Pepperfield 6 Wiseman Road Pty Ltd v Wingecarribee Shire Council

[2024] NSWLEC 1078

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pepperfield 6 Wiseman Road Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1078

Hearing dates:

29-31 January 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 22/0214 for lot consolidation, demolition of existing structures, 71 self-care seniors living units, community building, alterations and additions to an existing community building, landscaping and civil works, at 6-8 Wiseman Road, Bowral, is approved, subject to the conditions of consent at Annexure A.

(3) The exhibits, other than Exhibits 3, A, B, C, D and E, are returned.

Catchwords:

DEVELOPMENT APPLICATION – additional stage for a seniors housing development on adjoining land – social impacts on existing residents

Legislation Cited:

Civil Procedures Act 2005, s 56

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Retirement Villages Act 1999, s 60

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

State Environmental Planning Policy (Housing) 2021, Schs 1, 7A, cll 2, 43

Wingecarribee Local Environmental Plan 2010, cl 36

Cases Cited:

Dougruby Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 192

New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303

Texts Cited:

Wingecarribee Shire Council, The Wingecarribee Local Housing Strategy – Housing Our Community, 2021

Category:

Principal judgment

Parties:

Pepperfield 6 Wiseman Road Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
T To (Applicant)
J Walker (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks (Respondent)

File Number(s):

2023/87257

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 22/0214 for lot consolidation, demolition of existing structures, 71 self-care seniors living units, community building, alterations and additions to an existing community building, landscaping and civil works (the proposal), at 6-8 Wiseman Road, Bowral (the site), by Wingecarribee Shire Council (the Council).

2. The appeal was subject to conciliation on 10 August 2023, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

The application is amended

3. The Applicant sought the Court’s leave to amend the application to rely on an amended site plan and architectural plans depicting alterations and additions to Pepperfield House, to extend the existing function room and the existing gym.

4. The Council opposed the Applicant pressing the application for the grant of leave to amend the application; and opposed the granting of leave for the Applicant to amend the application to rely on those architectural plans (Ex E, tabs 1 and 2).

• The Court granted the Applicant leave to amend the application on 24 January 2024 to rely on an amended proposal. The Applicant had sought to include the alterations and additions to Pepperfield House as part of the amendment, however, the Court did not grant the Applicant leave to amend the application to include the alterations and additions to Pepperfield House (as well as other proposed amendments). The Council submitted that reagitating the same issue before me is an abuse of process, as a decision has already been made by the Court in relation to the proposed alterations and additions to Pepperfield House and the circumstances have not changed since the Court excluded those proposed alterations and additions to Pepperfield House from the grant of leave to amend the application on 24 January 2024.

5. The Applicant was given leave to press the application. I do not accept that the pressing of the application is an abuse of process because an applicant is entitled to seek the Court’s leave to amend their application during the hearing of an appeal. I had more information before me than the Court had on 24 January 2024, having read the joint reports which were filed on 25 January 2024 (Ex 6), viewed the site (including Pepperfield House), and having heard from the objectors.

6. The Council objected to the grant of leave for the Applicant to amend the application on the following bases:

• The proposed alterations and additions to Pepperfield House were presented to the existing residents in September 2023, however, those alterations and additions were not included as part of the Applicant’s motion dated 18 October 2023 and heard on 2 November 2023 to amend the application to rely on an amended proposal. This is inconsistent with the Court’s rules requiring the Applicant to amend the application as soon as possible. The Applicant has not satisfactorily explained why the proposed alterations and additions to Pepperfield House were not incorporated into an amended proposal for which leave was sought until December 2023.

• The Applicant’s social planning expert relied on the plans for the proposed alterations and additions to Pepperfield House in her evidence, however, the Council’s expert did not.

• The Council is prejudiced as the Council’s experts do not have time to assess the amended application; nor does the Council have time to renotify the architectural plans.

7. The Applicant submitted that the outcome of the residents meeting was not known until after the Applicant’s motion dated 18 October 2023 was filed with the Court. The social planning experts have considered the proposed alterations and additions to Pepperfield House. The town planning experts would have considered the plans for Pepperfield House because those plans were the subject of the motion filed with the Court in December 2023. Furthermore, the alterations and additions to Pepperfield House are relatively minor. The seeking of leave to amend the application to rely on the plans for alterations and additions to Pepperfield House is consistent with the overriding purpose of the rules of court to facilitate the just, quick and cheap resolution of the real issues in the proceedings, pursuant to s 56 of the Civil Procedures Act 2005, because the Council’s key concern regarding the social impact of the proposal is partly addressed by the augmentation of the communal facilities in Pepperfield House to accommodate the additional residents.

8. I accept the Applicant’s submissions and leave was granted to the Applicant to amend the application to rely on the amended site plan and the architectural plans showing the proposed alterations and additions to Pepperfield House (Ex E, Tabs 1 and 2) on the following bases:

• The augmentation of the facilities room and the gym within Pepperfield House addresses the Council’s concern regarding the proposed significant increase in residents in the village with no proposed increase in facilities (Contention 6(g)(iv)(A) of Ex 3) and the concern raised by the objectors that the existing community facilities are inadequate to provide for the needs of the additional residents.

• I am satisfied that the architectural plans are suitable for assessment at the hearing as the proposal is sufficiently documented for the purpose of minor alterations and additions to an existing building. The Council raised an issue that some elevations of Pepperfield House were not shown, however, the proposed changes to the building are only visible on the north elevation, which is included.

• I am satisfied that the Applicant consolidated its amendments and applied for leave as soon as it was reasonably possible to do so.

• The granting of leave to the Applicant to amend the application did not require either the vacating of the hearing dates or an adjournment of the hearing. The alterations and additions to Pepperfield House are minor and the experts were able to consider those changes during the course of the first day of the hearing in court.

9. Following the granting of leave to the Applicant to amend the application, the town planning experts were directed to confer over the proposed alterations and additions to Pepperfield House. The town planning expert did so and the Council tendered an addendum to their joint report (Ex 9) the following day.

Issues

10. The Council’s contention can be summarised as the proposal will result in adverse social impacts to the existing residents of the existing retirement village located at 8 Wiseman Road, as follows:

• There is a need for a dedicated transport service for village residents, and the provision of an adequate service is not proposed, nor is it flexible enough to meet the needs of existing and future residents.

• The proposal will impact on the access of existing residents to facilities and services within the village, particularly resulting from the significant increase in proposed residents with no proposed increase in facilities and services as part of the proposal. The proposal is inconsistent with the Retirement Villages Act1999 s 60(3).

• The social needs of existing and future residents have not been adequately addressed, including whether the village should operate to ensure residents can age in place, or could be provided with appropriate access to the required services.

• The construction of the proposal will impact upon the health and wellbeing of existing residents.

The site

11. The site is on the northern side of Wiseman Road, to the west of the Southern Highlands Christian School. The site is approximately 5 km from Bowral town centre.

12. The site is legally known as Lot 4 in DP 829578 (6 Wiseman Road) and Lot 1000 in DP 1117715 (8 Wiseman Road) and has an area of 12.118 hectares. 8 Wiseman Road has an area of 8.127 hectares. There is an existing seniors living development of 8 Wiseman Road known as Pepperfield Lifestyle Resort. The existing seniors housing development was approved by the Land and Environment Court (Dougruby Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 192).

13. 6 Wiseman Road has a land area of 3.991 hectares and a frontage to Wiseman Road of 195m. The northern part of 6 Wiseman Road is flood affected and contains a dam.

The proposal

14. The proposal is for consolidation of the two adjoining lots, the construction of 71 new self-care seniors living units within 41 buildings, a community building containing a café, landscaping and civil works. The proposal includes alterations and additions to Pepperfield House to extend the existing function room and gym.

Planning framework

15. Matters for the consideration of a consent authority (or the Court exercising the functions of the consent authority) in determining a development application include the likely impacts of that development, including social impacts in the locality, at s 4.15(1)(b) of the EPA Act.

16. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) does not apply to the proposal (cl 2(1)(a) of Sch 7A to SEPP Housing). State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (repealed 25 June 2021) (SEPP Seniors) does not apply to the proposal because the site is identified as environmentally sensitive land (Sch 1 of SEPP Seniors).

17. The site is zoned C3 Environmental Management pursuant to the Wingecarribee Local Environmental Plan 2010 (LEP 2010) and the proposal for seniors housing is permissible with consent (cl 36(2) of Sch 1 to LEP 2010).

18. The objectives of the C3 zone, to which regard must be had, are:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns.

• To minimise the proliferation of buildings and other structures in these sensitive landscape areas.

• To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas.

• To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability.

Public submissions

19. Four of the existing residents of the village gave evidence at the commencement of the hearing onsite. The concerns of three of those residents can be broadly summarised as the proposal will adversely impact on the amenity of the existing residents and the facilities are insufficient to accommodate the proposed increase in residents. One resident spoke in support of the proposal.

Expert evidence

20. The Applicant relied on the expert evidence of Darren Hogan (town planning) and Dr Judith Stubbs (social planning).

21. The Council relied on the expert evidence of Jeremy Swan (town planning) and Dr Rigmor Berg (social planning).

Dedicated transport service

22. The Council submitted that the Court may reasonably have regard to the SEPP Seniors as it indicates the level of service provision and accessibility which policy makers determined is necessary for seniors living developments in non-urban areas. Clause 43 of SEPP Seniors requires that on non-urban sites, there should be a bus operating at least two trips per day, seven days per week. The village commenced offering a bus service only since June 2023, and at present the bus only operates one trip per day to Bowral on a fixed timetable.

23. The Applicant submitted that SEPP Seniors plays no part in the assessment of the proposal as the application is made relying on LEP 2010 as amended.

24. The draft Plan of Management includes at [13] (Ex 6, f 190), ‘Access to Transport/Bowral Town Centre’, which, in summary, provides an accessible free dedicated bus service between the village and Bowral twice per day, seven days per week. The service is to be reviewed twice per annum based on usage data collected by the Manager and in consultation with the Resident Committee and will increase the number of trips and/or size of the bus as required.

25. According to Dr Berg, flexibility of the service is important. According to Dr Stubbs, there is, in addition to the bus service, an existing roster for volunteer drivers (Ex 6, f 214), residents can access community transport and there is a local taxi service.

26. The Council submitted that little weight should be placed on claims that there is low demand for the bus service, because this may be due to a number of factors including that the bus service has only recently been introduced and is so inadequate that residents who are unable to drive have chosen not to move into, or to remain, at the village. Nor should significant weight be given to the alternative transport options relied upon by the Applicant and Dr Stubbs.

27. The Council seeks a dedicated accessible bus service that offers a minimum of three regular stops within Burradoo Bowral or Mittagong convenient to a number of facilities (Condition 99, Ex 10). The Council submitted that any changes to the bus service should be based on a survey of residents. The Applicant proposes a dedicated accessible bus service to Bowral twice per day, seven days per week, and a weekly outing within the Southern Highlands to be determined in consultation with the Social Committee. I accept the Applicant’s submission that there is no evidence before me to suggest that the existing residents want the bus service to operate differently to what is offered now and that the reasons provided by the Council for the low demand for the bus service are merely speculative.

28. Under the terms of the Plan of Management, there is an opportunity for the Manager, in consultation with the Residents Committee, to review the service twice each year based on usage data collected and to increase the number of trips and/or size of the bus as required. Basing any changes to the bus service on usage data is, in my view, more reliable that basing changes on a survey of residents, because the residents in a survey are unlikely to have regard to the cost implications of increasing the service. In contrast, the Manager, in consultation with the Residents Committee, can make a decision on changes to the service with regard to all the relevant factors to be considered. I am satisfied that the proposal includes the provision of an adequate, dedicated transport service for village residents, which is sufficiently flexible to meet the needs of existing and future residents.

Access to facilities and services

29. According to Dr Stubbs, an eligible resident is able to obtain services under an aged-care package. In her view, there is a good level of services onsite, including the village bus, the existing and proposed continuous pathways within the village, the swimming pool, yoga, the Mens’ Shed and other activities appropriate for those who are frail. In Dr Stubbs opinion, the village is a well-functioning cohesive community.

30. According to Dr Berg, the community facilities are already inadequate, and an increase in the function room space with a corresponding increase in the village population, does not represent an improvement in the provision of facilities.

31. In Dr Stubbs survey, 23 existing residents responded to the question, “which facilities have room for more users” (Ex 6, f 298), with “none”. I accept Dr Stubbs’ opinion that the residents, in their assessment of the capacity of the facilities on offer in relation to a proposed new development, are not necessarily objective (New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303 at [316]-[317]). According to Dr Stubbs, Pepperfield House is only at capacity a few times per year, and as the proposal includes expanding the function room to accommodate most of the residents of the expanded village, the proposal does not represent any serious social impacts on the existing residents of the village. Instead, the expanded village will provide a more vibrant community, with augmented facilities commensurate with the increase in the population of the village.

32. I accept Dr Stubbs’ evidence, based on her survey and investigations, that some existing facilities are underutilised. It is appropriate and necessary as part of the proposal that the existing function room within Pepperfield House be enlarged to accommodate the existing and new residents wanting to attend those functions most in demand by the residents. I am satisfied that the proposed alterations and additions to Pepperfield House, coupled with the addition of new facilities, including a picnic area, BBQ facilities, lawn areas and a pavilion, walking tracks, and the community building including a café, will adequately meet the needs of the existing and future residents of the village. The proposal does not represent a loss of amenity for the existing residents of the village.

Aging in place

33. The Council submitted that the proposal does not support the objective of allowing seniors to age in place, because it does not have any special facilities to cater for those who are frail or require additional support to live independently. If the government and private support services prove inadequate, and a resident must move to an aged care facility, they may experience difficulty in finding one in the local area.

34. According to Dr Berg, there was an expectation by the residents that the adjoining site would be a high-care facility, and there is a need in the LGA for aged care facilities. Adding more independent living units on the site will increase the local demand for high-care facilities.

35. I accept the Applicant’s submission that the Court does not evaluate the proposal against what other permissible use may have been proposed but instead assesses the proposal on its merits.

33. I accept Dr Stubbs’ opinion that independent living for seniors provides conditions that assist in aging in place, including that the delivery of assisted living services is more certain when it is more efficient to provide those services within a retirement village. I accept her opinion that independent living in a retirement village provides positive social benefits for most residents.

34. I accept the town planning experts’ agreement that the proposal is consistent with the C3 zone objectives (Ex 6, f 5).

35. I am satisfied that the proposal is consistent with strategic planning imperatives for the Wingecarribee local government area (Wingecarribee LGA). The Wingecarribee Local Housing Strategy – Housing Our Community (Ex E, Tab 5) identifies a need for more housing to cater for an increase in residents aged over 65, as follows (p 10):

“By 2036, over 35% of Wingecarribee residents will be aged 65 and over, up from 25% of the population in 2016. We will see an increase in older residents (65 and over) from 11,850 in 2016 to 18,200 in 2036 representing an increase of some 54%.

The significant aging of our population means we need to plan for housing that is accessible and suitable for older people. Increases in aged care places, seniors living developments and adaptable forms of housing will be required to meet the needs of our aging population, as well as smaller homes for those wishing to downsize when children move away, or to reduce maintenance.”

Construction of the proposal and impacts on the health and wellbeing of residents

39. The Council submitted that the construction of the proposal will impose noise and dust impacts on the existing residents of the village. In response to Dr Berg’s survey, many residents expressed concern about the noise, dust and heavy vehicle movement during the construction stage of the proposal. 25% of residents said they would find it problematic.

40. Dr Berg’s survey of existing residents included at questions 10 and 11 (Ex 6, f 393); “It is anticipated that construction at 6 Wiseman Road will take about 5 years. How is that likely to affect you?” and “Do you or your partner have any physical or mental health issues that would make noise, dust or vibration particularly problematic for you?”. The Applicant submitted that the residents’ responses were influenced by the statement that construction would take 5 years, which implies that construction would be continuous for a 5 year period, when in fact, construction is to be staged over 5 years as identified by the Construction Noise and Vibration Management Plan, falls far short of justifying Condition 64.

41. The Applicant submitted that there are assessment and detailed mitigation measures for the construction noise and vibration during construction of the proposal as part of the application (Construction Noise & Vibration Management Plan dated 17 October 2023, Ex B, Tab 8) and the Council has not raised a contention suggesting that those proposed measures are insufficient.

42. I accept the Applicant’s submission that the wording in Dr Berg’s survey indicates that the construction period for the proposal is continuous over 5 years, and this may have influenced the responses to question 11. Other than the minor alterations and additions to Pepperfield House, the proposal is predominately confined to 6 Wiseman Road and this site may have been developed for the same purpose as an independent development to Pepperfield Lifestyle Resorts as seniors housing is a permissible use on the site. The fact that the proposal is to be part of Pepperfield Lifestyle Resorts does not elevate the consideration of managing and mitigating construction noise and vibration on the existing residents. The construction noise and vibration of any development on 6 Wiseman Road must be properly managed to minimise impacts on adjoining and nearby residents. I accept the Applicant’s submission that the Council did not raise a contention regarding the adequacy of the measures proposed by the Construction Noise and Vibration Management Plan.

Conclusion

43. On the basis of the evidence before me, and the commitment of the Applicant to an augmented bus service, I am satisfied that the proposal includes the provision of an adequate, dedicated transport service for village residents, which is sufficiently flexible to meet the needs of existing and future residents.

44. I am satisfied that the proposal will not detrimentally impact on the access of existing residents to facilities and services within the village because the facilities room and gym within Pepperfield House will be enlarged to accommodate the increase in residents, and there are additional new facilities provided by the proposal for the use of existing and future residents of the village.

45. I accept the Applicant’s submission that the issue raised by the Council regarding the requirement under s 60(3) of the Retirement Villages Act1999 (that the services and facilities provided at the village are not to be varied unless the residents of the village by a special resolution consent to the variation) is not a relevant matter for consideration in determining the development application but may be a matter for the consent holder to address in realising the development.

46. I am satisfied that the social needs of existing and future residents have been adequately addressed by the proposal.

Disputed conditions of consent

47. The Council’s conditions of consent were adduced as Exhibit 10 and the Applicant’s disputed conditions as Exhibit G.

48. The Council submitted that the alterations and additions proposed for Pepperfield House should be the subject of a deferred commencement condition, since many details are still missing in relation to the proposed works and these details need to be provided to Council’s satisfaction prior to the consent becoming operational. I do not accept this submission because the alterations and additions to Pepperfield House are relatively minor. The proposal is adequately documented in the application for the purpose of a development application. Condition 2B requires the Applicant to provide the additional documents regarding the alterations and additions to Pepperfield House to the Council’s Manager of Development Assessment and Regulation. The additional documentation required includes stormwater plans. Logically, the materials and finishes will match the existing building. The construction of the alterations and additions will be merely temporarily inconvenient to the existing residents.

49. The Council’s version of Condition 15, “Section 7.11 Contributions”, is in Exhibit 10 tendered during the hearing of the matter and is retained in the conditions of consent at Annexure A. No issue was raised, and no submissions were made, by the Applicant during the hearing regarding Condition 15. Condition 15 was retained as the Council’s version in Exhibit G. A note was added to the version of conditions filed by the Applicant and dated 7 February 2024 (after my decision was reserved on 31 January 2024) stating that the contributions should be payable prior to the Occupation Certificate of each respective stage and amounts listed in the Notice of Payment should be revised as they are incorrect. If this was an issue, it should have been agitated during the hearing. I accept the Council’s submission filed on 15 February 2024 (in response to the Applicant’s version of conditions filed and dated 7 February 2024) and the Council's updated Notice of Payment is annexed to the conditions of consent.

50. I accept the Applicant’s submission regarding the imposition of Condition 64 (Ex 10) requiring the developer to provide air filters and sound proofing to units located adjacent to 6 Wiseman Road and to any resident with a health vulnerability. The issue is raised through a social impact lens and is not a contention regarding the adequacy of the measures proposed. Furthermore, the condition is too vague as to what the requirements are and the determination of a “health vulnerability”.

Orders

51. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 22/0214 for lot consolidation, demolition of existing structures, 71 self-care seniors living units, community building, alterations and additions to an existing community building, landscaping and civil works, at 6-8 Wiseman Road, Bowral, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 3, A, B, C, D and E, are returned.

……………………….

Susan O’Neill

Commissioner of the Court

87257.23 Annexure A (amended)

**********

Amendments

09 May 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), Annexure A is amended to correct Condition 15 to reflect the total amount of monetary contributions as “$1,297,226.10” in accordance with the amount stated in the Notice of Payment at page 44 of Annexure A.

Decision last updated: 09 May 2024