Hunter Valley Care v Lake Macquarie City Council

[2007] NSWLEC 223

Land and Environment Court

of New South Wales

CITATION:	Hunter Valley Care v Lake Macquarie City Council [2007] NSWLEC 223
PARTIES:	APPLICANT Hunter Valley Care Pty Limited RESPONDENT Lake Macquarie City Council
FILE NUMBER(S):	10915 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- Consent Orders - aged persons housing development - precedent - traffic - bushfire
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 5
DATES OF HEARING:	16/02/07
DATE OF JUDGMENT:	23 April 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr T Howard, barrister SOLICITORS Cleaves Mallik Gibbs RESPONDENT Mr G Long, solicitor SOLICITORS Lake Macquarie City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

23 April 2007

10915 of 2005 Hunter Valley Care Pty Limited v Lake Macquarie City Council

JUDGMENT

1 This matter comes before the Court following the decision of Lake Macquarie City Council (the council) to enter into Consent Orders for DA/4390/2000 that provides for an aged persons housing development at lot 21 and 22 in DP883119 and lot 1 in DP855220 off Tinglewood Close, Tingira Heights.

2 The development application was lodged on 26 May 2000 and was refused by the council on 12 August 2004. Over this time and during the time prior to the appeal, the application has been amended on a number of occasions. The current proposal provides for 3 x 3 bedroom units and a community facility located in two separate buildings.

3 When the development application was first lodged with the council State Environmental Planning Policy No. 5 – Housing for Aged Persons or Persons with a Disability (SEPP 5) was the applicable planning instrument. SEPP 5 has since been repealed and replaced with State Environmental Planning Policy-Seniors Living 2004 (SEPP-SL) although the application is still to be considered under SEPP 5 as the application was captured by the savings provisions in SEPP-SL.

4 Similarly, the zoning of the site has changed from 1 Rural “A” under Lake Macquarie Local Environmental Plan 1984 (LEP 1984) to Zone 7(5) Environmental (Living) under Lake Macquarie Local Environmental Plan 2004 (LEP 2004) when LEP 2004 was gazetted on 19 March 2004. The application was captured by the savings provisions in LEP 2004 however neither zoning presents any barriers to the consideration of the application under SEPP5.

5 In accordance with the Court’s Practice Direction, any person who objected to the proposed development may seek leave to be heard in the Court’s consideration of the Consent Orders. In this regard Mr Ross Grace of 12 Parkwood Parade spoke on behalf of some 60 residents who attended the site view on the morning of the hearing on 16 February 2007. He opposed the application on three main grounds, being firstly, the likely further development of the site, secondly, the potential traffic implications and thirdly the threat of bushfire.

6 Of Mr Ross Grace’s first concern, I acknowledge that the proposal is relatively small in relation to the site area of some 5.4 ha. The provision of a large community facility is also a facility that would not normally be expected in an aged persons housing development of three individual units. While I understand Mr Grace’s concerns that these matters could reasonably be seen as a precursor to further development, the Court is bound to consider the application as submitted in the development application. There must also be the presumption that an approval will be carried out in accordance with the conditions of any approval, i.e., three aged housing units and a community facility. Any amendments to these uses would require a further development application that would need to be considered on its individual merits and presumably with further public consultation. Importantly, there is no legal barrier to further development applications being submitted for the site however the likelihood of further development applications is not a matter that should, or could be given any weight in these proceedings.

7 Mr Grace’s second concern relates to traffic. The applicant provided a traffic report from B J Bradley and Associates. Based on the RTA Guide to Traffic Generating Development, the proposal will generate 1 to 2 daily vehicle trips per dwelling and 0.1 to 0.2 trips per dwelling in the evening peak period. Mr Bradley concludes that the proposed development will provide very low levels of traffic generation and will not adversely affect the level of service, level of safety or capacity of any streets or intersections within the area.

8 While Mr Grace was critical of the traffic assessment, I am satisfied that it provides an appropriate assessment of traffic implications of the proposed development based on established parameters such as the RTA Guide to Traffic Generating Development and the INTANAL computer modelling software. The strong criticism by Mr Grace of the data on the existing traffic situation in Tinglewood Close in Mr Bradley’s report does not really address the traffic issue. The question to be answered is whether the impact of the proposed development on the existing traffic situation is acceptable. Based on Mr Bradley’s assessment, the proposed development will generate only a very small number of vehicles so the impact on the existing traffic conditions in Tinglewood Close and the surrounding area is likely to be minimal, at best. Consequently, I do not accept that the proposed development could be rejected on traffic or safety grounds.

9 The third concern relates to the threat of bushfire. It was agreed that the development has not received a s 100B fire safety authority under the Rural Fires Act 1997 from the Commissioner of the Rural Fire Service. It was common ground between the parties that the council had accepted amendments to the applicable bushfire map that removed the Category 1 vegetation classification (and consequent higher bush fire requirements) from the site. However, the amended vegetation classification maps had not been formally approved so the s 100B fire safety authority could not be issued. The submissions from Mr Long and Mr Howard suggested that the approval was imminent. On this basis it would be clearly inappropriate to reject the application on bushfire grounds given the submissions on the amendments to the bushfire maps and it would be equally inappropriate to approve the application without the s 100B fire safety authority.

10 Consequently, the proceedings were adjourned and directions given for the filing and serving of the s 100B fire safety authority.

11 On 20 April 2007, the Court was advised that the s 100B fire safety authority had been issued and there was no barrier to the granting of development consent.

12 The Orders of the Court, by consent, are

1. The appeal is upheld.
2. DA/4390/2000 for an aged persons housing development at lot 21 and 22 in DP883119 and lot 1 in DP855220 off Tinglewood Close, Tingira Heights is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit A.

___________________

G T Brown
Commissioner of the Court