Bennett v Northern Beaches Council

Land and Environment Court (NSW)|2022-12-05

Judgment

COMMISSIONER: In a residential street known as The Circle, in Narraweena, Mr Bennett seeks development consent to construct a boarding house containing 10 double rooms and two single rooms, which each include a bathroom and kitchenette. He lodged the development application with Northern Beaches Council (the Council) on 29 March 2021, and it was refused on 2 June 2021. These proceedings are an appeal against that decision, lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
At the commencement of the hearing, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000), the Council agreed to an amendment to the development application to incorporate a revised ground floor plan that includes two gates which will provide access to the adjacent public park.
The Council remains opposed to the grant of development consent on the basis that the site, the subject of the development application, is not located in an area that has adequate access to public transport, facilities and services. For the reasons that are set out below, I find that this contention does not warrant refusal of the development application. There is no requirement for a boarding house to be located a specified distance from public transport, facilities and services, and the proposed development is in a location with adequate paths of travel to various facilities, services and bus routes.

The planning framework

The site is zoned R2 Low Density Residential pursuant to the Warringah Local Environmental Plan 2011 (WLEP). The objectives of the zone, which are required to be considered when determining a development application, are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.
At the time the development application was lodged, boarding houses were a nominated permissible use in the zone, and the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) was in force. Whilst boarding houses are now prohibited in the R2 Low Density Residential zone, the savings provision in Sch 7A of the State Environmental Planning Policy (Housing) 2021 applies such that the SEPP ARH continues to apply to the development application that is before the Court. The proposed development is therefore permissible pursuant to the SEPP ARH, as in force immediately before its repeal.
Pursuant to cl 4(2) of the SEPP ARH, a word or expression in the SEPP ARH has the same meaning as it has in the standard instrument "as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011". The definition of boarding house is therefore as follows: boarding house means a building: (a) that is wholly or partly let in lodgings, and (b) that provides lodgers with a principal place of residence for 3 months or more, and (c) that may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) that has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers, but does not include backpackers' accommodation, a group home, a serviced apartment, seniors housing or hotel or motel accommodation.
Division 3 of Part 2 of the SEPP ARH concerns boarding houses. Clause 28 makes development for the purposes of boarding houses permissible with consent in a number of zones specified in cl 26, including the R2 Low Density Residential zone.
Clause 29 of the SEPP ARH sets out standards for boarding houses that cannot be used to refuse consent, cl 30 contains standards that must be met, cl 30AA limits the number of boarding rooms for a boarding house in the R2 Low Density Residential zone to 12, and cl 30A requires consideration of compatibility with the character of the local area. However, cl 26(2) of the SEPP ARH provides that "clauses 29, 30 and 30A do not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area." There is a dispute with respect to whether the land is within an accessible area. Accessible area is defined as follows: accessible area means land that is within - (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.
Clause 29 sets out a number of grounds on which consent cannot be refused if certain criteria are met. It provides, at cl 29(2): 29 Standards that cannot be used to refuse consent (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if: (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
There is no issue raised by the Council with respect to the development meeting the "must not refuse" criteria in cl 29 of the SEPP ARH concerning building height, landscaped area, solar access, private open space, parking and accommodation size.
Clause 30 of the SEPP ARH sets out some standards for boarding houses that must be met, otherwise the consent authority "must not consent" to the development. These requirements concern the provision of a communal living room, the maximum size and occupancy of a boarding room, the provision of bathroom and kitchen facilities, the requirement for a manager's room, and requirements for motorcycle and bicycle parking. The Council agrees that each of those standards are met.
Clause 30AA of the SEPP ARH precludes the grant of development consent for a boarding house in the R2 Low Density Residential zone if the boarding house has more than 12 boarding rooms. The proposed development has no more than 12 boarding rooms.
Clause 30A of the SEPP ARH also prevents a consent authority from consenting to a development "unless it has taken into consideration whether the design of the development is compatible with the character of the local area." The Council raises no issue concerning the design of the development, and the evidence is that it is compatible with the character of the local area.
As set out above, cll 29, 30 and 30A only apply in the event that I accept that the site is within an accessible area. If I do not accept that the site is within an accessible area, those clauses do not apply.
The Warringah Development Control Plan 2011 (WDCP) also applies. One of the objectives of the WDCP is to "provide a high level of access to and within development". Section A.6 sets out certain requirements about which the consent authority must be satisfied prior to the grant of development consent, as follows: "Before granting consent for development the consent authority must be satisfied that the proposed development: Satisfies all applicable requirements of the Warringah Local Environmental Plan 2011. Meets the general and individual section objectives of the DCP. Complies with the built form controls (objectives and requirements) contained in Part B of this DCP. Is consistent with the relevant objectives and requirements in Part C Siting Factors, Part D Design, Part E The Natural Environment and Part F Zones & Sensitive Areas of the DCP. Complies with the requirements for the specified area in Part G of the DCP, if applicable. Strict compliance with the numerical requirements of the DCP does not guarantee development consent. The proposed development must also meet the objectives of the DCP."
The Council relies on one of the objectives in D18 Accessibility and Adaptability and the objective and controls in D20 Safety and Security. They each provide as follows: D18 Accessibility and Adaptability Applies to Land This control applies to all development for • non-residential purposes on land in relation to the Accessibility Requirements of this section • residential purposes on land in relation to the Adaptability Requirements of this section to which Warringah Local Environmental Plan 2011 applies. Objectives • To ensure vehicular access points for parking, servicing or deliveries, and pedestrian access are designed to provide vehicular and pedestrian safety. • To ensure convenient, comfortable and safe access for all people including older people, people with prams and strollers and people with a disability. • To provide a reasonable proportion of residential units that should be designed to be adaptable and easily modified to promote 'ageing in place' and for people with disabilities. Requirements 1. The design is to achieve a barrier free environment with consideration given to the design of door handles and switches, entrances and corridors. Steep, rough and slippery surfaces, steps and stairs and narrow paths should be avoided. 2. There are to be continuous, independent and barrier-free access ways incorporated into the design of buildings. 3. Pathways are to be reasonably level with minimal cross fall and sufficient width, comfortable seating and slip-resistant floor surfaces. 4. Where there is a change of level from the footpath to commercial or industrial floor levels, ramps rather than steps should be incorporated. 5. There is to be effective signage and sufficient illumination for people with a disability. 6. Tactile ground surface indicators for the orientation of people with visual impairments are to be provided in accordance with the relevant Australian Standard. Requirements 7. Access for people with a disability is to be provided at the main entrance to the development. 8. Development is to comply with Australian Standard AS1428.2. Requirements 9. Where a development comprises at least five (5) dwellings, 10% (rounded up to next whole number) of dwellings shall be capable of being adapted (Class C) under AS4299 D20 Safety and Security Applies to Land This control applies to land to which Warringah Local Environmental Plan 2011 applies. Objectives • To ensure that development maintains and enhances the security and safety of the community. Requirements 1. Buildings are to overlook streets as well as public and communal places to allow casual surveillance. 2. Service areas and access ways are to be either secured or designed to allow casual surveillance. 3. There is to be adequate lighting of entrances and pedestrian areas. 4. After hours land use activities are to be given priority along primary pedestrian routes to increase safety. 5. Entrances to buildings are to be from public streets wherever possible. 6. For larger developments, a site management plan and formal risk assessment, including the consideration of the 'Crime Prevention through Environmental Design' principles may be required. This is relevant where, in Council's opinion, the proposed development would present a crime, safety or security risk. See Crime Prevention and Assessment of Development Applications - Guidelines under Section 79C of the Environmental Planning and Assessment Act 1979 prepared by the Department of Urban Affairs and Planning (now Department of Planning). 7. Buildings are to be designed to allow casual surveillance of the street, for example by: a) Maximising the glazed shop front on the ground level so that views in and out of the shop can be achieved; b) Providing openings of an adequate size in the upper levels to maximise opportunities for surveillance; c) Locating high use rooms to maximise casual surveillance; d) Clearly displaying the street number on the front of the building in pedestrian view; and e) Ensuring shop fronts are not obscured by planting, signage, awnings and roller shutters. 8. Casual surveillance of loading areas is to be improved by: a) Providing side and rear openings from adjacent buildings that overlook service areas and clear sight lines; and b) Providing adequate day and night lighting which will reduce the risk of undesirable activity. 9. Design entrances to buildings from public streets so that: a) Building entrances are clearly identifiable, defined, lit and visible; b) The residential component of a shop top housing development has a separate secure pedestrian entrance from the commercial component of the development; c) Main entrances are clearly identifiable; d) Pavement surfaces and signage direct pedestrian movements; and e) Potential conflict between pedestrians and vehicles is avoided.

The evidence of resident objectors

The development application was publicly exhibited from 7 to 21 April 2021, and 31 public submissions were received. In addition, a number of residents spoke at the commencement of the site inspection. The issues raised in the written submissions and orally at the site inspection can be summarised as follows:

Safety and security concerns regarding the demographic of residents that would occupy the boarding house development.
Impact of visual privacy and overlooking of the adjoining properties and those using the public reserve.
Insufficient car parking.
Traffic safety concerns due to the location of the driveway and increased parked cars on the street.
Whether a boarding house is appropriate for the R2 Low Density residential zone and in character with the community.
Whether the site is suitable for a boarding house given the distance to the nearest bus stop, and given that access through the park to a bus stop can't be relied upon due to park regularly becoming water logged after rain events.

Contrary to the submissions made, there is no evidence that the proposed development will have an unacceptable impact on privacy, traffic or the security or safety of other residents in the area. To the contrary, the assessment report prepared by Mr Jordan Davies (Ex 2 Tab 5) confirms that the proposed development complies with the relevant provisions in the WDCP concerning privacy. In addition, the traffic engineer who considered the development application in the Council's original assessment concluded that "the proposed additional traffic generation is not considered to have significant impact on the road network" and "the proposed parking provision satisfies the parking requirements" (Ex 2 Tab 4). This is not contradicted by any other evidence to the contrary. The traffic engineer also specifies the requirements that will enable adequate sight lines to accommodate the bend on which the driveway is located, which have been accommodated in the conditions of consent.
Similarly, the assessment by Mr Davies in the assessment report (Ex 2 Tab 5) considers the character of the local area and reaches the conclusion that the design of the proposed development is compatible with the character of the local area, consistent with the consideration required by cl 30A of the SEPP ARH. I accept that conclusion, which is uncontradicted by any other evidence.
Therefore, none of the issues raised by the local residents warrant refusal of the development application. Further below, I consider the suitability of the site for a boarding house having regard to the distance to the bus stop.

The expert evidence

Expert evidence on the paths of travel from the site to various services, and whether those paths of travel are acceptable, was given by Mr Davies, the town planner employed by the Council who was the officer responsible for assessing the original development application, and Mr Michael Haynes, a town planner engaged by Mr Bennett. They gave their evidence in a joint report, and were cross-examined in court.
Whereas Mr Davies opines that the site is not suitable for the proposed development on the basis that it is not in a location that provides a high level of access to public transport to serve the future residents of the boarding house, Mr Haynes opines that the proposed development is appropriate on the site and has adequate access to a variety of facilities and public transport services.

The paths of travel from the site to various services

The bus stops closest to the site are on McIntosh Road, which are within a walking distance of between 299m and 505m, depending on which route is taken. Those bus stops are serviced by two bus routes that have a bus at least every 20min, and provide a journey of 4 minutes to Dee Why, 9 minutes to Brookvale and 8 minutes to the Northern Beaches Hospital. The various walking routes to the bus stops are shown in Figure 2. I note that Figure 2 is taken from the distances considered in the joint report (Ex 3), rather than the distances in Ex F, which are different.
The shortest walking route to the bus stop is 287.6m, walking through Beverley Job Park, including a length of 228m that does not have a footpath. Mr Haynes considers that the most likely route to be walked would be routes 2 and 2B, either diagonally through the park or around its edges. Route 2B was walked as part of the site inspection. Those walking routes have portions where there is no footpath, 187m for route 2 and 171m for route 2B.
For someone who wanted to walk predominantly on footpaths to the bus stop, walking route 5 is available and is 505m.
In addition to the routes shown in Figure 2, McIntosh Road can also be accessed by a footpath from Beverley Job Park to Mundara Place, and along the footpath in Mundara Place.
There are also two neighbourhood retail centres that can be accessed by walking from the site. The Narraweena neighbourhood retail centre is around 500m walk from the site, to the west of bus stop B, and can be accessed by the walking route through Mundara Place or by the same walking routes as those in Figure 2 that access bus stop B. This retail centre includes a supermarket, fruit and vegetable store, pharmacy, a newsagency, delicatessen, gymnasium, restaurant, café and bottle shop. There is a child care centre, a public primary school and a Catholic primary school also located in close proximity. Figure 3 shows the walking route through Mundara Place to the Narraweena neighbourhood retail centre.
To the south of the site is the May Road retail centre at the intersection of Warringah Road and May Road. It is around 500m walking distance, depending on how the route is measured, and features a mix of businesses including a grocery, delicatessen, cafés, restaurants, take away outlets and a hair dresser. There are also bus stops on Warringah Road in close proximity to the retail centre, which provide access to regular bus routes to Warringah Mall, Chatswood and Dee Why. Figure 4 shows the route and distance from the site to the May Road retail centre. The walking route is mostly along a footpath, except for a small portion of the route from the site to 33 The Circle.
The routes through Beverley Job Park do not benefit from street lighting, although the fields on Beverley Job Park may be lit from time to time. In addition, the evidence is that Beverley Job Park retains water for periods after rain events, such that it can be impractical to use following a heavy rain event, with some areas affected by water retention for a few weeks after such an event.

The Council's position that the site is not suitable for the development

The Council's contention is that the site is not suitable for the development, on the basis that it is not in an area that has adequate access to public transport, facilities and services.
The contention is largely founded on the basis that the walking routes identified by Mr Bennett as being less than 400m require traversing areas that don't have footpaths, that do not have consistent lighting, and that are subject to flooding and water inundation. As such, the Council says that these routes are inconsistent with the definition of "walking distance", which requires "a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings".
The Council's position is that the pedestrian routes that meet the definition of "walking distance" are longer than 500m, which is not consistent with the definition of "accessible area" in the SEPP ARH and is also contrary to the objective in clause A.5 of the WDCP to "provide a high level of access to and within development". Further, the Council says that reliance on walking through a public reserve without a paved path and without consistent lighting, together with accessing that route from a rear gate, is contrary to the objective in D20 of the WDCP to "ensure that development maintains and enhances the security and safety of the community" or in D18 to "ensure convenient, comfortable and safe access for all people including older people, people with prams and strollers and people with a disability".
This contention is supported by the evidence of Mr Davies, who opines that the route to the bus stop through Beverley Job Park would not be "practicable, comfortable or safe" following a heavy rain event and that no reasonable person would choose to walk through the park on days where there is standing water within the park. This evidence is supported by videos of the ground conditions in the park on 29 April 2022, following rainfall in early April. Mr Davies also considers that the lack of lighting at night means that the route through Beverley Job Park, with the variability of the ground surface, is not safe for occupants of the boarding house during the night, especially in winter.
Further, Mr Davies opines that traversing a grassy reserve does not provide equitable access for those residents with disability or mobility issues, or those who are in a wheelchair or using a pram. Mr Davies considers that equitable access is required in circumstances where two of the boarding rooms are adaptable.
Whilst Mr Davies acknowledges that there are longer routes available to access the bus stops without the need to traverse Beverley Job Park, these routes are over 500m which he considers unacceptable as they are beyond the 400m benchmark set by the SEPP ARH and by similar provisions in the now repealed State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.
Mr Davies' opinion that the site is only suitable if it is located in an accessible area, or in any area with equitable access within 400m of facilities and services, is based on the premise that a boarding house must be so located because "it would be reasonable to assume that car ownership would be lower within a boarding house", and therefore, "a boarding house will have perhaps the highest reliance on public transport".

The applicant's position that the paths of travel are acceptable

Mr Bennett submits through his counsel, Mr Howard SC, that the assessment of whether the site is suitable for the development must be done through an assessment on the merits of its access to various services by the application of planning experience and common sense, rather than through a determination of whether the site is in an "accessible area" as defined in the SEPP ARH.
Mr Bennett's position is that the site is, in fact, in an accessible area within the meaning of that term as defined by the SEPP ARH. Even if it is not in an accessible area, the only legal effect of such a finding is that cll 29, 30 and 30A of the SEPP ARH do not apply. Therefore, the 400m walking distance criterion in the SEPP ARH is not the manner in which adequate access to public transport should be measured.
Further, Mr Howard submits that the proposed development does not contravene any of the controls in the WDCP and does not offend any of the objectives therein. He submits that clauses D18 and D20 of the WDCP are irrelevant to the issue of whether the access from the site to public transport, facilities and services is adequate. In particular, D18 concerns the design of development with respect to accessibility and adaptability, but the accessibility requirements apply only to non-residential development. Further, he submits that both D18 and D20 concern the design of the development and have nothing to do with the distance of the development site from a bus stop.
Mr Howard submits that, on a merit assessment of the adequacy of access from the subject site to public transport, facilities and services, it is clear that there is a high level of access and the Council's contention to the contrary is "genuinely puzzling". This includes access to a range of facilities within and adjacent to Beverley Job Park, access by a walk of around 500m to either the Narraweena neighbourhood retail centre or the May Road retail centre, and access to the bus stops on both McIntosh Street and Warringah Road. The closest bus stops on McIntosh Street are within a walking distance of between 287m and 505m, depending on which route is taken.
Mr Bennett's position is supported by the evidence of Mr Haynes, who opines that the route to the bus stop through Beverley Job Park is attractive, safe and of high amenity, with flat or moderate grades that are detached from roads and separated from motor vehicles and benefit from casual observation from various park users. Mr Haynes points out that a number of those routes fall within the 400m distance stipulated by the definition of "accessible area", and that the definition of "walking distance" does not contain any requirement for particular surface materials, grade, or to accommodate those who have a physical disability. Similarly, Mr Haynes says that the definition does not include a requirement for the route to be artificially lit to a particular standard, or a requirement for the route to be free of flood affected areas.
Further, Mr Haynes opines that if a person, for any reason, chooses to walk the longer path along the footpath, the distance of 505m does not mean that the walking distance is inappropriate and it is instead only a modest extension of walking distances when compared to the route through Beverley Job Park.
Mr Haynes' evidence is also that the proposed development is appropriately located close to a range of services and facilities, and provides car parking in excess of similar developments, as well as bicycle and motorcycle parking. As a result of the range of facilities and services within the locality, and the access to them through walking paths and/or Beverley Job Park, Mr Haynes opines that the site has a high level of access to public transport, facilities and services. Mr Haynes opines that this is consistent with the objective in clause A.5 of the WDCP. Mr Haynes also considers that there are no corresponding controls that give effect to the objectives in clauses D18 and D20 of the WDCP that the proposed development does not comply with, and that those objectives do not concern the adequacy of the path of travel from the site of the development to public transport, facilities and services.

The site is within an accessible area within the meaning of the SEPP ARH

I am required to decide whether the site is within an "accessible area" only in order to ascertain the applicable planning controls. As set out above, if the site is within an accessible area, cll 29, 30 and 30A of the SEPP ARH apply. It is not a determinative point. If those clauses are required to be considered, there is no dispute that the site meets the "must not refuse" criteria (cl 29), the minimum development standards (cl 30), and that the design of the development is compatible with the character of the local area (cl 30A). If the site is not within an accessible area, then those clauses need not be considered.
As set out above at [10], accessible area is a defined term within the SEPP ARH, and includes at subcl (c) land that is within "400 metres walking distance of a bus stop used by a regular bus service". The term "walking distance" is also defined, as follows: walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings.
In my view, these words are unambiguous and must be given their ordinary meaning. In doing so, it is clear that the site is within an accessible area, as it is within 400m walking distance of bus stop B, as demonstrated by there being multiple walking routes available to bus stop B that are less than 400m. Those routes can be "safely walked by a pedestrian" as they traverse walkable surfaces that are open to the public, without any obstructions that make the routes impassable for someone walking. The routes are along public footpaths "as far as reasonably practicable" in the circumstances, given that the only part of the route that does not have a paved footpath is through Beverley Job Park. The "shortest distance", which is called upon by the definition of walking distance, is route 6, which is 287.4m when measured from the side gate, or slighter longer if measured from the front entrance.
The Council's requirement for it to be a paved footpath, with consistent lighting and flood-free, goes beyond the ordinary meaning of the text of the definition of "walking distance". As stated by Pain J in Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171, there is emphasis "on the importance of the words of the statute" (at [52]) and an "extension of that emphasis is that additional words should not lightly be implied in legislation" (at [53]). The same principles apply to the words of planning instruments. The words of the definition of "walking distance" do not require consistent lighting of the path, and do not require a paved pathway for the full length of the distance to the bus stop. Additionally, there is no requirement for the route to be flood free at all times. Further, neither the definition of "accessible area" nor that of "walking distance" require that the route to the public transport be suitable for access by means of a wheelchair or pram. The use of the word "walked" in the definition of walking distance makes it clear that the focus is on the action of walking. To require something beyond what the ordinary text conveys falls foul of Jagot J's observations in Matic v Mid-Western Regional Council [2008] NSWLEC 113 that the proper interpretation of words in a planning instrument is "not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable" (at [8]).
I note that the definitions of "accessible area" and "walking distance" in the SEPP ARH stand in contrast to the requirements under the Pt 5 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) concerning the site related requirements for housing for seniors and people with a disability. For such housing, the location and access requirements must be met by a "suitable access pathway" which is defined as "a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like". No such requirement is stipulated within the definition of either "accessible area" or "walking distance" in the SEPP ARH. This supports my finding above that the Council's desire for the "route that may be safely walked" to be accessible for wheelchairs and prams goes beyond the ordinary meaning of those words.
Similarly, none of the potential obstructions to traversing Beverley Job Park are obstructions that make the routes impassable on an ongoing basis. Issues that can arise on occasion with walking routes, such as tree branches or roots across a path, poor maintenance, temporary flooding or standing water, do not disqualify a walking route from one that "may be safely walked by a pedestrian". Instead, it should be considered based on its usual condition. In the present circumstances, the walking routes across Beverley Job Park "may be safely walked by a pedestrian" as they traverse a range of walkable surfaces that are available to the public. The standing water within Beverley Job Park is a temporary issue and does not cause an ongoing obstruction. Similarly, poor maintenance by the Council is likely to be a temporary issue, and there is no evidence of there being any poor maintenance in the past. Further, the tree roots pointed out to me around the trees close to the side boundary did not present an obstruction of any significance, and could easily be walked over. Whilst Mr Davies had concerns about measuring the walking distance from the side gates due to potential unsafe tree roots and inadequate lighting, the "walking distance" will nevertheless be less than 400m for route 6 even if the additional distance is added to that route to allow it to be measured from the front entrance. Further, even if the tree roots in the area along the boundary rendered that area unsafe for walking (which I do not accept), route 4 is measured from the front entrance and is less than 400m, and avoids the areas along the side boundary. Mr Davies' concerns about measuring the walking distance from the side gates are therefore of no consequence to my finding that the site is in an accessible area.
Whether something can be "safely walked by a pedestrian" will always depend on the circumstances of the case. However, it is not a vehicle for creating additional requirements that do not form part of the language of the statutory definition and are not otherwise set out in the instrument. I am satisfied that the routes to the bus stop identified in Figure 2 are routes that "may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings". Having regard to the lengths of each route, that which is the "shortest distance between 2 points" measured along one of those routes is route 6. As the distance of route 6 is less than 400m, the site is therefore within an "accessible area".
As set out above, this means that cll 29, 30 and 30A of the SEPP ARH apply. There is no dispute that the site meets the "must not refuse" criteria in cl 29 and the minimum development standards in cl 30. Further, I am satisfied, based on the assessment by Mr Davies in the assessment report (Ex 2 Tab 5), that the design of the proposed development is compatible with the character of the local area, consistent with the consideration required by cl 30A of the SEPP ARH.

The contention raised by the Council concerning the adequacy of access does not warrant refusal of the development application

As outlined above, the Council's contention is that the site is not suitable for the proposed development on the basis that it is not in an area with adequate access to public transport, facilities and services. The problem with this contention is that there is no requirement for a boarding house to have such access. I accept the position of Mr Bennett that no such requirement arises under the SEPP ARH, nor under the WDCP. Further, there is nothing inherent about a boarding house that warrants such a requirement. As such, I consider that the adequacy of access to public transport, facilities and services is of no consequence to the consideration of the suitability of the site for the development in accordance with s 4.15(1)(c) of the EPA Act. In any event, I accept the evidence of Mr Haynes that the site is well located. The reasons for my so finding are as follows.
Firstly, there is no requirement under the SEPP ARH for a boarding house to be within a specified distance of public transport, facilities or services, or that the path to public transport, facilities or services is to be of a particular standard. Such a requirement is not amongst the standards for boarding houses in cl 30. The only reference to locational requirements concerns whether the site is in an "accessible area" in cl 29(2), which is relevant only to what clauses apply to the proposed development.
Secondly, contrary to the Council's position, there is no requirement in the WDCP for the site to be in an area that has adequate access to public transport, facilities and services. Instead, I accept Mr Bennett's position that the proposed development complies with the WDCP.
Clause A.5 of the WDCP, which includes the objective of the WDCP to "provide a high level of access to and within development" is not sufficient to require a particular form of development to have a particular type and distance of access to public transport, facilities and services. Whilst A.6 requires that a proposed development meet the objectives of the WDCP, this does not mean that the objectives can be used as a vehicle to create additional requirements that are not specified therein. For that reason, I do not accept Mr Davies' evidence that the objective in A.5 requires safe and convenient access to public transport. Instead, the objective to provide a "high level of access to and within development" should be construed in a global manner, as asserted by Mr Haynes. In my view, this objective is achieved if there is appropriate access to enter, and move around within, individual proposed developments, in accordance with other controls in the WDCP. Based on the BCA Access Assessment Report dated 18 March 2021, the access to the building and within the building is considered acceptable. I acknowledge that a different conclusion was reached in McKavanagh v Northern Beaches Council [2020] NSWLEC 1662, which concerned different facts.
Further, neither the objectives in clauses D18 nor in D20 concern the adequacy of the path of travel from the site of the development to public transport, facilities and services. I accept the evidence of Mr Haynes that the objective in D18 "to ensure convenient, comfortable and safe access for all people including older people, people with prams and strollers and people with a disability" concerns the development within the boundaries of the site, as the corresponding controls concern the design of the development within the site. I accept the submission made on behalf of Mr Bennett that this objective concerns the design of the development itself and does not concern access from the development to public transport, facilities and services. Similarly, the objective in D20 to maintain and enhance "security and safety of the community" does not require the provision of a particular form of access to public transport, facilities and services. I accept Mr Haynes' evidence that the concerns of Mr Davies in relation to the lighting of the access gates can be dealt with by way of a condition of consent requiring the design of the gates, including appropriate lighting, to be submitted to a private certifier for approval. Further, other than the issue concerning lighting, there is no evidence that the use of the rear gates is contrary to the principles of Crime Prevention Through Environmental Design (CPTED), as contended by the Council. I am also satisfied that the accessibility requirements concerning the path of travel from the western gate to the entrance of the building will be dealt with by the agreed condition of consent requiring appropriate certification by an accessibility consultant.
Therefore, none of the matters raised by the Council concerning the WDCP require that a boarding house have a certain level of access to public transport, facilities and services. In my view, it is not appropriate to seek to impose such a requirement through a reading that takes the WDCP objectives out of context and beyond their intended effect, which is to articulate the objectives of the controls therein.
Thirdly, there is nothing inherent in a boarding house use that requires it to be located within an appropriate distance from public transport, facilities and services. The definition of "boarding house", above at [8], does not contain any suggestion that it should be so located. Similarly, I do not accept the submission made by the Council that the intensity of use of a boarding house creates a need for proximate access to public transport, facilities and services.
Mr Davies' evidence is that the requirement arises as there is low car ownership for residents of boarding houses, which he says can be inferred from the low prescribed parking rates for boarding houses under the SEPP ARH and the WDCP (which requires a comparison with other similar developments). Mr Davies' opinion in this regard has a tail wagging the dog element about it. The parking requirements (for any type of development) are generally informed by the proximity of the site to public transport. It is not uncommon for boarding houses located in very close proximity to public transport, to have one space or no parking provided: see VL3 Pty Ltd v Inner West Council [2022] NSWLEC 1349, at [57]-[67]. If I had concluded that the site was not in an accessible area, then it would have been open for me to consider the adequacy of the parking provided on-site, particularly in light of the Council's position concerning the proximity of the site to public transport, facilities and services. Nevertheless, the adequacy of the on-site parking was not the contention raised, and Mr Davies' opinion concerning access to public transport, facilities and services is based on the premise that occupants of the boarding house will have low car ownership. There is no evidence to support this premise. Specifically, there is no evidence that residents of boarding houses in Narraweena will have higher reliance on public transport in preference to car, bicycle or motorcycle ownership when compared to other forms of development, such that a particular planning requirement exists for boarding houses to have easy walking access to public transport, facilities and services.
For those three reasons, I do not accept the Council's submission that appropriate access to public transport and services is critical to the question of whether the site is suitable for the proposed development. In my view, where the Council has not established an actual requirement for there to be a certain level of access to public transport and services, the adequacy of that access is not relevant to the question of whether the site is suitable for the development. Instead, as set out by Bignold J in The Winter Group Pty Ltd v Ku-Ring-Gai Council [2000] NSWLEC 70, the suitability of a site for the development "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" (at [46]).
In any event, the site is well located with various walking routes to different bus stops and within around a 500m walk from two neighbourhood retail centres that provide a range of facilities that will provide for the day to day need of residents of a boarding house, should they need to access them without a car, motorcycle or bicycle. For those who are unable to walk across the park for any reason, they can use the footpaths to access the bus stop and an agreed condition of development consent requires a footpath to be constructed from the site to connect to an existing footpath. I accept Mr Haynes' evidence that a distance of 505m along a paved footpath is a modest extension of the distance of 400m, is able to be walked by the likely future residents and would not diminish the capability or inclination of a resident to use public transport in order to access services and their place of employment. The same is true of the walk to the neighbourhood centre at May Road, which is around 500m using paved footpaths.
For those reasons, the contention raised by the Council concerning the adequacy of the access to public transport, facilities and services does not warrant refusal of the development application. Instead, I consider that the site is suitable for the proposed development as it is appropriately sized and its location immediately adjacent to Beverley Job Park allows the boarding house to be designed with high amenity to the boarding rooms whilst also minimising the impact on neighbouring residential dwellings. It provides an alternate form of residential accommodation on a site that is in an existing low density residential area, and the design of the development is an appropriate response to the site's orientation and location adjacent to Beverley Job Park. In addition, although not necessarily relevant to the question of the suitability of the site for the development in this particular case, the site is well located within a short distance from public transport routes, schools and two neighbourhood retail centres.

The Council has not raised a matter of public interest that warrants refusal of the development application

The Council has raised a separate contention that the proposal is not in the public interest, based on issues raised by the resident objectors. However, I have considered the submissions made by the residents at [19]-[22], and find that they have not identified anything that warrants refusal of the proposed development. There is no evidence in support of any actual adverse impact that will be caused by the proposed development.

The outcome of the appeal

For the above reasons, the contention raised by the Council on the appeal does not warrant refusal of the development application. I consider that the proposed development is an appropriate scaled development in its context, sited appropriately to maximise its location adjacent to the public reserve whilst also minimising the impacts on adjacent residential dwellings. The site is within an accessible area as defined in the SEPP ARH, and meets both the standards for boarding houses in the SEPP ARH as well as the "must not refuse" criteria concerning car parking, landscaping, accommodation size and private open space. The proposal complies with the two-storey control and with the height development standard that apply to the site. Based on the evidence before the Court, I have considered each of the matters that arise for consideration pursuant to s 4.15(1) of the EPA Act, and I am satisfied that consent should be granted subject to the agreed conditions.
In addition, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use as residential premises, it is unlikely to be contaminated.
As set out above, at the commencement of the hearing, the Council agreed to an amendment to the development application to incorporate a revised ground floor plan that includes two gates which will provide access to the adjacent public park. To formally amend the development application, it is sufficient for the Council to agree to that amendment, and there is no requirement for the amended plan to be lodged on the NSW Planning Portal. The applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court.

Final orders

The Court notes that the Council agrees, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to an amendment to the development application to incorporate a revised ground floor plan DA03 Issue 4 dated 15 November 2022.
The Court orders that: 1. The appeal is upheld. 2. The development application DA 2021/0311 for the demolition of existing structures and the construction of a boarding house at 2 The Circle, Narraweena, is determined by the grant of consent subject to the conditions in Annexure A. 3. Exhibits C, D, 1, 2 and 4 are returned, and the remaining exhibits are retained. Joanne Gray Commissioner of the Court

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2022

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (5)