Asset Based Securities Pty Limited v Hornsby Shire Council

Some of the evidence led suggests that the footpath provision between the site and Beecroft is inadequate, unsafe, unreliable, uneven, and generally unsuitable for people who may not have full mobility. However, the Court is satisfied that if that does prove to be a real problem it will not amount to a preclusion. One of the bus services has a stop immediately outside the premises. Furthermore, I am not entirely satisfied that the difficulties claimed in relation to access to the second bus stop are such that any person over the age of 55 is literally taking their life in their hands in order to use it.

As I have already said, this is not an ideal site but the test is not that the site be perfect. The test is firstly, whether the Court is precluded from granting consent as a consequence of cl 12. Once that hurdle is bridged, or overcome, then the Court needs to be satisfied that there is a reasonable opportunity for those persons who are within the contemplation of SEPP 5 to have access to not just their minimum daily requirements but their reasonable daily requirements.

It was appropriate for the council to raise the issue. Until I fully understood the extent of the bus service, and the ambit of it, the inclination I had was that the separation from an area such as Beecroft railway station and the shops associated with it was such that this location was unsatisfactory. Full appreciation of the bus service and the extent of it has satisfied me that, although not perfect, it is enough.

I know that SEPP 5 developments have been a matter of controversy for some time. It has not been the task of the Court on this occasion to confront many of the issues that arise from development applications for this type of development following the narrowing of the issues.

I reiterate, however, that I am not altogether satisfied that SEPP 5, in its present form, is as effective as those who drafted it may have intended. On the face of the instrument itself there are quite severe shortcomings of definition, application and control. No doubt those matters may arise as time passes by in other contexts; even in other development applications.

I propose to make an order in this case that the subject development application be determined by the granting of consent, subject to conditions, generally in accordance with exhibit 7, except for conditions 1, 2 and 3, which are recognised by both parties and the Court as being totally unsatisfactory. They are particularly unsatisfactory in light of the reservations that I have expressed in regard to the lack of any control imposed by SEPP 5 once development consent is granted.

Now it may be that the apprehension expressed by the Court is misconceived. When the matter is more fully analysed, explained and understood that apprehension may be allayed. I am encouraged, nevertheless, by the fact that the council has sought to draft conditions 1, 2, and 3 in exhibit 7 as if the Court's apprehension is entirely justified. The controls, constraints, and directions that are contained in those conditions fill, what I perceive to be, the void in the provisions of the planning instruments.

It has been agreed between the parties that further consideration must be given to the first three conditions of consent. Accordingly, the parties are granted leave to bring in an agreed set of conditions within fourteen days or either party is given leave to re-open within 14 days. Upon default the development application will be determined by refusal of consent. The intention of that self-executing order is to ensure that either the conditions are brought in within the 14 days or one or other of the parties makes an application within 14 days. If neither of those things happen the development application will be refused.

It is appropriate for the exhibits to be returned. They can be resubmitted if it becomes necessary to do so at a further hearing. I return the exhibits.

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