The Winter Group Pty Ltd v Ku-Ring-Gai Council
[2000] NSWLEC 70
•04/07/2000
Land and Environment Court
of New South Wales
CITATION: The Winter Group Pty Ltd v Ku-Ring-Gai Council [2000] NSWLEC 70 PARTIES: APPLICANT:
The Winter Group Pty Ltd v Ku-ring-Gai CouncilFILE NUMBER(S): 10845 of 1999 CORAM: Bignold J KEY ISSUES: Development :- SEPP No 5 housing development - whether site suitable for such development—Impact of development on site and adjoining public reserve. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 CASES CITED: DATES OF HEARING: 17/02/00-24/02/00,03/03/00,29/03/00 DATE OF JUDGMENT:
04/07/2000LEGAL REPRESENTATIVES:
APPLICANT:
Mr D Baird, Solicitor
SOLICITORS
Price Waterhouse Coopers Legal
RESPONDENT:
Mr J Cole, Solicitor
SOLICITORS
Abbott Tout
JUDGMENT:
IN THE LAND AND Matter No . 10845 of 1999
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 7 April 2000
THE WINTER GROUP PTY LTD
Applicant
v
KU-RING-GAI COUNCIL
Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 s 97 (the EP&A Act) against the deemed refusal by the Council of the Applicant’s development application for the development of land known as No 47 Highfield Road Lindfield, being lot 1 in DP 3233 (the appeal site) by “housing for older people or people with a disability” within the meaning of “State Environmental Planning Policy No 5 — Housing for Older People or People with a Disability” (SEPP No 5). The proposed development involves 10 three bedroom dwellings in a three level building (the ground (basement) level being primarily used for carparking) with internal lift access to all levels.
2. Subsequent to the commencement of these proceedings, the Council in exercising the power conferred by the EP&A Act s 82(2) determined the development application by refusing development consent.
3. In its Notice of Determination, dated 20 January 2000 given pursuant to the EP&A Act s 81(1)A), the Council stated 12 reasons for its refusal.
4. It may be noted in passing that in so determining the development application, the Council rejected the recommendation of its planning staff —made both before and after the Council had engaged the services of Mr Harry Howard, a Consultant Architect Planner, for advice in the matter.
5. Following receipt of Mr Howard’s advice, which was to the effect that the Council should refuse development consent, the Council’s own planning staff adhered to their original recommendation that the application be granted development consent subject to conditions.
6. In the event, the Council adopted the advice of Mr Howard and refused development consent for the reasons that he had advanced. (Those reasons involved an amalgam of Mr Howard’s opinions and the issues that had been stated in the Council’s original Statement of Issues filed in the proceedings before Mr Howard’s advice had been sought.)
7. By the time of the hearing of the appeal, the Council had filed an Amended Statement of Issues which raised even more issues. A copy of the Amended Statement of issues is annexed hereto.
8. However, in the course of the hearing of the appeal, a number of the issues ceased to be in dispute.
9. In the course of an unusually extended hearing for this type of case, I have had the benefit of considerable expert evidence and lay evidence from nearby residents who had objected to the proposed development. In all, some 40 neighbouring residents objected to the proposed development in response to the Council’s public notification of the development application, raising many issues, most of which have been advanced by the Council in the hearing of the case.
10. Additionally, following the conclusion of the hearing, I have had the benefit of a most extensive view of the appeal site, its environs and its pedestrian and vehicular routes to the shopping centre on Pacific Highway and to the closest bus stop in Cook Road. That view was conducted in the presence of the parties’ legal representatives and with the attendances of experts on both sides.
11. Ultimately, my consideration of the competing cases has led me to conclude that development consent should not be granted, principally for the reason that the site is not considered to be a suitable site for the proposed development. Perhaps as a consequence of this conclusion, and more particularly because of the environmental constraints posed by the site, I have also concluded that the proposed development does not provide sufficient amenity for the intended residents of the type of housing that is permitted by SEPP No 5. In so concluding, I acknowledge that the proposed development is at the upper end of the private housing market and that in many ways, its residential accommodation is very acceptable. However, SEPP No 5 requires such housing to be particularly suitable to the older or disabled persons Despite the proposal’s agreeable residential features, there are other adverse features, borne of site constraints which are not capable of being solved by good design.
B. THE APPEAL SITE AND APPLICABLE PLANNING CONTROLS
12. The appeal site is generally rectangular in shape, containing an area of 3,279 m2, having a 34 m frontage to Highfield Road (the southern boundary of the appeal site) and a 31 m frontage to Highfield Lane (the northern boundary of the appeal site). Its overall depth is a little more than 100 m.
13. The appeal site is located in a gully situation, with its western boundary adjoining Paddy Pallin Reserve, being separated therefrom by a natural watercourse (a creek) which drains ultimately into Lane Cove River.
14. Flanking its eastern boundary are two residential lots, each developed by a residence known as Nos 43 and 45 Highfield Road.
15. The appeal site slopes towards the natural watercourse with a crossfall of some 5 to 6 metres.
16. The appeal site is the largest residential lot in Highfield Road and is one of the largest residential lots situate in the western sector of Lindfield. By comparison with its easterly neighbours, the appeal site is nearly the same size as the aggregated area of the three adjacent lots.
17. The appeal site is heavily vegetated all over, but most especially at the Highfield Road frontage (especially in the south-western sector of the appeal site).
18. The vegetation entirely obscures the existing residence from view from Highfield Road. The vegetation also significantly screens the existing residence from views from Paddy Pallin Reserve, but not to the same extent as obscures the view from the road.
19. Although the evidence included many descriptions and analyses of the existing vegetation, I am content to adopt the following description from the report of Mr David Ford ( Exhibit 7), Arborist, who gave evidence for the Applicant:
Tree cover within the site appears to be dense at first sight; however closer scrutiny reveals that there are few large trees of any value and that the density consists of weed species, chiefly Cinnamomum camphora ( Camphor Laurel), and palms, chiefly Archontopheonix cunninghamiana (Bangalow Palm) which appear to have become naturalised on the site. Remnant native trees are present, chiefly Angophora costata (Sydney Red Gum) and Syncarpia Glomulifera (Turpentine). The former native understorey vegetation has almost totally disappeared under a dense weed cover, including Tradescantia albiflora ( Wandering Jew ) and Cardiospermum grandiflorum ( Balloon Vine ). The original native vegetation has therefore been modified almost beyond recognition and only the canopy trees are now representative of the former vegetation community.
PRESENT STATE OF THE TREES
The trees along the creekline are predominantly native and indigenous to the site, although there are several exotic species present in this area. Most of these exotics are in poor condition due to suppression by the canopy trees. The native trees are in turn affected by the presence of several large specimens of Cinnamomum camphora (Camphor Laurel) which would be removed under the proposed development. The former understorey vegetation has been largely replaced by a prolific weed cover in the more open areas of the site, together with a dense understorey of exotic palms (Plate 2). The area to the south of the site forms part of Paddy Pallin Reserve, where a bushland restoration project is being undertaken by Ku-ring-gai Municipal Council.
To the west of the existing house is an extensive lawn area with exotic gardens and a small pool. With the exception of Tree 4, a large Angophora costata (Sydney Red Gum), trees in this area are palms with two large conifers (Trees 5 and 6) near the north boundary. To the west of the lawn area is Tree 9, a large Syncarpia glomulifera (Turpentitne), and several exotic species including Trees 18 and 19 Populus italica Nigra (Lombardy Poplar) near the west boundary.
20. The appeal site is included in the Residential 2(b) Zone designated by the Ku-Ring-Gai Planning Scheme Ordinance which came into force on 1 October 1971 and since 1980, has continued in force as a deemed environmental planning instrument (the LEP),
21. Within that zone, “residential flat buildings” (defined as “a building or group of buildings containing two or more flats”) is an absolutely prohibited form of development.
22. If the proposed development were to be categorised for the purpose of the LEP, it would be classified as a “residential flat building”, and hence an absolutely prohibited form of development.
23. Despite the operation of the LEP, SEPP No 5 expressly sanctions the proposed development as “housing for older people or people with disabilities” by “setting aside local planning controls that would prevent” such development “that meets the development standards specified in this Policy” vide cl 3(2).
24. The express aims of SEPP No 5, as set out in cl 3(1) are as follows:
- 3 (1) This Policy aims to encourage the provision of housing that will:
(a) increase the supply and diversity of housing that meets the needs of older people or people with a disability, and
(b) make efficient use of existing infrastructure and services, and
(c) be of good design.
25. Part 2 of SEPP No 5 which is headed “Development Criteria” includes development standards dealing with “wheelchair access” and “building height” (cl 13).
26. Additionally, it includes cl 14 which forbids a consent authority from refusing development consent to such permissible housing development on the grounds of “building height”; “density and scale”; “landscaped area”; and “parking” if certain specified standards in that behalf are satisfied.
27. Clause 9 expresses the following objective of Part 2:
- The objective of this Part is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer, and other people with a disability regardless of their age.
28. Part 3 of SEPP No 5 contains “ Design requirements ”.
29. Clause 24 forbids the granting of consent unless the consent authority has taken into account the required “site analysis” (Schedule 2 detailing the various components of site analysis).
30. Clause 25 forbids the granting of consent unless the consent authority is satisfied “that the proposed development demonstrates that adequate regard has been given to the following principles” and the clause proceeds to detail principles pertaining to:
(a) streetscape;
(b) visual and acoustic privacy;
(c) solar access and design for climate;
(d) stormwater;
(e) crime prevention;
(f) accessibility;
(g) waste management; and
(h) visual bulk.
31. Although SEPP No 5 prevails over any inconsistency with any other environmental planning instrument (vide cl 5(2)), it was common ground that the following provision of the LEP applies to the determination of the Applicant’s development application:
33. In respect of any application for the consent of the responsible authority whether under this Ordinance or under any provision of the Act for consent or approval to the carrying out of development for a purpose referred to in Column IV of the Table to clause 23 of this Ordinance, namely -
- Aesthetic appearance
(a) to the erection of a building, to the carrying out of a work or to the use of land within a Foreshore Scenic Protection Area or within view of any waterway, or adjacent to any county road or main road, railway, public reserve or land reserved for open space or land within Zone No 6(a), 6(b) or 6(c), the responsible authority shall take into consideration the probable aesthetic appearance of such land or of the proposed building or work when used for the proposed purpose and viewed from such waterway, county road or main road, railway, public reserve or any such reserved or zoned land;
32. It is common ground that Paddy Pallin Reserve which adjoins the entire western boundary of the appeal site (and the prolongation of that boundary northwards to Provincial Road) is a “public reserve within the meaning of cl 33(a).
33. “Paddy Pallin Reserve is aptly described in the following extracts form the report of Professor James Weirick (Exhibit O) which I am content to adopt (with the added comment that in the southern section alongside the western boundary of the appeal site, Paddy Pallin Reserve is, in places, quite narrow in its width):-
The subject property is bounded on its western side by a public reserve dedicated in 1928 for Drainage & Public Garden & Recreation as part of the subdivision of Sections 1 & 2 of the Highfield Estate.26 This was subsequently combined with land extending from Highfield Lane to Provincial Road, which was named Paddy Pallin Reserve in July 1985 in honour of the pioneer Sydney bushwalker Frank Austin (Paddy) Pallin of Lindfield in recognition of his services to youth over many years and his encouragement to people of all ages to share his love of the great outdoors 27
The Reserve has two distinctly different parts. The northern section from Provincial Road to Highfield Lane has mown grassed areas, groves of trees in mulched planter beds, play equipment, park benches and a concrete path, which give it the character of a conventional neighbourhood park. The southern section from Highfield Lane to Highfield Road, which adjoins the subject property, has long Australian grasses, sandstone outcrops, a decomposed granite path, naturalistic groves of indigenous trees and a bush atmosphere. A creek runs through both sections.
The bush atmosphere of the southern section of the Reserve is particularly appropriate to the memory of Paddy Pallin28 This sense of the bush is created not only by the naturalistic character of the vegetation and the less-structured design of the path, it is also created by the inconspicuous presence of the house on the adjoining property at 47 Highfield Road. The house is inconspicuous due to its small scale in relation to its large lot, the fact that the house does not face the reserve, and the screening effect of the vegetation which surrounds the house. Although this vegetation is a combination of endemic and exotic species, the richness of the vegetation and the profusion of species such as Bangalow Palms, Pittosporum etc. give it a wild, rainforest quality, which again adds to the bush atmosphere. Ku-ring-gai Council has begun a bush regeneration program in this area, which should be maintained to replace the image and atmosphere of the bush in this reserve named for Paddy Pallin with plant associations which can reach a sustainable level of ecological integrity
The creek, which is little more than a deeply-entrenched stormwater channel, flows through the Reserve and swings in an arc through the western section of the subject property, Part Lot 1, Section 1, DP 3233. The effect of this alignment is to blur the boundary between the Reserve and the subject property. At the same time, the public path swings in an opposite arc towards the creek at the middle of the southern section of the Reserve.
26 NSW Land Titles Office, DP 15846.
27From the Commemorative Plaque in the park, unveiled 27 July 1985.
28 Even though the floristic structure of the vegetation is greatly modified and week-affected.
34. Although there are several development control plans and codes which are applicable to the development application, there is no need to cite them here or to refer to their detailed provisions, because they are not vital to my evaluation of the development proposal.
C. THE PROPOSED DEVELOPMENT
35. The proposed development which extends for most of the depth of the appeal site is located over three levels, although on the second and third levels, situate above the ground level (created by extensive site excavation to an average depth of 3 to 4 metres with a linear dimension of some 80 m), there are three separated building modules, one at the northern end (some 28 m long) and one at the southern end (some 27 m long), separated by a mid section (some 12 m long).
36. The northern and southern modules which are each separated from the middle module only by a distance of 2 m, have similar configurations with articulated facades. The internal pedestrian corridors serve all three building modules and in that sense connect them to each other.
37. Each of the northern and southern building modules contains four dwellings (two per level) and the middle building module contains one dwelling (over two levels). The remaining of the ten dwellings is at the ground level (which principally accommodates on site carparking), located directly under the middle module building.
38. Lift access is provided from the ground floor to the second and third levels
39. Separate pedestrian access is provided via a raised boardwalk (ramp) from the Highfield Road frontage, traversing a distance of some 30 m and connecting to the front of the mid level where a pedestrian walkway system flanking the western side of the development gives access to the dwellings situate on that level. In order for a pedestrian using the boardwalk ramp from Highfield Road to gain access to the top level, the lift access must be employed and from the lift foyer on that level a similar pedestrian access is provided in similar manner to that provided on the floor below.
40. The same arrangement (ie combination of boardwalk, internal access consider and lift) is required to access the one dwelling located on the ground floor.
41. It is to be noted that the boardwalk access was a late change to the proposed access arrangement and is quite different from that which was considered by the Council’s planning staff when they assessed the original form of the development application.
42. In that original version, the pedestrian access was located on the eastern side of the vehicular access which generally followed the alignment of the existing vehicular access from Highfield Road to the existing residence.
43. The amendment to the pedestrian access was brought about by a concern to protect significant trees and to provide for a passing bay in the driveway, and resulted in the pedestrian access being located on the western side of the driveway and of necessity, cutting through the denser and steeper sections of the vegetation at the Highfield Road frontage of the appeal site.
D. EVALUATION OF THE PROPOSED DEVELOPMENT
44. In my evaluation of the proposal, I have assumed, in favour of the Applicant, that there is nothing in the operation of the mandatory provisions of SEPP No 5 that requires refusal of the development application. In so proceeding, it has not been necessary for me to resolve some issues on which the parties remained in dispute eg whether (depending on the method of calculation) the floor space ratio exceeded 0.5:1 or whether the height of the proposal satisfied the “less than 8 m” standard.
45. In this sense, my evaluation has been based entirely on the planning merits of the proposal.
46. The EP&A Act, s 79C(1) requires consideration of the following matters which are of relevance to the proposed development:-
(a) the provisions of:
(i) any environmental planning instrument;
This principally involves consideration of SEPP No 5 and cl 33(a) of the LEP.
(b) the likely impacts of the development
This principally involves consideration of the proposed development’s impact on (i) Paddy Pallin Reserve; (ii) the existing vegetation; (iii) the existing residence and grounds (as a suggested heritage item); and of the impact of the public opposition to the proposal;
(c) the suitability of the site for the development
This principally involves consideration of (i) the interrelation and interaction of the appeal site (with its environmental constraints) and the proposed development and (ii) the design qualities of the proposal for its intended purpose (ie as housing for older and disabled persons).
(e) the public interest
This principally involves consideration of the public objections to the proposed development.
47. In my evaluation of the proposed development, several of the aforesaid statutory considerations have, to some degree, overlapped with each other, and to a large degree the considerations referred to in (b) and (c) are comprehended by the consideration referred to in (a). This is not surprising, particularly in view of the comprehensiveness of the detailed provisions contained in SEPP No 5.
48. As I have earlier stated, in the present case, I have had the assistance of a considerable body of expert evidence and of lay evidence and of a very comprehensive view of the appeal site and its environs. I do not think it necessary to recite the full gamut of the wide ranging evidence. Instead, I confine myself to my findings on the evidence and my conclusions on the evaluation of the proposal.
49. Ultimately, my evaluation of the competing cases (including the competing evidence) has led me to conclude that the appeal site is not suitable for the proposed development, on account of what may be called relevant environmental constraints, which in my judgment, have not been successfully overcome by the design features of the proposal. Those environmental constraints do not only present a formidable obstacle for the designer and for the builder to seek to overcome, but perhaps even more importantly, some would present formidable difficulties for the residents of the development, once the developer had finished its task and left the scene. In particular, how older persons would effectively cope with towering trees in accessing the pedestrian boardwalk, and those located in very close proximity to their dwellings or effectively cope with the special demands of maintaining the extensive vegetation on the development site located in hardly accessible regions for older persons is difficult, if not impossible, to imagine.
50. My reasons for so concluding can be stated quite briefly.
51. Firstly, I consider the following to be significant environmental constraints—
(i.) The gully location and sloping topography of the appeal site;
(ii.) The highly vegetated condition of the appeal site and neighbouring sites situate to the east and west;
(iii.) The proximity of the appeal site to the watercourse and to Paddy Pallin Reserve;
(iv.) the tight geometry at the point of intersection of the driveway access to the appeal site with Highfield Road where it dips, narrows and curves.
(v.) The large size of the appeal site compared with the neighbouring residential lots;
(vi.) The much larger built form of the proposed development (especially its linear dimension traversing most of the depth of the lot) compared with neighbouring residential development (single detached housing);
(vii.) The location of the appeal site in relation to the nearest shopping etc facilities situate on the Pacific Highway at Lindfield (500 to 600 m distant) and the gradients of the routes for pedestrians to those facilities or to the closest public transport (200 m distant); and
(viii.) The possible heritage significance of the existing residence on the appeal site and its gardens.
52. The Applicant has obviously been well aware of those environmental constraints (save for the potential heritage significance of the appeal site which was only asserted and recognised immediately prior to the hearing). Its planning for the design and execution of the project has obviously sought to overcome these constraints. Despite these very genuine efforts (which have involved the assistance of considerable and wide ranging expertises), I do not think that the end result is an acceptable solution for the prime task of providing housing accommodation “particularly suitable” for older and disabled persons.
53. Even if it be accepted in favour of the Applicant’s case that its target market is the fit and mobile older person, I remain of the opinion that the end result does not provide particularly suitable housing even for that target group. They too would inevitably encounter a development that is not suitable to their particular needs.
54. Next, I consider the following matters to be significant problems in the design of the proposal—
(i.) The extensive site excavation required to provide the ground level;
(ii.) The poor solar access to the proposed dwellings, principally caused by topographical and vegetative impacts from the appeal site and from the adjoining sites (to the east and west) as well as the orientation of the development on the north/south axis;
(iii.) The very unsatisfactory pedestrian access to the development via the raised boardwalk through dense vegetation from Highfield Road.
(iv.) The unsatisfactory internal pedestrian circulation system involving significant problems of visual and aural privacy for residents.
55. In my judgment, and to employ the words of cl 9 of SEPP No 5, the proposed development does not provide housing that is “located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer and older people with a disability, regardless of their age”.
56. Even “independent, mobile and active” older people inevitably become “frailer” and I cannot conceive of such frailer persons finding the proposed housing to be particularly suitable to their living needs.
57. As is commonly encountered when a development site is fraught with a multitude of divergent environmental constraints, I have found that the present proposal does not resolve a number of intrinsic conflicts—eg in the joint objectives of maximising existing vegetation and maximising solar access. Similarly, its concern to protect privacy along its eastern boundary by planting dense and high boundary trees, exacerbating the problem of limited solar access for the dwellings. The appeal site, being itself highly vegetated and flanked by substantial vegetation on its entire eastern and western boundaries, cannot in truth be overcome by any design solutions for the development, which is linear in form along the north/south axis.
58. So far as external constraints are concerned, eg (i) aesthetic impact of the proposal on Paddy Pallin Reserve, (ii) gradients of the pedestrian routes to the Lindfield Shopping Centre or to the existing bus stop in Cook Road, it is obvious that there is limited scope for design solutions to overcome such constraints.
59. With particular reference to cl 33(a) of the LEP, I accept Professor Weirick’s opinion that the proposed development “will have a major (and unacceptable) impact in the bush atmosphere” of the southern section of Paddy Pallin Reserve which adjoins the appeal site along its entire western boundary. His reasons for that opinion were compelling, and were not diminished by the process of searching cross-examination.
60. My evaluation that the proposal provides unsuitable housing accommodation under SEPP No 5 on an unsuitable appeal site, also reflects my preference for the opinions proffered by the Councils expert witnesses.
61. At the hearing, considerable attention was directed to the question whether the appeal site had local heritage significance by virtue of the existing early 1930’s “Spanish Mission” style residence and its curtilage and the cultural or social history attaching to that existing development.
62. In this respect, I found Professor Weirick’s evidence to be very persuasive. His opinion that the existing residence and its curtilage had significant local heritage value was strongly contested by Mr Robert Staas, a heritage consultant, called by the Applicant. He too was an impressive expert witness with considerable expertise in heritage conservation. In fairness to him, he was called in late to answer the unheralded case that the appeal site had local heritage significance.
63. Ultimately, because of my overall evaluation of the development proposal, I have not found it necessary to adjudicate upon the rival opinions of Professor Weirick and Mr Staas. It is perhaps an unfortunate fact of timing that even the possibility of the appeal site possessing heritage significance has only come to light so very recently, virtually on the eve of the hearing of the case. I should note that upon receipt of Professor Weirick’s opinion on the heritage significance of the existing development on the appeal site, the Council has resolved to acknowledge the heritage significance of the site and to “commence preliminary procedures to further consider whether the item is to be included in the heritage list”. In so resolving, the Council acknowledged that such procedures could not, as a matter of timing, produce a result that would affect the outcome of the present appeal.
64. It is enough, perhaps, if I say that at the very least, Professor Weirick’s opinion was itself sufficiently cogent, to create a potential environmental constraint for the appeal site, by virtue of the possibility of the local heritage significance of the appeal site being ultimately vindicated and officially recognised, as a result of the conventional and rigorous established procedures for heritage listing.
65. Coming finally to consider the public interest” element of the case, I have earlier referred to the extensive objection raised against the proposal by some 40 neighbouring residents. Their written objections were received in evidence and was supplemented by oral testimony from two nearby residents, one being Mr Paddy Pallin’s son who lives at No 45 Highfield Road.
66. The significant extent of such opposition and the grounds for such opposition as revealed in the evidence, are in my opinion, matters of some weight. It is, in my judgment, perfectly understandable that residents living in a non-flat residential zone may wish to express concern about the character of the type and form of development proposed in the present case (which but for SEPP No 5 would be classified as a residential flat building). In the present case, the built form of the proposal with an excavated ground level having a linear dimension of some 80 m with two levels above containing three only slightly separated building modules, having themselves a collective linear dimension of nearly 70 m, is strikingly disparate from the prevailing character and built form of the neighbouring residential development in Highfield Road.
67. Although it may be accepted that SEPP No 5, by virtue of cl 14 purports to significantly reduce the planning discretion vested in the consent authority to refuse consent on some specific grounds (eg density or scale) where the proposal satisfies the relevant standards fixed by SEPP No 5 in that behalf, it would, in my judgment, be wrong to deduce from this fact, that resident objectors are precluded from objecting on these grounds, or that where they do, their objections count for nothing. More importantly, although it is not necessary in the present case to resolve the question, it must be regarded as an open question whether provisions such as cl 14 of SEPP No 5 can displace the entire operation of the EP&A Act s 79C(1). That section is the fundamental controlling factor in the evaluation of a development application and it is not lightly to be supposed that the Legislature intended the terms of an environmental planning instrument (a relevant consideration in terms of subsection (1)(a)(i)) to eclipse (even partially) other relevant considerations stipulated in s 79C(1) eg in the present case par (b), par (c) and par (e).
68. As a matter of fundamental legal principle, it is well established doctrine that absent the necessary enabling power, subordinate legislation cannot control or undermine the operation of the parent Act.
E. CONCLUSIONS AND ORDERS
69. For all the foregoing reasons, I make the following orders:
1. Appeal dismissed.
2. Development consent refused.
3. Exhibits be returned.
4. No order as to costs.
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(2 pages)
| IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES No. 10845 of 1999 THE WINTER GROUP PTY LTD Applicant KU-RING-GAI MUNICIPAL COUNCIL Respondent AMENDED STATEMENT OF ISSUES ABBOTT TOUT DX 129 Sydney T:\rkg\740661b.doc GLH 27/01/2000 | The Respondent says that the following issues will arise for determination at the hearing of this Appeal. 1. Whether the development is supported by the Department of Land and Water Conservation being Integrated Development requiring a Permit under Part 3A of the Rivers and Foreshores Improvement act 1948. 2. Non compliance with the provisions of SEPP No. 5 particularly with regard to:- Clause 12 - access to support services. Shops can only be accessed by walking up a steep hill over lengthy distance. Clause 13 - (a) (iv) - wheelchair access to common areas. Clause 14(c) - landscaped area provision. Clause 24 - (1), (2)(a), (2)(b) - Site Analysis. Clause 25 - (b)(i), (b)(ii) - visual and acoustic privacy. Clause 25- (c)(i), (c)(ii) - solar access, daylight, ventilation, design for climate, energy use. 3. Non compliance with Council’s Development Control Code 1/98 - Housing for Older People and People with a Disability with particular regard to tree retention, vehicular access, parking design, waste collection and support services. 4. The effect of the proposed development on the Endangered Ecological Community - Sydney Turpentine/Ironbark Forest and particularly:- |
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- 1. the failure of the Applicant to carry out the 8 point test required by Section 5A of the Environmental Planning and Assessment Act 1979 in respect of that community; and
2. the failure of the Applicant to prepare and lodge a Species Impact Statement SIS in respect of that community as required by Section 78A(8)(b) of the Environmental Planning and Assessment Act 1979.
5. Inadequacies of the proposed development having regard to tree preservation and landscaping treatment together with design suitability of the site.
6. The height/scale/bulk of the proposed development when viewed from Paddy Pallin Reserve and its impact on the amenity of the reserve pursuant to Clause 33 (a) of the Ku-ring-gai Planning Scheme Ordinance and the likely impacts of the proposed development on both the natural and built environments pursuant to clause 79(1)(b) of the Environmental Planning and assessment Act as amended 19 December 1997.
7. The impact of the development on the adjacent natural watercourse and the adequacy of flooding analysis information having regard to impervious surfaces and the 100 year flood line and the impact on existing trees and watercourse of the required stormwater detention system.
8. The suitability of the site for the proposed development because it is considered to be an overdevelopment with limited potential for north facing habitable rooms, solar access for windows and private open space, daylight for rooms along the creek side and breezes all because of the site’s topographical character and gully context.
9. Whether car parking provision is adequate having regard to design practicability and access to and form the site.
10.Whether the garbage room provision and the areas for servicing of the development by garbage collection vehicles is adequate.
11.Matters raised by resident objectors.
12.Circumstances of the case.
13.The public interest as reflected in the very large number of objections to the proposed development and the fact that the existing dwelling and garden have significant historical and cultural value.
DATED January 2000
T:\rkg\740661b.doc GLH 27/01/2000________________________
Richard Kenneth Graham
Solicitor for the Respondent
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