Stewards Foundation of Christian Brethren v Baulkham Hills Shire Council

[2004] NSWLEC 102

Land and Environment Court

of New South Wales

CITATION:	Stewards Foundation of Christian Brethren v Baulkham Hills Shire Council [2004] NSWLEC 102
PARTIES:	APPLICANT Stewards Foundation of Christian Brethren RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	11196 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- Demolition of existing building - construction of 24 selfcare single storey dwellings and 60 bed two storey hostel
LEGISLATION CITED:	State Environmental Planning Policy No. 5
CASES CITED:
DATES OF HEARING:	13/02/2004
EX TEMPORE JUDGMENT DATE :	02/13/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister SOLICITORS McKees Legal Solutions RESPONDENT Mr G Castelan, solicitor SOLICITORS Coleman & Greig

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11196 of 2003 Brown C 13 February 2004

Stewards Foundation of Christian Brethren
Applicant

v Baulkham Hills Shire Council
Respondent Judgment

1. This matter comes before the Court for consent orders between Stewards Foundation of Christian Brethren and Baulkham Hills Shire Council, being Appeal No. 11196/03.

2. The appeal is in relation to the construction of a development pursuant to State Environmental Planning Policy No. 5 - Aged Persons or Persons with a Disability (SEPP 5) at 140-142 Glenhaven Road, Glenhaven.

3. In accordance with the Court’s Practice Direction 1993, par 9, opportunity is provided for any person who has objected to the proposal to seek leave to be heard in the Court’s consideration of the request for consent orders. In this regard Mr David Baker of 6 Temora Road, Ms Jill Fredericks of 4 Temora Road and Mr Brian Stott of 44 Mills Road chose to provide evidence to the Court.

4. They addressed different aspects of the proposed development that were seen as being unsatisfactory. These can be generally described as bush fire impact, access to services and facilities, traffic generation and road safety and runoff and potential contamination of Cattai Creek.

5. The council provided copies of the submissions received when the application was advertised and also a copy of the council officer’s report to the Committee of the Whole on 3 February 2003 recommending that the matter be heard as consent orders.

6. In terms of bushfire impact Mr Baker expressed the view that he was uncomfortable and unsatisfied in the way the council had addressed the potential bushfire impact. He sought an independent evaluation of the topography of the site to determine the slope between the buildings nearest the fire hazard and the identified hazard. Councillor Shore also appeared at the hearing on site and opposed the application for bushfire reasons.
7. The applicant provided a report from Mr David McManus, a bushfire expert, who with the inclusion of a number of bushfire safety measures concluded that an acceptable level of bushfire protection would be provided for the development. The proposal, including the bushfire safety measures was accepted by the Rural Fire Service as satisfying the requirements of s 100B of the Rural Fires Act 1997.

8. In balancing the concerns expressed by Mr Baker and the acceptance of the proposal by the Rural Fire Service I must give greater weight to the expertise and statutory responsibility of the Rural Fire Service. The documentation indicated that the site was inspected by the Rural Fire Service in the formulation of their position on the application. I am not convinced that the variation in topography would not have been considered in the Rural Fire Service’s assessment of the proposal and consequently I see no basis for a further independent evaluation.

9. Clauses 12, 13 and 25 of SEPP 5 provide requirements for accessibility. This issue was addressed by the applicant’s expert Mr Mark Relf. His report concludes that the proposal conforms to the policy objectives and technical requirements in SEPP 5 for accessibility and adaptability.

10. While I accept that the concerns of Ms Fredericks have a sound practical basis, the test the Court must impose is that contained within SEPP 5. In this regard the undisputed evidence was that the requirements were met by the proposed development.

11. Mr Stott raised the issue of sewage disposal including the number of properties nearby that are not connected to the existing sewer line. He further states that the existing sewage system is already stretched. In reply the applicant provides evidence from Sydney Water of their intention to provide a s 73 subdivider developer compliance certificate following the issue of development consent. The general thrust of the Sydney Water notification is that subject to compliance with a number of conditions the proposed development will have access to Sydney Water sewage system. Inherent in this agreement is the capacity of the sewage system to accommodate the sewage flow from the development. In the absence of any other technical evidence I must accept that sufficient sewage capacity is available.

12. Traffic was also raised by Mr Stott as an issue. He drew the Court’s attention to the nearby intersection of Mills Road and Glenhaven Road that he described as quite dangerous. In addressing the traffic implications of the proposed development the applicant relies on the report of traffic engineer Mr Chris Stapleton. He concludes that the proposed development will have no adverse traffic or parking impacts in the local area. These conclusions are based on traffic surveys and intersection modelling undertaken by Mr Stapleton. While the proposal will generate some additional traffic the evidence does not suggest that this additional traffic will impact on the local area. Again and in the absence of any contrary evidence I accept these conclusions.

13. Mr Stott also raised the question of water quality on Cattai Creek although I note condition 28(viii) provides requirements for stormwater quality control. In addressing those matters raised by the residents the Court’s determination must be based on the weight of evidence.

14. While I acknowledge the sincere approach taken by the residents, the overwhelming weight of evidence was provided by the applicant through its experts to support their proposal.

15. For this reason the orders of the Court are:

1. The appeal is upheld.

2. Development application (3873/03/HB) for the demolition of the existing buildings and the erection of a State Environmental Planning Policy No. 5 development comprising 24 self care single storey dwellings and a 60 bed two storey hostel on lot 1 DP 135833 and lot 2 DP 607843, known as 140 and 142 Glenhaven Road, Glenhaven is determined by the grant of development consent subject to conditions as set out in annexure “A”.

_________________
G T Brown
Commissioner of the Court
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