Buckland v Blue Mountains City Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by the Blue Mountains City Council of a development application to construct a pedestrian pathway and bridge on lot 2 DP 710059, known as 39 Hawkesbury Road, Springwood.

The site 2 The site is on the east side of Hawkesbury Road and has an area of 51 ha. It accommodates two sections of a retirement village and hospital complex that are located on different parts of the site and have different addresses to Hawkesbury Road. One is the existing Buckland Village; the other is Lyndhurst Village, which is under construction. The proposed pathway is in the undeveloped bushland part of the site. Its purpose is to connect Buckland Village and Lyndhurst Village by a pedestrian route that is shorter than the vehicular route via Hawkesbury Road.

The proposal and its history 3 The applicant proposes to construct the pathway and bridge of concrete. The path is to be wheelchair-accessible, be capable of being lit at night and incorporate stairs providing a shortcut. The bridge is to span over an intermittent watercourse. 4 The applicant lodged the application in November 2003. Following notification, the council received two objections and a petition containing eight signatures. In July 2004 the council's group manager of Environmental and Customer Services recommended approval. The council rejected the recommendation and refused the application on the basis of adverse environmental impact.

Planning controls 5 The Blue Mountains Local Environmental Plan 1991 (the LEP) zones the area where the pedestrian pathway and bridge are proposed partly Residential-Bushland Conservation, and partly Environmental Protection. It was common ground between the parties that the proposal is ancillary to a hospital, a use that is permissible with consent in the Residential-Bushland Conservation zone. While it is not permissible in the Environment Protection zone, cl 20 of the LEP allows the council to consent to a prohibited use, provided it is within 20m of a zone in which it is permitted. The section of the proposal that is in the Environment Protection zone is within 20m of the Residential Bushland Conservation zone. Hence the proposal is permissible with consent. 6 The application is subject to the Integrated Development provisions of the Environmental Planning and Assessment Act 1979 because it is within 40m of a "river" (the intermittent watercourse). On 21 January 2004 the Department of Infrastructure Planning and Natural Resources issued General Terms of Approval for inclusion in any consent that the council or the Court may grant.

The issues 7 The council relied on a Statement of Issues containing three issues, of which it pressed two. The council's advocate, Mr A Seton re-expressed the issues as follows: · The proposal does not comply with the LEP's zone objectives. · Surveillance at night is inadequate. · The applicant has not demonstrated a need for the pedestrian pathway.

The objectors 8 The Court heard the evidence of three objectors, Mr D Dunkley of 73 Hawkesbury Road, Mr M Gallen of 65 Hawkesbury Road, and Mrs M Allen, 69 Hawkesbury Road. Mr Dunkley's and Mr Gallen's main concern was that people using the pathway could look into their properties. They also had objections to what they considered to be the adverse impact on the bushland. Mrs Allen's property was not affected, so her concerns were only about impact on bushland. 9 I have inspected the objectors' properties and considered the effect the proposed pathway would have on their privacy. Both properties are removed a fair distance and heavily screened. The traffic on the pathway is likely to be light. While the objectors will see the pathway and there will therefore be a small change in their outlook, the effect on their privacy will be minor.

The Court-appointed experts 10 The Court read the reports and heard the evidence of Mr N Kennan, a town planner and Dr P Smith, an ecologist. Dr Smith considered that, subject to its being carried out according to certain conditions, the proposal would "have minimal impact on native vegetation and flora and fauna habitat". Based on this assessment, Mr Kennan concluded that the proposal's impacts were acceptable. 11 Following the on-site hearing, the applicant amended the route and construction of the pathway. In a report dated 1 November 2004 Dr Smith commented that he was satisfied that "the impact of construction and use of the link path on flora and fauna has been minimised". 12 Despite the above, the council submitted that the application should be refused, on the grounds that it is unnecessary and has some environmental impact. (The council did not dispute Dr Smith's finding that the impact was "minimal" (Dr Smith's first report) and "has been minimised" (Dr Smith's report of 1 November 2004). In the council's submission, a perfectly good vehicular connection exists between Buckland and Lyndhurst Villages via Hawkesbury Road.

Findings 13 Under cl 9.3 of the LEP the council (and the Court) is required consider the objectives of the LEP and of the relevant zone. Consent can be given only where the proposal complies with the relevant objectives. In the council's submission, the word "complies" establishes a stronger test than the term "is consistent", which is more commonly used in planning instruments. The council's advocate, Mr A Seton, supported this semantic argument by reference to a judgment by Sheahan J (Cecil D Barker v Blue Mountains City Council [2001] NSWLEC 244). I note that the Oxford English Dictionary identifies the Latin word "complere" (meaning complete) as the source of the English word "comply". It defines the meaning of "comply" as "fulfilling the requirements of" or "accomplishing". The Macquarie Dictionary defines "comply" as "act in accordance with wishes, requests, commands, requirements, conditions, etc". Do these meanings require a stronger test than the term "consistent with"? I cannot answer this question. On the basis of the two dictionaries I consulted, I adopt the meaning of "complying with objectives" as "fulfilling the requirements of objectives". 14 The LEP's objectives are generalised. The best way to summarise the relevant ones among them is that they require environmentally sensitive design. Dr Smith's opinion (unchallenged by the council) that the impacts of the proposal have been minimised, suggests that the proposal fulfils the requirements of the objectives. It therefore complies with them. 15 Objective (a) of the Residential-Bushland Conservation zone requires design that is environmentally sensitive and maintains and facilitates sustainable natural ecosystems and biodiversity. Dr Smith's evidence demonstrates that the proposal complies with this objective. 16 Objective (a) of the Environmental Protection zone requires the protection of environmentally sensitive land and areas of high scenic value from development. One interpretation of this objective is that it gives the reason why the council has zoned certain areas for Environmental Protection. The council's interpretation is that it requires that each development proposal must protect environmentally sensitive land and areas of high scenic value from development. I do not think that this interpretation means that no development, even development with minimal impact, is possible. In my opinion, a proposal that has minimal impact satisfies the requirements of the objective of protecting environmentally sensitive land and areas of high scenic value from development. It therefore complies with the objective. 17 Objective (b) of the Environmental Protection zone is to provide a buffer around areas of natural ecological significance. Again, one interpretation of this objective is that it gives the reason why the council has zoned certain areas for Environmental Protection. The council's interpretation is that the objective requires that each development proposal must provide a buffer around areas of natural ecological significance. I do not think that this interpretation makes sense. In my opinion, a proposal in the Environmental Protection zone that has minimal impact strengthens the zone in fulfilling the objective of providing a buffer. The proposal satisfies the requirements of the objective. It therefore complies with the objective. 18 Part of the land over which the proposed pathway extends is hatched on the LEP maps. The hatching indicates that the area is "development excluded land". Under cl 10(5)db of the LEP, the council (or the Court) cannot grant consent to development on such land unless the development incorporates effective measures to ensure that it has no adverse environmental impact. In the name of common sense and practicality, I interpret the requirement of "no adverse impact" to be satisfied by Dr Smith's assessment that the proposal will have "minimal impact". 19 I note the council's concern about surveillance of the pathway at night. Anyone using the path at night will be able to switch on the lighting. Vulnerable residents wear a panic button. I assume that residents who are infirm or ill will not walk on the path after dark. I note that the applicant, who has long experience in managing the retirement complex and is, in the final analysis, responsible for the safety of the residents, appears to have no concern about surveillance. I do not think that the council's concern is justified. 20 I turn to the need for the pathway, recognising that "need" is a highly subjective notion. The applicant says that the path will allow non-driving residents in Buckland Village to visit Lyndhurst Village and vice versa. It will also allow nursing staff to walk from one to the other. The vehicular connection between the two villages is about 1.5km. For some of the residents the grades on Hawkesbury Road are too steep to walk on. These facts demonstrate that there is a need for the footpath. 21 Since there is no statutory impediment to the approval of the application and since both Court-appointed experts have found the proposal acceptable, the appeal is upheld.

Orders

1. The appeal is upheld.
2. Development application to construct a pedestrian pathway and bridge on lot 2 DP 710059, known as 39 Hawkesbury Road, Springwood is determined by the grant of consent subject to the conditions in annexure A.
3. The exhibits are returned except Exhibits B and 6.

      Dr John Roseth
      Senior Commissioner

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