Condon v Ballina Shire Council

Asset Based Securities v Hornsby Shire Council [2001] NSWLEC 276; CASES CITED: Momentum Architects v Hornsby Shire Council [2002] NSWLEC 252; Sydney Prestige Developments v Hornsby Shire Council [2004] NSWLEC 598; Toon v Ku-ring-gai Council [2004] NSWLEC 173

Applicant: Mr C McEwen, SC LEGAL REPRESENTATIVES: Solicitors: Gadens Lawyers Mr N Hemmings, QC Solicitors: Allens Arthur Robinson

JUDGMENT:

• 20 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10303 of 2005 Margaret Condon v Ballina Shire Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Ballina Shire Council of a development application to subdivide lot 21 DP 1007134, known as 8 Byron Bay Road (Coast Road), Lennox Head into three allotments, to erect a seniors living development on lot 2 containing 121 dwellings and a community building, and, following the completion of the development, to subdivide lot 2 into 123 strata lots.

The site 2 The site of 9.4 ha is on the northern side of the Coast Road between a vacant rural allotment to the west, Ballina Street and residential allotments to the east, and Blue Horizon Drive, residential allotments, a medical centre and a tourist resort to the north. 3 The site is mainly low grassland (the result of grazing), with several small remnant stands of closed forest. A ridge extends through the site between two natural high points. From the ridge and those high points the site falls away steeply to the northeast, and more gently to the southwest. A dwelling house with an access driveway from the Coast Road, a disused dairy and some fences are also situated on the site. 4 Nearby development is mainly low density residential, some medium density, a medical centre and a tourist resort.

The proposal and its history 5 The applicant proposes to subdivide lot 21 into three allotments. Allotment 1 is to remain undeveloped. Allotment 2 is to accommodate a seniors living project containing 121 dwellings, a community building called Facilities Centre, associated parking and landscaping. Following development, lot 2 is to be subdivided into 123 strata lots. Allotment 3 is to contain the existing house on the site. 6 The main vehicular access is proposed from Ballina Road via a new roundabout. The eastern, Ballina Street part of the site is proposed for three-storey buildings excavated into the hill. The western, Coast Road part of the site is proposed for 1,200m2 lots, on each of which there will be buildings containing four dwellings. 7 The applicant lodged the development application in December 2004. It submitted amended plans in October 2005, and again in November 2005. Following notification of the amended plans the council received 404 objections and 391 letters supporting the proposal. In March 2006 the council considered a planning report recommending refusal. The council accepted the recommendation and refused the application.

Relevant planning controls, policies and studies 8 Section 79C of the Environmental Planning and Assessment Act 1979 (the Act) sets out the heads of consideration for assessing development applications. The subject application is made under State Environmental Planning Policy (Seniors Living) (the SLSEPP). When the application was lodged, the SLSEPP permitted development on land zoned rural provided it was adjacent to an urban zone. The SLSEPP was changed in December 2005; however a savings clause saves this application. 9 The applicant objected to the minimum allotment size of 40 ha under State Environmental Planning Policy 1 (SEPP 1). State Environmental Planning Policy 71 - Coastal Protection applies. Clause 8 of that Policy lists the matters to be considered when assessing a proposal in the coastal zone. Local Environmental Plan 1987 (LEP 1987) zones the site 1(d) Rural (Urban Investigation). 10 Draft Local Environmental Plan (Amendment 96) (the draft LEP) was exhibited in February 2005. It relates specifically to this site and proposes to rezone it to 7(d) Environmental Protection (Scenic Escarpment), a zone that would have prohibited development under the SLSEPP. (However, as indicated above, since the exhibition of the draft LEP the SLSEPP itself was changed so that it no longer applies to rural land.) Following exhibition, the council resolved to wait for the resolution of this appeal before proceeding with the draft LEP. 11 Development Control Plan No 1 - Urban Land (DCP 1) establishes Control Plan Area P1, Planned Urban Development. While this is consistent with the site's existing zoning, it is not consistent with the proposed zoning in the draft LEP. The council has prepared and exhibited a draft development control plan that recognises the proposed change in zoning. 12 Development Control Plan 9 - Energy-smart Homes (DCP 9) sets out, among other things, the requirements for solar access and ventilation. 13 Lennox Head Landscape and Visual Analysis (the ERM Landscape Analysis) was a study undertaken by ERM consultants for the council in September 2003. It identifies the site as having moderate to high visual quality. It recommends retaining the majority of the site in its undeveloped form, limiting development to small areas along the western and northeast boundaries of the site. 14 Lennox Head Community Aspirations Strategic Plan (the Community Aspirations Strategic Plan) was adopted by the council in November 2002. It identifies the site as visually prominent and worthy of an environmental protection zoning. It also establishes guiding principles for future development in Lennox Head. 15 Lennox Head Structure Plan (the Structure Plan) was the result of one of several recommendations in the Strategic Plan. The council adopted the Structure Plan in December 2004. The Structure Plan nominates two potential development areas within the site, H1 and H2, with the rest of the site kept undeveloped.

The issues 16 The council submitted a Statement of Issues containing 15 issues. At the commencement of the hearing the council's advocate, Mr N Hemmings, identified the major issues as follows: · adverse visual impact, bulk and scale; · inconsistency with desired future character of Lennox Head; · poor design pursuant to cl 31 of the SLSEPP, in particular inadequate sunlight and ventilation; · lack of safe and convenient access; · excessive excavation; · impact on existing plants and inadequacy of landscaping; · overlooking of adjoining properties; · need for acoustic treatment of dwellings near Coast Road; and · adequacy of car parking. 17 I propose to consider the issues of visual impact, desired future character and excavation together.

The objectors' concerns 18 The Court heard the evidence of ten objectors during the site visit. Ms V O'Connor, who lives in Dress Circle Drive, told the Court about the community's involvement in the development of the Lennox Head Strategic Plan, which had three principles, ie · Development integrated with landform rather development modifying landform; · Protection of the views of ridgelines; and · Maintaining the dominance of the natural environment. In her opinion, the proposal disregards all three principles. She added that the site was too steep for seniors living, that it would destroy the village atmosphere, that the lower dwellings had no through-ventilation, and that the roundabout would be an impediment to the traffic. 19 Mr F Goodman, who lives at Rayner Lane, said that Condon Hill had always been a focal point of Lennox Head, a scenic area to be preserved. In his opinion the bulk and scale of the proposal would destroy the village character of Lennox Head. He agreed with Ms O'Connor that the site was unsuitable for seniors living. The entry was in the wrong location. A single stormwater pipe from the site makes it vulnerable to blockage, a problem about which the applicant does not propose to do anything. 20 Mr D Manson, who lives at 14 Amber Drive, said that he had been involved in the consultation process leading to the Lennox Head Strategy and was disappointed to see how the proposal disregarded it. The proposal had access problems and geological problems. 21 Mr L Hynes, who lives at 44 Gibbons Street, said that the access was poor and would lead to accidents. Mr B Smith, who is the representative of the Lennox Head Residents Association, has said that the scenic escarpment of Condon Hill has existed fro along time and the proposal would destroy it. Mr P Jones, who lives in Steward Street, said that Condon Hill was an iconic part of Lennox Head and the proposal was about to diminish its value. The site was very exposed and therefore unsuitable for seniors. Mr R Wright, who lives at 17 Blue Horizon Drive adjoining the site, said that he was concerned about the road along his common boundary and removed only 4m from it. He was concerned about damage to his property, noise and bird life. Mr E Connolly, who lives at 40 Ballina Street, said his house, only a few doors down from the site, has cracks in arising out of the instability of the hill. Ms F Folan, who lives at North Creek Road, said that she was disappointed with the design, which was not suitable for old people's housing, being dug into the hill. She considered the proposal to be overdevelopment of the site. Mr K McCrossin, who lives in Sunrise Crescent, said that his concern was mainly about traffic.

The supporters' evidence 22 The Court read the supporters' submissions, though no supporter gave evidence in person. The supporters thought that there would be economic benefits from the application; that the location of the site was suitable, that the undeveloped sections of the site would provide public open space, and that Lennox Head needed housing for the elderly. Some supporters believed that the Silent Majority was in favour of the proposal and only a minority of anti-development residents against it. To the extent that none of the supporters appeared before the Court, they were indeed silent, though whether they were in the majority is unknown.

Visual impact, future desired character and excavation 23 The council has undertaken several projects to establish a strategy for the development of Lennox Heads, some of which make reference to the subject site. 24 In 2002 the council initiated a strategic planning process. The process led to a landscape study and three documents: the Community Aspirations Strategic Plan (November 2002), the Structure Plan (December 2004), and Amendment 96 (the draft LEP) (2005). 25 The Community Aspirations Strategic Plan established guiding principles for the future desired character of Lennox Head as follows: · new development sensitive to form and character of the natural environment; · style and scale sensitive to the character, climate and topography of the area; · integrate development with the landscape rather than substantially modifying the landscape to accommodate development; · protect views and vistas to and from prominent ridgelines by maintaining height, bulk, scale, materials and detailing consistent with local context; · maintain Lennox head as a place where the natural environment dominates; · new development in sympathy with amenity of existing residents. 26 In 2003 the council commissioned ERM Consultants to prepare a landscape and visual analysis of several sites in the township, including the Condon property. The ERM Landscape Analysis found that Condon Hill was of moderate to high visual quality, capable of being viewed from a number of viewpoints. In the opinion of the authors, development should occur in those areas that can mitigate the impact either through existing vegetation or where it is not subject to views. This limited development to two small parts of the site, adjacent to Greenwood Place and a strip behind the existing residential/commercial precinct at the base of the escarpment. 27 The ERM Landscape analysis further advised, with respect to Condon Hill, that Any development within these areas should be controlled with respect to height, the impact on the landform and colour. It is suggested that the built form be of lightweight construction with little or no excavation to minimise disruption the landform. In addition, the extent of massing should be limited to encourage variation to break up the form of any construction as much as possible. The colour of building materials should be complementary to the existing landscape. 28 The Community Aspirations Strategic Plan led to, among other things, the Structure Plan. It recommended the rezoning of the majority of Condon Hill to Environmental Protection (Scenic Escarpment), a zone that would prohibit development under the SLSEPP. It also recommended two small parts of the site to be zoned for urban development. The draft LEP implemented these recommendations, although it proposed to zone only one of the two areas (the strip behind the existing residential/commercial precinct at the base of the escarpment) for urban development. 29 The council's bundle demonstrates that the above process proceeded with community participation. The council received numerous comments at each stage. The exhibition of the draft LEP, for example, received more than 1,000 responses. Following the receipt of these responses, the council resolved to defer consideration of the draft LEP pending the Court's decision on this appeal. 30 As part of its response to the exhibition of the draft LEP (which proposed to allow urban development in only a small part of the site), the applicant commissioned a visual analysis by a consultant, Dr R Lamb. Dr Lamb concluded that the lower part of Condon Hill could be developed as long as development did not breach a horizontal line, which he drew on various photographs about two-thirds of the way up the hill. As regards the western part of the site adjoining the Coast Road, he drew an ellipse with the following notation: Low-density development could occur in this area dependent upon supplementary planting of endemic vegetation and strict development controls. 31 On Figure 4 of his report (a photograph showing, among other things, development along the western side of the Coast Road) Mr Lamb noted: Low-density development nestled amongst vegetation, as visible in this location, would be an acceptable visual character for the western slopes of the subject land. The photograph shows houses that are almost invisible among the trees. 32 The applicant also engaged an urban designer, Ms G Morrish, who prepared an urban design report in support of the application. Ms Morrish accepted the line drawn by Dr Lamb. The applicant submitted 14 photomontages to indicate that it complied with the constraints suggested by Dr Lamb. 33 The council relied on the advice of two consultants in the assessment of the application: Mr P Pollard, an architect, and Mr D Anderson, a planner. In their reports to the council, Mr Pollard and Mr Anderson considered the proposal's visual impact unacceptable, inconsistent with the Structure Plan and the Community Aspirations Strategic Plan. In addition they believed that the proposed buildings were too bulky and too long without the possibility of sufficient landscaping to provide relief. Mr Pollard maintained that several of the photomontages were wrong. He demonstrated this by reference to height poles at strategic locations that the applicant had erected for the view by the Court. 34 At the request of the parties, the Court appointed Professor J Haskell as the architect and urban design expert. Professor Haskell supported the proposal with minor amendments. He liked the architecture and had no concerns about development occurring on Condon Hill. He also liked the buildings being excavated into the hill, dealing with the issue in two paragraphs: It is inevitable that on and around a hilly site such as this, the construction of dwellings, including provision of car parking and other ancillary uses, as well as roads and services, will involve significant cut-and-fill technology; but the affected areas will be restored, properly landscaped and planted to ensure the ongoing attractiveness of the estate. and In this regard, I do not support the view expressed by ERM in its Lennox Head Landscape and visual analysis report (February 2004) that the built form be of lightweight construction with little or not excavation; to adopt such a procedure on this site would result in ungainly, tall structures standing awkwardly in the landscape, and likely to be seen to penetrate the ridgeline of the hill when viewed from the north in the commercial centre of Ballina street and from Allens Parade etc. 35 One can see from the above that the Court had before it a plethora of studies, visual and landscape analyses, as well as the opinions of numerous consultants. While Professor Haskell was the only urban design expert in the case, the Court had access to the written opinions of the ERM team, the authors of the Community Aspirations Strategic Plan and the Structure Plan, Dr Lamb, Ms Morrish, Mr Pollard and Mr Anderson. 36 Two questions emerge from the above evidence: · Is it appropriate to develop those parts of Condon Hill where several documents of the council conclude that there should be no urban development? · Given that there is to be development, is its bulk and scale appropriate and consistent with the future desired character of Lennox Head? 37 As regards the first question, everyone agrees that part of Condon Hill may be developed; the question is how much of it should be. Section 79C(e) of the Act (the public interest) requires that I should give greater weight to the views expressed in the Community Aspirations Strategic Plan and the Structure Plan than to those of Dr Lamb and Ms Morrish since the former are community views, while the latter are the views of individuals. This does not mean, however, than I am at liberty to conclude that the proposal is inappropriate merely because the Community Aspirations Strategic Plan and the Structure Plan envisage most of Condon Hill retained in its undeveloped state. At the time the application was lodged, the SLSEPP permitted development for seniors living on rural land that adjoined urban development, which Condon Hill does. The draft LEP that would change this zoning has not reached the maturity necessary to be given major weight. I therefore accept that Condon Hill may be developed, as this is permissible by virtue of a SEPP that prevails over inconsistent provisions in other planning instrument (and therefore also policies and community views). Accordingly, on this occasion the wishes of the community expressed in the Community Aspirations Strategic Plan and the Structure Plan for retaining most of Condon Hill undeveloped must give way to the provisions of the SLSEPP. 38 I turn to the second question, namely whether the proposal is appropriate in view of the SLSEPP and the future desired character of Lennox Head. Clause 31(c)(ii) of the SLSEPP requires the use of building forms and siting that relates to the site's landform. As noted in paragraph 26, the Strategic Plan establishes guiding principles for the development of Lennox Head. The public interest requires that I consider these principles, as long as they are not inconsistent with the SLSEPP (which they are not). 39 For the sake of ease of reading this judgment, I repeat from paragraph 25 six guiding principles in the Community Aspirations Strategic Plan: · new development sensitive to form and character of the natural environment; · style and scale sensitive to the character, climate and topography of the area; · integrate development with the landscape rather than substantially modifying the landscape to accommodate development; · protect views and vistas to and from prominent ridgelines by maintaining height, bulk, scale, materials and detailing consistent with local context; · maintain Lennox head as a place where the natural environment dominates; · new development in sympathy with amenity of existing residents. 40 I deal with the first of these criteria below under Impact on existing vegetation, and with the second under Sunlight and ventilation. As regards the third, in my opinion, the proposal is inconsistent with it, even antipathetic to it. It does not integrate development into the landscape; rather it modifies the landscape in the attempt to reduce the effects of the sloping land that are so inconvenient for old people. I am aware that this finding is contrary to Professor Haskell's evidence that a steep site inevitably leads to excavation. I note, however, that even Professor Haskell objects to Villa Terrace types A and B being built tight into the hill slope and suggests that the lower level may be used for parking rather than apartments. 41 I accept that developing on a hilly site requires some excavation; the question is how much excavation. In this case the depth of excavation for several of the blocks is up to 12m, which is the height of a four-storey building. The extent of disturbance in the eastern precinct is 10,000m3. In order to stabilise the site, the levels of excavation behind Blocks A, B, C and D for the construction of retaining walls and anchor piles will be even greater. More excavation is needed above the buildings to construct subsurface cut-off drains at 10m intervals. 42 Although Professor Haskell had been given the full array of council documents, his report makes no mention of the Community Aspirations Strategic Plan (or, indeed, of other council documents). Given that this Plan, as its name suggests, is based on community views, I do not think that an expert is justified in placing his own views above them without at least giving them serious consideration. 43 In addition, I do not think that Professor Haskell is correct in saying that reducing the extent of interference with the natural landform would have resulted in taller buildings. The height of buildings is governed by the SLSEPP and must be below a line 8m above and parallel to the natural ground line, so reduced excavation would not result in taller buildings. Reduced excavation would have resulted in the same building height but a lesser yield because the underground components of the building would have remained unexcavated land or parking, instead of being used for dwellings. 44 As regards the fourth criterion, two components of the proposal, the Facilities Centre and Block A, violate this requirement (which the applicant accepts as legitimate). In addition, the Coast Road Precinct is denser than advocated by Dr Lamb's guidelines. I note that Dr Lamb had indicated that the proposal conforms to his guidelines, but it is clear to me that this is not so with respect to the Coast Road Precinct. 45 As regards the fifth criterion, the long, hard and bulky surfaces of proposed Blocks A, B, C, D and E (Block E is 70m long) would make the proposal appear more like an Italian hill town than a development that recedes behind the vegetation. (I accept that Italian hill towns are attractive places; however, they are not what the Lennox Head community aspires to.) As regards the sixth and last criterion, the impact of the Facilities Centre on 28 Ballina Street is unacceptable. 46 I note that the applicant's advocate, Mr C McEwen, indicated in submissions that the applicant conceded that the weight of opinion was against the Facilities Centre and that it was willing to amend the building's design. This would not be an easy amendment. The Facilities Centre has a function for pedestrian circulation. A reduction by one floor may affect this. Moreover, the smaller the Facilities Centre becomes, the more of Block A, which presents to the east as too bulky already, is revealed to the viewer from Ballina Street and beyond. Despite the above, if this were the only problem with the application, I would adjourn proceedings giving the applicant an opportunity to amend the design of the Facilities Centre. 47 In my opinion, the bulk and scale of the proposal is unacceptable and the design is inconsistent with cl 31(c)(ii) of the SLSEPP and the future desired character of Lennox Head.

Clause 33 of the SLSEPP (sunlight and ventilation) 48 Clause 33(b) of the SLSEPP states that the proposed development should 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 windows of living and dining areas in a northerly direction. 49 Clause 81(c) states that solar access cannot be used as grounds for refusal if at least 70% of the living rooms receive at least three hours of direct sunlight in mid-winter. 50 The applicant submitted an Energy Efficiency Report that concluded that the proposal complies with DCP 9 based on an assessment using NatHERS software. The applicant also submitted a report by Dr S King, an architectural scientist, addressing solar access and ventilation. Dr King concluded that the design was a competent response to the real, rather than imagined amenity issues and that it was of good design. In his view, the proposal was appropriate for solar access, natural ventilation and energy efficiency. 51 The council's consultant, Mr Pollard, estimated that only 50% of the dwellings received three hours of sunlight at mid-winter. The difference of opinion between Mr Pollard and Dr King is thus extreme. 52 Professor Haskell appears critical of this aspect of the proposal and suggests amendments, some of which appear to be fundamental, for example, that Blocks D and J1 be re-oriented to the north and that the lower levels of Villa Terrace types A and B be used only for car parking. 53 In my opinion the proposal performs poorly with regard to sunlight and ventilation, for the following reasons: · It is difficult to know from the material in evidence what criteria Dr King assumed in coming to his conclusion that 93% of the apartments receive at least 3 hours of sunlight in mid-winter. Such a feat of solar design is usually achieved only with perfect north orientation of buildings, which is not the case in this proposal. Given the extensive excavation of the buildings into the hillside, the fact that few of the dwellings face north, the absence of sunlight even at the northern end of buildings because of the closeness of the adjoining building, the fact that the same dwelling design is repeated irrespective of orientation and the haphazard way in which the shading devices are distributed, in my opinion Mr Pollard's estimate is more likely to be correct than Dr King's. · I note that Dr King discounts DCP 9's preference for northern orientation as simplistic and outdated. He remarks, quite correctly, that northern orientation is not always essential to achieve thermal efficiency. However, where buildings face in other directions, an additional level of care in design is required. That care would imply that the dwellings are specially designed for their orientation and that the shading devices are placed on each window to maximise sun in winter and minimise it in summer. None of this is evident in the proposal. · I note that all service rooms and most of the entry halls in the proposal are internal. I note also that several rooms are 3m below a public footpath from which one can look into them unless a privacy screen is erected. The question arises whether these rooms would need artificial lighting during daylight. · Dr King assessed that 83.5% of the apartments have good cross ventilation. I find this figure inconsistent with my assessment of the plans, which indicate numerous underground apartments that appear to have poor or no cross ventilation. 54 In my opinion, the proposal performs poorly with regard to cl 33(b) of the SLSEPP. However, I accept that my assessment is based on the "simplistic" assumption that northern orientation is desirable and that good cross ventilation requires at least two sides of a dwelling to have external windows. In view of cl 81(c), if these were the only two issues in contention, I would adjourn the matter to allow an independent expert to assess the proposal's performance on solar access and cross ventilation.

Access 55 Clause 36 of the SLSEPP states that the proposal should: a. have obvious and safe pedestrian links from the site that provide access to transport services or local facilities; and b. provide attractive yet safe environments for pedestrians and motorists with convenient access and parking for residents and visitors. 56 It was common ground between the parties that the site's location to facilities was acceptable. It was the concept of "safe" and "convenient" that was at issue. 57 Clause 52 of the SLSEPP requires wheelchair access for all dwellings on sites with a gradient of less 1:10 and 50% of dwellings where the gradient is greater, such as this site. This is not a standard, such as those in cl 81 that, if met, cannot be used as grounds to refuse development consent. In my opinion, the requirement for "convenient access" makes it highly desirable that residents with mobility problems are able to visit friends wherever they live within the development. If they cannot, those with mobility problems become second-class residents. I am mindful that, while residents may be fit when they move into senior living housing, eventually most of them will have difficulties with steep grades and steps. 58 On the issue of access the Court heard the evidence of Mr Anderson and Mr N Ingham, a planning consultant retained by the applicant. The following emerged from their evidence: · The applicant's latest amendments have rendered all dwellings accessible by a footpath that complies with the maximum grade of 1:14, ie a grade that can be negotiated by a manual wheelchair. However, Blocks F and G are isolated from the balance of the development because there is no continuous wheelchair access between them and the rest of the development. · The occupants of the furthest dwellings have to walk 700m to reach either the Facilities Centre and/or the entrance to the site. · The steepest part of the site is near the entrance and the Facilities Centre. To negotiate this steep land, the proposal provides lifts. In order for residents in the dwellings in the Coast Road section to reach the entry in Ballina Street, they would have to walk through the Coast Road Precinct, over the ridge of the hill to the entrance of Block A. There they have to enter the roof terrace of Block A, get into a lift, go down four floors, walk through the pedestrian lobby, through the space between Block A and the Facilities Centre, into the Facilities Centre, into another lift, down three floors, through the reception and lobby and out into the pedestrian entry and the Ballina Street footpath, at which point they would have to cross the internal road at the point where it meets the proposed roundabout. · The above routing would apply in reverse to people coming from Ballina Street to visit residents in the Coast Road Precinct. The visitors would need a security pass to access the lifts. · The footpath along the internal road is too steep for wheelchairs and contains numerous steps. · The internal road from Ballina Street to the car park entry of Building B has grades of 16%. This includes those parts of the road providing access to car parks. Pedestrians would have to walk across the crossings at these rather extreme grades. 59 Mr Ingham pointed out that residents had other options than to walk these circuitous routes. They may use their own cars, motorised buggies or request to be picked up by a car. Despite this, in my opinion the above access arrangements cannot be described as either safe or convenient. One negative aspect, such as the long distance to the entrance, would be acceptable. However, when one considers the long distances, the steep grades of crossings, the requirement to use two lifts in two separate buildings, the problems of accessing security buildings, as well as the isolation of some of the dwellings, the sum of the negative aspects renders the access arrangements unacceptable.

Impact on existing vegetation 60 The existing vegetation on the site includes Littoral Rainforest, which is a community listed as an Endangered Ecological Community in Part 3 of Schedule 1 of the Threatened Species Conservation Act 1995. The applicant has mapped the majority, though not all of the vegetation. 61 The Court heard the evidence of Mr I Gaskell, an expert in applied science and coastal management employed by the council; Mr S Pittendrigh, a landscape architect retained by the applicant; and Mr J Warren, an ecologist, retained by the applicant. The outcome of the evidence was that the impact on the endangered vegetation could not be established with absolute certainty until the design of subsurface drains (needed for site stabilisation) is determined. The applicant submits, in my view with justification, that it does not wish to incur the expense of further test bores, which would be necessary for a detailed design of the drains, until the other issues in the case are decided. 62 It seems to me likely that, if the existing design does not fully preserve the endangered vegetation, the proposal could be amended to ensure that it does. If all other matters were satisfactorily resolved, I would adjourn the case to allow the applicant to prepare detailed design for the drainage, ensuring that there is no adverse impact on the endangered vegetation.

Overlooking of adjoining properties 63 In the council's submission the proposal overlooks the rear yards of adjoining properties along Ballina Street. Professor Haskell thought that the separation between the houses and the proposed dwellings was adequate to allay concerns about overlooking. With the exception of the Facilities Centre (a controversial building from every point of view), I accept this evidence. While there would be some overlooking, this is within the expected limits for medium-density development.

Need for acoustic treatment of dwellings near Coast Road 64 It is common ground that the noise from traffic using the Coast Road will impact on dwellings fronting to the Coast Road. The proposal provides for an acoustic mound, but this does not seem to be high enough to shield the upper floors from noise. Some dwellings will require acoustic treatment, requiring windows and doors to balconies to be kept closed. This also has implications for natural ventilation. I cannot tell from the evidence if Dr King took this aspect into account when he assessed the proposal's performance on ventilation. 65 All that can be said on this matter is that, in the climate of Lennox Head, it would be regrettable to keep windows closed. If the proposal were otherwise acceptable, the acoustic treatment would need to be specified more accurately.

Adequacy of car parking 66 The proposal provides for parking for residents who drive from their dwellings to the Facilities Centre under Block A. In the council's submission, the parking arrangement is inconvenient. In my opinion, this is a relatively minor weakness of the application. I am more concerned that the layout is so dispersed that it is seriously contemplated that residents will drive to the Facilities Centre. While there is nothing in the SLSEPP to prohibit this, having to drive to the common room is not an attractive aspect of a seniors living project.

Conclusions 67 Under s79(C)(1)(c) of the Act, a consent authority should take into account the suitability of the site for the development. There is a fundamental mismatch between the topography of the site and the purpose to which it is to be put. Housing for seniors requires flat or gently sloping land and this site is extremely steep. Of course, architectural ingenuity can overcome the conflict by digging into the hillside, mechanical ventilation and lifts; however there is always a price to pay. In this case the price is rooms that look into cavernous spaces, internal bathrooms and kitchens, footpaths with steps and privacy screens to stop passers-by from looking into private spaces, and circuitous pedestrian routes for those who cannot negotiate steps. In my opinion the site's unsuitability for the proposal is the source of most of the problems associated with the application. Were it not for a planning regime that, until December 2005, allowed, as the only form of urban development, seniors housing on rural land, it is unlikely that anyone would have considered Condon Hill as a suitable site for housing the aged. 68 The proposal breaks its own guidelines because some buildings extend above the horizontal line along Condon Hill above which no building should protrude, and it locates denser development along the Coast Road than the guidelines indicate as desirable. It is also inconsistent with several requirements of the SLSEPP, as well as the desired future character of Lennox Head outlined in the Community Aspirations Strategic Plan, a document that was prepared with community participation. For these reasons the appeal is dismissed.

2. Development application to subdivide lot 21 DP 1007134, known as 8 Byron Bay Road (Coast Road), Lennox Head into three allotments, to erect a seniors living development on lot 2 containing 121 dwellings and a community building, and, following the completion of the development, to subdivide lot 2 into 123 strata lots is determined by refusal.

      Dr John Roseth
      Senior Commissioner

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.