Baker v Gosford City Council

Land and Environment Court (NSW)|2004-04-16|Before: Bignold J, Mr P

The Applicant's development application which was lodged with the Council on 21 June 2002 was for the carrying out of housing development in terms of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP No 5).

Although the Applicant appealed to this Court against the Council's deemed refusal of the development application, the Council subsequently (on 2 July 2003) determined the application by refusing development consent.

On 27 February 2004, Gosford Local Environmental Plan No 443 (the LEP) came into force. It amended the Gosford Planning Scheme Ordinance (in the manner set out in Schedule 1) by inserting a new clause 49DJ. That clause applies to land described in subclause (1) which includes the land to which the Applicant's development application relates (the subject land).

The express aim of the LEP is stated in cl 2 as follows:

The aim of this plan is to specify particular matters that must be considered by the Council of the City of Gosford when determining development applications for the development of land to which this plan applies for purposes other than caravan parks, camping grounds, manufactured home estates or public utility undertakings.

The LEP applies to the land described in cl 3 which includes the subject land.

Clause 49DJ provides as follows: (1) This clause applies to the land described in the following table:

Tingari Village, Duffys Road, Terrigal Lot 4 DP 855688 Tingari Village South, Duffys Road, Terrigal Lot 5 DP 858444 Broadlands, Milpera Road, Green Point Lot 102 DP 1004383 Erina Gardens, Karalta Road, Erina Lot 71 DP 565112 Karalta Court, Karalta Road, Erina Lot 2 DP 1030621 Avoca Beach, The round Drive, Avoca Part of Lot 6 DP 826812, as shown distinctively coloured on Sheet 1 of the map marked Gosford Local Environmental Plan No 443

The Palms, Carolina Park Road, Avoca Part of Lot 1 DP 1007206, as shown distinctively coloured on Sheet 1 of the map marked Gosford Local Environmental Plan No 443 and Lot 2 DP 235499

(2) The objectives of this clause are to: (a) ensure the social and economic wellbeing of residents of caravan parks and manufactured home estates at risk of displacement due to redevelopment of caravan parks and manufactured home estates, and (b) encourage the retention of caravan parks and other forms of low-cost accommodation on certain land in the Gosford local government area, and (c) prevent development which would result in a loss of low-cost accommodation on that land unless sufficient comparable accommodation is available elsewhere in the Gosford local government area. (3) This clause applies to a development application for the carrying out of development on land to which this clause applies for a purpose other than: (a) a caravan park; or (b) a camping ground, or (c) a manufactured home estate, or (d) a public utility undertaking, or (e) development that is ancillary to a caravan park, camping ground, manufactured home estate or public utility undertaking. (4) Notwithstanding any other provision of this Ordinance, the consent authority must not grant consent to a development application to which this clause applies unless it has taken into account the following matters in deciding whether or not to grant consent to the application: (a) whether the proposed development is likely to reduce the availability of low-cost accommodation on the land to which the development application relates, (b) whether there is sufficient available comparable accommodation in the Gosford local government area to satisfy demand for such accommodation in that local government area, (c) whether the development, if carried out, is likely to cause adverse social and economic effects on the people who live on the land the subject of the application (if any), or on the general community, (d) whether adequate arrangements have been made to assist people who live on the land the subject of application (if any), to find alternative comparable accommodation in the Gosford local government area, (e) whether the cumulative impact of the loss of low-cost accommodation in the Gosford local government area will result in a significant reduction in the stock of that accommodation. (5) The consent authority must not grant consent to a development application to which this clause applies unless satisfied that accommodation is available in the Gosford local government area that: (a) is sufficient to accommodate the maximum number of people capable of being accommodated by existing development on the land the subject of the development application at any point in the 12 months preceding the commencement of Gosford Local Environmental Plan No 443, and (b) is comparable to the accommodation that was provided on that land in relation to price, facilities, services and type of tenure. (6) This clause ceases to have effect two years from the date on which it commenced. (7) In this clause: manufactures home means a self-contained dwelling (that is, a dwelling that includes at least 1 kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling: (a) that comprises 1 or more major sections that are each constructed, and assembled, away from the manufactured home estate and transported to the estate for installation on the estate, and (b) that is not capable of being registered under the Road Transport (Vehicle Registration) Act 1997, and includes an associated structures that form part of the dwelling. Manufactured home estate means land on which manufactures homes are, or are to be, erected.

Although SEPP No 5 was repealed by State Environmental Planning Policy (Seniors Living) 2004, cl 5(1) which came into force on 31 March 2004 (vide Government Gazette No 67 of 31 March 2004), the following transitional provision is included in the latter instrument:

6 Transitional provisions relating to certain development applications and development

(1) Despite clause 5(1), State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability as in force immediately before its repeal continues to apply to and in respect of the following as if it had not been repealed:

(a) any development application made under that Policy on or before 18 February 2004, but not finally determined before the commencement of this Policy, and

(b) any development application, whether made before or after the commencement of this Policy, that relates to development for which a development consent was granted under the Policy as referred to in section 80(4) of the Act, and

(c) the carrying out of any development for which development consent was granted under the Policy before its repeal or that is granted under the Policy (as continued in force by this subclause).

SEPP No 5 which came into force 14 February 1998 (cl 2) expresses the following aims (cl 3):

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

(a) setting aside local planning controls that would prevent the development of housing for older people or people with a disability that meets the development standards specified in this Policy; and

(b) ensuring that applicants and councils take into consideration the level of additional demand for support services for older people or people with a disability in the council's area to be generated by the development when preparing and assessing development applications that are affected by this Policy; and

(c) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and location.

SEPP No 5 applies to lands described in cl 4 as follows:

4 (1) This Policy applies to land within New South Wales:

(a) that is zoned primarily for urban purposes, or that adjoins land zoned primarily for urban purposes; and

(b) on which development for the purpose of any of the following is permitted:

(iv) development of a kind identified in respect of land zoned for special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries.

(a) land described in Schedule 1 (Environmentally sensitive land); or

(b) the land to which Sydney Regional Environmental Plan No 17 -- Kurnell Peninsula applies.

The relationship between SEPP No 5 and other environmental planning instruments is expressed by cl 5 as follows:

5 (1) This Policy repeals State Environmental Planning Policy No 5 -- Housing for Aged or Disabled Persons.

(2) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.

(3) This Policy does not affect a provision in another environmental planning instrument that relates to the demolition of a heritage item.

Part 2 of SEPP No 5 which is headed "Development Criteria" include the following provisions:

9 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.

10 This Part allows development for the purpose of any form of housing for older people or people with a disability, despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with this Policy.

11 Development allowed by this Part may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.

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

(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 400metres 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 400metres 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).

(2A) The consent authority must not consent to a development application made pursuant to this Part to carry out development on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:

(2B) The consent authority must not consent to a development application made pursuant to this Part to carry out development on land identified on a bush fire prone land map certified under section 146 of the Act as Bush fire prone land -- vegetation category 2'' or Bush fire prone land -- vegetation buffer'' unless the consent authority is satisfied that the development complies with the requirements of the document titled Planning for Bushfire Protection , ISBN 0 9585987 8 9, published by Planning & Environment Services, NSW Rural Fire Service in co-operation with the Department of Planning, dated December 2001.

(2C) The consent authority, in determining a development application made pursuant to this Part to carry out development on land in the vicinity of land identified on a bush fire prone land map certified under section 146 of the Act as Bush fire prone land -- vegetation category 1'', Bush fire prone land -- vegetation category 2'' or ``Bush fire prone land -- vegetation buffer'', must take into consideration the general location of the proposed development, the means of access to and egress from the general location and other relevant matters, including the following:

(a) the size of the existing population within the locality,

(b) age groups within that population and the number of persons within those age groups,

(c) the number of hospitals and other facilities providing care to the residents of the facilities within the locality, and the number of beds within those hospitals and facilities,

(d) the number of schools within the locality and the number of students at those schools,

(e) existing development within the locality that has been carried out under this Policy,

(f) the road network within the locality and the capacity of the road network to cater for traffic to and from existing development if there were a need to evacuate persons from the locality in the event of a bush fire,

(g) the adequacy of access to and from the site of the proposed development for emergency response vehicles,

(h) the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site,

(i) the requirements of New South Wales Fire Brigades.

(2D) In exercising its functions under subclause (2C), the consent authority must consult with the NSW Rural Fire Service and have regard to its comments.

The consent authority must be satisfied that any facility or service provided as a part of the development will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionately according to the number of residents in each stage.

(a) 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 the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.

(b) Where the water and sewerage services referred to in subclause (4)(a) will be provided by a person other than the consent authority, the consent authority must consider the suitability of the site with regard to the availability of reticulated water and sewerage infrastructure. In locations where reticulated services cannot be made available, the consent authority must satisfy all relevant regulators that the provision of water and sewerage infrastructure, including environmental and operational considerations, are satisfactory for the proposed development.

A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause.

(2) Height in zones where residential flat buildings are not permitted

If the development is proposed in a residential zone where residential flat buildings are not permitted:

(a) the height of all buildings in the proposed development must be 8 metres or less; and

(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height.

A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause.

(i) if the whole of the site has a gradient of less than 1:10, 100% of the hostel or residential care facility beds and 100% of the dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents; or

(ii) if the whole of the site does not have a gradient of less than 1:10, a percentage (which is not less than the proportion of the site that has a gradient of less than 1:10, or 50%, whichever is the greater, and which in this subparagraph is called the specified minimum percentage) of any hostel or residential care facility beds and the specified minimum percentage of any dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents; and

(b) road access: at least 10% of any hostel or residential care facility beds and at least 10% of any dwellings which meet the requirements of paragraph (a) must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road; and

(c) common areas: access must be provided so that a person using a wheelchair can use common areas and common facilities associated with the development; and

(d) adaptability: 10% of any hostel or residential care facility beds and 10% of any dwellings which meet the requirements of paragraph (a) must also have, or be capable of being modified so that they have, wheelchair access by a continuous path of travel (within the meaning of AS 1428) to all essential areas and facilities inside the hostel, residential care facility or dwellings, including a toilet, bathroom, bedroom and a living area.

If the site includes more than one street, street signage incorporating house numbers must be provided at each intersection.

(a) must be positioned at low height to avoid glare; and

(b) must be located together in a central location adjacent to the street entry; and

(c) must be situated on a hard standing area and have wheelchair access by a continuous path of travel (within the meaning of AS 1428).

If car parking (not being car parking for employees) is provided:

(a) each car parking space must be not less than 6 metres X 3.2 metres or the design of the development must be such as to enable the size of the car parking space to be increased to an area of not less than 6 metres X 3.2 metres; and

(b) any garage or carport must have an internal clearance of at least 2.5 metres as measured from the finished floor level of the garage or carport; and

(c) any garage must have a power-operated roller door, or there must be a power point and an area for motor or control rods to enable a power-operated door to be installed at a later date.

Every entry (whether a front entry or not) to a hostel, residential care facility or dwelling, not being an entry for employees:

(b) must comply with clauses 4.3.1 and 4.3.2 of AS 4299; and

All external doors to any one dwelling must be keyed alike.

Internal doors must have a clearance of at least 820 millimetres.

Internal corridors must have a width of at least 1 000 millimetres.

The width at internal door approaches must be at least 1 200 millimetres.

A living room in a self-contained dwelling must have:

(b) a telephone adjacent to a general power outlet.

A living room and dining room must have a potential illumination level of at least 300 lux.

(a) a width of at least 2.7 metres and a clear space between benches of at least 1 450 millimetres; and

(b) a width at door approaches of at least 1 200 millimetres; and

(ii) the height of which can be adjusted from 750millimetres to 850millimetres; and

(i) that is located within 300millimetres of the front of the sink; and

(ii) that is a capstan tap set or that comprises lever handles or a lever mixer; and

(e) a thermostatic mixing valve for the hot water outlet; and

(ii) with controls that have raised cross bars for ease of grip; and

(g) a worksurface adjacent to the cook top and at the same height and that is at least 800 millimetres in length; and

(h) an oven that is located adjacent to a worksurface the height of which can be adjusted; and

(i) ``D'' pull cupboard handles that are located towards the top of below-bench cupboards and towards the bottom of overhead cupboards; and

(i) at least one of which is a double general power outlet within 300millimetres of the front of a worksurface; and

(ii) one of which is provided for a refrigerator in such a position as to be easily accessible after the refrigerator is installed.

At least one bedroom within a self-contained dwelling must have:

(a) an area sufficient to accommodate a wardrobe and a queen-size bed with a clear area at least 1 200 millimetres wide at the foot of the bed; and

(b) 2 double general power outlets on the wall where the head of the bed is likely to be; and

(d) a telephone outlet next to the bed on the side closest to the door and a general power outlet beside the telephone outlet; and

(e) a potential illumination level of at least 300 lux.

(i) the recess of which is at least 1160millimetres X 1100millimetres, or that complies with AS1428, or that complies with clause4.4.4 and Figures4.6 and 4.7 of AS4299; and

(iii) that is waterproofed in accordance with AS3740; and

(iv) the floor of which falls to a floor waste; and

(v) that can accommodate a grab rail that complies with Figure4.6 of AS4299 and AS1428; and

(vi) that has a tap set that is a capstan tap set or that comprises lever handles and that has a single outlet; and

(vii) that has the tap set positioned so as to be easily reached from the entry to the shower; and

(viii) that can accommodate an adjustable, detachable hand-held shower rose mounted on a slider grab rail or a fixed hook; and

(ix) that can accommodate a folding seat that complies with Figure4.6 of AS4299; and

(d) thermostatic mixing valves for all hot water outlets; and

(e) a washbasin with clearances that comply with Figure 4.4 of AS 4299; and

(f) a wall cabinet that is sufficiently illuminated to be able to read the labels of items stored in it; and

(h) a double general power outlet beside the mirror.

(a) that is a visitable toilet within the meaning of clause 1.4.12 of AS 4299; and

(b) that is installed in compliance with AS 1428; and

(d) the WC pan of which is located from fixed walls in accordance with AS 1428; and

(e) that can accommodate a grab rail that complies with Figure 4.5 of AS 4299 and AS 1428.

(15) Access to kitchen, main bedroom, bathroom and toilet

(a) the kitchen, main bedroom, bathroom and toilet must be located on the ground floor; or

(b) if the kitchen, main bedroom, bathroom and toilet are not located on the ground floor, the ground floor living space must be able to be altered so as to accommodate them; or

(c) if the kitchen, main bedroom, bathroom and toilet are located on a floor above the ground floor, the stairs to the higher floor:

(i) must be equipped with a stair climber that is capable of being used by a person in a wheelchair; or

(ii) must be sufficiently wide to enable the installation of a stair climber that is capable of being used by a person in a wheelchair.

(a) that has provision for the installation of an automatic washing machine; and

(b) that has provision for the installation of a clothes dryer; and

(d) that has thermostatic mixing valves for all hot water outlets; and

(f) that has an accessible path of travel to any clothes line provided in relation to the dwelling.

A self-contained dwelling must be provided with a linen cupboard:

Door hardware provided as the means for opening doors must be:

(b) located between 900 millimetres and 1 100 millimetres above floor level.

Balconies and external paved areas must have slip-resistant surfaces.

Switches must be located between 900 millimetres and 1 100 millimetres above floor level.

General purpose outlets must be located at least 600 millimetres above floor level.

An outside garbage storage area must be provided in an accessible location.

Despite the provisions of subclauses (2) and (9)-(20), a dwelling, or part of a dwelling, that is located above the ground floor in a multi-storey building does not have to comply with the requirements of those subclauses if the development application is made by, or by a person jointly with, the Department of Housing or a local government or community housing provider.

Standards which cannot be used as grounds for refusal

14 The consent authority must not refuse consent to a development application under this Part on the grounds of:

(a) building height: if all proposed buildings are 8 metres or less in height; or

(b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is:

(i) 0.5:1 or less, except as provided by subparagraph(ii); or

(ii) 0.75:1 or less for hostels and residential care facilities located within 400metres walking distance of a public transport node (being a public transport facility such as a railway station, bus stop, or ferry wharf, that operates from Monday to Friday (both days inclusive) in daylight hours); or

(c) landscaped area: if a minimum of 35m2 of landscaped area per dwelling and 25m2 of landscaped area per hostel or residential care facility bed is provided; or

(d) parking: if at least the following is provided:

(i) in the case of a hostel or residential care facility, at least:

1 parking space for each 10 beds in the hostel or residential care facility; and

1 parking space for each 2 persons to be employed in connection with the development and on duty at any one time; and

0.5 car spaces for each bedroom where the development application is made by a person other than the Department of Housing or a local government or community housing provider; or

1 car space for each 5 dwellings where the development application is made by, or is made by a person jointly with, the Department of Housing or a local government or community housing provider; or

(e) visitor parking: if, in the case of development that comprises less than 8 dwellings and is not situated on a clearway, no visitor parking is provided within the development; or

(f) landscaped areas: if, in relation to that part of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed, there is soil of a sufficient depth to support the growth of trees and shrubs on an area (preferably located at the rear of the site) of not less than the width of the site multiplied by 15% of the length of the site; or

(i) in the case of a single storey dwelling or a dwelling that is located, wholly or in part, on the ground floor of a multi-storey building, not less than 15square metres of private open space per dwelling is provided and, of this open space, one area is not less than 3metres wide and 3metres long and is accessible from a living area located on the ground floor; and

(ii) in the case of any other dwelling, there is a balcony with an area of not less than 6square metres, that is not less than 1.8metres in length and that is accessible from a living area.

Part 3 of SEPP No 5 which is headed "Design Requirements" contains the following provisions:

20 The objective of this Part is to establish a process that encourages good design in residential development allowed by this Policy.

21 This Part applies to development that is allowed to be carried out with development consent by this Policy.

22 This Part applies when a consent authority is determining an application for consent to the carrying out of development to which this Part applies.

23 This Part requires certain design aspects to be taken into account when a consent authority considers an application for consent for the carrying out of development to which this Part applies.

24 (1) Consent must not be granted for development to which this Part applies unless the consent authority has taken into account a site analysis prepared by the applicant in accordance with this clause.

(a) contain information, where appropriate, about the site and its surrounds as described in Schedule 2 (Site analysis); and

(b) be accompanied by a written statement (that may be supported by drawings):

(i) explaining how the design of the proposed development has regard to the site analysis; and

(ii) explaining how the design of the proposed development has regard to the principles set out in clause25.

25 Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:

(a) Neighbourhood amenity and streetscape: The proposed development should:

(i) contribute to an attractive residential environment with clear character and identity; and

(ii) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan; and

(iii) where possible, maintain reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing; and

(iv) where possible, maintain reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site's land form; and

(v) where possible, maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible in scale with adjacent development; and

(vi) where possible, maintain reasonable neighbour amenity and appropriate residential character by considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours; and

(vii) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line; and

(viii) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape.

(b) Visual and acoustic privacy: The proposed development should, where possible, consider the visual and acoustic privacy of neighbours in the vicinity and residents by:

(i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping; and

(ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings by locating the living and sleeping areas away from driveways, parking areas and paths.

(i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space; and

(ii) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.

(d) Stormwater: The proposed development should, where possible:

(i) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas; and

(ii) include, where practical, on-site stormwater detention or re-use for second quality water uses; and

(iii) be designed with regard to the scope for on-site infiltration of water by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas.

(e) Crime prevention: The proposed development should, where possible, provide personal property security for residents and visitors and encourage crime prevention by:

(i) site planning that allows, from inside each dwelling, general observation of the street, the site and the approaches to the dwelling's entry; and

(ii) providing shared entries that serve a small number of dwellings and are able to be locked; and

(iii) providing dwellings designed to allow residents to see who approaches their dwellings without the need to open the front door.

(f) 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

At a glance

Court

Decision date

Before

Source

Judgment (270 paragraphs)

Parties

Cases Cited (8)

Cited By (1)