Crighton Properties Pty Ltd v Kiama Municipal Council

Notwithstanding this, the proposal complies with SEPP SL with respect to access to services. 152 However, the experts agreed that:

Some people would be able to walk to Jamberoo Village.

Access from the site to facilities to Jamberoo does not comply with the criteria under SEPP SL Clause 25 (2) (a) with respect to 400 metres distance or gradients. 153 Nonetheless the experts agreed that the proposal achieves technical compliance with SEPP SL through the provision of the private bus service.

Adequacy of services 154 The suitability of the location of the proposed development with respect to access to medical and related health services was also disputed. In summary Mr Porter's view was:

….Woodstock will generate limited demand for off-site services and facilities and the impact on the local community will not be substantial. There will be little or no noticeable impact for several years, by which time residents will be included in service planning. In large part, this will be a result of the availability of onsite services. 155 One of the main reasons why Mr Porter estimated that there would be limited impact on the demand for services was because he projected that 75-90 % of the new population of the proposed Woodstock Village would come from the Illawarra region. He also argued that any extra demand would be negligible because:

a) demand will be spread across a wide range of services only a few residents will ever need a particular service; and

b) Woodstock will be built over a number of years and the additional residents will arrive over an extended period. 156 Mr Porter included a letter from the Terralong Surgery in Kiama indicating that demand for general practitioner (GP) services will be met on site, reducing the need and demand for residents to travel to access GP services. The applicant submitted a further supporting letter for the provision of GP services on site during the proceedings.

157 Mr Porter assessed the likely impact of the development on the Home and Community Care (HACC) services provided by State and Federal government agencies. It was his view that the provision of on-site services at the proposed development would be instrumental in reducing reliance on HACC services. With the exception of centre-based day care and social support, he noted that the applicant would provide on site: domestic assistance; meals (home or at a centre); nursing (home or at a centre); transport; allied health; home maintenance and personal care. 158 Research findings from a Federal Government pilot project (Retirement Village Care Pilot (Partners in Care), Dept of Health and Aging) were cited by Mr Porter to indicate very low levels of HACC usage in recently developed villages. He also noted that private sector villages offering onsite support services also experienced low levels of usage. Mr Porter said the likely government and agency responses to the impacts of population structure change is that funding will track demographics and demand over time for the Commonwealth services of HACCs, along with Community Aged Care Packages (CACPs) and Extended Care at Home (ECH) services.

159 Part of the applicant's proposal is to build a 90 bed ACF at the western edge of the site, which will have the effect of providing the infrastructure to support an ageing village population as well to provide a centralised location from which these services can be delivered. The need for an additional ACF in the region was not in itself a contention, since a proportion of an ageing population will require access to more intensive care facilities in the latter years of their lives. The proposal for the ACF is that it is estimated to be built in phase 4 (year 5) of the development, though the applicant noted that the precise timing would be determined by market demand. Dr Stubbs assessed the demand for high care (ACF equivalent) places. She estimated that the oversupply of places would likely continue until 2011 or 2016, by which time the proposed ACF would either have been or be about to be constructed. However, Dr Stubbs questioned whether this was the appropriate location for an ACF which is likely to meet the predicted regional demand for such a facility. She considered this size of ACF would be better located close to public transport and services, such as a hospital and ambulances.

160 Dr Stubbs considered the development would increase the projected additional demands for key services of GPs, HACC and residential aged care places by 2016. She estimated that the resulting effect of the additional demand for key services plus those arising from the development by 2016 would be as follows:

( natural increase & planned development plus Woodstock Development)

i) GP services: 7.9 + 1.3 to 1.5 = TOTAL 9.2 to 9.4 ii) HACC services: 200 + 90 to 105 = TOTAL 290 to 305 iii) ACF places: 58 + 27 to 31 = TOTAL 85 to 89 161 The major difference in the projected impact arises out the different expectations of the origin of the potential population for Woodstock Village. Dr Stubbs argued that Woodstock retirement village meets a 'desire' or 'demand' for 'resort style living' rather than meeting a need for more appropriate accommodation that would meet social goals more efficiently and sustainably.

162 Dr Stubbs estimated that some 75 % of the residents would come from outside the Kiama area and 50% from outside the region but that the principle demand would be drawn for the Sydney area. Dr Stubbs contends that as a result there would be a cumulative impact on demands for services in addition to those that are projected to occur due to a naturally aging population. In addition to the demand effect, Dr Stubbs noted that access to services could also be problematic. She noted that the applicant relies on Kiama Town Centre as the main service hub for the development whereas she contends more comprehensive shopping and medical services could only be accessed in Shellharbour and Wollongong. Aside from the costs of using taxis for transport to Shellharbour and Wollongong ($60 and $120 return, respectively), residents who were otherwise restricted to public transport, had to face journey times of 1.3 to in excess of 3 hours to access these facilities. 163 In regard to the capacity of services to withstand the future demand, Dr Stubbs assessed a range of HACC services offered by Kiama Council in order to ascertain current and future potential capacity. In summary six of the HACC services rated themselves as having capacity for growth, but that capacity was limited to small number of additional clients (typically 2-10). In particular, the HACCs services, 'Home Care Service NSW' and 'Home Maintenance' were determined from her research to be operating at near full capacity or unable to take on new clients.

164 As part of her assessment of the development, Dr Stubbs undertook a cost of living exercise to ascertain the affordability of accessing the private services proposed to be provided by the Woodstock Village. The underlying aim of this assessment was to determine whether or not residents would use the fee-for-service facilities or would rely upon HACC services. Her assessment concluded:

the cost of services, management fees and purchase price of the home itself means a reasonable proportion of residents of the development are likely to rely upon HACC services over time. ………

In this context, I consider that demand for a range of public funded services is likely to be significant, despite private service arrangement proposed by the Applicant (and to some extent because of other proposal including the ACF). 165 A principal concern of Dr Stubbs was the size of the facility. If the demand for services were to be met it would locate a regional facility in an area that is not the best location for such a facility due to its limited public transport, particularly train service.

Findings 166 Clause 2(1) of SEPP SL includes the aim to encourage housing that will: (b) make efficient use of existing infrastructure and services, ….. 167 Clause 2(2) provides that this aim is to be achieved by: …..

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes. 168 Clauses 25, 74 and 75 and 76 of SEPP SL include provisions for access to services for land adjoining land zoned primarily for urban purposes.

169 In addition the parties agreed that the social impacts of the development are a relevant consideration under s79C(1)(b) of the Act. 170 Social impacts were defined in Dr Stubbs as:

the consequences to human populations of any public or private actions that alter the ways in which people live, work play, relate to one another, organize to meet their needs and generally cope as members of society. The term also includes cultural impacts involving changes to the norms, values, and beliefs that guide and rationalize their cognition of themselves and their society (The US Inter-organizational Committee on Guidelines and Principles for Social Impact Assessment, 1994, p1). 171 Dr Stubbs and Mr Porter elaborated on the broader meaning of social impact, particularly in regard to amenity effects. Dr Stubbs noted these included practical issues that affect people, which may include external manifestations such as parking, shadowing and the like. There were also psychological issues to be considered including perceptions or feelings. Mr Porter contended that social effects need to be tangible and did not include psychological aspects, which are more intangible.

172 Dr Stubbs explained that social impacts have the potential to alter the quality of life for an individual. Tangible effects of social impacts may include a reduction in health, increased crime rates, or less parking for example. Intangible effects include emotional and psychological responses and could include fear, sense of community, friendliness. Dr Stubbs contended that these social and psychological issues are closely intertwined. 173 Dr Stubbs and Mr Porter also examined the concept of amenity. Dr Stubbs in her written evidence provided a definition of amenity that was guided by a range of planning decisions (inter alia, Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10). She noted amenity has tangible and intangible dimensions:

Tangible dimensions include the physical characteristics of an area, such as its visual or scenic qualities, the form of the natural or built environment, its urban footprint and relationship between land uses, and other physical media including pedestrian and traffic movement and way of life of the community. The latter includes the residents' subjective perception of their locality in relation to matters such as the quality of life, community identify and culture, sense of place, social relationships and community cohesion. 174 It is clear that there is interconnectedness between amenity and social impacts and effects. Indeed, in submissions both Mr Clay and Mr Tomasetti considered the two concepts collectively.

The social effect is real where significant change is imposed upon a community in the way explained by Dr Stubbs. If there is such a dramatic change in a cohesive rural village as would be effected by this development then the quality of life of the existing residents is altered. That is the social impact or effect. It is the reduction in the quality of life. 176 Similarly, Mr Tomasetti in his submissions noted:

Where there are tangible impacts, including impacts on visual amenity, as a basis for concern, then the "social impacts" will be as a result of the environmental impacts. For example, traffic noise which disturbs the sleep may cause social problems. However, there can be intangible social impacts quite apart from tangible environmental impacts. These are most often associated with the nature of the development in the particular locality…..

There is no separate "social impact" discernible from the environmental impacts of a change to the way Jamberoo will look over time if this development proceeds. Some people will like it and some will not. 177 Mr Clay and Mr Tomasetti referred to a number of cases to explain the framework in which social and amenity impacts should be considered and the weight that should be applied, particularly to the concerns of residents about impacts on their amenity.

178 Preston CJ in Telstra v Hornsby provides a useful summary on the law and principles in this regard at [189] to [196]:

Perceptions of effects on amenity and health 189 In the determination of a development application the consent authority (and this Court on a merits review appeal) must consider the effect of the proposed development on the amenity of the locality.

190 The concept of the amenity of the locality is wide and flexible. Some aspects of amenity are practical and tangible. Examples are traffic generation, noise, nuisance, appearance and way of life in the neighbourhood. Other aspects of amenity are intangible and subjective. They include the standard or class of the neighbourhood and the reasonable expectations of a neighbourhood: Broad v Brisbane City Council (1986) 59 LGRA 296 at 299. Amenity may embrace the effect of a place on the senses and the residents' perception of the locality. Knowing the use to which a particular site is, or may be, put may affect a person's perception of amenity: Broad v Brisbane City Council (1986) 59 LGRA 296 at 305. See also Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGRA 67 at 69; Novak v Woodville City Corporation (1990) 70 LGRA 233 at 236-237; and Optus Communications Pty Ltd v Corporation of the City of Kensington and Norwood [1998] SAERDC 480 (29 May 1998) at 6.

191 The very wide concept of amenity expounded in cases like Broad v Brisbane City Council applies with even greater force in a statutory scheme like the EPA Act which in s 79C(1) gives effect to the widest conceivable scope of 'likely impacts' of a proposed development, including environmental, economic and social impact, without employing the term amenity: Perry Properties Pty Ltd v Ashfield Council (No. 2) (2001) 113 LGERA 301 at 318[64].

192 In determining the nature and scope of amenity and the impact of a proposed development on it, the consent authority may consider the community responses to the proposed development as set out in the submissions made to the consent authority: s 79C(1)(d) and (e) of the EPA Act. The community responses are aspects of the public interest within the meaning of s 79C(1)(e) in securing the advancement of one of the express objects of the Act "to provide increased opportunity for public involvement and participation in environmental planning and assessment": s 5(c) of the EPA Act. See also Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 at 415; and New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[58].

193 However, in considering the community responses, an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the locality.

194 In Broad v Brisbane City Council (1986) 59 LGERA 296 at 304, de Jersey J stated:

"In determining the likely effect on a proposed development on the amenity of a neighbourhood the Local Government Court is clearly entitled to have regard to the views of residents of the area. The question is whether a resident's view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use. In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little, if any, weight. In forming his own view on the likely effect of a proposed development on the amenity of an area a judge would, I think, ordinarily prefer views from residents which find justification in specific, concrete, likely effects of the proposed development":

See also Dixon v Burwood Council (2002) 123 LGERA 253 at 264[53] and New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[61] and 317[63].

195 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EPA Act: Newton v Wyong Shire Council, unreported, LEC No. 40135 of 1982, 6 September 1983, McClelland J, pp 110, 111; Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79 at 92; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 22]; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[62]. "Mere local prejudice" or "the resistance of uninformed opinion to innovation" is not a basis for rejecting a proposal: Cecec (No. 8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251 at 263; Foreman v Sutherland Shire Council (1964) 10 LGRA 261 at 269.

196 In this case, the residents' perceptions of an adverse effect on the health and safety of residents and on the environment by exposure to RF EME emitted from the proposed base station are without justification in objective, observable, likely consequences. The claimed effects are unsubstantiated and without reasonable evidentiary foundation. 179 Unlike the Telstra case, while not dealing with health concerns, the residents' perceptions of adverse amenity impacts are supported by expert evidence and by facts. The proposal will increase the population and demographics of older people by a significant amount relative to the exiting population. The proposal will increase the size of the village and change its visual setting. Woodstock will be a new village which will be integrated only to limited varying degrees with the existing village. The proposal will increase the demand on services in the longer term. These considerations should be given weight and are assessed below.

180 We accept that for a number of residents the cumulative effect of the changes resulting from the development would effect their quality of life. This does not diminish the genuine suppport for the proposal from a number of residents or their opinion that the development would fulfill a real need for appropriate seniors accommodation in the village in which they have lived their lives. We accept that there is a demand and a need for appropriate aged care accommodation within the village but we do not accept that this justifies a development of the size and scale proposed. Demographic impacts 181 In terms of the demographic impacts, it is clear the development will result in a significant increase in population and an upward adjustment to the average age in the village. It was not evident precisely how the increase in population and age of the new incoming residents would materially affect the amenity of the existing village. However, it is likely to alrer the social ambiance of Jamberoo. It is clear that the age distributions in the community would be skewed with around 50 % of the population being over 55 years of age by 2016 as compared to the projected average of 28.5 % for NSW.

182 Mr Porter put forward evidence that the addition of a large number of people with a significant amount of recreation time would contribute positively to local clubs and societies as well as provide useful voluntary help within the community. He contended that this is the experience of the Tea Gardens community, he estimated that the increased population will result in an additional $3 million dollars per year being spent in the community, which will provide a substantial boost to the local economy. With regard to the question demographics, Mr Tomasetti submits that:

To the extent that there is a change in or "skewing of the demographic" the argument may be discriminatory against the aged. There is no evidence that merely by reason of a person's age that person cannot perform a significant contributory role in the community. 183 We accept that the increase in population will bring many positive social and economic benefits to the community. However, we also recognise that the percentage increase in relation to the existing population may have adverse amenity impacts for some members of the community who choose to live in a small village which will become a larger village. The age of demographics of the population whether this be a large number of 55+ or of pre schoolers, also has the potential to change the dynamics of the community. However, on balance there are limited negative tangible demographic impacts that will arise from the proposal that would cause the development to be refused soley on this basis.

Size of the development 184 The development will significantly extend the size of the village, both in area and the number of houses. Residents were concerned that this would affect their amenity and sense of place. A number of submissions stated that they lived in Jamberoo because it is a small village in a rural setting. As discussed earlier in the Judgement, the setting of Jamberoo will be changed by the development and it will have an adverse visual impact. These are tangible impacts, which will impact on the amenity for some residents.

Integration 185 Based on the evidence of Mr Porter regarding the Crighton Village in Tea Gardens, it is highly likely that some of the residents would become closely engaged with the current Jamberoo village and its social, cultural and recreational activities. However, the design, distant location and distinctiveness of the development and its internal operations are likely to lead to a large degree of separation between the two villages. These effects are real and will be tangible in the physical and practical sense and will in themselves amount to a social impact. The evidence from the residents indicated that the current village of Jamberoo is close knit and cohesive community. We are satisfied that this development will not add to this cohesion, since its design and structure and intent will do exactly the opposite. As noted by Mr Clay in his submissions:

If there is such a dramatic change in a cohesive rural village as would be effected by this development then the quality of life of the existing residents is altered. That is the social impact or effect. It is the reduction in the quality of life. 186 Further, the design and operation of the village is such that it is likely to develop a strong sense of internal community and cohesion. As noted by Dr Stubbs, this is a good outcome for the village but it does not necessarily foster integration with the exisiting village of Jamberoo.

187 The physical isolation of Woodstock village will operate in both directions. While it will not be a "gated" community in the sense that Jamberoo residents will be free to walk around the proposed complex, the distance and lack of public services to the village means that it is highly unlikely that significant interaction of this type will occur. In either case, it is likely that movements to and from the proposed Woodstock Village will be dominated by vehicular transport. 188 Further, it is likely that older, more infirm residents of the Woodstock Village will have to rely of taxis or the generosity of their neighbours to access the services at Jamberoo or Kiama and beyond, if travel times do not coincide with twice daily on site bus service. This may have the effect of enhancing the internal community at Woodstock through the fostering of relationships, but it could also lead to a sense of isolation for some residents. Thus, while it is likely that some members of Woodstock will become involved in Jamberoo's social, recreational and cultural activities, we are satisfied that the limited access will emphasise its separateness and distinctive nature and in this sense the development will have a social impact and has the potential to create two separate villages of roughly equal size.

Transport and access 189 Another aspect relating to the social amenity of the development was the provision of transport to access specialised services in the village and beyond, such as at Kiama, Shell Harbour and Wollongong. While it is clear the proposal meets the minimum requirement for the provision of transport under cl 75(1) of SEPP SL, there remains an issue for satisfactory pedestrian access to and from the development.

190 The proposed development is some 0.9 to 1.7 km from the village of Jamberoo and the pedestrian footpaths between the two exceed the gradients in cl 25 (2) (a) of SEPP SL. Consequently, it is likely that that movement between the two locations will be primarily by vehicles, which may be a significant disadvantage for persons who are unable to drive. Thus, for non-driving residents of the old and new villages, the development may well feel isolated and reduce opportunities for social interaction between the two villages. This would represent an amenity impact.

191 Preston CJ came to a similar conclusion in Australian Lifestyle Corporation at [104] when he noted:

However, provision of motorised transport to access the services and facilities of urban areas is only part of the access that is desirable. There ought to be both types of access - access by motorised transport as well as pedestrian access. To provide only access by motorised transport is sub-optimal; it reduces choice, flexibility in timing of access, the opportunity to exercise whilst accessing the service centres, and the opportunity for social interaction whilst walking. 192 Dr Stubbs provided significant evidence that the costs and or time involved in accessing the more distant services available in the larger urban centres of the Illawarra by public transport would be problematic. Indeed, for some residents it is likely to be prohibitive.

193 During the hearing a letter from the local public bus service was tendered which indicated that the public bus service could be extended into Woodstock village. We have given this letter little weight beyond that it indicated that the public bus service could be extended at some later stage. However, this would depend on factors such as the width of the internal roads to accommodate the public bus, the time taken to traverse the internal roads due to the 10km speed limit and the staging of the development.

194 Restrictions of access to services and limited transport choices is a sub-optimal situation for older and less self-reliant persons, some of whom are likely to be inhabitants of the proposed Woodstock Village. 195 While we accept that some medical services will be provided on site, a great deal more services will be required including inter alia, specialists, retail, commercial and recreational that will necessitate travel beyond the Jamberoo village. Notwithstanding literal compliance with SEPP SL, access to these services may be restricted due to the location of the Woodstock village away from public transport and the difficulties and cost in accessing Kiama, Shell Harbour or Wollongong where a larger range of facilities are located.

Adequacy of services 196 Aside from the issue of transport access to services beyond Jamberoo village (discussed above), a range of matters relating to the potential future impact of the proposal on the demand for medical services, HACC services, and the likely affordability of equivalent services provided on a fee for service provision were raised by the social planners.

197 It was contended by Mr Porter that the impact on services would be neglible because most of the population (75-90 %) for the new village would be drawn from the Illawara region. As a result there would only be a minor impact on services and any impact that did occur would be spread over a number of years as the development proceeded. Dr Stubbs disgreed and estimated that 75 % would probably come from outside Kiama and 50 % from outside the region, with the bulk being drawn from the Sydney area. Part of her argument for the large number of people likley to come from the Sydney region was that the Woodstock development was generating a demand rather than fufilling the needs of the local population (estimated by Dr Stubbs to be 50 households from Jamberoo village). 198 Mr Porter relied frequently upon the experience of the Tea Gardens developmnet as a corollary for the Woodstock proposal, particularly in terms of resident integration into the local community. Analysis of this development by BBC Planners, indicates that contrary to the oral evidence given by Mr Porter, that 40 % of the residents come from Sydney, Central Coast and greater NSW; 20 % from the surrounding region (the Hunter) and 25 % from the local township (Tea Gardens/ Hawks Nest). This data parallels broadly those modelled by Dr Stubbs for the projected Woodstock development. The effect of such an in-migration on services was calculated by Dr Stubbs and shown to be significant, particulalry in terms of impacts on HACC services. In response to the projected increased demand for HACC services, Mr Porter argued that the residents of the proposed Woodstock village would make limited use of these services and that there would be minimal impact as a result as: o Most services are available on-site; o Housing is specifically designed to meet their needs and requires minimal maintenance or up keep; and o Social isolation (the source of many of the support needs among people living dispersed in the community) is reduced or eliminated by virtue of the social and recreational options available. 199 However, evidence provided by Dr Stubbs revealed that the total costs associated with the purchase price, management and service fees would be high, relative to the forecast median weekly income of residents. Consequently, this would mean many of the residents may not be able to afford the development's private services and would default to reliance on the publicly funded equivalent. In addition to these costs, it is also necessary to consider the aforementioned expense of accessing essential medical services that cannot be provided on site through a GP. If these have to be accessed via taxis the costs may be as much as $120 return to Wollongong. Such costs could be prohibitively expensive, particularly for residents with limited financial resources. Collectively, these charges would be onerous for residents and in some cases unaffordable meaning that some may not be able to access or purchase essential services.

200 Examples of research put forward by Mr Porter that showed recently built residential villages made minimal use of HACCs services may be erroneous because, as acknowledged by both social planning experts, the uptake of such services is likely to be negligible in the immediate term but will accrue over time as residents age. 201 Thus, while we accept that the development is likely to have limited impact in the near term on a wide range of services, it is very likely that this will increase over time.

202 The demand over time on HACCs services will place an incremental strain on HACCs services, in an area that is already undergoing increased population growth of older people. Watts C and Tuor C came to a similar conclusion in Flower & Samios Pty Limited v Shoalhaven City Council [2007] NSWLEC 372 at [129]:

The increased demand would be incremental and provide greater opportunity for HACCs services to apply for funding. The needs of the development would not be met solely by HACCs services but would also rely on private providers. However, it would place a demand on HACCs, which are stretched and given the demographic predictions for the Shoalhaven LGA are likely to remain so. 203 We note that the proposal includes some estimates of costs for the services. In considering the accessibility of services it is necessary to contemplate cl 74(1) of SEPP SL and what constitutes 'reasonable access'. The costs of providing a full meal service from the ACF (assuming full operation) was estimated at 55 % of the single age pension. The costs for a full laundry service, also operating from the proposed ACF, was estimated to be 8 % of the single age pension.

204 In Flower & Samios, the Commissioners were required to consider a previous version of the seniors living policy, their consideration of Clause 12(2A) of SEPP5 has direct parallels with respect to Clause 74 of SEPP SL. In Flower & Samios, Watts C and Tuor C found that at [131]:

Clause 12(2A) of SEPP5 places an obligation on the consent authority to be satisfied by 'written evidence' that adequate access to services is available. We consider that 'adequate access' includes the concept that services are provided by the facility or exist in the area, arrangements can be made to access the services and that this will be at a reasonable cost. 205 The same principles applied in Flower & Samios are relevant to this development proposal.

Traffic 206 The only remaining issue in dispute between Mr Waugh and Mr Millett was whether a third entry off Jamberoo Mountain Road was required due to safety concerns. The entry is near the western part of the site and would provide access primarily to the ACF which is to be provided in Phase 4 of the development. The entry is outside the current town zone with a speed limit of 80km/hour. It is on the crest of a hill, and while there are acceptable sight lines for cars approaching from the west, Mr Millet was concerned that cars exiting the site would be travelling a speed below the limit and not be visible as they dropped off the crest of the hill. Both he and Mr Waugh agreed that these safety concerns could be mitigated by proposed works to the intersection, including the construction of a BAR intersection and lowering the crest of the hill to reduce its curve.

207 During the hearing Mr Waugh provided drawings of the proposed intersection works which Mr Millett agreed would be acceptable, in principle to the RTA. 208 However, Mr Millet maintained his concern that while the proposed changes would minimise safety concerns these would not be eliminated all together and that intersections onto main roads always pose an increased risk. He referred to the RTA Guide to Traffic Generating Development (RTA Guide).

209 Mr Millet considered it more appropriate for the traffic expected to use the entrance to travel though the development and use an alternate exit. He estimated the additional traffic to be up to 20 v/h at peak of which one vehicle is likely to be a service vehicle. He did not consider that such a small increase in traffic would adversely impact on the development. Mr Waugh agreed with the traffic estimate but disagreed that this should travel through the development. He considered the introduction of additional traffic posed a greater safety risk to the residents than that posed by cars exiting the development. Findings 210 We accept Mr Millet's evidence. While the risk to vehicles can be reduced there is still a risk while the 80km speed limit remains, particularly as tourists heavily use this area on the weekend. There is no certainty that the speed limit would be reduced to 50km once the development is constructed. The consequences of an accident in a high speed environment are greater than those when cars are travelling at significantly lower speeds such as the 10km/h indicated as being the speed limit within the development. The streets in the development are designed for a significantly greater number of cars than are likely to be generated by the development and the additional cars generated by the ACF are not likely to have a perceptible impact.

211 We note that the ACF is a later stage of the development and its construction is contingent on the success of the other stages. While we find that the additional exit is not required currently, if the application were to be approved without the third exit, it would be open to the applicant to apply at a later stage when revised information on traffic numbers, speed limits and users of the development are available. Conclusion 212 For the reasons in this Judgment we have concluded that adequate regard has not been given to the desirable elements of the location's current character so that new buildings contribute to the quality and identity of the area. In particular we find that the proposal does not provide an appropriate transition between the urban and rural character of the locality by providing adequate setbacks and separation of the houses along Jamberoo Mountain Road. This does not maintain adequately the rural setting of the village and results in an unacceptable visual impact. In addition, the proposal will result in adverse social and amenity impacts due to its size and location and access to services. For these reasons the application must fail. Orders 213 The Orders of the Court are: 1) The appeal is dismissed.

2. The development application (DA10.2005.418.1) for a development under State Environmental Planning Policy - Seniors Living 2004 located on the corner of Churchill Street and Jamberoo Mountain Road, Jamberoo is refused.

3. The exhibits except Exhibits 1, 2, U and V are returned.

      Annelise Tuor Dr Mark Taylor
      Commissioner of the Court Commissioner of the Court

24/12/2008 - amend paragraph number - Paragraph(s) 185 24/12/2008 - correct parragraph number - Paragraph(s) 185 11/02/2009 - spelling - Paragraph(s) 72

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