McCallum Constructions Pty Ltd v Ku-Ring-Gai Municipal Council

[1988] NSWLEC 4

Land and Environment Court

of New South Wales

CITATION:	McCallum Constructions Pty Ltd v Ku-Ring-Gai Municipal Council [1988] NSWLEC 4
PARTIES:	APPLICANT McCallum Constructions Pty Ltd RESPONDENT Ku-Ring-Gai Municipal Council
FILE NUMBER(S):	10267 of 1987
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	06/10/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: This is an appeal pursuant to s.97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by the Respondent of a development application for the erection of aged persons housing (comprising 42 self-care units and 2 caretakers units and associated facilities) on vacant land known as lots 2-4 Deposited Plan 11919 situate at Coonanbarra Road, Wahroonga.

Following the filing of the appeal the Respondent exercised its power under s.96(2) of the Environmental Planning and Assessment Act 1979 and determined the development application by refusing development consent for the following reasons:-

"1. The proposed development fails to provide adequate wheelchair access in accordance with Clause 10(3) of State Environmental Planning Policy No. 5.

2. The development exceeds the maximum 8.0 metre height requirement of Clause 10(4) of State Environmental Planning Policy No. 5.

3. The application fails to provide adequate information concerning the provision of support services and operating costs of the development in accordance with Clause 11(1) of State Environmental Planning Policy No. 5.

4. The provision of landscaping on-site is not satisfactorily detailed in the application nor satisfactory to provide for the use of residents of the development.

5. The development does not adequately demonstrate the provision of access to community facilities for the purposes of complying with Clause 11(2)(b) of State Environmental Planning Policy No. 5.

6. The development is unsatisfactory in its architectural design, specifically in respect of its ramping system, scale and bulk, access between its elements, and orientation for solar access. The design, on the information provided, does not sufficiently address the physical needs of aged and disabled residents.

7. The development does not, in its design, have regard for the high bushfire hazards associated with the site.

8. The development's lack of regard for appropriate architectural treatment in areas of close proximity to adjoining residential development.

9. The circumstances of the case and the public interest."

On the hearing of the appeal some of these reasons for refusal were abandoned (eg reasons numbered 2 and 7) and some underwent refinement (eg reason No. 1 when combined with reason No. 6 put in issue the appropriateness of the designed pedestrian access on site).

Ultimately after a long hearing (involving considerable expert testimony) 2 principal issues emerged namely -

(i) whether the proposal provided suitable aged persons housing development by reason of -

(a) the topography and location of the site; and

(b) the design features of the development (notably its changes in levels and arrangements for on-site pedestrian access (eg ramps and stairs); and

(ii) whether the Applicant had satisfied the requirements of cl. 11(1) of State Environmental Planning Policy No. 5 - Housing for Aged or Disabled Persons in relation to the availability of adequate on-going support services to the residents of the proposed development at reasonable cost to them.

A. THE APPEAL SITE

(i) AREA

The appeal site comprises 3 adjoining residential lots having an aggregated area of 7100m2. It is located on the eastern side of Coonanbarra Road at the corner of that road and the unmade portion of Boundary Road.

Coonanbarra Road which runs in a north/south direction is not fully constructed along the frontage of the appeal site. Instead of the normal road pavement it has (in its northern extension beyond the Boundary Road intersection) a constructed 3 metre wide concrete carriageway principally used for access purposes by the M.W.S & D. Board). Other than the appeal site this section of Coonanbarra Road provides access to only one other residential lot, (namely lot 1 Deposited Plan 11919) which is developed by a private dwelling.

(ii) ZONING

The appeal site is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance in which zone permissible residential development is confined to dwelling-houses. It is common ground that the proposed development is permissible development only if it satisfies the provisions of State Environmental Planning Policy No. 5.

(iii) TOPOGRAPHY

Topographically the appeal site is steeply sloping from the east to the west. For example along its southern boundary (ie adjoining the unmade section of Boundary Road which generally coincides with the depth of the appeal site) there is a difference in levels of 25 metres over a distance of some 80 metres ie a fall of nearly 30%. The fall is greater (ie 33%) if the comparison is between the levels of the made section of Boundary Road (which terminates in a cul-de-sac near to the south-eastern corner of the appeal site) and the concrete carriageway of Coonanbarra Road, such levels being located in the vicinity of the southern boundary of the appeal site.

These differences in level and the slope of the site of course relate to the appeal site as it exists in its present state. That state is partly natural and partly affected by man-made changes apparently in preparing the sites for 2 dwelling-houses which had previously been approved by the Respondent on lots 2 and 4.

The proposed development contemplates further changes in the levels and slope of the appeal site and these will be detailed when the proposal is hereafter described.

(iv) LOCATION

The appeal site is located due north of Wahroonga Railway Station at the end of the residential section of Coonanbarra Road. It is situated some 1.5 kilometres from the shopping and community facilities clustered around Wahroonga Railway Station.

The appeal site is within 240 metres and 380 metres respectively of the routes of private bus services. There are no footpaths in Coonanbarra Road or Boundary Road in the vicinity of the appeal site to provide pedestrian access from the site to the existing bus stops on these bus routes.

The appeal site faces Spring Gully Creek which runs parallel to the Northern Expressway which is at an advanced stage of construction from Pacific Highway. The Expressway corresponds with the local government boundary between Ku-ring-gai and Hornsby areas.

B. THE DEVELOPMENT PROPOSAL

The proposal provides a total accommodation of 44 self-care units (42 x 2 bedroom and 2 x 1 bedroom) 2 of which are designated for use by care-takers.

Associated facilities comprise -

(i) recreation room

(ii) indoor swimming pool

(iii) community lounge

(iv) shop

(v) medical/first aid room

(vi) internal and undercover pedestrian access

(viii) mini-bus service

(ix) car parking

The building format of the proposal is 2 rows of housing units each at 3 levels - the lower level being units 1-24 and 43 and 44 being accessible via a driveway from Coonanbarra Road and the upper level (being units 1-18) being accessible via a driveway from Boundary Road. Car parking provision is similarly distributed between the upper and lower levels. The majority of car parking spaces are undercover. (For ease of reference I have described the upper level as a row. In fact it comprises a cluster of 4 separate building blocks but aligned in a row).

The 2 rows of housing units are located on 2 building site benches provided across the land running north/south. Both rows of housing face west, looking towards the said Expressway and the adjoining Hornsby Shire.

The 2 rows of housing units are connected at mid section by a building providing most of the aforesaid community facilities (eg pool, recreation, shop).

This mid section provides internal access with the stairs and ramping system interconnecting the 2 housing rows.

Although there are a number of minor changes in levels the ground level of each of the 2 rows of housing is approximately RL.155 in the case of the lower row and RL.169 in the case of the upper level. By virtue of their placement in rows and the difference in ground level of these 2 rows the proposal's presentation to the west is as a 4 or 5 storey building (albeit with some interspersed open spaces at the upper level) extending some 80 metres across the appeal site. Significantly the visual impact of this extensive building mass does not affect resident objectors from the Ku-ring-gai Municipality. It does however affect Hornsby residents living opposite the appeal site across the Gully and the Expressway. Equally significantly it appears that these Hornsby residents were not notified of the proposal and probably they were and are unaware of it. There is little doubt, in my opinion, that the proposal will have a significant visual impact on a number of the Hornsby residents. This matter was not extensively ex

plored at the hearing. The case points up the desirability of consultation between adjoining local Government Councils where development in one area is likely to have a greater impact on the adjoining area.

In fact there are some 14 changes of level in the proposal although many of these entail very slight differences indeed ie less than 1 metre. Basically there are 3 levels of housing units in each of the 2 rows of buildings (although in the case of the lower row the 3 levels are different in the southern section from the levels of the northern section although each section has 3 levels).

The community lounge is located on the highest level of the lower row of buildings at RL.163.2 and the recreation room is located in the interconnecting building at RL.165. These facilities are accessible by ramps or stairs from each of the rows of housing.

The proposed development involves a number of changes to the existing levels of the appeal site. For example the north western corner of the lowest level of the lower row of buildings (the section of the proposal nearest to the existing dwelling-house on lot 1) will involve some 2-4 metres of excavation. This appears to be the most extensive excavation required by the proposal. Similarly the north eastern corner of the ground floor of the upper row will involve an excavation of some 3 metres. There will also be extensive excavation at the ground floor level of the interconnecting mid section building (accommodating the indoor pool level).

Driveway access from Coonanbarra Road is proposed at a grade of 1:8. The driveway commences in the unmade section of Boundary Road at its intersection with Coonanbarra Road and cuts diagonally across the appeal site in front of the lower level row of buildings. This access driveway has already been excavated. It levels out at the parking areas located at the northern end of the ground floor of the lower row of buildings at RL.158 some 8 to 10 metres above the level of Coonanbarra Road.

The driveway access from Boundary Road has not been constructed. The proposal is to provide for a 1:8 grade extension from the cul-de-sac end of Boundary Road utilising the unmade section of that Road reserve. Little detail of this extension was provided at the hearing. The impact of this extension was a matter of concern for a number of residents in nearby Killawarra Place (which backs onto the unmade section of Boundary Road) who objected to the proposed development and gave evidence at the hearing.

Pedestrian access (at a grade of 1:12) from Coonanbarra and Boundary Roads is proposed. In the case of Coonanbarra Road because of the relevant levels of this section of the appeal site the pedestrian pathway to achieve the required gradient spans some 120 metres in a zig-zag fashion and is required to utilise parts of the road reserve to achieve its course and destination.

The proposed pedestrian access from Boundary Road involves considerably less distance of travel. It is proposed to flank parts of the proposed vehicular access from Boundary Road.

The pedestrian access arrangements within the proposed building comprise stairs and ramps. Although the planning report submitted on behalf of the Applicant in support of its application referred to the possibility of a lift this matter was not explored in the course of the hearing.

In the aforesaid report the statement was made in relation to the question of access for the disabled (which has, by regulation, been made a relevant consideration in terms of s.90(1)(s) of the Environmental Planning and Assessment Act):-

".......... Allowance has been made for the inclusion of a three or four level lift to service and link both housing groups. This facility would be incorporated in the project if ramping and/or unforeseen site constraints are such that adequate 1:12 pedestrian/wheelchair access can not be provided. However the primary emphasis of this development because of its selfcare nature is accommodation for largely independent retired persons."

As I have said the Applicant did not, in the course of a long and extended hearing, attempt to explore the question of the proposal incorporating a lift. Notwithstanding this fact in its final address the Applicant invited the Court, if it was of the opinion that the proposal should only be approved if it incorporated lift facilities, to grant conditional development consent by imposing a condition requiring the proposal to incorporate appropriate lift facilities.

Not surprisingly Counsel for the Respondent strenuously opposed this submission although somewhat curiously in the draft conditions of consent which had been prepared on behalf of the Respondent such a condition had originally been included. In my opinion it would not be appropriate for the Court to adopt the approach urged by the Applicant. In so concluding I do not think the question raised in the present proceedings is to be answered entirely by reference to considerations of the power of the Court to impose conditions or the power of the Court to entertain amendments to a development proposal the subject matter of an appeal to the Court.

Rather what is decisive in the present case is the fact that no attempt was made in the course of the hearing to consider lift facilities as an alternative to the proposed stairs and ramping system. Considerable evidence in the case was addressed to the ramping system. In my opinion the appeal having been so conducted it is the Court's duty to determine the appeal on the basis of the material placed before the Court.

If I were to accede to the Applicant's submission it would be tantamount to the Court not only re-opening the case (without any application in that behalf having been so made) but allowing the case to be reagitated on an entirely different tack and basis from that upon which the hearing of the appeal has been deliberately conducted. Accordingly I am not prepared to consider in this appeal the question of lift facilities in the proposal.

The various levels of buildings providing housing accommodation and the various levels of the buildings providing recreational and associated facilities are interconnected by stairs, paths and ramps. The mid section interconnecting building provides the central location for the stairs and ramps connecting the different levels of housing accommodation with the different levels of recreational/associated facilities.

The central stairs provide the most direct access between different levels whereas the ramp system is not only lengthy (involving some 36 metres to negotiate each level) but as Mr. Byrnes described it somewhat "convoluted". It is accepted that the internal access arrangements comply with the legal requirements of the State Policy (although this compliance was only established by the Applicant providing additional material in the course of the hearing).

C. THE CENTRAL ISSUES

(i) THE SUITABILITY AS AGED PERSONS HOUSING

OF THE PROPOSED DEVELOPMENT

A considerable amount of evidence was directed to this central issue, involving the expert opinions of social workers, town planners and architects.

Not surprisingly, because of the complex design of the proposal, and in particular its internal pedestrian access arrangements, the social workers did not, in my respectful opinion, demonstrate a particularly keen grasp of the proposal's design features and the manner in which the proposal if built, would function. Although I did not find their testimony to be particularly helpful on this aspect of the proposal I did find their testimony helpful on the question of whether the site was suitably located in relation to community facilities etc.

In this respect I accept the opinion of the Respondent's Community Worker, Miss Page that the steepness of the site and the neighbouring area would render "a stroll around the block" as virtually impossible for many aged persons.

The steepness of Boundary Road also considerably reduces the effectiveness to aged residents of the facility of the bus service operating in Grosvenor Road.

These factors inevitably weigh heavily against the suitability of the location of the development proposal. In my opinion their impact is more negative than the fact of the distance per se (some 1.5 kilometres) of the proposed development from the Wahroonga shops and community facilities.

In so concluding I do not overlook the fact that many aged persons, resident up to 1.5 kilometres from shopping facilities, etc. will choose to drive their motor vehicles to the shops in the same manner that younger residents similarly placed would be likely to behave. Nor do I overlook the proposal's provision of a mini-bus service. However these matters do not overcome the negative impact on the proposal of the steepness of the appeal site and the immediately surrounding locality.

Returning to the design features of the proposal upon which there was considerable evidence I have come to the firm conclusion that the proposal does not provide suitable housing for aged or disabled persons.

In so concluding I accept Professor Toon's opinion that "neither the upper nor lower pedestrian and vehicle access routes are comfortable for or sympathetic to the needs of the aged, some of whom will inevitably be or become fragile, incapacitated or have diminished faculties". He had earlier commented:-

"A total length of some 400m of ramp is required if developed at the maximum acceptable slope to connect the two roads: some 250m of ramp is required to connect the lower levels to Boundary Road and the bus route and some 150m of ramp is required to connect the upper and lower vehicle levels. Further, these ramps are relentless in that there is no reduction in slope (no easier sections)."

Again I accept these comments which were corroborated by the evidence of Mr. Byrnes who drew attention to the convoluted "zig-zag" internal ramping system and to the inordinate distances of travel from various self-care units to various recreational facilities located on site and to street frontages.

Counsel for the Applicant submitted that in considering the evidence on this issue I should give weight to the fact that the Respondent had not relied upon "the steepness of the site" as a reason for its refusal of development consent and that Professor Toon's testimony on the issue came "at the last minute".

I am unable to accept this submission. The Respondent's decision to refuse development consent was based upon a very comprehensive report of its Director of Town Planning (encompassing some 30 foolscap pages).

That report incorporated the comments of the Community Services Department which stated (inter alia):-

"The site is extremely steep with a gradient of 1 in 4. A series of ramps will connect the two housing groups and the three floors in each group. However this will create extensive travel distance for the resident. The steepness of the site and neighbouring area would prove an impediment to aged residents in remaining independent in their mobility ............"

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"Conclusion

The proposed development raises two major concerns:-

(1) The inappropriateness of the site for aged housing development given the steepness of the gradient .............."

The report of the Director of Town Planning further deals with the question of the steepness of the site under the heading "Wheelchair Access" in the following passages:-

"To provide wheelchair access from Coonanbarra Road to the lower entry requires a pedestrian ramp of approximately 100 metres length to negotiate what is indicated as being a change in level of approximately 8 metres between the roadway and entry lobby. The plans indicate a sketchmatic pathway from the lower site entry which runs for over half its length in the road reservation. A further ramp of 36 metres is provided between each storey of the development.

To meet the requirements of Clause 10(3)(a) from Coonanbarra Road a distance of travel of 172 metres (for the most part at a 1:12 gradient) would have to be negotiated to the last of the requisite 22 units. This distance of travel is considered excessive and inappropriate.

......................................................

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The design of the ramping system does not take adequate account of the age and condition of the person confined to a wheelchair. The ramping system of the development is excessive in length and could prove exhaustive to negotiate by aged persons in wheelchairs or on foot."

Moreover Mr. Goldsmith the Consultant Town Planner called by the Applicant in his report (Exhibit H p.16) noted:-

"Council's initial concerns primarily related to the location of the site ............ Later considerations or concerns have been focussed on the nature of the site and the design decisions it has required."

Indeed according to Mr. Goldsmith's report (p.2) the Applicant has known for some time before it submitted its development application that the Respondent's Town Planning Officers would not support a SEPP No. 5 application because of the nature of the site and its location.

Though I have earlier stated that I have accepted the expert opinions of Professor Toon and Mr. Byrnes (concerning the steepness of the site and its consequent impact on internal access arrangements) in concluding that the proposed development does not provide suitable housing for aged or disabled persons, I should here express my general agreement with the relevant opinions found in the report of the Respondent's Director of Town Planning. Indeed I should say (in fairness to the Respondent's Director of Town Planning) that the expert opinions I have accepted do not add significantly to the content of the opinions expressed in the admirably comprehensive report to the Respondent on the development proposal submitted by the Respondent's Director of Town Planning, although obviously those opinions have been fortified by the expert testimony called by the Respondent in these proceedings.

Although in accepting the opinions of Professor Toon and Mr. Byrnes I necessarily reject the contrary opinion of Mr. Goldsmith the true point of difference in the expert opinion in this case lies in a more fundamental area namely the experts' different appreciations of suitable aged persons housing in accordance with the Policy. The Applicant and Mr. Goldsmith (who was engaged in the case at a stage before the development application was made to the Respondent) have consistently adopted the attitude that an entirely "self-care units" aged persons development is directed towards "largely independent retired persons" and that ordinary market forces would operate in determining the type of aged person resident of the proposal.

An example of this approach is found in the following section of Mr. Goldsmith's oral testimony in the context of discussing the age range of 55 years - 74 years of persons purchasing a self-care unit:-

"It was my view that this particular style of development, the ramping and other arrangements, the pool and other facilities would indicate that probably it would move more towards the lower end of the spectrum when they initially buy in but certainly they age over time. It is a marketing exercise initially and I would think that people would look at this development as they would in any other development and that people that buy into it in the first place would be those that would be expecting to use those ramps effectively, use the pool, use the gardens etcetera, and be happy with a mini-bus service, taxis, their own vehicle."

On the other hand Mr. Byrnes sees the provision of mandatory services and facilities as the distinguishing characteristic of housing for aged and disabled persons under the Policy. In relation to the mandatory requirements of cl.10(3) of the Policy he stated (para. 6.3 of his report Exhibit 14):-

"By making not less than 50% of the units accessible by wheelchair there is a clear intent to provide a greater than normal provision for housing for the disabled ..........."

In my opinion it is clear beyond doubt that the mandatory requirements of cl.10(3) in relation to wheelchair access for disabled residents do substantially and seriously qualify the types of building form of housing for aged or disabled persons that may be permitted under the Policy. Moreover the very presence and effect of cl.10(3) of the Policy, casts a doubt on the proposition that housing in accordance with the Policy can be legitimately directed to the needs of young and fit "aged persons".

These considerations inevitably and properly direct attention to the suitability of purpose built housing for aged/disabled persons in accordance with the Policy.

At one stage during the hearing I was attracted to the argument that ordinary market forces would operate to bring to the proposed development only those aged or disabled persons who considered the development appropriate to their needs in life. If their needs changed they would be free to move to a more suitable form of development eg a retirement village providing a full range of care. Thus appreciated, the proposal could be said to be providing an intermediate form of purpose built, aged persons housing, offering special facilities not normally provided by ordinary town-house development but far less than full care facilities and services provided by comprehensive retirement villages.

However on reflection I do not think this to be a sound approach to an assessment of whether a proposal provides suitable housing for aged/disabled persons in accordance with the Policy because it really begs the question of whether the development provides suitable housing for aged/disabled persons.

This is not to deny the proposition advanced by Mr. Goldsmith that in appraising the suitability of housing for the aged and disabled it is obviously necessary to distinguish between retirement housing developments which provide for the highest level of care (ie hostels/nursing homes) and these which provide exclusively "self-care" housing. The Policy recognises the legal possibility of housing for aged/disabled persons providing only "self-care" units and the fact is many such developments currently exist in our community.

However the possibility for, and existence of, entirely "self-care" units in aged/disabled persons housing developments does not remove the need or propriety for an appraisal of the suitability as housing for aged/disabled persons of any given development proposal. Moreover such an appraisal will not be restricted to a quantitative assessment of whether the Policy's mandatory requirements for facilities and services are complied with (as they are in the present case) but will involve a qualitative assessment. It is in this latter respect that I have come to the firm conclusion that the proposal does not provide suitable housing for aged/disabled persons and must accordingly be rejected.

In making this qualitative appraisal I have taken into account the fact of the ageing process in humans with the attendant disabilities and incapacties referred to by Professor Toon. I also have taken into account the evidence that suggests that the average age of entry of aged persons into self-care units in retirement developments is well in excess of 55 years.

Finally I should note that I have considered Mr. Goldsmith's opinion that the proposal should be supported because "of its social and economic benefits to the community ie it is generally more affordable than traditional retirement villages (both initially and in terms of recurrent costs) and it is a valuable addition to the housing stock because of its purpose built nature and the fact that it frees up less suitable accommodation (currently taken up by the aged/disabled)" pg.16 Exhibit H.

Because I have concluded that the proposal does not provide suitable housing for aged/disabled persons I am unable to accept his opinion that "it is a valuable addition to housing stock". Nor was there sufficient proof that the proposal provided more affordable housing than traditional retirement villages.

Counsel for the Applicant in his final address criticised aspects of Professor Toon's testimony which cited examples of distance of travel between particular points on the development site. These citations were merely illustrative of Professor Toon's central thesis (which I accept) that "this site is so steep that ramping is required throughout to connect the various intra-site levels and to connect the site with both Coonanbarra Road and Boundary Street". (pg. 2 Exhibit 20)

Counsel for the Applicant sought to justify the proposal on the basis that the travel distances to various recreational facilities provided by the development were not excessive when compared with the "locational criteria" expressed in the Respondent's Code for Housing for Aged or Disabled Persons. (Generally those criteria stipulate a 500 metre radius for access to community facilities). I do not accept this argument.

It is artificial, if not inaccurate, to seek to equate the facilities provided by the proposal with "community facilities".

Finally I should note in relation to Mr. Goldsmith's evidence of a number of existing retirement villages in the Sydney area which are developed on sloping lands, that I have since inspected these developments. Although many of the sites would appear to be, in parts, as steeply sloping as the site of the proposed development in each case the developments were generally of large scale retirement villages offering a full range of care. I think this fact distinguishes them from the present case.

Accordingly for the reasons given I am of the opinion that the proposal does not provide suitable housing for aged/disabled persons and the appeal must be dismissed for this fundamental reason.

This conclusion makes it unnecessary for me to consider other matters raised and debated at the hearing. They do not raise any point of principle and accordingly I do not think there is any need or advantage in recording or discussing my conclusions thereon other than to say that in respect of all these other matters my decision would have been favourable to the Applicant. This disposition however does not, and cannot, change the result of these proceedings.

Accordingly I order that the appeal be dismissed and development consent be refused. Exhibits may be returned.