Punnett and Associates v Shoalhaven City Council

[2004] NSWLEC 656

Land and Environment Court

of New South Wales

CITATION:	Punnett and Associates v Shoalhaven City Council [2004] NSWLEC 656
PARTIES:	APPLICANT T. C. Punnett and Associates Pty Limited RESPONDENT Shoalhaven City Council
FILE NUMBER(S):	11479 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- housing development for older persons or persons with a disability SEPP 1 objection to lot frontage access to services impact on rural setting internal amenity impact on archaeological relics traffic and parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 5 State Environmental Planning Policy No 1
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	26-28/10/04
DATE OF JUDGMENT:	12/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Pickles, barrister SOLICITORS Abbott Tout RESPONDENT Mr P Clay, barrister SOLICITORS Morton & Harris

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

8 December 2004

11479 of 2003 T. C. Punnett and Associates Pty Limited v Shoalhaven City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal of Development Application 03/202 by Shoalhaven City Council (the council) for the construction of a housing development for older persons or persons with a disability at 22 Victoria Street, Berry (the site).

2 I record that a view of the site and surrounding areas was undertaken with representatives from both parties on the first day of the hearing. A number of local residents also provided their evidence at this time.

3 For the reasons set out in the judgement I have concluded that the appeal should be upheld and development consent granted subject to conditions.

The site

4 The site is described as lot 18 in DP 786742. It is a battle-axe lot with a total area of 1.96 hectares. The entrance to Victoria Street is approximately 200 metres east of the junction with the Princes Highway.

5 The site is located on the urban-rural fringe of Berry. To the north, the site adjoins two residential properties fronting Victoria Street. To the east, the site adjoins a small parcel of rural land that separates the site from a further five residential properties that front Victoria Street and George Street. To the south and west, the site is surrounded by a large rural property that fronts the Princes Highway and Victoria Street.

The proposal

6 The proposed development will provide 37 self-care dwellings comprising 12 x 2 bedroom dwellings and 25 x 2 bedroom plus den dwellings. These will be configured in 13 buildings comprising 7 single level buildings and 6 2-storey buildings. Additional facilities include the use of an existing dwelling as a community building, tennis court, swimming pool and bowling green.

7 The development is proposed to be constructed in 3 stages:

• Stage 1: 12 units, community building and additional facilities;
• Stage 2: 13 units;
• Stage 3: 12 units.
Relevant planning controls

8 The access handle part of the site is zoned 2(a2) Residential - A2 Zone and the remainder is zoned 1(b) Rural B - (Arterial and Main Road Protection Zone) under the provisions of Shoalhaven Local Environmental Plan 1985 (the LEP). The proposed development is prohibited within these zones but can be considered through the provisions of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP 5). Clause 4(1)(a) provides that the policy applies to land "that adjoins land zoned primarily for urban purposes, ". There was no dispute that the proposed development satisfies this requirement.

9 At the time of the hearing, SEPP 5 had been repealed by State Environmental Planning Policy (Seniors Living) (Seniors Living SP), however the transitional provisions in cl 6 of the Seniors Living SP capture the development application as it was made before 18 January 2004 and not finally determined before the commencement of the Seniors Living SP. Consequently, SEPP 5 continues to apply to and in respect of the proposed development as if it had not been repealed.

10 SEPP 5 provides numerical standards for height (cl 13(2) and cl 14(a)), floor space ratio (cl 14(b)), landscaped area per dwelling (cl 14(c)), parking (cl 14(d)), visitor parking (cl 14(e)) and landscaped area (cl 14(f)). There was no dispute that the proposed development satisfies these requirements.

11 Clause 12(1) provides that consent shall not be granted unless written evidence has been provided to show that residents will have access to a range of facilities and support services, cl 12(2) provides access requirements for facilities and support services, cl 12(2A) provides requirements for access to home services and cl 12(3) provides timing for facilities and services.

12 Clause 13(3) requires the site frontage must be at least 15 m wide. The site does not satisfy this requirement, as the frontage created by the battle-axe handle to Victoria Street is 12 m. To address the non-compliance, an objection pursuant to State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was provided.

13 Clause 25 provides that consent must not be granted unless the proposed development demonstrates that adequate regard has been given to a number of principles. The relevant principles are Neighbourhood amenity and streetscape (cl 25(a)), Visual and acoustic privacy (cl 25(b)), Stormwater (cl 25(d)) and Accessibility (cl 25(f)).

The issues

14 The council filed a Statement of Issues containing 4 issues and a large number of sub-issues. These can be grouped into the following main areas:

1) whether the SEPP 1 objection is well founded,
2) whether the proposed development provides reasonable access to support services,
3) whether the proposed development provides appropriate access,
4) whether the proposed development adequately addresses its rural context,
5) whether the proposed development provides acceptable internal amenity,
6) whether the proposed development will adversely impact on any archaeological relics, and
7) whether the proposed development provides adequate internal traffic and parking provisions.

15 Mr James Johnson, a barrister representing 19 residents of the Berry Alliance Steering Committee On 22 Victoria Street raised further issues. The issues raised by Mr Johnson, and not addressed in the above issues, relate to the permissibility of the proposed use and drainage.

16 On the site view, a number of residents generally living around the site provided evidence. Their concerns are addressed as part of the consideration of the identified issues.

The evidence

17 Evidence for the council was provided by:

• Mr Stephen McDiarmid, town planner,
• Dr Judith Stubbs. social planner,
• Mr Robin Graham, architect and heritage consultant, and
• Mr Chris Coates, engineer.

18 Evidence for the applicant was provided by:

• Mr Michael Ball, town planner,
• Mr Peter Burgess, aged housing consultant,
• Mr Peter Lonergan, heritage architect,
• Mr Mark Relf, access consultant,
• Mr Craig McLaren, traffic engineer,
• Mr David Gaskell, civil engineer,
• Mr George Imashev, heritage consultant, and
• Mr Matthew Kelly, Ms Lisa Newell and Mr Mark Dunn collectively produced an archaeological assessment.

19 Mr George Porter was the Court appointed expert on the social planning issues.

SEPP 1objection to site frontage development standard

20 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

21 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 (EPA Act). These objects state:

5.The objects of this Act are:
(a) to encourage –
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

22 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

23 In this case, SEPP 5 does not identify the objective of the site frontage standard. The SEPP 1 objection describes the underlying objective as:

"to ensure that sites have adequate widths for the provision of sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas, satisfactory building forms and character and acceptable streetscape impacts".

24 The SEPP 1 objection states that the proposed development achieves the planning objectives as no buildings are proposed on the 12 m wide section of the site. This part of the site is used only for access and "gun barrel" development is therefore avoided. Consequently, the proposal would achieve the objectives of the development standard and compliance with the development standard, in this case, is unreasonable and unnecessary.

25 Mr McDiarmid maintains that the frontage does not permit the development to be designed to maximise the location and distance of the driveway from the adjacent private dwelling to the east. The difference of 3 m will result in traffic accessing the development being potentially 3 m closer to the adjacent cottage with a subsequent increase in noise and general loss of amenity.

26 I accept that the underlying objective set out in the SEPP 1 objection reasonably portrays the basis for the development standard. Mr McDiarmid does not specifically address the underlying objective of the development standard but addresses the particular merits of the access arrangements. While the merits of the access arrangements are a relevant consideration, the site frontage development standard has clearly wider application and needs to be considered in conjunction with the other provisions in SEPP 5. As the area of non-compliance is used only for access it could not be said that the departure from the site frontage requirement unacceptably impacts on the overall design of the proposal and specifically those matters identified in the underlying objective.

27 If the variation to the development standard is tested against the underlying objective, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

Support services and facilities

28 The relevant parts of cl 12 of SEPP 5 state:

12 Matters for consideration
(1) Location, facilities and support services
The consent authority must not consent to a development application made pursuant to this Part unless it is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:
(a) shops, banks and other retail and commercial services that residents may reasonably require, and
(b) community services and recreational facilities, and
(c) the practice of a general medical practitioner
( 2) Access complies with this subclause if:
(a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development, or
(b) there is a transport service available to the residents who will occupy the proposed development:
(i) that is located at a distance of not more than 400 metres from the site of the proposed development, and
(ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the relevant facilities or services, and
(iii) that is available both to and from the proposed development during daylight hours at least once per day from Monday to Friday (both days inclusive).
(2A) The consent authority must not consent to a development application made pursuant to this Part to carry out development on land that adjoins land zoned primarily from 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
(b) personal care and home nursing, and
(c) assistance with housework
(3) The consent authority must be satisfied that any facility or service provided as part of the development will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionally according to the number of residents in each stage

29 Clause 25 of SEPP 5 states that consent must not be granted unless adequate regard has been given to a number of principles. Clause 25(f) states:

Accessibility
(f) 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, and
(ii) ….
(iii) ….
Note. Australian Standards AS 4299-1995 (Adaptable Housing) and AS 1428- 1992, 1993 (Design for Access and Mobility) should be referred to for design in considering people with a disability.

30 Dr Stubbs also raised a concern with the potential impact on the existing facilities and support services in the Berry township. She maintains that this is an issue raised through the general powers of s 79C(1)(b) of the EPA Act relating to "social …. impacts in the locality. "

31 The preceding extracts from SEPP 5 and the EPA Act provide a number of specific requirements for the assessment of the development application in relation to facilities and support services. These can be grouped into the following main areas:

• the impact on existing facilities and support services (s 79C(1)(b)),
• the location of facilities and support services (cl 12(1)),
• access to facilities and support services (cl 12(2) and cl 25(f)),
• reasonable access to home services (cl 12(2A)), and
• timing of facilities and services (cl 12(3)).

The impact on existing facilities and support services

32 The concerns of Dr Stubbs are based on the findings of a study titled "A Place for Aging? – An Assessment of the Social Impacts of an Aging Population in the Shoalhaven: Implications for Housing, Services and the Community" commissioned by the council and prepared by Dr Stubbs. The purpose of the study is to provide empirical data and analysis to allow the council to make strategic land-use decisions on housing for older people or people with a disability. The study raises the following particular concerns with the application:

• the impact on a wider range of services which are already stretched beyond capacity;
• the undue concentration of aged accommodation in Berry already;
• the heavily skewed age profile and inability to sustain increases without compromising future social well-being of the community;
• the long-term impacts on this concentration as a large and growing population reaches old-age
• a failure to offset these concerns by the provisions of a public benefit such as the provision of higher level to facilities or access to more affordable aged accommodation.

33 A consistent thread through Dr Stubbs’ evidence is that existing Home and Community Care (HACC) facilities and private facilities are already stressed and this stress will be exacerbated by the proposed development. Overall, she sees the negative impacts of the proposed development outweighing any positive impacts in the locality.

34 Mr Porter disagrees with the conclusions of Dr Stubbs for a number of reasons. Firstly, he maintains that there is already a large population of older people in the area. They are migrating to the area in any event and there is a limited supply of SEPP 5 housing to accommodate this migration. Secondly, most potential retirement village residents will come from the region and only a minority will be adding to the existing demand for services and facilities. Thirdly, the funding for public services and facilities is based on a comparative needs basis for the whole State and this funding makes no provision for spare capacity. It is provided on a standard needs-based formula. Based on his experience, Mr Porter states that the situation in Berry is fairly similar to other areas. He accepts that the comments from service providers indicating that they would rather not experience any further demand is a fairly common occurrence. While there maybe a time lag for the provision of some services and facilities, increased funding will ultimately catch up with the growth in a population. Increased demand on private service providers will ultimately see additional facilities provided.

35 It is Mr Porter’s opinion that few residents in retirement villages will actually make use of the community-based services in the first few years of their residency. After a few years, their numbers (to the extent they come from outside the region) will have been taken into an account in the funding for the community-based services.

36 Mr Burgess agrees with the conclusions of Mr Porter. He calculates that the proposed development will only place an additional demand of 0.925 persons on HACC services. This estimate is based on the unlikely situation that each of the 37 dwellings will be occupied by a couple combined with a 50% migration rate and a maximum of 2.5% of the population using HACC services within five years. He further states that it can be argued that this figure should be further discounted because it is accepted that retirement villages actually diminish usage of HACC services and other aged care services.

37 Mr Burgess maintains that it is impractical for individual SEPP 5 developments to be responsible for any deficits in funding for facilities and services for a region. Overall, Mr Burgess states the proposed development will bring economic benefits to the Berry community that will far outweigh any minimal longer-term impacts on services.

38 In balancing these competing opinions, I agree with the conclusions of Mr Porter and Mr Burgess. Optimally, services should match demand however the existing system of funding provides a lag between demand and the provision of public services. Considering this, I am not convinced that the social impact of the proposal can support the refusal of the application for the reasons suggested by Dr Stubbs.

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

40 SEPP 5 applies to the whole State and in this case, the whole local government area. It is inevitable that areas that offer more attractive qualities for retirement will be preferred to those areas that do not have similar qualities. Berry clearly falls within the former category. I do not accept that it necessarily follows that the attraction of a higher percentage of older people or people with a disability to a particular community will necessarily result in an unacceptable social impact. It could be equally argued that a larger number of developments with older people or people with a disability will attract additional funding as well as provide other more informal social support systems for residents beyond that those specified in cl 12(1).

41 This particular matter is addressed in the Review of Housing Strategy for Older People and People with a Disability, Including Changes to SEPP 5 (the SEPP 5 Review) by the Department of Infrastructure Planning and Natural Resources where it describes the suggested tension between new developments and existing HACC facilities and services as a "misconception in most cases". The SEPP 5 Review goes on to say, at p 12:

"Ironically in-migration of older people has built up the economies of many coastal and regional areas to allow the emergence of a more "normal" age structure. This is because the older the migrating population has fuelled demand for services and construction jobs, but this may not be properly appreciated locally.
DADHC advises that clusters of independent living for older people are more efficient for HACC to service than population sprinkled amongst low-density general housing stock, which is also being bought by older migrants to regional areas.”

42 I am also mindful of the calculations of Mr Burgess in estimating the additional demand on facilities and services. Even if his calculations underestimate the impact (and this is the opposite conclusion to his evidence) the potential impact on existing facilities and services is small at best and certainly not a sufficient impact to refuse the development application for this reason.

43 Mr Porter provides details from the document "Cooperative statistics of HACC Planning Regions, 2002-3" (Exhibit 20) that shows the Illawarra region as having 300 clients per 1000 head of target population compared to the state average of 298 clients per 1000 head of target population. On this basis, there is support for the conclusion of Mr Porter that Berry is not as disadvantaged as suggested by Dr Stubbs. While it can be argued that each of the areas identified in Exhibit 20 may have different characteristics some weight must be given to these statistics as they provide comparative evidence of the take up of HACC services across the State.

44 In accepting the conclusions of Dr Stubbs and Mr Porter, I make no criticism of the research undertaken by Dr Stubbs. Her findings are comprehensive and reflect a widely held concern for public funding of health related services and facilities. In this case however, and even though some existing services and facilities may be under some stress, I accept that the impact on existing services and facilities is not likely to create any unacceptable social impacts on the community that would warrant the refusal of the development application for this reason.

The location of facilities and support services

45 There was no dispute that the facilities and services required by cl 12(1) are available in Berry although Dr Stubbs maintains that these facilities and services are currently overstretched. There was also no dispute that the location of these facilities and support services are in excess of 400 m from the site. As I understand, there was also no dispute that adequate facilities and services are available in Nowra, some 20 k to the south, although there was disagreement between experts on the ability to be able to access these facilities and services.

46 As the site is located in excess of 400 m from the location of the facilities and services in Berry, transport services will need to be provided in accordance with cl 12(2)(b).

Access to facilities and support services

47 The principal issue in relation to access centred on the suitability of the applicant providing an in-house bus to provide access to the facilities and support services required by cl 12(1).

48 Dr Stubbs maintains that the proposed in-house transport arrangements will not be economically viable or feasible. If provided to the standard proposed, there is a strong likelihood that it will be of very high cost if provided for development of this size, and ultimately not affordable to many residents. Dr Stubbs also relies on interviews with drivers of two local community buses to support her concerns. She notes the SEPP 5 Review suggests that community transport should be based on a minimum of 70 dwellings to ensure that the service is reasonably affordable for residents.

49 Mr Burgess states that the provision of a community bus is an acceptable means of dealing with access for future residents. Additionally, a courtesy car will supplement this service. He states the applicant is committed to the provision of a community bus and has included details in the Management Plan so that future purchasers will be aware of its existence. The proposed transport arrangements are to be included in the Disclosure Statement required by the Retirement Villages Act 1999. The Disclosure Statement will be provided to prospective residents before they buy a unit in the village and will become part of the Residents Agreement with the operator. Additionally, discussions have taken place with the operator of the existing bus service in Berry who has agreed to extend the service and adjust the bus stop if the development is approved.

50 Although the SEPP 5 Review nominates a minimum of 70 units for the provision of a community bus, I am not satisfied that the proposed developments non-compliance with this figure is sufficient to support the refusal of the application. It is not a requirement of SEPP 5 and the applicant’s commitment to provide the community bus should not be discarded simply because it conflicts with the SEPP 5 Review. The provision of a community bus is contained in the conditions of development consent, the Disclosure Statement and the Residents Agreement. It was also included in the budget provided by the applicant although I accept its replacement was not specifically included the budget. In my view, this is not a significant obstacle as any budget is likely, and appropriately further considered by future residents.

51 I am not prepared to give any significant weight to the comments provided by the drivers of the two local community buses, as it would be necessary to have a greater understanding of the specific circumstances under which they operate to provide any meaningfully comparison with the proposed development.

52 I accept that the access requirements in cl 12(2) are satisfied by the provision of a community bus.

53 Access is also raised as an issue in relation to cl 25(f) of SEPP 5. This clause requires the proposal to “have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities”.

54 To address this requirement, the applicant proposes the construction of a footpath from the site along the southern side Victoria Street to Clarence Street where it joins an existing council footpath. This footpath then leads to the commercial area of Berry. The design was the subject of a conference between Mr Relf and Mr Coates who agreed that with some changes and additional conditions regarding driveways, the footpath would provide an appropriate design consistent with SEPP 5, the SEPP 5 Guide and AS2890.1 [2004].

55 On this basis, I accept that adequate regard has been given to the accessibility requirements of cl 25(f) by the construction of the proposed footpath.

Reasonable access to home services

56 Clause 12(2A) of SEPP 5 requires the Court to be satisfied, by written evidence, that residents of the proposed development will have reasonable access to home-delivered meals, personal care and home nursing, and assistance with housework.

57 Mr Burgess states that the documentation provided by the applicant (Attachment F, Exhibit P) satisfies this requirement. While not required by SEPP 5, the applicant has chosen to appoint an experienced manager to operate the retirement village and this person will facilitate resident access to facilities and services that exceed the provisions of SEPP 5. The details are contained within a draft Management Plan. The manager will act as a services broker to seek out, arrange or assist residents in the most appropriate solution to their service needs. Where practical, the manager will arrange for the village staff to provide services to residents on a break even cost recovery basis.

58 Dr Stubbs maintains that there will not be the choice to use public and community-based services because of the existing demand. She also raises the issue of affordability for those residents who need more affordable services provided by community-based or public services or and those who prefer a choice of service provider.

59 While Dr Stubbs maintains a reluctance to accept the documentation because of her general concern over the availability of services, there is no substantive evidence to refute the applicant’s proposals for access to home services. I accept the documentation provided by the applicant satisfies the requirement in cl 12 (2A).

Timing of facilities and services

60 Clause 12(3) of SEPP 5 requires the consent authority to satisfied that any facility or service provided as a part of the development will be available to residents when the housing is ready for occupation.

61 Mr Burgess states that the facilities and services provided as part of a development will be available at the completion the Stage 1. On this basis, I accept that the requirements in cl 12(3) are satisfied.

Rural context

62 This issue relates principally to whether the scale, density and arrangement of buildings are appropriate for a town edge location. Inherent in this issue is whether the land should be retained for agricultural purposes.

63 Mr McDiarmid states that the site is identified in the Shoalhaven City Council Heritage Study 1995 - 1998 as being part of the "Berry - Bolong Pastoral Landscape" area. This has been included within Draft Development Control Plan No 76 - Heritage Management Guidelines (the draft DCP) that was exhibited in 2000 but not yet adopted by the council. In his opinion, the removal of the existing agricultural potential and rural amenity and replacing it with a built form is inconsistent with the values of the draft plan.

64 Mr Graham shares the views of Mr McDiarmid. He sees the scale, size and juxtaposition of the buildings as inconsistent with the form of development that normally occurs on the Berry town edge, and is therefore inappropriate. The density and scale is more typically associated with a town centre location, and is substantially greater than actually occurs in Berry, even at the town centre. It's location at the town edge results in an inappropriate shift of town centre conditions to the town edge, disrupting the characteristic gradations in form and density from that of the pastoral landscape to that of the town.

65 Mr Ball states that the proposed development is appropriate for its town edge location. The proposal easily satisfies the density and scale and height requirements of SEPP 5. The buildings are also arranged in small groups and their siting and orientation has been varied to avoid a monotonous rectangular appearance. The design has been modified, after discussion with the council to produce buildings that are domestic in form and scale.

66 Mr Ball further states that the site adjoins a much larger SEPP 5 development recently approved by the council. An assessment of the impact of the proposal on the character of the area must give due regard to the effect of the adjoining SEPP 5 project even though it is not yet constructed. The site is also near the land on the opposite side of the Princes Highway that has been rezoned for residential use. Even though the draft DCP identifies the site as being within a pastoral landscape area, all rural lands fall within the same category.

67 On this issue, I agree with the conclusions of Mr Ball. Clause 12(2A) provides for the erection of SEPP 5 housing in non - urban locations (or land that adjoins lands zoned primarily for urban purposes). Interestingly, the standards for housing in cll 13, 14 and 25 do not distinguish between housing in urban and non - urban locations, although I accept that housing in a non - urban area should have a different design and appearance from housing in an urban area. Clearly, SEPP 5 anticipates a different form of development to that permissible under the LEP, although s 79C(1)(b) of the EPA Act provides the Court with a broad power to consider the impact on the natural and built environment.

68 I agree with Mr Ball that any assessment of the character of the area must take into account any future planning proposals and also any other approvals that are in the vicinity of the site. In any assessment of character, it is impossible to ignore the masterplan approval of The Arbour on the adjoining property. This development covers an area of 36.2 hectares and ultimately proposes 106 self-care dwellings, 40 care apartments and an 80-bed nursing home together with a range of recreational facilities. While The Arbour has a lower floor space ratio than the proposed development, the proposal will nonetheless provide for an environment that will be seen as more urban than non - urban. The proposed residential use of the land, on the opposite side of the Princes Highway to The Arbour, will further reinforce the urbanisation of this part of Berry. In my view, the proposed development could not be seen to be out of character in this context.

69 I also accept Mr Ball's evidence that the design and form of the proposed dwellings sits comfortably in its environment. The design has been the subject of amendment following conferencing between Mr Lonergan and Mr Graham. The proposed dwellings are grouped in small clusters of one and two-storey height interspersed with landscaping that provides an acceptable residential appearance and character.

70 The impact on rural views from the properties surrounding the site was an issue raised by a number of local residents on the site view. A number of existing dwellings were inspected at this time and the potential loss of outlook, privacy and overlooking was assessed. With the benefit of the site view, I am not convinced that that the level of concern expressed by the local residents can be supported for a number of reasons.

71 In coming to this conclusion, I accept that the existing expansive rural outlooks currently available to some properties will be changed and some will be lost. While accepting that this is a valid reason to object to the proposed development, this objection must be balanced against the form of development contemplated by SEPP 5. Even though SEPP 5 developments are not necessarily envisaged in the way that permissible uses are envisaged through local planning controls, this form of development cannot be seen as a use that is unsuitable, per se, in this location.

72 The two properties that adjoin site to the north are largely screened by existing vegetation that is to be retained as part of the development. The more easterly of these dwellings adjoins Block A although the proposed building is single storey and proposed fencing would limit any overlooking potential.

73 The properties with a frontage to George Street are separated from the site by an existing undeveloped lot. With additional landscaping and fencing and the reasonable separation distance, I accept any overlooking is not likely to be of concern. While some concern was expressed that there was a conflict between the proposed drainage along the eastern boundary and the proposed landscaping, the applicant indicated that a redesign of the drainage could overcome any concerns in this regard.

74 For these reasons I accept that adequate regard has been given to neighbourhood amenity and streetscape, pursuant to cl 25(a).

Internal amenity

75 The council saw the internal amenity of the proposed development as being unacceptable in a number of areas however Mr Ball and Mr McDiarmid conferred and produced conditions that addressed the council’s concerns in relation to separation distances between habitable areas of separate units and the east/west orientation of some living rooms.

76 The proximity of some sleeping areas to driveways or garages remained an issue. Mr McDiarmid maintained that the bedroom windows of 16 dwellings failed to comply with the requirement in cl 5.5 of AMCORD that requires a separation distance of 3 m from a sleeping area window to a driveway or a car parking space. He raises further concern over the proximity of the bedrooms of some units located directly opposite garages of other units and the impact of a bus parking bay and turning area on unit 26.

77 Mr Ball relies on the lower traffic generation for SEPP 5 developments and the layout of the internal road system to conclude that the relationship between bedroom windows and driveway is acceptable. The layout provides a cul-de-sac design that will engender low speed movements and frequent late night traffic movements are unlikely. Further, the main bedrooms are located away from the proposed driveways and bedrooms within 3 m of roads are to be double-glazed.

78 While not raised as an issue in proceedings, Mr Graham raised the potential overlooking from nine first-floor balconies into the courtyards of the units below. He states that this overlooking does not satisfy the AMCORD requirements where overlooking should not occur for more than 50% of the private open space of a lower level unit either directly under or within the same development. The 50% standard is measured within a zone with a 9 m radius and 45 degree splay from the viewpoint.

79 In relation to visual and acoustic privacy, cl 25(b) states:

(b) the proposed development should, where possible, consider the visual and acoustic privacy of neighbours in the vicinity and residents by:
(i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and
(ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings by locating the living and sleeping areas away from driveways, parking areas and paths.

80 Mr McDiarmid identified bedroom windows of 16 dwellings that failed to comply with the 3 m requirement in cl 5.5 of AMCORD however it appears that his statement is based on a previous set of plans by a reference to Unit 40; the development only having 37 units. A review of the plans in Exhibit A indicates that around 75% of the dwellings satisfy this requirement. The remaining units have setbacks in the order of 1.5 metres to 2.5 metres.

81 I agree with Mr Ball that the limited departure from the standard is not a sufficient reason for the refusal of the development application. There is some merit in his argument that the layout of the roads does not promote through traffic and when combined with a relatively low traffic generation from this form of development, noise impacts from traffic are not likely to be significant problem. Similarly, the proximity of bedroom windows to adjoining garages and the location of the bus parking bay and turning area is not likely to be a significant disturbance because of the likely limited use of the garages and the bus parking bay.

82 In relation to internal overlooking and accepting the calculations of Mr Graham, Mr Pickles the applicants advocate, submits that the large size of the courtyards means that if part of the yard is overlooked, there are ample other areas that are not overlooked, therefore enabling the future occupants to find a private area to recreate. He notes that the area underneath the first-floor balcony would provide a suitable private area.

83 On this particular issue, I agree with the submissions of Mr Pickles. With large courtyards, the 50% AMCORD standard requires large areas of private open space that cannot be overlooked. In this case, I accept that adequate areas of private open space can be provided without the need to strictly comply with the AMCORD requirement.

84 In my view, the proposal has given adequate regard to visual and acoustic privacy, pursuant to cl 25(b).

Archaeological relics

85 The council raises the issue that the proposed development will impact on archaeological relics and features such as a former well, brick pit and drainage channel.

86 Mr Imashev concludes that there is little European heritage material located on the site. The site is highly disturbed due to the past practice of removing native vegetation to establish and maintain pasture grasses and the erection of buildings and landscaping. His investigations reveal that the former well was never located, the significance of the brick pit was never established and the drainage channel has little heritage significance because of it’s age. The archaeological assessment by Mr Kelly, Ms Newell and Dunn generally confirms the conclusions reached by Mr Imashev.

87 As the conclusions reached by Mr Imashev and the archaeological assessment were not challenged by the council, I accept their findings. I note that the operation of s 139 of the Heritage Act 1979 still applies if any excavation results in a relic being discovered or exposed. In such an event, the applicant will need to obtain a permit pursuant to the Heritage Act 1979 in order to continue with the development.

Internal traffic and parking provisions

88 There was disagreement between Mr McDiarmid and Mr McLaren on the suitability of the car park aisle widths, manoeuvrability and the use of blind aisles. A large part of the dispute centred on the appropriate standard to be used in the assessment of these matters.

89 Mr McDiarmid and Mr McLaren agreed that the proposal satisfies the requirements in AS2890.1 2004 however Mr McDiarmid states that the development should comply with the councils Development Control Plan 18 - Car Parking Code and Development Control Plan 100 – Subdivision Code. He states that these documents require manoeuvring areas and road widths in excess of AS2890.1 2004 and such would be better facilities for aged drivers and those with a disability. Mr McLaren disagrees and states that AS2890.1 2004 equally applies to aged and disabled drivers. Importantly, he notes wider roadways induce higher speed traffic and reduce pedestrian safety.

90 On this issue, I agree with Mr McLaren and accept that compliance with AS2890.1 2004 will provide an acceptable level of manoeuvrability and access for the development.

Permissibility

91 Mr Johnson notes that cl 4(2)(a) of SEPP 5 provides that the policy does not apply to land described in Schedule 1 (environmentally sensitive land). When deciding whether land is identified in environmental planning instrument as "environmentally sensitive land", it is appropriate to have regard to the objects of the zone. In Druitts Developments Pty Ltd v Gosford City Council [2001] NSWLEC 96, Bignold J states, at par 31:

I am of the opinion that that it is legitimate to perfect or complete the identification process of relevant land that is "subject to hazard from coastal storms" by reference to another document or to extrinsic facts, provided that that result is sufficiently certain.

92 Mr Johnson submits that zone objective (b) is "to promote a high level of scenic quality adjacent to existing or proposed main arterial roads". This objective satisfies the internal description of Schedule 1 because it corresponds with the verbal definition "scenic" contained in Schedule 1, or alternatively being either a "like description" or a "description that incorporates" the verbal description "scenic" contained in Schedule 1.

93 He further submits that Mr McDiarmid states that the objective seeks to protect the scenic quality of the site. This is reinforced with the dedication of the site within the Shoalhaven City Council Heritage Study and the draft DCP that was exhibited from 14 June 2000 to 18 August 2000. As land is zoned as "environmentally sensitive land", SEPP 5 does not apply and the proposal is prohibited.

94 Mr Pickles comes to the opposite conclusion. He submits that the effect of the Druitts case would be that it is permissible to look at other documents, including development control plans or draft development control plans in order to ascertain whether land is identified in environmental planning instrument as “environmentally sensitive land”. He submits that this is contrary to the requirement in Schedule 1 that the land be "identified in environmental planning instrument". He further submits that the decision by the Court of Appeal in Warringah Shire Council v Punnet & Associates [2001] 122 LGERA 1 casts doubts on the findings in Druitts, as it finds (at par 32) that the description must be made in the LEP and not in extraneous material outside the LEP.

95 Even assuming that Druitts is correct, he submits that the circumstances in this case can be distinguished for a number of reasons. Firstly, the LEP does not contain a clause requiring the council to conclude that the development is consistent with the objectives of the zone before granting consent. Secondly, the objectives of the zone in this case are of a different character to the objectives in the Druitts decision. Thirdly, the submission relies upon a draft development control plan. Such a document does not amount to identification in an environmental planning instrument for the purposes of Schedule 1. Fourthly, the reliance on Mr Graham as to the heritage value of the rural locality is inconsistent with the findings in Druitts. It would not be appropriate to rely on the opinion of one heritage consultant who has given evidence in these proceedings to determine the permissibility of the development.

96 On this issue, I agree with the submissions of Mr Pickles. Schedule 1 excludes land from the policy if it is "land identified in another environmental planning instrument by any of the following descriptions all or by like descriptions or by descriptions that incorporate any of the following words or expressions". In this case, Mr Johnson relies on the expression "scenic". In my view, Mr Pickles correctly submits that a reference to the expression "scenic" in zone objective (b) cannot be seen as satisfying the test in Schedule 1 as the objective does not state that all land within the zone is scenic land. The objective seeks to promote a certain quality of development rather than stating that the land in particular is of high scenic quality. Additionally, any reference to the draft development control plan must be given no weight. It still remains a draft document despite being advertised some four years ago and even if adopted is not defined as an environmental planning instrument.

97 I do not accept that the environmental planning instrument could be construed as describing the site as "scenic", as required by Schedule 1. Consequently, the proposed use is permissible on the site.

Drainage

98 Mr Johnson, on behalf of local residents argues that inadequate regard has been given to the disposal of stormwater. No on-site stormwater detention is provided and the existing dam that provides some detention will be filled, thereby exacerbating the contribution to stormwater runoff. As two neighbouring developments make provision for on-site detention Mr Johnson asks rhetorically why the proposed development should not provide similar stormwater detention.

99 Mr Gaskell submitted a Flood Assessment report with the development application. The findings indicated that the development would not impact on the flooding of the adjoining properties to and including the 1 in 100 year event and as such no on-site detention was required. This was a conclusion accepted by the council.

100 In the absence of any the evidence to suggest that Mr Gaskell's findings are in error, I accept that no on-site detention is required and that adequate regard has been given to the element of stormwater, pursuant to cl 25(d) of SEPP 5.

Conditions

101 The council filed draft conditions of approval and the applicant objected to a number of conditions that were shown as deferred conditions of approval. There are no substantive reasons why development consent should not be granted however the conditions contain a number of omissions and inappropriate conditions that need to be addressed prior to the issuing of formal Orders.

102 The parties are directed to confer on the draft conditions to address these anomalies and provide further conditions within a period of seven days. If agreement cannot be reached on all conditions, leave is granted for the parties to restore the matter on 48 hours notice.

___________
G T Brown
Commissioner of the Court

Orders

103 For the foregoing reasons, the Orders of the Court are;

1. The appeal is upheld.
2. Development Application 03/202 for the construction of a housing development for older persons or persons with a disability at 22 Victoria Street, Berry is approved subject to the conditions in Annexure A.
3. The Exhibits are returned with the exception of Exhibits 11 and A.
___________
G T Brown
Commissioner of the Court