demand for support services for older people or people with a disability in the council's area to be generated by the development when preparing and assessing development applications that are affected by this Policy, and

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

11 Clause 4(2) of SEPP5 however, states this Policy does not apply to:

12 Schedule 1 of SEPP5 includes land described by an environmental planning instrument as being: “…scenic (but not land that is so identified if:”

13 The consent authority must not consent to a development application made under SEPP5 unless it is satisfied, by written evidence, that residents of the proposal will have access to facilities and support services as referred to in cl 12 (Matters for Consideration) of the SEPP5.

14 Consent must not be granted unless the council is satisfied under cl 12(1), by written evidence that residents of the proposed development will have access to:

15 Under cl 12(2) of SEPP5 a proposal would comply if the facilities and support services listed above are located at a distance of not more than 400 metres from the site of the proposed development, or there is access to transport service available to the residents who will occupy the proposed development. To satisfy the consent authority the transport service must be located not more than 400 metres from the development site; and that will take residents to within 400 metres of the relevant facilities and support services.

16 Clause 12(2A) of SEPP5 requires that the consent authority must be satisfied by written evidence that residents of the proposal would have reasonable access to home delivered meals, personal care and home nursing and assistance with housework.

17 Clause 12(3) of SEPP5 requires that any facility or service provided as part of the development must be available to residents when the housing is ready to be occupied. In a staged development, such as that proposed, the facilities or services may be provided proportionately according to the number of residents in each stage.

18 Under cl 13A of SEPP5 the consent authority must not consent to a development application unless it complies with the standards therein. This clause relates to wheelchair access, road access, common areas, adaptability, and other more detailed matters.

19 Under cl 14 of SEPP5 the consent authority must not refuse consent to a development application if: all proposed buildings are 8 metres or less in height; the density and scale of the development is less than 0.5:1; the landscaped area per dwelling is 35m2 or greater; at least 0.5 car spaces per bedroom are provided; and deep soil zone of not less than the width of the site multiplied by 15% of the length of the site or around 63,577m2 as calculated by the council is provided. The council accepts that the proposal would comply with the development standards in cl 14 of SEPP5 and there was no issue between the parties in this respect.

20 Under cl 25 of SEPP5, the applicant is required to demonstrate to the consent authority’s satisfaction that the proposed development’s design has had adequate regard to the following principles under the headings of neighbourhood amenity and streetscape; visual privacy; solar access and design for climate; stormwater; crime prevention; accessibility; waste management:

(i) contribute to an attractive residential environment with clear character and identity, and
(ii) …
(iii) where possible, maintain reasonable neighbour amenity and appropriate residential character by providing setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and
(iv) where possible, maintain reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site’s land form, and...
(v) where possible, maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible in scale with adjacent development, and
(vi) …
(vii) be designed so that the front building of the development is setback in sympathy with, but not necessarily the same as, the existing building line and
(viii) embody planting that is in sympathy with, but not necessarily the same as other planting in the streetscape.

21 Clause 25(c) of SEPP5 states, “The proposed development should where possible:”

(i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and
(ii) involve site planning, dwelling design and landscaping that reduces energy use and make the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in the northerly direction.

22 Clause 25(d) of SEPP5 states, “The proposed development should, where possible:”

(i) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas, and
(ii) include, where practical, on-site stormwater detention or re-use for second quality water uses, and
(iii) be designed with regard to the scope for on-site infiltration of water by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas.

23 Clause 25(f) of SEPP5 states, “…The proposed development should, where appropriate:”

(i) have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities;
(ii) provide attractive, yet safe, environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors;
(iii) where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking and all buildings, facilities and open spaces within the site.

24 SEPP11 requires the Roads and Traffic Authority (RTA) is consulted with respect to certain developments (listed within Schedule 1 & 2). Normally developments listed within Schedule 1 are referred to the Regional Traffic Committee, while those listed in Schedule 2 are required to be referred to the Local Traffic Committee.

25 Developments having a capacity for car parking in excess of 200 motor vehicles are listed under Schedule 1 and are referred to the Southern Regional Development Committee, as was the proposal. The committee advised that they had no objection in principle to the proposal, however requested the council ‘deny’ the application in the format submitted.

26 The Southern Regional Development Committee raised the following issues in relation to the proposal:

27 The RTA was also consulted and advised that it has no objection in principle to the proposal and suggested conditions:

· The RTA has no current proposal requiring any part of the subject property. The proponent should provide an adequate access treatment onto the Main Road. The RTA proposes that a minimum access treatment to a standard of AUR/AUL be provided in accordance with the RTA Road Design Guide, Section 4.

· Consideration should also be given to expanding the road widths along Main Road from the subject site towards the east to the junction with Moss Vale Road MR261. Any kerb and gutter provisions along Main Road should be located to provide a minimum road width of 12.8 metres.

· The RTA reiterates and supports the comments provided by the Southern Regional Development Committee, held at RTA’s Southern Regional Office, Wollongong, on 12 September, 2003 and requests that Council ensure that all the issues raised be considered prior to finalising any conditions of consent.

Illawarra Regional Environmental Plan No. 1, (IREP1)

28 The IREP1 provides a planning framework for local area planning within the Illawarra Region. A series of maps are attached to the IREP1 that identify localities where specific policies apply and the subject land is identified as land with ‘prime crop and pasture’ potential and as land with landscape or environmental attributes.

29 The objectives of the IREP1 as they relate to rural lands include:

· to retain the productive capacity of prime crop and pasture lands;

· to allow for future urban expansion.

30 Under the Illawarra Regional Landscape and Environment Study, (IRLES) that provides specific recommendations for broad areas along the south coast, including the village of Cambewarra and its surrounding area, identified the area of the subject land as ‘IV’ and:

Requires zoning to ensure preservation and continuation of existing non-urban land uses. Further limited subdivision for small rural holdings could be considered.

31 Clause 5(2) of SEPP5 states:

If this Policy is inconsistent with any other environmental planning instrument made before or after this Policy, this Policy prevails to the extent of the inconsistency.

32 Thus, the provisions of the IREP1 that would be inconsistent with SEPP5 do not apply. It might be appropriate to take into account the likely future character of nearby land having regard to regional planning decisions.

Shoalhaven Local Environmental Plan 1985, (SLEP)

33 Under the provisions of the SLEP the land is zoned Rural 1(a) (Agricultural Production) and as a SEPP5 proposal it is permissible with consent.

34 However, SLEP has objectives, to:

a) provide for a variety of residential life styles;
b) …
c) …
d) …
e) …
f) …
g) maintain the agricultural use of prime crop and pasture land by minimising development which has an adverse and irreversible impact on the land's agricultural value;
h) …
i) to provide a safe and efficient transport network connecting land use activities inside and outside the city;
j) encourage the provision of adequate community facilities and services;
k) ensure the social amenity and well-being of the City;
l) to provide the most appropriate public utility services in the most effective manner,
m) …
n) maintain the rural character of non-urban areas;
o) to ensure the protection of important natural and cultural environments of the city;
p) to protect and enhance scenic and landscape qualities;
q) …
r) …
s) to avoid, mitigate or remedy the adverse effects of development on the environment.

35 The objectives of the Rural 1(a) (Agricultural Production) are:

a) to conserve and maintain the productive potential of prime crop and pasture land;
b) to ensure that existing or potential agricultural land use is not jeopardised by non-agricultural land-uses; and
c) to conserve cultural landscapes.

36 Under SLEP (Amendment No. 229), gazetted in December 2005, the subject land is affected by a ‘scenic preservation zone’, (SPZ). This SPZ applies to rural land immediately surrounding the village of Cambewarra and includes the subject land that therefore would be subject to cll 41 to 44 of SLEP.

37 An explanatory statement that accompanied Amendment No. 229 stated the SPZ would:

· help to preserve the scenic amenity and cultural landscape of the rural setting surrounding the Cambewarra village;

· ensure native vegetation in the area surrounding Cambewarra village is protected and retained;

· provide an environmental buffer to protect the biodiversity value of Good Dog Creek; and

· also have the affect of excluding inappropriate development on the subject land, including development under State Environmental Planning Policy (Seniors Living) 2004.

38 Clause 4 of SEPP5 outlines that the provisions of SEPP5 do not apply to land described in an environmental planning instrument as ‘scenic’ by virtue of SLEP1985 (Amendment No 229).

39 Clause 43A of the SLEP however states:

43A Scenic preservation area surrounding village of Cambewarra:

(1) Despite any other provision of this plan, consent is not required for the carrying out of development for the purpose of agriculture or in accordance with clause 54A on the land shown edged heavy black and hatched on the map marked

‘Shoalhaven Local Environmental Plan 1985 (Amendment No 229)’, being land surrounding the village of Cambewarra that is designated as a scenic preservation area.

(2) Any development application lodged with respect to the land referred to in subclause (1), but not finally determined before the commencement of

Shoalhaven Local Environmental Plan 1985 (Amendment No 229), is to be assessed and determined as if that plan had not been made.

40 The current development application was lodged with the council before the gazettal of this Amendment No 229. Under the provisions of cl 43A(2) of Amendment No 229 the current development application is required to be assessed and determined as if this amending plan had not been made.

Nowra/ Bombaderry Structure Plan

41 At its meeting dated 21 October 1997 the council resolved (Min 97. 1892) that:

(a) A report be presented to Council detailing the best method of ensuring that no further outward expansion of the Cambewarra Village occur for residential or rural residential purposes.
(b) No further rezoning requests in this area be accepted until Council develops a policy to achieve the objectives of (a) above.

42 In relation to resolution (a), the Nowra/ Bomaderry Concept Plan was presented to the council and placed on public exhibition between September and December 2000. This report addressed urban expansion opportunities for Nowra/ Bomaderry, and included the Cambewarra area. The land affected by this development application was not proposed to be included as part of any urban expansion program under this Concept Plan.

43 At its meeting on 24 October 2006 the council adopted the Nowra/ Bomaderry Structure Plan (The Structure Plan) that would provide the framework for growth and development opportunities and conservation measures for the Nowra/ Bomaderry area for the next 20 years.

44 The foundation of the Structure Plan is underpinned by three broad goals and principles including: sustainable living; economic vitality; and community well-being. It states:

The existing village will be retained and no further expansion of the village is proposed. In-fill and re-development will continue to occur within the village.
The rural outlook from Cambewarra to the east will be altered by a new living area, being Area 2 at Moss Vale Road South. Good Dog Creek and its associated riparian corridor will provide physical separation and a visual buffer between the two areas. A planted buffer is also provided between Area 2 and Main Road, which is the main approach to Cambewarra.

45 Map 1.2 of the Structure Plan identifies the subject land as a ‘scenic preservation area’. In so far as the provisions of the Structure Plan derogate from SEPP5 they are of no effect.

Aged Person Accommodation Guidelines

46 The objectives of the council’s Aged Persons Accommodation Guidelines (Min. 86.1548) include:

Council aims to encourage the development of a variety of accommodation options, which cater to the various needs of aged persons, whilst controlling such developments so that they are:

· Located where they are required.

· Located where facilities and support services are available or are intended to be made available.

· Not prejudicial to service provisions to either the aged or to other members of the community.

· Appropriate to the real needs of aged persons.

47 These Guidelines provide that:

· A [large scale] development …must offer automatic transfer from self-care units to hostel accommodation on-site or in the vicinity provided by the developer. A report on the availability of nursing home accommodation is to be provided to the council with the application. Nursing home accommodation must be provided on the site or in the vicinity, by the developer. Hostel accommodation is required at the rate of 1 hostel unit for every 10 self-care units and one nursing home bed for 20 self-care units.

· Suitable indoor and outdoor community facilities for the use of residents and their visitors are required. The extent of these depends upon the scale of the development. Large developments should give consideration to providing a full range of facilities including:

- larger and a number of common lounge rooms - recreation centre;

- meeting/activity/craft rooms - workshop areas;

- counselling rooms;

- small kiosk type shops;

- services such as hair dressing, linen, handymen and a gardener;

- on-going support services; and

- staff facilities on-site.

48 Having regard for cl 5(2) of SEPP5, the provisions of the SLEP, any structure plan or guidelines that would be inconsistent with SEPP5 would not apply to the land. It might be appropriate to take into account local planning decisions based on the SLEP in determining the likely future character of nearby land.

The proposal and its history
49 Development application No 03/2924 was lodged with the respondent council on 31 July 2003 to erect 226 dwellings with support facilities for aged and disabled persons on the land.
50 The application was amended in December 2003 to erect 226 self-care dwellings, a community centre including meeting rooms, offices, and rooms for a doctor, hairdresser and therapy room, and kiosk, and two tennis courts under SEPP5. The application was further amended during the hearing to reduce to 221 the number of self-care dwellings having regard for bushfire considerations, [Note: Exhibit 8]. Dwellings No 07.1 (three bedroom plus study), 09.1, 10.1, 12.1 and 14.1, (all three bedroom) in Stage 1 were deleted.
51 A private road network comprising a 900m long cul-de-sac with side loop roads and side cul-de-sacs from 45m to 80m long would provide pedestrian and vehicular access linking to Main Road about 150m to the west of the edge of the existing village of Cambewarra.
52 The amended application would include: 49 two-bedroom dwellings; 98 three-bedroom dwellings; 56 three-bedroom dwellings (with study); and 18 courtyard dwellings giving 221 dwellings. The dwelling units would include a mixture of single-storey and two-storey buildings. The manager would reside in one of the dwellings. The architect calculated the floor space ratio, (FSR) at 0.12:1.
53 Permanent clerical and maintenance staff would support the manager. A kiosk and space for a hairdresser and doctor would be allocated within the community centre, to be sited towards the central western side of the land.
54 The development would be constructed in stages over 7 –10 years. Community facilities would be provided incrementally with the residential component. A meeting room and administration, parking and the main access road including a bus turning circle at the end of the cul-de-sac would be provided as part of Stage 1.1. The kiosk and rooms for a doctor and hairdresser would not be provided until Stage 2.1.
55 The originally proposed aged care facility in the northeastern corner of the land near Reservoir Lane has been deleted in the amended application.
56 In order to construct the cul-de-sac and Stage 1.1, it would be necessary to excavate the land to the east of the cul-de-sac to a depth of around 6m to 7m and to relocate the excavated material to the west of the cul-de-sac. Not until stage 2.1 would the excavated part of the land be built upon. Thus, for some time the excavation to the west of the Nooramunga Avenue properties would remain unbuilt upon. As illustrated on the landscape plan in Exhibit C for Stage 1 this land is shown as ‘undisturbed existing pasture’. This is contrary to the explanation of the staging regime outlined by Mr Flower, the architect, on site and was amended in Exhibit W. Also, shown in the amended landscape plan was the grass seeding over bulk earthworks for future housing and the batter slope around the head of the cul-de-sac, which is extensive in area and would need to be landscaped early in order to ensure erosion does not take place.
57 The following services are now proposed:
· 24-hour emergency alarm and response system.
· Co-ordination of activities in consultation with resident committee(s).
· Preparation and circulation of a village newsletter.
· Regular service to and from Nowra by a small village operated bus to augment the local public bus services.
· Medical practitioners and other health care professionals to be encouraged to utilize available facilities on site in the community centre.
· On-site hairdresser on a user pays basis.
· Night security service.
· Water and sewerage services, according to the Statement of Environmental Effects are to be provided to the land.

58 The services and the operation of the development is incorporated into a Management Plan which is to be incorporated into conditions of consent and apply for the life of the development.

59 A dedicated water supply pipeline would connect the retirement village with the local reservoir. Each dwelling is also to be provided with a rainwater storage tank and a 30,000 KL underground tank at the community centre.

60 Originally a private sewerage treatment facility was proposed on an adjoining parcel of land. A separate development application had been lodged for on-site treatment and disposal of effluent required by the proposal, (Appeal No 10856 of 2006). However, this is understood to be now not necessary, as the current proposal would be connected to the council’s sewerage treatment works.

Notification

61 The application was advertised in the Local Press (‘South Coast Register’ and ‘Nowra News’) on two separate occasions. Individual property owners were also notified inside an area within a 500m radius of the land for thirty (30) days commencing 8 August 2003. The Cambewarra Residents’ and Ratepayers Association were also notified.

62 In response to this advertising, the council received 169 letters of objection including several multiple submissions from single households. A Residents’ Briefing Meeting (RBM) was held on 4 December 2003 at the Nowra School of Arts and about 200 residents attended.

63 The residents were principally concerned for the:

· perceived lack of infrastructure, to support such a development;

· size and scale of the development;

· lack of services within the area for such an increase in population;

· potential loss of amenity and ambience of the existing village setting;

· traffic impacts; and

· bona fides of the proposal (ie whether the proposal is a legitimate SEPP5 development or whether the applicant is using SEPP5 as a means of establishing a medium density housing/ residential development without emphasis on housing for older people or those with a disability).

The council’s decision

64 The General Manager (Development & Environmental Services) presented a report to the council on the 14 October 2003 concerning variations sought by the applicant from the council’s adopted policies and at its meeting of 27 October 2003 the council resolved that:

(a) The variations to the policies and guidelines outlined in this report not be supported.
(b) That assessment of the proposal as required under the provision of 79C of the

Environmental Planning and Assessment Act 1979 be completed.

(c) That the applicant be given the opportunity to withdraw the development application for the reasons outlined in this report and any other additional reasons as deemed to be appropriate by the Group Director - Development and Environmental Services following consideration of the Social Impact Study.

The Development Application be reported to the council for determination.

65 On 27 July 2004 the council refused the application for the following reasons:

Environmental Planning and Assessment Act 1979 with respect to the orderly and economic use and development of land;

Illawarra Regional Environmental Plan No 1 1986 to retain the productive capacity of prime crop and pasture land;

Shoalhaven Local Environmental Plan, 1985 and the objectives of the zone;

Environmental Planning and Assessment Act 1979 concludes that there are likely to be significant negative social impacts from the development as proposed in the locality and in the wider community;

The hearing

66 The appeal was filed on 14 June 2005.

67 The council provided expert evidence from:

· Mr G A Sheils, Town planner Exhibits 10, 11, 12, 13;

· Dr J Stubbs, social consultant, Exhibits 7, 10, 14, 22;

· Dr W Goodburn, Resource Management Officer, SE Region, NSW Department of Primary Industry, Exhibits 9 and 15;

· Dr S Perrens, engineer, Exhibits 18 and 20;

· Mr B L Davies, economist, NSW Department of Primary Industry, Exhibit 15; and

· Mr L Short, NSW Rural Fire Service, Exhibit 8.

68 Local residents who also gave evidence on behalf of the council included, [Note: Exhibit 24]:

· Dr P W Allin, of North Nowra Medical Centre and resident of No 9 The Vale, Cambewarra;

· Ms C Shaw, resident of No 42 Goorama Drive, Cambewarra;

· Mr P A Collins, resident of No 16 Faulks Place, Cambewarra;

· Mr R R Clarke, resident of No 70 Tannery Road, Cambewarra;

· Mr P Dean, resident of No 21 Kongoola Avenue, Cambewarra;

· Ms D A Croots, resident of No 5 Nooramunga Avenue, Cambewarra;

· Mr C A Hadfield, resident of No 17 The Terrace, Cambewarra;

· Mr S G Johansson, resident of No 19 The Terrace, Cambewarra;

· Mr F V Nuitt, resident of No 223 Main Road, Cambewarra;

· Mr I R Waters, resident of No 53 Tannery Road, Cambewarra;

· Mr A J Weaver, resident of No 47 Nooramunga Avenue, Cambewarra;

· Mr R F Stebbings, resident of No 68 Main Road, Cambewarra; and

· Mr C B Anderson, resident of No 17 Nooramunga Avenue, Cambewarra.

69 On behalf of the applicant, expert evidence was provided by:

· Mr M George, consultant town planner Exhibit E and Statement of Environmental Effects in Exhibit P and joint planning statement in Exhibit 12;

· Dr R J Lamb, visual impact expert, Exhibit H and joint report Exhibit 12;

· Prof J Toon, planner and urban designer Exhibits D and 12;

· Mr J W Flower, architect, Exhibits M and 12;

· Mr R Brain; town planner, Exhibit 12;

· Mr P F Burgess by link from NY, Manager of retirement villages, Exhibits L and 7;

· Mr A Riepsamen, engineer, Exhibit 18;

· Dr D Martens, hydraulic engineer, Exhibit 20;

· Mr G Porter, social planner, Exhibits F and 6;

· Mr M P Relf, access consultant, Exhibit G, 10;

· Mr J Coady, traffic engineer, Exhibits J, 11;

· Mr P B Brown, Agricultural scientist, Exhibit K;

· Mr R Smart, landscape architect, Exhibits N and O;

· Mr M Logan, traffic engineer, Exhibit J, 11; and

· Mr D Peterson, bushfire consultant, Exhibit 8.

70 Mr S Richardson, town planner and Director of Cowman Stoddart Pty Limited, prepared the statement of basic facts dated 26 October 2006.

The issues

71 On 6 March 2007 the council filed the following amended statement of issues.

SOCIAL PLANNING
1. Whether the Application should be refused because it fails to comply with the requirements of State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability (‘SEPP5).
Particulars
1.1. the proposed development does not comply with cl. 12(1) because the majority of services and facilities listed are not available in Cambewarra;
1.2. those services and facilities that are available in Cambewarra are not located within reasonable walking distance for residents of the proposed development;
1.3. the proposed transport arrangements do not comply with cl. 12(2)(b);
1.4. the proposed development does not comply with cl. 12(2A) because residents will not have reasonable access to home delivered meals, personal care, home nursing, or assistance with housework;
1.5. The proposed Plan of Management is inadequate to demonstrate compliance with Clause 12 of the SEPP5;
1.6. the staging of the services and facilities provided as part of the proposed development does not comply with cl. 12(3);
1.7. the proposed development does not comply with subclause 25(f) because it does not have convenient, obvious and safe and pedestrian bicycle links from the site that provide access to public transport services and local facilities.

2. Whether the proposed development is contrary to the aims of SEPP5?
Particulars
2.1. The proposed increase of housing within the locality, with the limited services proposed within the development, will not, if carried out in accordance with the policy, meet the needs of older persons in accordance with cl. 3(1)(a);
2.2. The housing proposed in the development application does not make efficient use of existing infrastructure and services in accordance with cl. 3(1)(b);
2.3. The application does not demonstrate that the applicant has taken into consideration the level of additional services for older people or people with a disability to be generated by the development in accordance with cl. 3(2)(b), given the following:
2.3.1. the location of the development;
2.3.2. the level of in-migration forecast;
2.3.3. the lack of services proposed to be provided within the development; and
2.3.4. the existing severe constraints to services in North Shoalhaven.

PLANNING STRATEGIES
3. Whether the Application should be refused under s 79C(1)(c) of the Environmental Planning & Assessment Act 1979 (‘EPA Act’) as the site is not suitable for the proposed development in that it is inconsistent with the broader strategic town planning strategies and policies that apply to the subject land.
Particulars
3.1. The strategic planning objections for the subject land are reflected by its zoning as Rural 1(a) Agricultural zone under Shoalhaven Local Environmental Plan 1985 (‘SLEP’).
3.2. The proposal is not consistent with draft LEP amendment No. 229 (gazetted 2 December 2005).
3.3. The proposal is contrary to the South Coast Regional Strategy, particularly in relation to Section 6.0 Housing and Settlement (and the associated Sustainability Criteria within Appendix 1), Section 7.0 Economic Development and Employment Growth and Section 8 Rural Land and Rural Communities.
3.4. The proposed development is contrary to the planning objectives identified in the then draft Nowra/ Bomaderry Concept Plan, the successor to which was the Nowra/ Bomaderry Structure Plan (‘the Structure Plan’), adopted on 24 October 2006 with respect to:
3.4.1. Urban expansion; and
3.4.2. Scenic protection.

3.5. SEPP5 was repealed by the State Environmental Planning Policy (Seniors Living) 2004 (‘SEPP SL’) with effect from 31 March 2004. The proposed development would be prohibited development under Clause 19 of SEPP SL.

IMPACT ON RURAL LANDS
4. Whether the application should be refused s. 79C(1)(b) and (c) because of the unacceptable impacts on rural land and it fails to achieve the objectives relating to rural lands under:

Particulars
4.1. The subject land is classified as prime crop and pasture land under the IREP No. 1.
4.2. If allowed, the proposed development would reduce the productive capacity of prime crop and pasture land available in the Illawarra region.
4.3. The subject land is Class 3 agricultural land as mapped by NSW Agriculture land classification mapping.
4.4. The subject land is defined as prime crop and pasture land for the purposes of the SLEP.
4.5. The loss of prime crop and pasture land caused by approval to this development is not supported by the Department of Planning or NSW Department of Primary Industries.
4.6. Notwithstanding the aims and provisions of State Environmental Planning Policy No 5, the loss of prime crop and pasture land associated with this proposal is not justified.

SOCIAL AND ECONOMIC IMPACTS IN THE LOCALITY
5. Whether the Application should be refused under s. 79C(1)(b) of the EPA Act because it would result in significant adverse social and economic impacts in the locality?
Particulars
5.1. The development as proposed in the locality will have adverse social impacts arising from its location, scale, demography, lack of services, and lack of integration with the social and urban fabric.
5.2. The proposed development will place further strain on community services and facilities in the locality, many of which are operating at or beyond capacity.

SUITABILITY OF THE SITE
Character
6. Whether the application should be refused under s. 79C(1)(b) and s. 79C(1)(c) because it is out of character with the surrounding village of Cambewarra and fails to comply with clause 25 of SEPP 5?
Particulars
6.1. The proposed development has no permeability or interrelationship with the existing village of Cambewarra;
6.2. The proposed development would have an adverse visual impact on the scenic amenity of the existing village of Cambewarra;
6.3. The proposed development is not compatible in scale with adjacent development;
6.4. The proposed development will result in a change in character of the area from non-urban to urban;
6.5. The proposed development will not reflect the rural character of the locality; and
6.6. The characteristics of the site make it unsuitable for an age restricted development.

7. Whether the proposed development on identified Rural Land is inconsistent with the character and fails to acknowledge the rural setting of the village of Cambewarra?
Particulars
7.1. The rural character and setting of the village of Cambewarra has been recognised by the Respondent for protection in specific planning strategies and policies.
7.1.1. The 1974 Structure Plan, the Cambewarra Interim Development Order (IDO No. 2) November 1978;
7.1.2. Council's Policy and Planning Development 1999 (Policy No.3 - Villages) (Council Minute No. 90.1412);
7.1.3. The Urban Expansion Cambewarra Village adopted 15 December 1992 (Council Minute No. 92.3655);
7.1.4. Council Resolution 21 October 1997 (Minute No. 97.1892);
7.1.5. Shoalhaven LEP (Amendment No. 229) gazetted 2 December 2005; and
7.1.6. The Nowra Bombaderry Structure Plan adopted by Council 24 October 2006.

7.2. The layout of the proposed development makes inadequate provision for landscape setbacks to side boundaries to effectively screen or filter the development from view and does not ensure that the development is compatible with the rural surrounding.
7.3. The landscape plan fails to acknowledge the siting of the subject site adjacent to land identified as bush fire prone. The NSW Rural Fire Service requires landscaping within 20 metres of all residential buildings to be consistent with the Inner Protection Zone requirements of Planning for Bushfire Protection 2001.
7.4. The ability to provide a sufficient landscape screen around the development will be further reduced if the landscaping is undertaken in accordance with the requirements of the NSW Rural Fire Service which requires landscaping within 20 metres of all residential buildings to be consistent with the Inner Protection Zone requirements of Planning for Bushfire Protection 2001.

Energy Use
8. Whether the application should be refused under Clause 25(c) of SEPP 5 and s. 79C(1)(c) of the EPA Act because the western orientation of the proposed development does not enable reduced energy use?
Particulars
8.1. The proposal fails to provide site planning and dwelling design that reduces energy use as the site has a western orientation.
8.2. A high proportion of the living areas in the dwellings are oriented to the west which is likely to require a greater amount of energy resources.

Topography
9. Whether the Application should be refused under s. 79C(1)(c) of the EPA Act because topography of the site for the proposed development is not suitable for housing for older people or people with a disability?
Particulars
9.1. the road network within the site has variable slopes that may inhibit ease of pedestrian and bicycle access for aged and disable persons contrary to clause 25(f) of SEPP5;
9.2. the plans for the proposed development indicate that extensive battering and sloping finished ground levels will be required due to the topography of the site;
9.3. the proposed accessible private open space is limited by the extensive amount of batter on more than 50% of the dwellings and the finished ground level on over 25% of the dwellings;
9.4. the proposal fails to provide convenient, obvious and safe pedestrian and bicycle links within the development that are readily accessible by aged and disabled persons due to the gradient of site.

PROVISION OF WATER AND SEWERAGE SERVICES AND STORMWATER IMPACTS
10. Whether the post development stormwater flows from the proposed development would create adverse environmental impacts downstream?
Particulars
10.1. The application fails to demonstrate that the development will be capable of managing storm water quality so as to ensure that average annual nitrogen, phosphorus and sediment loads are not increased by the development and thereby pose a threat to the ecology of the creek and associated riparian system.

11. Whether the application demonstrates that the development will, on construction, be capable of being connected to a reticulated water system.
Particulars
11.1. The application fails to demonstrate that there is adequate storage capacity in the Cambewarra Reservoir to meet the anticipated requirements for land development within the supply catchment (as set out in the Development Servicing Plans for Water Supply Services) as well as meet the requirements for the proposed SEPP 5 development.
11.2. There is capacity if the Applicant agrees to enable the expansion of the Cambewarra Reservoir by 200 kilolitres (together with an appropriate amount for fire fighting reserve). This may become a matter for conditions.

12. Whether the application demonstrates that the development will, on construction, have adequate facilities for removal or disposal of sewerage.
Particulars
12.1. There is capacity if the Applicant agrees to incorporate specific works in the nature of a pressurised sewerage system. This will be a matter for conditions.

13. Whether the proposed drainage system is capable of being constructed in a manner that is consistent with the proposed use of the land for seniors living?
Particulars
13.1. The Application fails to demonstrate that there is adequate land area available to provide sufficient usable land associated with each individual dwelling as well as provide sufficient space for the proposed batters, swales and roads.

Traffic Issues
14. Whether approval to the proposed development will result in adverse traffic impacts within the local road system?
14.1. Moss Vale Road and Main Road intersection is inadequate to safely cater for additional traffic generated by the proposed development.
14.2. The carrying capacity and construction standard of Main Road is inadequate to safely cater for additional traffic generated by the proposed development.
14.3. Existing creek crossings at Browns and Tapitallee Creeks are inadequate to safely accommodate additional traffic generated by the development.
14.4. The proposed ingress and egress to the development from Main Road is inadequate to cater for the traffic generated by the development.

Public Interest
15. Whether the proposed development should be refused because it is contrary to the public interest.
Particulars
15.1. The proposed development is antipathetic to the objectives set out at s. 5(a)(vii) of the of the EPA Act with respect to ecologically sustainable development, particularly:
15.1.1. Failure to internalise the social and economic costs associated with the additional demand for services generated by the development;
15.1.2. Inefficiencies arising from the creation of a need for an additional service node for older people and people with a disability in the context of the urban settlement patterns of the Shoalhaven;
15.1.3. Failure to consider the sustainable planning policies and directions expressed consistently by Council in its environmental planning instruments;
15.1.4. Cumulative impacts of the proposed development, including impacts on the availability of community services and facilities in the region and the loss and fragmentation of productive agricultural land; and
15.1.5. Use of the site for residential development in such an isolated locality, at the scale and design proposed, and particularly for older people and people with a disability, is contrary to the principles of sustainable development;
15.2. There are a high number of submissions from members of the public objecting to the proposal;
15.3. The proposed development is contrary to the interests of Shoalhaven residents as a whole, having regard to the additional strain that will be placed on community services and facilities in the region.

72 Some issues were resolved by expert conferencing and amendments to the proposal and conditions. The following emerged as the salient issues:

· Whether the proposal adequately contributes to the character, identity and neighbourhood amenity of the area.

· Whether the proposal provides adequate access to existing services and facilities.

The evidence and findings

Character, identity and neighbourhood amenity

73 Issue 6 in the council’s statement of issues expressed concern that the proposal would be out of character with the surrounding village of Cambewarra and would fail to comply with cl 25 of SEPP5. In particular, the council considered that the proposed development would have an adverse visual impact on the scenic amenity of the existing village of Cambewarra and would not be compatible in scale with adjacent development. The council also stated that the proposal would result in a change in character of the area from non-urban to urban and that it would not reflect the rural character of the locality.

74 The council accepts that the proposal would comply with the development standards in cl 14 of SEPP5 and there was no issue between the parties in this respect. Thus, in terms of height; density and scale of the development being 0.12:1, considerably less than the benchmark 0.5:1 FSR; landscaped area per dwelling; car parking and deep soil zone the proposal complies and consent could not be refused for non-compliance with these requirements.

75 In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClellan CJ considered the question of what weight should be given to the zoning of land when considering an application for a development on it. At para 117, he said:

In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development, which is consistent with the zoning, will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight, which must be attributed to achieving the objects of the planning, instrument, which the zoning reflects. Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development, which may be appropriate on any site. If the zoning [were] not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

76 However, under cl 25(a) of SEPP5 consent must not be granted for aged and disabled housing development unless the consent authority is satisfied that adequate regard has been given to certain principles, including

i. contribute to an attractive residential environment with clear character and identity, and
ii. …
iii. …
iv. where possible, maintain reasonable neighbour amenity and appropriate residential character by providing setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and
v. …

77 The experts generally agreed that the area was the interface between the urban area of the village and its rural surrounds. Prof Toon described the “…clear character of Cambewarra is ‘arcadian’ and vegetation throughout is not large scale.” He considered the proposal would be ‘heavily landscaped’, and as a result the proposed houses would largely be hidden and, while its character would be different to the character of Cambewarra Village, it would appear as an extension to the village and would be compatible.

78 Mr Shiels considered that Cambewarra village has a rural feel, resulting from the large allotments and landscaping, as well as the areas of open space in and around the village.

79 At the request of the Court, the experts undertook an exercise, which examined the existing density of allotments in comparison with a notional density of the proposal. Prof Toon estimated that the net average lot size in the village ranged from about 1,060m2 to 1,574m2 and the gross average lot size ranged from 1,170m2 to 1,808m2 (Exhibit Y).

80 Mr Shiels noted that Prof Toon’s figures did not include subdivisions that bordered rural areas, which were in the order of 3,000m2 to 5000m2. He estimated that the average gross density of the village (based on all allotments, roads, open space, public school and urban zoned land) was one lot/2,097m2. In his opinion this figure could be compared to Mr Flowers estimate of 1,150m2 for the development (based on similar inclusions). Alternatively, Mr Flowers figure of 885m2 (Exhibit X) could be compared to a net figure. On either basis, the development, in Mr Shiels opinion, was considerably denser than the existing village. Even taking into account the landscaping, the proposal would appear so different as to not contribute to the clear character and identity of the area.

81 Mr Craig, QC, for the applicant, submitted that ‘residential environment’ in cl 25(a)(i) of SEPP 5 refers to the proposal, whereas Mr Clay, for the council, submited that it refers to the existing residential development and the contribution of the proposal to the clear character and identity must be considered. We accept Mr Clay’s interpretation.

82 The clear character and identity of the area is rural. The land and its backdrop are largely pastureland and the escarpment. The village of Cambewarra, has a semi-rural character, in that it is small in area and is viewed against the backdrop of pastureland and the escarpment. The houses are on large allotments, and while the architecture is generally undistinguished and no different to what would appear in many suburban areas of Sydney, the size of the allotments provides a large amount of space and separation between buildings and opportunity for landscaping. The key question is whether the proposal has given adequate regard to this ‘rural’ character.

83 In Momentum Architects Pty Ltd v Hornsby Shire Council, [2002] NSWLEC 252, Roseth SC, considered the impact on rural character in the context of SEPP5 development. The following comments are of assistance:

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.

84 The proposal clearly does not maintain the rural character of pastureland. Nor is it required to do so. However, the proposal should contribute to the character and identity of the area.

85 The proposal is considerably below the FSR in SEPP5 and cannot be refused on the basis of its density and scale as measured in FSR. However, the distribution of floor space on the site and its resultant impacts must be assessed.

86 The proposal provides large areas of open space and landscaping. However, the topography of the land means that the proposal, clearly, would be visible from a number of vantage points, including Main Road and the adjoining rural areas as well as from some adjoining residences. The arrangement of dwellings on the land is generally different to the existing character of the area in that they are closer together and the landscaping is largely in the public domain. We do not accept that the landscaping will be sufficient to screen or soften the development to the extent that it would adequately contribute to the existing character. The dwellings would be in close proximity to each other and would be distinctly ‘urban’, even though large areas of open space and landscaping surround groups of houses. Some dwellings are placed in close proximity to the rural boundary with no buffer zone. We accept that SEPP5 envisages that the proposal would be different to the existing residential development but that a degree of compatibility is required. We consider that this has not been achieved.

87 In GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268, Roseth SC sets out the planning principles for considering the issue of compatibility between a SEPP5 development and the surroundings low-density zones. Relevantly, the decision reads:

The issue of compatibility between a SEPP5 development and the surroundings low-density zones arises in the majority of SEPP5 applications. This is because the Policy allows development with different physical characteristics to what is permissible under the zoning. It is therefore useful to state some planning principles for assessing compatibility.
The first principle is that buildings in a SEPP5 development do not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey. The principle does not apply to conservation areas where single-storey dwellings are likely to be the major reason for conservation.
The second principle is that where the size of a SEPP5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping.
The third principle is that where a site has existing characteristics that assist in reducing the visual dominance of development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a site’s edges to destroying it and planting new vegetation.
The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings in the street. This is not to say that new materials and forms can never be introduced, only that their introduction should be done with care and sensitivity.

88 Adopting and applying these principles to the present application it is not just a matter of achieving compatibility with nearby urban areas but also the rural areas. The proximity of the proposed single-storey dwellings close to the rural boundaries with no buffer is unsatisfactory in the locality.

89 Under the first principle the proposal is mostly comprised of single-storey dwellings however, there are likely adverse impacts as there are no landscaped buffers. Around the pond at 60m AHD there are some Type C dwellings that are part single-storey and part two-storey. These are distant from the boundaries of the land.

90 In respect of the second principle there is compliance as the buildings would be separated, however, these breaks could not be considered ‘generous’ and the landscaping, especially around the perimeter is insufficient and there is a dramatic change in character as a result.

91 In respect of the third principle, there would be extensive contouring to provide for footpaths of no greater slope than 1:14. Were the topography to remain unaltered the proposed development might have appeared smaller and would have perhaps blended in better.

92 The fifth principle could have been addressed by imposing conditions on the colour and texture of materials, were approval contemplated.

93 The Wombarra principles reinforce our conclusion that the proposal must fail as a result of inappropriate character. We are satisfied that the requirement of cl 25(a)(i) of SEPP5 that the proposal should “…contribute to an attractive residential environment with clear character and identity” is not met and the application must fail. We consider this clause would require an assessment of the proposal in the context of Cambewarra and its surrounding pastureland.

94 We also find that adequate regard has not been given to neighbourhood amenity, and that given the size of the land this is clearly possible.

95 Mr P Collins of No 16 Faulks Place, Cambewarra, told the Court that he and his wife had paid ‘above average price’ for their land “…so that we can enjoy a rural outlook.” He stated, “…when my wife and I chose to buy land in Cambewarra we researched to find that there was no plans for the future development. Indeed the area directly over our back fence was to remain zoned Rural 1(a).” [Note: Exhibit 4, letter dated 15 September 2003].

96 Thus Mr Collins and his wife were expecting to continue to enjoy their north-facing terrace with outlook over rolling grazing land towards the distant hills.

97 On the site inspection we visited the Collins’ residence and Mr Collins pointed out to us the impact of the proposal on the view from his dwelling and terrace.

98 We also had the benefit of a drawing showing an elevation of the proposal with limited depth of view, from the south, depicting the extent of development. Later the architect prepared another elevation with full depth of view [Note: Exhibit Q]. Due to the presence of a ridge in the middle distance that would exclude from that viewpoint some of the more distant proposed dwellings, the view from the Collins’ residence would be of dwellings and vegetation such as to change the outlook from rolling grazing land to suburban residential albeit landscaped. Thus the proposal would appear, not unlike the residential areas of Sydney and perhaps Baulkham Hills, as Mr Shiels suggested in oral evidence.

99 Mr Clay asked Dr Lamb in cross-examination whether he had considered the change of outlook at No 16 Faulks Place, and Dr Lamb said that he had not singled it out [as a viewpoint] as there was no reason to do so. Dr Lamb agreed that [from that location] [there] was indeed a “spectacular view” and the impact on that outlook would be “…substantial and the character would be transformed.” Dr Lamb also agreed that the proposed dwellings would sit proud of the brow of the hill about half way up the hill to the north of No 16 Faulks Place. Thus those houses would tend to be prominent in the view unless sufficiently screened by landscaping.

100 Dr Lamb was uncertain as to whether the proposal would block part of the range behind, he determined that the foot of the range would be obscured and there would be a canopy of trees, taller than the structures, immediately off the site in the northeastern corner. He continued, “…these may continue to be part of that view. The [proposed] buildings might have some impact on the lower part of that view.”

101 Mr Craig, QC, submitted that the outlook from No 16 Faulks Place, will differ from that presently enjoyed but this is the product of SEPP5 development on land adjoining urban land. There is separation, topography and landscaping which reduce the impact and the relationship between the Collins dwelling would not be said to be inappropriate.

102 In closing, Mr Craig, QC, submitted that if the Court considered the outlook from No 16 Faulks Place to be sufficiently adversely impacted upon by the development, the applicant would be willing to submit to a condition requiring some of the dwellings to the north to be removed to open up the view.

103 Mr Clay submitted that the Cambewarra area presently has a rural character and was not ‘arcadian’ as suggested by Prof Toon. He submitted that SEPP5 is not carte blanche for creating residential subdivision in a rural context. That planning controls [of SEPP5] make [the proposal] permissible, however, he submitted, one does not ignore the strategic and physical context of the proposal and a proper and thorough analysis assessment is demanded by both SEPP5 and s 79C [of the Act] and this will lead to the conclusion that the appeal should be dismissed.

104 Although it is expected that an SEPP5 development would be of a different character to rolling grazing land the proposal does little to soften and ameliorate its impact. The planting will assist in softening the outlook over time but we are satisfied that it would still appear urban.

105 We are satisfied under cl 25(a)(iv) of SEPP5 that the proposal would not maintain reasonable neighbour amenity and appropriate residential character, and that the setbacks, are not such as to ameliorate that visual impact in respect of No 16 Faulks Place. We are not able to condition the application in order to ameliorate the impact on the outlook from No 16 Faulks Place. As a result the application must fail.

106 In addition, we consider that the outlook from, and neighbourhood amenity enjoyed by, residents occupying some of the existing dwellings in Nooramunga Avenue to the east of the land similarly would be adversely affected. Those dwellings that are at a similar level to proposed dwellings are likely to be most affected. Although no common property is proposed along the eastern boundary with the Nooramunga Avenue properties the landscaping plan shows the courtyards of these dwellings heavily landscaped. To the south on the eastern boundary there is a greater setback and that is shown heavily planted where a greater separation between the existing and proposed dwellings is proposed the visual impacts would tend to be ameliorated.

107 Also, we understand the concern of Ms C C M Cook of No 230A Main Road, Cambewarra, for the outlook from her 2.24ha (6 Ac) property to the west of the proposal. The proposal, she said, would be “…completely in my face.” From her dwelling that is on low-lying land to the southwest of the proposal most of the proposed dwellings would be in view with some perhaps being screened by landscaping. No western side buffer zone of landscaping is proposed and the dwellings interspersed with landscaping would be likely to be visible through the trees once they have been established. Also in full view would be the cul-de-sac its excavation and to the east of the far end of the cul-de-sac further excavation. This might be less than attractive in outlook until built upon.

108 Ms Cook, also represented the owners of Illawarra Alpacas, Dr I and Mrs H Davidson who were overseas at the time of the site inspection and expressed concern for dog attack on the Alpacas. Ms Cook stated, “…with houses come dogs.”

109 Dr Davidson who wrote to the Court on 3 May 2007, [Note: Exhibit 4], explained the “…very serious and committed nature” of the Alpaca operation. He considered, “…the efficient conduct of our rural enterprise will be seriously compromised by the arbitrary conversion of rural land to intensive urban use.” He expressed concern for effluent draining from the densely populated hillside into water bodies on which his stock depend; increased threat of dog attacks from untrained and unconstrained family pets living on our immediate boundary and hunting in packs on our rural land; of objections by [new] residents to the smell, noise, and chemical dust that is a normal and accepted part of rural enterprise; and from incursions onto our land by children. Dr Davidson pointed to three separately documented cases of dog attacks on stock in southern NSW and northern Victoria two weeks before he wrote to the Court.

110 Mr Craig, QC, submitted in regard to the question of possible dog attacks, his client would be willing to comply with a condition requiring ‘no dogs’ be permitted within the development. We are concerned that this prohibition might not be practical and as a result be difficult to police. Dogs and humans have a long history of living together, and one that is not easy to rewrite. The impacts of rural/ residential interface, particularly as there is no buffer between the two uses is of concern.

111 ‘Good design’ as required under SEPP5 would suggest that in order to avoid the conflict between rural and urban uses, an adequate buffer, of significant width, along the western side should be provided. Presently the subject land performs that function. As proposed the rear courtyards of the dwellings would directly abut the rural land and all the consequences highlighted by Dr Davidson are likely.

Access

112 The key difference between the experts in respect of access was whether the development complied with cl 12(2A) of SEPP5, which provides:

The consent authority must not grant consent to a development application made pursuant to this Part to carry out development on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:

(a) home delivered meals, and
(b) personal care and home nursing, and
(c) assistance with house work.

113 This issue encompasses whether the proposal meets the aim in cl 3(1)(b) of SEPP5 to encourage the provision of housing that will:

make efficient use of existing infrastructure and services.

114 Clause 3(2)(b) of SEPP5 provided this aim will be achieved by:

ensuring that applicants and councils take into consideration the level of additional demand for support services for older people or people with a disability in the council's area to be generated by the development when preparing and assessing development applications that are affected by this Policy,

115 The key disagreement between the experts can be summarised as Dr Stubbs considered the proposal would place an unacceptable demand on existing services, which she considered were already stretched, and that the proposal did not adequately demonstrate that the increased demand for services would be met by either the public or private sector.

116 Messrs Porter and Burgess considered that the existing services were adequate and that increased demand would be met by increased funding for public services and by the provision of services through the management of the retirement village on a user pays basis as outlined in the plan of management.

117 Dr Stubbs and Mr Porter agreed that the average entry age would be late 60s early 70s. Mr Burgess considered it would be closer to 55. At entry people would generally be fit and place little demand on services, however, this demand would increase as people aged or circumstances changed.

118 The experts agreed that the facility would generate an increase in population of 339 people of which would represent a 26% increase in the existing population of Cambewarra. This increase might be slightly less given that during the hearing the number of dwellings was reduced by five to 221.

119 The increase in population will comprise of about 200 people from within the Nowra/Bombaderry area, 85 people that move into the Nowra area from within the Shoalhaven Local Government Area, (LGA) and about 113 people that in migration from outside the LGA. The population most likely to place demands on services would be the latter, although migration within the LGA would also increase demand. These predictions would be slightly smaller due to the reduction in the number of dwellings but this does not alter the conclusions of the experts.

120 The different position of the experts as to whether the development provided reasonable access to services is explained in the joint statements between Mr Burgess and Dr Stubbs (Exhibit 7) and the joint statement between Mr Porter and Dr Stubbs (Exhibit 6).

121 Mr Burgess noted that any operation must be based on demand. He considered that the village operator should adopt a ‘flexible’ approach to service delivery, and that ‘hardwiring’ services would not deliver value to residents (who may be required to pay for services they do not require).

122 Dr Stubbs considered that a development of the size, location and nature proposed service arrangements should be ‘locked in’ to the management plan to ensure that there is reasonable access to the service required. She noted that it would be highly desirable for a development of this size and nature to have entered into a ‘partnership’ with a bone fide service provider, and/ or to contain an aged care facility, which would provide the on-site infrastructure from which to provide services required by cl 12(2A) of SEPP5.

123 Mr Burgess considered that a properly conditioned management plan carried more weight than a ‘partnership’, which he stated, was not enforceable.

124 Dr Stubbs was concerned that the proposed ‘flexible’ approach to service delivery does not guarantee that services will be available to those residents who will need them (now or in the future), or that the development would not be a ‘drain’ on private and Health and Community Care (HACC) services.

125 Mr Burgess did not consider that the proposal would be a drain on HACC services for the following reasons:

· Firstly, the development is staged and will be built over 7 to 10 years, which means any changes will be incremental.

· Secondly, retirement villages ease the burden on local HACC services because home maintenance and transport is provided within the village levies.

· Thirdly, people who migrate to areas tend to be more active, fitter people as those in need of services tend to remain close to their existing service networks.

126 Mr Burgess considered that there would be plenty of time for local providers of HACCs services to apply for increased funding to meet increased demand. Further, the management plan requires that people must have access to required services, which would be provided privately by either staff within the facility or by local suppliers, on a user pays basis.

127 Mr Porter agreed with Mr Burgess. He did not consider that the existing services to be stretched and stated that the public or private sector would provide increase in services, if and when needed, as required by the management plan.

128 These opinions need to be considered within the context of the existing and likely future demand for services. Both Dr Stubbs and Mr Porter undertook surveys of existing services in the area and provided estimates of existing and future demand. Mr Burgess also provided data on other self-care facilities. Without providing the detail of these assessments we prefer the evidence of Dr Stubbs and agree with her two key conclusions that the Shoalhaven LGA has an older age profile than NSW generally and is expected to age at a more rapid rate and has service deficits over time greater than the State average.

129 We accept that the proposal is unlikely to initially impact on the demand for services however, over time this will occur. 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.

130 In considering similar issues and evidence in Punnett and Associates v Shoalhaven City Council [2004] NSWLEC 656 Brown C stated that:

While valid criticism can be levelled at a public funding system that does not respond quickly to demand, it is nonetheless the system in operation …it is unreasonable that prospective developers of housing for older people and people with a disability should be held accountable for a funding system outside their control.

131 The application that was considered by Brown C was much smaller than the one currently before the Court; being for only 37 self-care dwellings, which he concluded, would not place an unacceptable impact on services. However, the size of the current application and the extent of in-migration from both within the Shoalhaven LGA and outside the area is likely to increase the demand for services, not initially but in the longer term. 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.

132 The proposal is likely to generate a demand for these services from the private sector. We agree with Dr Stubbs that the ‘flexible’ arrangement in the management plan, which proposes that the manager, on a user pays basis, will facilitate services, and that supply will respond to demand does not provide sufficient detail or certainty to satisfy the criteria of reasonable access. This may be acceptable in a smaller facility but for one of this size there must be a degree of certainty as to what the arrangement are to be. In particular, we note that the management plan states services will be provided by local providers or by staff employed by the retirement village. However, in the latter instance, the proposal does not provide facilities to undertake services such as food preparation, laundry, and storage of cleaning or maintenance items or staff accommodation. In addition, the proposed kiosk is very small and does not provide any storage space and will only be available in Stage 2.1 of the development.

133 We do not consider it sufficient that a system that relies on demand being met on a user pays basis is adequate, particularly as it cannot be assumed that supply will automatically increase in response to demand, the user may not have choice in the provider of the service or bargaining power to negotiate reasonable price or delivery. If the provision of services were simply to be left to the market there would be no need for it to be addressed by SEPP5. This is not the case. The requirements of cl 12(2A), particularly when read with the aims of the policy, are specific.

134 The Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 examined the purpose of SEPP5 and the provision of adequate services. It dealt with an earlier version of SEPP5 and different wording of the provision, which specifically required satisfaction that specific support services would be provided within a reasonable time frame and are or will be able to meet the needs of the residents at a reasonable cost. Although not explicit in cl 12(2A) we consider that these concepts are inherent in a consideration of ‘reasonable access’. The Court of Appeal held that:

(2) it is not sufficient for the necessary satisfaction to be based on an assumption that in a privately developed and owned hostel the owners will so manage their affairs as to arrange for the provision of the relevant facilities within a reasonable time and at a proper level and at a reasonable cost to them.
(3) it is not sufficient for the necessary satisfaction to be based on the imposition of conditions of consent.

135 Clause 12(2A) of SEPP5 relies on the provision of services by public agencies or through a condition of consent requiring compliance with a management plan that places an obligation on management to arrange for services to be provided either publicly or privately on a user pays basis. Little detail is provided as to these arrangements and we find that for a development of this size and location, the written evidence does not provide us with the satisfaction required under cl 12(2A) of SEPP5 and in satisfaction of the aims of the policy.

136 In relation to other access issues the experts agreed that there was technical compliance with SEPP5, although Dr Stubbs and Mr Shiels maintained concerns about the adequacy of the bus service and pedestrians access particularly to Cambewarra.

137 Under cl 12(2)(b) of SEPP5 where the facilities and services referred to in subcl 1 are located at a distance of more than 400m from the site of the proposal, and where a transport service is available at a distance of not more than 400m from the site and would provide a service once a day from Monday to Friday inclusive, then the access would comply.

138 Other than the general store and post office there is no other retail or commercial services in Cambewarra. The post office has no on-line banking facilities. There are no doctors in Cambewarra. The nearest general practice is at North Nowra. There are no community or recreational facilities in Cambewarra Village other than a school, church, and school of arts, tennis courts and limited public open space. There is also no chemist in the immediate vicinity of Cambewarra.

139 The experts agreed that most of the services in cl 12(1) of SEPP5 were not available in Cambewarra but were available in North Nowra and Nowra. For all stages of the development it is proposed to provide an eleven-seat private bus to link with these services in Nowra and North Nowra. As currently proposed in the management plan the bus would operate once each weekday. Dr Stubbs considered the size and proposed operation of the bus to be inadequate for a development of this size and that residents unable to drive would need to rely on taxis or other residents for individual transport to medical appointments and the like.

140 Mr Burgess stated that the arrangements needed to be ‘flexible’ and that the size and frequency of services could be increased in response to demand and that the management plan could be amended to reflect this. We accept that a private bus service can meet the requirement of SEPP5 however; the details of the service as currently explained in the management plan do not provide sufficient certainty. In particular, the management plan is unclear as to the whether the obligation to provide the bus is “…subject to residents meeting all costs associated with provision of the bus service either through the village budget or on a user pays basis.” We consider that to satisfy cl 12(2)(b) of SEPP5 the obligation to provide a village bus should be explicit. If the majority of residents drive, the cost of providing a bus for a few residents on a user pays basis would be prohibitively expensive. We consider this to be essential as we are not satisfied that the public bus will access the facility until such time as there is sufficient demand.

141 Mr Craig, QC, submits that the Kennedy’s bus service Nos 809 and 810, Moss Vale – Kangaroo Valley – Cambewarra – Nowra will service the land under the existing timetable. Also, if more people were to migrate to the retirement village the level of service would be reviewed, hopefully upward.

142 A letter from Mr J Kennedy dated 25 July 2003, (Exhibit G, Appendix C) stated that the development would be serviced in the later stages. It states the service, “…involves access via Main Road and it has been designed to allow a 12.5m bus to access the principal road around the site.” [Court’s emphasis added]. In the early stages of the proposal the bus would need to enter the land travel for around 900m turn at the cul-de-sac and return along the same route. The existing route through Cambewarra Village is a loop as shown on p 24 of Mr Relf’s report in Exhibit G. Usually loop roads are preferred to ensure there is no need to back the bus in a turn.

143 The bus service is further clarified in the letter dated 21 July 2004 from Mr J Kennedy that states, [Note: Exhibit CC]:

I have examined the Site Plans of the Proposed SEPP5 Development for Main Street, Cambewarra, Project Number 03090, DA 001B, dated 30 July 2003. The plans show that when the development is complete, there are bus stops within 400m of any dwelling on the site. The owners have also informed me the geometry of the main loop road has been designed to allow for a 12.5 metre bus to circulate through the site. Prior to the loop road being completed a temporary turning circle will be provided.
Your development proposal can be easily accommodated within current passenger transport services, approval would need to be sought from the Ministry of Transport in order to adjust our route to include a deviation into this new estate. If development… is approved we would be happy to extend our current service arrangements. Such approval will not incur any difficulty, as it will be providing additional [routes] to support [our] growing community areas. There would be no additional cost to the Government under current contract arrangements, as we provide services to Main Road Cambewarra and the proposed entrance location to the development and would not cause any inconvenience to passengers.

144 Although Kennedy’s bus and coach service serves Main Road it does so further to the east of the subject land and accessing the retirement village would mean an additional loop to the west of between 2km and 3km. It does seem that the proposed Kennedy’s bus service would be provided only when the last stage of the development is completed and demand had grown. This is made clear when one understands that the loop road referred to above would only be provided when all stages are developed. When the last stage of the development is completed the bus would be required travel from Main Road along the cul-de-sac to its head, turn right and follow the loop road to the south running parallel to the eastern boundary of the land, then turn to the west and enter the cul-de-sac near the pond at level 60m AHD. Three bus stops are proposed within the development. One stop is proposed near the community centre, one near the cul-de-sac head, and another on the loop road all within a maximum distance of around 300m of the furthest dwelling. By this route, the ‘public’ bus would need only to retrace its tracks for a distance of around 170m to link back onto Main Road. This loop road is only available once all stages up to Stage 3.4 are complete and before then the bus would need to turn at the cul-de-sac head and retrace its route to Main Road.

145 While the later Kennedy letter states that the service will be provided to the development it would be subject to further approval of the Ministry of Transport. We consider there is some doubt surrounding this proposal. It is unlikely that the public bus would divert its services some 2km or more, return off Main Road to service about 35 dwellings in Stage 1.1, especially if a high proportion of residents travel by private transport. The aim of SEPP5 is to ensure a transport service is available from the start, and even it only required by one person or a few, initially, it should be available.

146 Mr Relf states:

With respect to the bus service along Main Road, Cambewarra, it is apparent that the services stops at nearby Cambewarra Village at 8.00am, 8.30am/ 8.55am and 10.33am and travels to Nowra commercial precinct within 400 metres of shops and services as required by SEPP5, clause 12(2)(b)… The afternoon Route 809 services include 2.15pm, 3.40pm/ 3.25pm at nearby Cambewarra Village. The timetable analysis shows that the 2 round services daily Monday to Friday will satisfy the requirements of SEPP5 clause 12(2)(b)(iii) which specifies a minimum of one round trip daily during daytime hours.

147 Until such time as the bus enters the retirement village people will need to board it at bus stops on Main Road or in Cambewarra Village. What Mr Relf apparently neglects in his analysis is how do people get to these bus stops and how far are they required to travel. Dr Stubbs points out that the present footpaths are ‘problematic’ connecting the proposed retirement village to Cambewarra Village and the distance travelled would be in excess of 400m. Dr Stubbs indicated that the ‘public’ bus service is between 0.65 km and 1.6 km from dwellings in the proposal and other experts for the applicant have indicated that the ‘public’ bus will not be rerouted through the development until later stages, and will not be relied upon to achieve compliance. If most people prefer to use their cars in the early stages of the development the demand for the public bus would not be great and adding around 2km or more to the route may not be practicable or profitable.

148 After Mr Shiels offered his support for the provision of a footpath along Main Road linking the retirement village with Cambewarra Mr Craig, QC, submitted that the applicant was willing to provide a 1.5m wide footpath from the entrance to the village to Goorama Drive, and then to widen the footpath to Cambewarra Village.

149 Also the applicant was willing to provide a similar footpath from the cul-de-sac via a right of way to Nooramunga Avenue and then to Cambewarra Village. However, this route would not be accessible to all residents due to the steep grades in the right of way.

150 We accept that with the footpaths in place there would be access to Cambewarra village along footpaths from the retirement village, however, the distances from a random selection of dwellings to the general store (Exhibit 22) would be in the order of 1.2 to 1.5km. The provision of a Kennedy’s ‘public’ bus service within 400m of each dwelling is problematic and probably unlikely in the early stages. If the ‘public’ service is not available reliance is placed on the eleven-seat village bus and from the written evidence provided it is questionable if that is sufficient to satisfy the requirements of SEPP5.

Other issues

Social impact

151 Dr Stubbs considered that the addition of around 340 people aged around 70 years within the existing Cambewarra community of around 1000 people would have a significant impact on the demographic mix and social fabric. Dr Stubbs pointed to the significant resident opposition to the proposal.

152 Mr Porter saw Cambewarra as being but part of the wider Nowra urban functional area and as such would not disturb the balance. We agree that while this is not specifically a matter to be addressed under SEPP5, it is of concern.

153 Dr Allin, in his own right and on behalf of other members of his practice, gave some support for the position of Dr Stubbs on the site inspection. He gave evidence that the medical infrastructure in this [Nowra/ Bombaderry] area cannot support the extra demand on services likely to take place as a result of the proposal. He stated:

Simply with regards to aged care and people with disabilities and the requirements of allied health, our practice has 12 doctors working at it, most of them are part-time. On any one day we have about 6 doctors working in the practice, and these doctors are usually fully booked quite well ahead.
We do not believe that we can actually service this development.

154 There was a difference of opinion between Messrs Shiels and Logan on the traffic implications of the proposal. Mr Shiels considered that the proposal would result in adverse traffic impacts within the local road system, unless improvements are made to the road network.

155 Mr Logan considered that while there are deficiencies in the existing road system the traffic generation from the proposal is minor and will not have a significant adverse traffic impact on the local road system.

156 These areas of disagreement were reduced by the applicant’s agreement to provide a footpath along Main Road and the intersection into development off Main Road as required by Council.

157 The only works, which remained in dispute, were the need to widen Main Road and the need to upgrade the Moss Vale and Main Road intersection. We accept Mr Logan’s evidence that any need to upgrade these facilities is not generated solely by this development and it would therefore be unreasonable to require this development to rectify existing deficiencies. Nonetheless the proposal will increase traffic and a proportional contribution would be appropriate. As the type of proposal is not envisaged under the planning controls for the area and there appears to be no relevant s94 Plan a developer agreement or other mechanism may be appropriate.

158 For the above reasons the application must fail.

Orders
159 Our orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 03/2924 lodged with the respondent council on 31 July 2003 to erect 226 dwellings now amended to 221 self-care units with support facilities for aged and disabled persons Lot 203, DP 883494, located off Main Road, Cambewarra, is refused consent.

3. The exhibits except for Exhibits A, B, Q, S, U, V, W, X, 1, 2, 5 and 16 are returned.

S J Watts
Commissioner of the Court
sw Annelise Tuor
Commissioner of the Court