Ritchie v The Hills Shire Council

[2018] NSWLEC 1376

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ritchie v The Hills Shire Council [2018] NSWLEC 1376
Hearing dates:	23 July 2018
Date of orders:	24 July 2018
Decision date:	24 July 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	(1) Appeal dismissed. (2) Exhibits returned.
Catchwords:	APPEAL – Development consent - dual occupancy under the State Environmental Planning Policy (Affordable Housing) 2009 (SEPP ARH) – location of site within “accessible area” as defined under cl 4 of the SEPP ARH
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 The Hills Development Control Plan 2012 The Hills Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Gregg Ritchie (Applicant ) The Hills Shire Council (Respondent
Representation:	Solicitors: G Ritchie ( Litigant in person ) ( Applicant ) A Seton, Marsdens Law Group ( Respondent)
File Number(s):	2017/ 00371918
Publication restriction:	Nil

Judgment

1. The applicant, Mr Gregg Ritchie, commenced this Class 1 appeal under s 8.6 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) on 8 December 2018. It relates to The Hills Shire Council’s (‘Council’) refusal of his development application (DA 1949/2017/ZA) (‘the DA’) lodged on 21 June 2017. The development application seeks consent for development described on the form submitted with the DA as “proposed change of use from Dual Occupancy approved under Council’s LEP to a Dual Occupancy under the Affordable Rental Housing SEPP 2009”. The application also seeks consent for subdivision of the site into two strata title residential lots (Exhibit B).

2. The Council’s Statement of Facts and Contentions filed on 13 April 2018 (Exhibit A) records the background facts and statutory controls. It states that the attached dual occupancy was approved by the Council under The Hills Local Environmental Plan 2012 (LEP) on 11 August 2016. It has since been constructed on the site which is located at 34 Bruhn Circuit, Kellyville – the property descriptor being Lot 11 DP 1200890 (“site”).

3. According to the Council’s evidence the development is approximately 475m walking distance of a serviced bus stop. Therefore, the land is not located within an “accessible area” as defined under cl 4 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). And, while dual occupancy development is permissible under the SEPP ARH it only applies to development in the Sydney region within an accessible area: cl 10 (2). Put simply, the Council contends that I have no jurisdiction to entertain the appeal.

4. The applicant, who was self-represented, initially asked the Court to accept that the land was less than 400m walking distance to several bus stops (some of which he accepted were not yet serviced but he believed would be serviced in the coming months). However, by the end of the hearing Mr Ritchie only relied on the two bus stops located on the northern and southern sides of Memorial Drive to refute the Council’s claim that the development was not within an accessible area and that the Division of the SEPP did not apply to his DA.

5. To assist the Court the parties relied upon the oral and written expert evidence from Mr Robert Smith (for the applicant) and Mr Padraig Scollard, (for the Council). Their joint report is marked Exhibit 3. These experts were present at the site view at the commencement of the hearing when I walked to the various bus stops in order to understand their written evidence. They also gave some short oral evidence at the resumed hearing in Court. For the record I note that this matter was dealt with under s34AA of the Land and Environment Court Act 1979 (Court Act). However, given the factual dispute conciliation did not prove successful. That process was terminated early and the matter proceeded to hearing forthwith.

6. Ultimately, this case turns upon a finding as to whether the bus stops relied upon by the applicant and said to be less than 400m walking distance from the site satisfies the definition of “walking distance” as defined in cl4 of the SEPP ARH such as to engage jurisdiction under s10 (2). It goes without saying that the bus stop relied upon by the Council at the intersection of Memorial Drive and Mc Causeland Place is accepted to be about 475m walking distance from the site and is clearly outside the requisite 400m walking distance from the land and on that basis a reason why the SEPP is not engaged on those facts.

7. For the reasons that follow, I have determined that the site is not in an accessible area. Therefore, the ARH SEPP does not apply and the appeal must be dismissed.

Statutory framework

8. Before anything else it is necessary to set out the relevant controls under the SEPP ARH. They are:

9. Clause 10(2) of SEPP ARH provides as follows:

(1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:

(a) the development concerned is permitted with consent under another environmental planning instrument, and

….

(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.

…”

10. Clause 4(1) of SEPP ARH defines the term “accessible area” as follows:

“accessible area means land that is within:

(a) 800 metres walking distance of a public entrance to a railway station or a

wharf from which a Sydney Ferries ferry service operates, or

(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or

(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.”

11. Clause 4(1) of SEPP ARH defines the term “walking distance” as follows:

“walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings.”

(g) As illustrated in Figure 1 (below), the closest bus stop to the site measured via walking distance (as defined) is approximately 735m.

Consideration and Findings

12. After reading the joint report and considering all of the evidence including my observations at the site view I prefer Mr Scollard’s expert assessment of the application of the facts to the statutory planning framework to that of Mr Smith essentially for the reasons he outlines at 2.1.2 of the joint report. Relying on the definition of “Accessible area” and “Walking distance” as defined under the SEPP ARH and after applying the ordinary meaning to those words (consistent with the Macquarie Dictionary definitions of terms such as “practicable”) Mr Scollard’s evidence to the Court about the applicant’s preferred walking routes to the bus stop was essentially as follows:

• Whilst there is a footpath at the southwest corner of Bruhn Circuit which ends at the hard shoulder of Memorial Avenue Circuit (see Attachment 5 of the joint report) this footpath does not continue Memorial Avenue nor is there a footpath on this section of Memorial Avenue. Furthermore, this crossing point is located at a bend in Memorial Avenue which reduces both pedestrian and driver sightlines.

• There is no pedestrian crossing from this location to the bus stops on the southern side of Memorial Avenue.

• As illustrated in Attachment 5 to the joint report, to walk to the bus stops on the northern side of Memorial Avenue a pedestrian would be required to walk on the hard shoulder of the road. Memorial Avenue is a classified road which had a daily traffic volume of 22,368 vehicles in 2009. This figure will have significantly increased since this time given the growth in population in the area due to the development in surrounding release areas. In certain instances, the hard shoulder of Memorial Avenue and narrows to 2m due to the existence of road metal barriers.

• As no footpath is currently provided along this section of Memorial Avenue and the reconstruction of Memorial Avenue by the Roads and Maritime Services is not imminent, the routes from these pedestrian links to the existing bus stops cannot be considered as they do not provide for safe pedestrian access.

• The fastest and most reasonably practicable walking route to a bus stop with a regular bus service from 34 Bruhn Circuit is northwards on Bruhn Circuit, over the new pedestrian Bridge and turning southwards onto Arnold Avenue /McCausland Place to Memorial Avenue. This route provides footpath the entire way to the bus bay area on Memorial Avenue. The walkable distance of this route is approximately 475 m. On this basis 34 Bruhn Circuit is not considered to be located within an “accessible area” as per the definitions under the SEPP ARH.

13. Mr Scollard’s expert assessment accords with my observations at the site inspection whilst walking along the applicant’s proposed walking route from the site - along the made pavement on Bruhn Circuit and up to the made shoulder of the classified road on Memorial Avenue (as shown in Attachment 3 of the joint report ). I cannot accept that this walking distance route (albeit less than 400m from the site) may be safely walked by a pedestrian given the fact that the footpath does not continue on Memorial Avenue nor is there a footpath on this section of Memorial Avenue. Furthermore, I agree with Mr Scollard that this point is located at a bend on Memorial Avenue which reduces both pedestrian and drivers sightlines. This feature of the roadway to my mind only adds to the pedestrian safety concerns that I have already identified. The fact that Mr Smith is of the opinion that people currently use this area to cross the road to access the bus stop does not give me any comfort or satisfy me that this is a route that may be safely walked by pedestrians to access either bus stop opposite or on the northern side of Memorial Avenue. These features of the applicant’s walking route do not accord with the definition of “walking distance” as defined under the cl 4 of the SEPP. While the route is along a made pavement the pedestrian is required to stop on the road verge and is required to cross a classified road which carries in excess of 22,000 odd cars per day (based on outdates 2009 figures) – a road which both experts agreed currently carried more traffic today than in 2009 and was likely to carry much more traffic in the future. In my opinion it is unsafe to require pedestrians to illegally cross a two lane classified road - outside of a pedestrian crossing in order to reach the bus stop.

14. Alternatively, the applicant suggests that it is satisfactory and safe for the pedestrian to stay on the southern side of the classified road and embark upon a trek up an incline (behind the guard rail on the road reserve to Memorial Avenue) and over vegetated and grassed rough ground to a bus stop. Again, for the reasons stated by Mr Scollard such a walking route is outside the “walking distance” definition in the SEPP. While I accept a pedestrian path may be a grassed area the area behind the guard rail offered by the applicant was not maintained and the parties were unable to tell me who was responsible for the management / mowing etc. of this area. There is no guarantee that this area of the walking route will be accessible if it is not maintained - let alone safe as a walking route for a pedestrian given that it is located behind the guard rail of a classified road.

15. The distances to the applicant’s bus stops might measure less than 400m from the site but the route is nether safe or reasonably practicable - there is no pedestrian crossing. Furthermore, I have no evidence that these bus stops relied upon by the applicant and located on Memorial Avenue provide a “regular bus service “in accordance with the requirement of the SEPP ARH.

16. Despite the applicant’s assertion, Division 1 (In-fill affordable housing) in Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”) does not apply to the proposed development. I order that the appeal is dismissed. The exhibits are returned.

Susan Dixon

Senior Commissioner

Amendments

30 July 2018 - Corrections to typographical errors at [4], [5], [6] and cover sheet

Decision last updated: 30 July 2018