Sydney Prestige Developments Pty Ltd v Hornsby Shire Council

[2004] NSWLEC 598

Land and Environment Court

of New South Wales

CITATION:	Sydney Prestige Developments Pty Ltd v Hornsby Shire Council [2004] NSWLEC 598
PARTIES:	APPLICANT Sydney Prestige Developments Pty Ltd RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10314 of 2004
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- SEPP 5 Development Access requirements Visual Impact
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 5 Hornsby Shire Local Environmental Plan 1994 Baulkham Hills Shire Local Environmental Plan 1991
CASES CITED:	DEM (Aust) Pty Limited v Pittwater Council [2004] NSWLEC 70 ; Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252 ; Asset Based Securities Pty Limited v Hornsby Shire Council [2001] NSWLEC 276
DATES OF HEARING:	09 - 10/09/2004
DATE OF JUDGMENT:	10/29/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr T To Solicitors Maddocks RESPONDENT Mr P Jackson Solicitors Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

29 October 2004

10314 of 2004 Sydney Prestige Developments Pty Ltd v Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application (2450/03) to demolish the existing buildings and construct self care villas, a community centre with aged care facilities and associated site works, under State Environmental Planning Policy No 5 – Housing for older people or people with a disability (SEPP 5), at lot 4 DP 507947, known as 603-605 Old Northern Road, Glenhaven and partly at lot 1 DP 135408, known as 607 Old Northern Road, Glenhaven (the site).

2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted.

The site and its context

3 The site is located on the eastern side of Old Northern Road. The proposed buildings are to be constructed at 603-605 Old Northern Road (lot 4 DP 507947). This allotment is rectangular in shape with a battle axe to Old Northern Road and an overall area of 2.93 ha. There is a depression running across the site from north to south and the site slopes from both the west and east towards this depression.

4 There is a house and a farm shed on the site as well as an arena for horse training. The remainder of the site is used as breeding paddocks and agistment for horses.

5 Pedestrian access via a raised walkway is to be provided on the southern boundary of 607 Old Northern Road (1 DP 135408). This will require a degree of excavation and earthworks to occur on part of this site. The allotment is currently developed with a house and a dam. There is a development approval for aged person housing under SEPP 5 for this site and the adjoining site to the south, 599-601 Old Northern Road.

6 Adjoining the property to the west, across Old Northern Road within Baulkham Hills Shire, is low density residential development.

The proposal and its history

7 The application was lodged on 9 December 2003 and was notified to adjoining and nearby residents. Council received one submission from Round Corner Village Residents’ Association. Council refused the application on 5 May 2004.

8 The application was amended to address concerns raised by the Court Appointed Experts. The amended application is the subject of this appeal. This proposes 37, three bedroom, single storey villa houses with a community centre. Car access to the development is off Old Northern Road and will be shared with 607 Old Northern Road.

Planning Framework

9 The site is zoned part Rural BA (Small Holdings – Agricultural Landscapes) and part Special Uses B (Transport Corridor) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The proposed development is defined as “housing for aged or differently abled persons”, “medical centre” and “demolition”. Demolition is permissible in the Rural BA zone with consent, the other uses are prohibited but gain their permissibility through cl 4 (1) of SEPP 5 as the site adjoins land zoned primarily for urban purposes. The land to the west, across Old Northern Road is zoned Residential 2(d) (Protected) under Baulkham Hills Shire Local Environmental Plan 1991 (LEP 1991).

10 The Statement of Basic Facts outlines in more detail the planning framework that applies to the site, but no issues were raised with these instruments and policies.

The issues

11 The Statement of Issues before the Court contained 12 issues. Most of these issues were resolved through the court appointed experts amended plans and conditions of approval. The remaining issues can be categorised into the following key issues:

i) whether the proposed walkway provides adequate pedestrian access to the development and has an appropriate visual impact.
ii) Whether the proposal provides adequate access to private open space.

The evidence

12 The following court appointed experts gave evidence:

Mr R Player, town planner
Ms K O’Donnell, access consultant
Mr B Kenny, hydraulic engineer

13 Mr T Rogers, traffic engineer and court appointed expert, provided a report but he was not required for cross examination.

14 The Court also had the advantage of a site visit and heard evidence from the following residents on site:

Mrs J Merek, President, Round Corner Village Residents’ Association
Mrs Stapelton, 595 Old Northern Road
Mrs Shields, Round Corner Village Residents’ Association

Mrs Jessup, 6 Muston Place

15 The main concern of these residents was the demand from aged person housing on the services in the area, particularly the cumulative impact of developments in and approved for the area on medical services and water supply. In relation to the specific development, the residents were concerned about access to the development, particularly the bus service, and safety issues in relation to traffic and crossing the road.

Pedestrian walkway - access

16 Clauses 12 (1) and (2) of SEPP 5 require that:

(1) Location, facilities and support services
The consent authority must not consent to a development application made pursuant to this Part unless the consent authority 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 recreation 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).

17 Clause 25 (f) requires that:

Accessibility: 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) provide attractive, yet safe, environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors, and
(iii) where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site.

18 The parties agreed that the facilities and services were not provided within 400m of the site and that compliance was therefore under 12(2)(b). The key area of disagreement was whether the requirements of 12(2)(b)(i) were met by the location of the bus stop. Mr Jackson’s submission, for council, was that while the bus stop was located within 400m of the boundary of the site, only 9 out of the 37 dwellings were within 400m of the bus stop, with the furthest dwelling being about 544m. He submitted that access therefore did not comply with requirements of cl12(2)(b)(i) and that convenient access as required by cl 25(f) was not provided. On this basis the application should fail.

19 Mr To, for the Applicant, referred to DEM (Aust) Pty Limited v Pittwater Council [2004] NSWLEC 70 where Lloyd J dealt with the question of:

whether on a proper construction of sub-cll (1) and (2) of cl 12 of SEPP No. 5, the measurement required to be undertaken of the distance between transport services to the facilities and services specified in cl 12(1) and the site of the proposed development is required to be undertaken in relation to each of the residential buildings in the proposed development and found to be no more than 400 metres in each case?

20 Which Lloyd J stated that:

In my opinion, this question is properly a question of fact rather than a question of law. That is, the question of what is “the site of the proposed development” is a question of fact to be determined in each case. The site of a building would clearly include its curtilage. As Mr Bingham conceded during argument, however, one would not regard the handle of a “battle-axe” allotment as being part of the site of a proposed development for the purpose of cl 12. In my opinion, this is not a matter which I can answer affirmatively in favour of council. Each case turns upon its own facts and I therefore determine the second question in this way: namely, that the site of the proposed development is not necessarily the site of each residential building, neither is it necessarily the boundaries of the particular allotment upon which the development stands. It would be inappropriate for me to say anything further about that other than to observe that in this case it is open for the commissioner hearing the matter to hold that the site of the proposed development is the whole of the allotment upon which the development stands.

21 Further, Mr To referred to Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252 where Roseth SC and Moore C in dealing with an appeal on the adjoining site and a similar question of access stated that:

There remains the question whether the furthest dwellings on the site are too far from the bus stop for convenience. Given that the bus stop is only a few metres from the entrance, we do not think that this can be a reason for refusal. If it were, it would be impossible to develop the whole of a large site, since there would always be dwellings that are far from the entrance. The issue would arise only if the distance between the bus stop and the entrance were close to the maximum distance of 400m specified in SEPP 5.

22 The facts of this case are that while the site boundary is 90m from the bus stop, the axe of the battle axe is about 290m and 9 out of the 37 dwelling are within 400m. I accept that the development meets the threshold test in cl 12(2) and that it would not be feasible on a large site for all of the dwellings to be within 400m of a bus stop. In relation to whether on merits the access complies with cl 25(f), I accept Ms O’Donnell’s evidence that the proposed walkway provides convenient, obvious and safe pedestrian access from the site to public transport services.

23 Ms O’Donnell recognised that the travel distance from the majority of the dwellings to the bus stop was greater than 400m, but considered the convenience of access was affected by distance, slope and the number of rest stops. In her opinion, the length of the walkway was balanced against its easy grade and the provision of rest stops and she concluded that it would provide convenient access for most residents. Ms O’Donnell recognised that for a number of residents the distance would be too great but for these residents even a lesser distance may be beyond their capabilities. She stated that it was unreasonable to provide pedestrian access suited to all residents of a SEPP 5 development.

24 Ms O’Donnell’s opinion is consistent with the decision of Talbot J in Asset Based Securities Pty Limited v Hornsby Shire Council [2001] NSWLEC 276 where he stated:

That having been said, it is not necessary, in the Court’s view, for the convenience and amenity of all persons who fall within the category of occupants recognised by SEPP 5 to be satisfied. Nevertheless, there must be a recognition of the general class of potential future occupants.

25 I accept that the proposed walkway of itself meets the access requirements of SEPP 5. Further I note that the proposal also provides car parking for each dwelling, that there is community funded access services available and that the applicant has agreed to a condition to provide a mini bus. These measures will further assist in providing convenient access, not only to the bus stop but also to other facilities such as the letter boxes which are located at the street frontage.

Pedestrian walkway-visual impact

26 Council was concerned that the raised walkway and associated earthworks would have an unacceptable visual impact, particularly when viewed from the development approved for the adjoining sites, 607 and 599-601 Old Northern Road.

27 Mr Player did not consider that the walkway would have an unacceptable visual impact on the basis that it was not a substantial built element, being light weight, open and only 1.8m high. Further he stated that it was some 80m from the frontage of Old Northern Road and was below the level of the development proposed for at 607 Old Northern Road. While there may be some opportunity to view the structure from 599-601 Old Northern Road, he considered that the existing and proposed landscaping would screen it from view.

28 Mr Player recognised that the walkway was required to provide pedestrian access to the development. While he acknowledged that the walkway was not the same as other development in the area, he did not consider it to be out of character with the approved SEPP 5 developments and the rural setting.

29 In relation to the retaining walls and earthworks, Mr Player noted that these are approved as part of the development proposed for 607 Old Northern Road. The development on the site provides an opportunity for further landscaping to screen and soften these works and is acceptable.

30 I am satisfied that for the reasons provided by Mr Player, the proposed walkway and associated earthworks has an acceptable visual impact.

Access to open Space

31 Council did not consider that the proposal met the requirements of cl 25(f)(iii) to where feasible provide access to all open space within the site. Ms O’Donnell’s evidence was that each of the dwellings had level access to an open space area. A number of the dwellings had additional areas of open space where direct access was not provided. Ms O’Donnell considered these areas to be additional to the requirements of SEPP 5 and to provide visual amenity and separation rather than usable areas of open space.

32 I accept Ms O’Donnell’s evidence that the proposal provides access to private open space for each dwelling. While it would be desirable to provide access to all areas, due to slope of the land and constraints such as adequate solar access it is not reasonably feasible to do. The landscaping is additional to the requirements of SEPP 5 and the only issue relates to its maintenance, which the applicant has addressed through a proposed condition of approval.

Other Issues.

33 Other issues relating to stormwater and the road works proposed for Old Northern Road which were in dispute between the parties were clarified by evidence during the hearing, the submission of further information and proposed conditions. The additional matters raised by the residents were not issues between the parties, but were addresses by the evidence of the Court Appointed Experts. In particular, in relation to the increased demand on services, Ms O’Donnell was satisfied that the proposal would have adequate access to services and that the ageing of the population was a general issue which would place increased demand on services whether in this or other locations.

34 In relation to traffic, the evidence of Mr Rogers was that the proposal, which includes changes to access arrangements on Old Northern Road, would not have an adverse impact on traffic. He concluded that “the internal access arrangements are satisfactory and the proposed roadworks on Old Northern Road for the approved developments north and south of the site can satisfactorily cater for the additional traffic generated by the proposed development”. A deferred commencement condition is proposed which establishes the approval and implementation of the proposed roadworks.

35 Mr Rogers and Ms O’Donnell were also satisfied that the walkway and pedestrian refuge proposed for Old Northern Road satisfied any safety issues in relation to vehicular and pedestrian conflict.

Orders

36 For the above reasons the Orders of the Court are:

1. The appeal is upheld.
2. The development application to demolish the existing buildings and to construct thirty seven (37) self care villas, community centre with aged care facilities and associated site works, pursuant to the provisions of State Environmental Planning Policy No 5, at lot 4 DP 507947, known as 603-605 Old Northern Road, Glenhaven and partly at lot 1 DP 135408, known as 607 Old Northern Road, Glenhaven, is determined by the grant of development consent subject to the conditions at Annexure “A”.
3. The exhibits, except exhibits A, B, C, D, N, O, P, 6 and 8, may be returned.

__________________
Annelise Tuor
Commissioner of Court